Gately v. Com. of Mass.

• Decision Date: 30 December 1992
• Docket Number: Civ. A. No. 92-13018-MA.
• Citation: 811 F. Supp. 26
• Parties: Daniel J. GATELY, et al. Plaintiffs, v. COMMONWEALTH OF MASSACHUSETTS, Thomas Rapone, Secretary of Public Safety, and Francis McCauley, Executive Director, Massachusetts State Board of Retirement, Defendants.
• Court: U.S. District Court — District of Massachusetts

811 F. Supp. 26

Daniel J. GATELY, et al. Plaintiffs, v. COMMONWEALTH OF MASSACHUSETTS, Thomas Rapone, Secretary of Public Safety, and Francis McCauley, Executive Director, Massachusetts State Board of Retirement, Defendants.

Civ. A. No. 92-13018-MA.

United States District Court, D. Massachusetts.

December 30, 1992.

James B. Conroy, and Katherine P. Parks, Donnelly, Conroy & Gelhaar, Boston, MA, for plaintiffs.

Thomas A. Barnico, Attorney General's Office, and Deborah S. Steenland, Asst. Atty. Gen., Boston, MA, for defendants.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

This action is brought by officers of the former Metropolitan District Commission Police and Registry of Motor Vehicles Law Enforcement Division. Pursuant to chapter 412 of the Massachusetts Acts of 1991, those forces, along with the Capitol Police, are to be merged with the Division of State Police to form the consolidated Department of State Police. See 1991 Mass.Acts ch. 412, § 1. This consolidation began last July. Section 122 of chapter 412 mandates that all members of the consolidated Department of State Police who will have reached their fifty-fifth birthday on or before December 31, 1992 shall retire by that date. The plaintiffs allege that this requirement contravenes the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and request injunctive relief.

The factual background of this case is as follows. Prior to the enactment of chapter 412, the four law enforcement agencies were operated separately. Applicable Massachusetts statutes provided that Metropolitan and Registry officers were required to retire at age 65. See Mass.Gen.L. ch. 32, § 69(d) (repealed by ch. 412, effective July 1, 1992). State Police officers were compelled to retire at age 50. See Mass.Gen.L. ch. 32, § 26(3)(a); Mahoney v. Trabucco, 738 F.2d 35 (1st Cir.) (applying the rational relation standard to uphold a mandatory retirement age of 50 for the State Police), cert. denied, 469 U.S. 1036, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984). Chapter 412 mandates retirement at age 55 across the board, thereby adding five years to the employment expectations of former State Police officers, but lopping ten years off those of the former Registry and Metropolitan officers.

The plaintiffs allege that this mandate violates the ADEA, which makes it unlawful for employers to "discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The defendants respond by arguing that this court's hands are tied by Mahoney v. Trabucco, 738 F.2d 35 (1st Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984), and EEOC v. Trabucco, 791 F.2d 1 (1st Cir. 1986), in which the First Circuit rejected challenges under the ADEA to the mandatory retirement of pre-consolidation State Police officers at the age of 50 on the grounds that being younger than 50 was a bona fide occupational qualification ("BFOQ") for that occupation. Because the retirement deadline, December 31, 1992, is imminent, and because the defendants assert that officers age 55 or older who do not retire voluntarily on December 31 will become ineligible for the 80% pension provided in chapter 412, section 122, the plaintiffs request injunctive relief.

In order for a preliminary injunction to issue, the plaintiffs must meet this circuit's well-established four-part standard:

1) that plaintiff will suffer irreparable injury if the injunction is not granted; 2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; 3) that plaintiff has exhibited a likelihood of success on the merits; and 4) that the public interest will not be adversely affected by the granting of the injunction.

Asseo v. Centro Medico Del Turabo, Inc., 900 F.2d 445, 454 (1st Cir.1990) (citing Women's Community Health Ctr., Inc. v. Cohen, 477 F.Supp. 542, 544 (D.Me.1979), quoted in Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981)). Because factors one, two, and four are closely interrelated in this case, they will be dealt with first.

1. Irreparable Injury

Plaintiffs' claims of irreparable injury focus mainly upon the loss of status and satisfaction in their work they will suffer if they are forced into early retirement. This is harm for which money does not adequately compensate. As the defendants correctly note, reliance on this factor might mitigate in favor of an injunction in every employment discharge case. However, given the balancing nature of the second factor in the preliminary injunction test, this is not necessarily a drawback.

