Johnson v. Lefkowitz

• Decision Date: 14 December 1977
• Docket Number: D,No. 381,381
• Citation: 566 F.2d 866
• Parties: 16 Fair Empl.Prac.Cas. 239, 15 Empl. Prac. Dec. P 7996 Carol C. JOHNSON, Plaintiff-Appellant, v. Louis J. LEFKOWITZ, Individually and as New York State Attorney General and as head of the New York State Law Department which contains the Real Property Bureau and Victor S. Bahou, Erse H. Poston and Josephine L. Gambino, as respectively, President, Member and Member of the New York State Civil Service Commission and Arthur Levitt, as New York State Comptroller who as such is Administrative Head of the New York State Employee's Retirement System, Defendants-Appellees. ocket 77-7282.
• Court: U.S. Court of Appeals — Second Circuit

Page 866

566 F.2d 866

16 Fair Empl.Prac.Cas. 239, 15 Empl. Prac.

Dec. P 7996

Carol C. JOHNSON, Plaintiff-Appellant, v. Louis J. LEFKOWITZ, Individually and as New York State

Attorney General and as head of the New York State Law

Department which contains the Real Property Bureau and

Victor S. Bahou, Erse H. Poston and Josephine L. Gambino, as

respectively, President, Member and Member of the New York

State Civil Service Commission and Arthur Levitt, as New

York State Comptroller who as such is Administrative Head of

the New York State Employee's Retirement System, Defendants-Appellees.

No. 381, Docket 77-7282.

United States Court of Appeals, Second Circuit.

Argued Dec. 5, 1977.

Decided Dec. 14, 1977.

Carol C. Johnson, pro se.

Lillian Z. Cohen, Asst. Atty. Gen., State of New York, and Samuel Hirshowitz, First Asst. Atty. Gen., New York City, of counsel, for defendants-appellees.

Before KAUFMAN, Chief Judge, and ANDERSON and TIMBERS, Circuit Judges.

KAUFMAN, Chief Judge:

This appeal brings into question the constitutionality of § 70 of the New York State Retirement and Social Security Law which provides for the mandatory retirement of tenured civil service employees at age 70. Carol Johnson, whose position as Senior Attorney in the State Real Property Bureau was terminated pursuant to that provision, seeks its invalidation, claiming that, on its face and as applied, § 70 contravenes the due process and equal protection clauses. We are convinced, however, that the retirement provisions are a reasonable expression of state policy and clearly meet constitutional standards. Accordingly, we affirm Judge Goettel's dismissal of Johnson's complaint.

I.

Johnson's involvement with the New York State civil service began in 1962, when he first applied for the position of Senior Attorney Realty in the Real Property Bureau of the New York State Law Department. Following his successful completion of the required competitive civil service examination, Johnson was interviewed for and given the post. He reported for work on January 10, 1963 and, according to his complaint, his primary duties consisted of reading title abstracts to determine the ownership of property taken by the State for roadways, parks and recreation centers. Johnson remained in this position for over ten years, and his performance was satisfactory throughout. In fact, when he again took the civil service examination in 1968 to qualify for a transfer from Albany to New York City, he received a perfect score.

On June 21, 1973, Johnson turned seventy. He was then informed that, pursuant to § 70 of the Retirement Law, ¹ he would be mandatorily retired at the end of the month. In pertinent part, § 70 provides that:

Any member who attains age seventy shall be retired on the first day of the calendar month next succeeding such event. . . .

§ 70(c) further qualifies this provision by authorizing the State Civil Commission to "continue" an employee until the age of 78 in incremental periods not to exceed two years. To be eligible for such an extension, the civil servant must receive the approval of the head of his department, be certified as fit, and demonstrate that his retention in service would be advantageous because of his expert knowledge and special qualifications. The employment under § 70(c) of any retired member may be terminated upon sixty days notice.

Pursuant to the provisions of § 70(c), Johnson successfully applied for two extensions, and was granted continuances of, respectively, six and three months. His efforts at obtaining a third were unavailing, however, and his employment was terminated on March 31, 1974.

Exactly three years later, on March 31, 1977, Johnson commenced this action seeking a declaration that § 70 is unconstitutional on its face and as applied. Johnson's complaint alleged, in exhaustive fashion, that the statutory provision abridges the fundamental right to work; permits the termination of a tenured employee without procedural due process; creates an irrebuttable presumption based upon age; results in a denial of equal protection; impairs the contractual relationship of tenured civil service employees; constitutes cruel and unusual punishment; and permits an unconstitutional delegation of authority to those who must administer it. Johnson also claimed that the action of the Attorney General in refusing to grant him a further extension of his employment was arbitrary, and contrary to the spirit of § 70(c). Beyond a declaration of his rights, Johnson sought an order reinstating him to his position, awarding him back pay and other accrued benefits.

The State moved to dismiss the complaint and, on May 16, 1977, Judge Goettel granted its motion. He held that the counts alleging constitutional violations failed to state claims upon which relief could be granted, and that the remaining counts, attacking the Attorney General's refusal to continue Johnson in service, did not constitute issues conferring federal jurisdiction. This appeal followed.

II.

At the heart of Johnson's complaint is his claim that § 70 violates the equal protection clause and creates an impermissible, irrebuttable presumption. Yet, these very contentions have been rejected in a variety of contexts by virtually every court considering them, including the Supreme Court and this court. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (mandatory retirement of state police officers at age fifty); McIlvaine v. Pennsylvania, 415 U.S. 986, 94 S.Ct. 1583, 39 L.Ed.2d 884 (1974) (mandatory retirement of state police officers at age sixty); Rubino v. Ghezzi, 512 F.2d 431 (2d Cir.), cert. denied, 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122 (1975) (mandatory retirement of state court judges at age 70); Weisbrod v. Lynn, 383 F.Supp. 933 (D.D.C.1974), aff'd 420 U.S. 940, 95 S.Ct. 1319, 43 L.Ed.2d 420 (1975) (mandatory retirement of federal civil service employees at age seventy).

These cases uniformly instruct that age is not a suspect classification requiring strict scrutiny of the state's scheme of age restrictions. See also Weiss v. Walsh, 324 F.Supp. 75 (S.D.N.Y.1971), aff'd, 461 F.2d 846 (2d Cir. 1972), cert. denied, 409 U.S. 1129, 93 S.Ct. 939, 35 L.Ed.2d 262 (1973). And, in addition, they clearly establish that the Constitution does not afford any individual a protected right to public employment. See also Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Accordingly, the state need only articulate a rational basis for its statutory scheme. It would appear without question that § 70 is reasonably related to legitimate state interests in efficiency and economy. A mandatory retirement policy allows department heads to plan the training and advancement of their employees, and motivates young workers to acquit themselves well and to progress through the ranks. And the statute before us, which permits some employees to continue in their jobs until the age of 78, serves these legitimate state purposes without needless prejudice to the greater number of qualified employees.

Johnson's argument that § 70 establishes an irrebuttable...