Hahn v. City of Buffalo, CIV-80-874C

Decision Date30 October 1984
Docket NumberCIV-80-796C,CIV-80-797C and CIV-80-1184C.,No. CIV-80-874C,CIV-80-874C
Citation596 F. Supp. 939
PartiesSuzanne M. HAHN, Patricia J. Koch, Mary Catherine O'Sullivan, Diane M. Smith, Sandra C. Walker, Linda D. Craig, Josephine M. Hodge, Shirley E. Bowers, Plaintiffs, and Equal Employment Opportunity Commission, et al., Plaintiffs-Intervenors, v. The CITY OF BUFFALO, a Municipal Corporation; James B. Cunningham, in his capacity as Police Commissioner, City of Buffalo Police Department; Anthony J. Collucci, Paschal C. Rubino, and Michael L. Broderick, in their capacities as Commissioners, City of Buffalo Civil Service; and The New York State Dept. of Civil Service, Defendants. Thomas J. DOMINO, Plaintiff, v. John V. CLARK, New York State Department of Civil Service; Victor S. Bahou, in his capacity as President of the New York State Civil Service Commission and Head of the New York State Department of Civil Service; James G. McFarland, in his capacity as Commissioner of the New York State Civil Service Commission; and Josephine Gambino, in her capacity as Commissioner of the New York Civil Service Commission, Defendants. Kenneth A. KUCZKA, Plaintiff, v. John V. CLARK, New York State Department of Civil Service; Victor S. Bahou, in his capacity as President of the New York State Civil Service Commission and as Head of the New York State Department of Civil Service; James G. McFarland, in his capacity as Commissioner of the New York State Civil Service Commission; and Josephine Gambino, in her capacity as Commissioner of the New York State Civil Service Commission, Defendants. David R. KARNEY, Plaintiff, v. John V. CLARK, New York State Department of Civil Service; Victor S. Bahou, as President of the New York State Civil Service Commission and as Head of the New York State Department of Civil Service; James G. McFarland, as a Commissioner of the New York State Civil Service Commission; and Josephine L. Gambino, as a Commissioner of the New York State Civil Service Commission, and Kenneth J. Braun, as Sheriff of Erie County, Defendants.
CourtU.S. District Court — Western District of New York

William A. Price, Buffalo, N.Y., for plaintiffs Hahn, Koch, O'Sullivan, Smith, Walker, Craig, Hodge, Bowers and plaintiffs-intervenors Brozyna, Nowaldy, Tobias, Shaw, Elliott Williams, Willis, Richter, Aston, Berry, Neiman, Bienko, Rindfleisch, Farley, Lema, Michel, Delano, Kerr, James, Betz, DeJesus, Harris, Wagstaff, Hokes, Gladden, Jordan, McDonald, Moore, Abdallah, Mack, Cusella, Shea, Tutuska, Arcara, Malaney, Mullen, Jones, Minor, Feaster, Hutcherson, Motley, Stallworth, Richardson, Ostrowski, Polakiewicz, Moulin, Collier, O'Sullivan and Witaszek.

Cohen, Swados, Wright, Hanifin, Bradford & Brett, Buffalo, N.Y. (Barbara R. Heck James, Buffalo, N.Y., of counsel), for plaintiffs-intervenors Luxenberg, Decker, Wolf, Klipfel, Davis, Emery Williams, M. Schmidt, B. Schmidt, Cotter, Lorenz and Wipperman (Cheryl S. Fisher, Buffalo, N.Y., of counsel), for plaintiffs-intervenors Wehner and McCabe; for plaintiff Domino in CIV-80-796C; and for plaintiff Kuczka in CIV-80-797.

Saperston, Day, Lustig, Gallick, Kirschner & Gaglione, Buffalo, N.Y. (Richard A. Clack, Buffalo, N.Y. of counsel), for plaintiffs-intervenors Hoy, Mikulski and Moore.

Edward A. Pace, Buffalo, N.Y., for plaintiffs-intervenors Clark, Cooper and Quinn.

William R. Hites, Buffalo, N.Y., for plaintiff-intervenor McMahon.

Dubin & Sommerstein, Buffalo, N.Y. (Edwin P. Hunter, Buffalo, N.Y., of counsel), for plaintiffs-intervenors Giacchino and Shea and for plaintiff-intervenor Karney in CIV-80-1184C.

Sargent & Repka, Buffalo, N.Y. (Nicholas J. Sargent, Buffalo, N.Y., of counsel), for plaintiffs-intervenors Dillon and Leone.

Garvey, Magner & Love, Buffalo, N.Y. (Jeffrey L. Taylor, Buffalo, N.Y., of counsel), for plaintiff-intervenor Breitnauer.

E.E.O.C., Buffalo, N.Y. (Saul Krenzel, New York City, of counsel), for plaintiff-intervenor E.E.O.C.

Robert Abrams, Atty. Gen., State of N.Y. (Douglas S. Cream, Asst. N.Y. State Atty. Gen., Buffalo, N.Y., of counsel), for defendant State of N.Y.