The oldest plaintiffs would suffer the most if forced to retire: in the event they ultimately prevail and are entitled to be reinstated, that event may occur after they have surpassed the new retirement age, whatever it is determined to be. Thus, depending upon the length of the litigation, reinstatement may not be an available remedy for some plaintiffs. This consideration mitigates in favor of granting injunctive relief. Cf., e.g., EEOC v. Anchor Hocking Corp., 666 F.2d 1037, 1044 (6th Cir.1981) (holding that plaintiff failed to make required showing of irreparable harm where reinstatement was available remedy). In addition, time spent away from the force will impair the plaintiffs' ability to stay in touch with new developments, especially during this time of transition, thus impairing their effectiveness and that of the State Police as a whole if and when they are ultimately reinstated.

Although plaintiffs forced to retire would be eligible for a pension equal to 80% of their regular compensation, and might be eligible for unemployment benefits, most of them would probably experience a drop in income. This, however, is not considered an irreparable injury warranting injunctive relief. See Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974).

2. Balancing of Harms

Although the plaintiffs' claims of irreparable injury are not overwhelming, the harm to them of denying an injunction does seem considerably to outweigh that to the defendants of granting one. Colonel Charles F. Henderson, the Executive and Operational Head of the Department of State Police and the officer in charge of the consolidation, attests that "an order preventing the timely mandatory retirement of officers 55 years of age and older would obstruct and delay the planned implementation of a staffing pattern as authorized by Chapter 412." Affidavit of Colonel Charles F. Henderson, ¶ 8. However, as Colonel Henderson subsequently notes, only thirty of the plaintiffs in this action are currently fifty-five or older. Id., ¶ 13. Surely it will not drastically impair "the morale of the rank and file membership," id., ¶ 8, to continue them in their current positions during the course of this litigation. It is clear that whether an injunction is granted or not, one side will be greatly inconvenienced, but given that the Commonwealth has long employed Metropolitan, Capitol, and Registry officers between 55 and 65 years of age, some of whom had duties indistinguishable from those of the State Police, see Affidavit of Salvatore Colozzi, ¶ 3, it does not seem unduly burdensome to ask that they be employed a bit longer.

Moreover, it is in the interests of all parties that the consolidated State Police experience as little dislocation as possible during the course of this litigation. The plaintiffs' argument that the potential reinstatement of these officers at some point in the future would cause them, their colleagues, and those who have assumed their commands considerably more disruption than their removal in the event that the defendants ultimately prevail seems convincing.

3. The Public Interest

While the public has a compelling interest in the continued efficient provision of law enforcement services, it also has a compelling interest in eradicating age discrimination. It seems unlikely that the presence of thirty extra officers on our streets, albeit officers in their late fifties and early sixties, will appreciably compromise the public safety. The unceremonious sacking of thirty officers who were deemed capable of working until age 65 when they wore the uniforms of the Metropolitan and Registry Police, however, would seem to call into question our commitment to generational fairness.

4. Likelihood of Success on the Merits

The question of the plaintiffs' likelihood of success on the merits is a close and complicated one critical to this inquiry. See Lancor v. Lebanon Housing Authority, 760 F.2d 361, 362 (1st Cir.1985) (stating that the First Circuit regards the probability-of-success factor as critical). A brief survey of the substantive law is therefore in order.

Although the ADEA prohibits employers from firing or otherwise discriminating against employees because of their age, the Act includes a narrow exception. The BFOQ exception to the ADEA provides that it shall not be unlawful for an employer "to take any action otherwise prohibited under ... this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age...." 29 U.S.C. § 623(f)(1).

The defendants argue that this case is controlled by a previous First Circuit case which presented almost exactly the same issues, Mahoney v. Trabucco, 738 F.2d 35 (1st Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984). In that case, the First Circuit rejected an ADEA challenge to a mandatory retirement age of 50 for preconsolidation State Police officers, accepting the Commonwealth's argument that being under age 50 was a BFOQ for that occupation.¹ In upholding the mandatory retirement statute, the First Circuit applied what it called the "general...