John Naples, Corp. Counsel, Buffalo, N.Y. (Peter J. Gerard, Asst. Corp. Counsel, Buffalo, N.Y., of counsel), for defendants City of Buffalo, Cunningham, Collucci, Rubino and Broderick.

Eugene F. Pigott, Jr., Erie County Atty., Buffalo, N.Y. (Robert E. Casey, Asst. County Atty., Buffalo, N.Y., of counsel), for defendant Braun in CIV-80-1184C and for defendant Clark in CIV-80-796C, CIV-80-797C, and CIV-80-1184C.

CURTIN, Chief Judge.

This case involves age discrimination in the hiring of police officers in Buffalo, New York, and other municipalities in the Buffalo area. Section 58(1)(a) of the New York State Civil Service Law provides that no person who is more than 29 years of age shall be eligible for appointment as a police officer.1

The plaintiffs are individuals over the age of 29 whose age disqualifies them from employment in various police departments. Some of the plaintiffs are over 40 years old. These plaintiffs have standing to claim that section 58(1)(a) violates their rights under section 4(a)(1) of the Age Discrimination in Employment Act ADEA, 29 U.S.C. § 623(a)(1).2 The remaining plaintiffs are over age 29 but less than age 40. The plaintiffs between the ages of 29 and 40 claim that section 58(1)(a) denies them the equal protection of the laws. Plaintiffs under the age of 40 do not have standing to assert claims under the ADEA, because the act applies only to persons between the ages of 40 and 70.3 The Equal Employment Opportunity Commission EEOC has intervened on behalf of those plaintiffs asserting claims under the ADEA.

The United States Court of Appeals for the Second Circuit has recently held that the presence of a one-house veto clause in the Reorganization Act of 1977, 5 U.S.C. § 901 et seq., invalidates the authority of the EEOC to enforce the ADEA. Equal Employment Opportunity Commission v. CBS, Inc., 743 F.2d 969 (2d Cir.1984). To avoid unnecessary disruption of the many enforcement cases now pending, the court stayed its judgment until December 31, 1984, so that Congress could correct the defect in the statute. Absent such correction, the complaint in that case would be dismissed.

The decision in EEOC v. CBS would not require dismissal of the complaint in the present case. Here, three of the original plaintiffs are over 40 years of age. The EEOC participated as an intervenor. This case is still viable without the participation of the EEOC, unlike EEOC v. CBS, in which the EEOC was the sole plaintiff. In any event, Congress has passed, and the President has signed into law, H.R. 6225, which has remedied the deficiency in the EEOC's authority to enforce the ADEA.

Critical to the claim under the ADEA is the issue of whether a maximum hiring age of less than 40 is a bona fide occupational qualification BFOQ reasonably necessary for the operation of municipal police departments. If age less than 40 is a BFOQ as defined in section 4(f)(1) of the ADEA, 29 U.S.C. § 623(f)(1),4 then the continued enforcement of section 58(1)(a) does not violate the ADEA.

The court has heard the trial testimony of experts in the fields of medicine and law enforcement. The court's decision is therefore based upon a fully developed record of testimony and exhibits. Upon review of this record and the applicable law, I conclude that the enforcement of section 58(1)(a) does not deny plaintiffs the equal protection of the laws. However, I find that section 58(1)(a) violates the rights to which the plaintiffs over age 40 are entitled under the ADEA.

The court has granted preliminary relief to the eight original plaintiffs in this case. This relief has been extended to the more than 70 persons who have since intervened as plaintiffs. Under the terms of the orders granting such relief, the defendants have been enjoined from enforcing section 58(1)(a). Accordingly, the intervenors who have written the competitive examinations necessary to become police officers have been placed upon the eligibility lists from which officers are appointed. Some have been appointed and have taken jobs as police officers in spite of not meeting the age requirement.

In another procedural matter, the court has consolidated the cases of Domino v. Clark, CIV-80-796C; Kuczka v. Clark, CIV-80-797C; and Karney v. Clark, CIV-80-1184C, with the present action.

The following are the court's findings of fact and conclusions of law.

I. EQUAL PROTECTION

Section 58(1)(a) concerns eligibility for government employment and discriminates against persons over age 29. Age classifications of this sort are not "suspect," and the right to government employment has been held not to be fundamental. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). If this case involved either a suspect classification or a fundamental right, then the court would be required to analyze section 58(1)(a) under the "strict scrutiny" standard, a difficult test which few statutes can pass. Bernal v. Fainter, ___ U.S. ___, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984). However, the applicable legal standard in this case is a more relaxed standard which requires only that the statute be rationally related to a legitimate state interest. Massachusetts Board of Retirement v. Murgia, supra.

Courts are reluctant to overturn state statutes in cases where suspect classifications and fundamental rights are not involved and where the "rationality" test applies. Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979). The evidence in the present case clearly shows that the facts upon which the age classification is apparently based could reasonably be conceived to be true. I also find that the statute is reasonably related to the legitimate goal of maintaining a safe and efficient police department. I must therefore conclude that section 58(1)(a) does not violate the equal protection clause.

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