Johnson v. Mayor and City Council of Baltimore, 81-1965
| Citation | 731 F.2d 209 |
| Decision Date | 04 April 1984 |
| Docket Number | No. 81-1965,81-1965 |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
| Parties | 34 Fair Empl.Prac.Cas. 854, 34 Empl. Prac. Dec. P 34,298, 5 Employee Benefits Ca 1354 Robert W. JOHNSON, August T. Stern, Jr., Thomas C. Doyle, James Lee Porter, Equal Employment Opportunity Commission, Mitchell Paris, and Robert L. Robey, Appellees, v. MAYOR AND CITY COUNCIL OF BALTIMORE, a Municipal Corporation, Appellant, and Hyman A. Pressman, as Chairman, and Donald D. Pomerleau, Calhoun Bond, Edward C. Heckrotte, Sr., Charles Daughterty, Paul C. Wolman, Jr., and Curt Heinfelden, as Members of the Board of Trustees, Fire & Police Employees Retirement System of the City of Baltimore, Defendants. |
L. William Gawlik, Asst. City Sol., Ambrose T. Hartman, Deputy City Sol., Baltimore, Md. (Benjamin L. Brown, City Sol., on brief), for appellant.
Paul D. Bekman, Baltimore, Md. (William H. Engelman, Harriet E. Cooperman, Kaplan, Heyman, Greenberg, Engelman & Belgrad, P.A., Baltimore, Md., on brief), and Justine S. Lisser, E.E.O.C., Washington, D.C. (David L. Slate, General Counsel, Vella M. Fink, Acting Associate Gen. Counsel, E.E.O.C., Washington, D.C., on brief), for appellees.
Before WINTER, Chief Judge, MURNAGHAN, Circuit Judge, and BUTZNER, Senior Circuit Judge.
Plaintiff, Robert W. Johnson, a Baltimore City firefighter, five of his fellows, and the EEOC, as intervenor, brought suit under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621, et seq., complaining that the Baltimore City pension provisions for firefighters impermissibly discriminated on grounds of age. 1 In their action, instituted on May 29, 1979, plaintiffs sought primarily an injunction prohibiting compelled retirement before an employee had reached sixty-five.
Plaintiff Johnson and four of the other five individual plaintiffs had attained the age of sixty years when the suit was filed. 2 A consensual temporary restraining order was entered permitting the five individuals to continue in active employment status with the fire department pending resolution of the case. When suit was brought, Plaintiff James L. Porter was only thirty years of age. The district court determined, however, that Porter had standing inasmuch as uncertainty as to the prospective mandatory retirement age could presently affect his decision whether to remain an employee of the fire department or to seek employment elsewhere. After a court trial, the district court entered judgment for the plaintiffs. Johnson v. Mayor and City Council of Baltimore, 515 F.Supp. 1287 (D.Md.1981), cert. denied, 455 U.S. 944, 102 S.Ct. 1440, 71 L.Ed.2d 656 (1982).
For some time, prior to 1962, the overall retirement system covering Baltimore City employees generally applied to firefighters. Under that plan, retirement was not mandatory until the employee had attained the age of seventy years. In 1962, however, the City established the Fire & Police Employees Retirement System (F & PERS), which in part provided pension benefits for all uniformed Fire Department personnel. The City obtained enabling legislation from the State of Maryland for the F & PERS at the urging of the union, to which the individual plaintiffs belonged.
Among the motivating factors for the adoption of the F & PERS was a belief that exposure to medical disablement in stressful circumstances increased with age. The F & PERS accordingly provided for mandatory retirement at the age of fifty-five (sixty in transitional cases involving firefighters in service on July 1, 1962, the date when the new plan went into effect).
We first consider plaintiffs' claims based on the equal protection clause and 42 U.S.C. Sec. 1983. For Fourteenth Amendment purposes, plaintiffs have established neither inherent unreasonableness nor a denial of equal protection amounting to constitutional deprivations. The legislation was well within the discretionary powers of the deliberating body, state or federal, especially since "rationality" rather than "strict judicial scrutiny" is the test. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). 3
The plaintiffs' complaint, in reality, boils down to an objection that there is too much equality in a requirement that all firefighters retire at fifty-five. The factual scenario is entirely devoid of any indicated attempt to punish individual employees or to seek an unwarranted advantage for the City. The City established the F & PERS in part to address concerns about the continued ability of the City's firefighters to respond efficiently and effectively to the demands of firefighting. The legislation simply reflected a preference for an inflexible age determination in lieu of case-by-case examination leading to decision on the individualized basis of each and every employee's medical condition, as monitored and remonitored from time to time.
We therefore conclude that (a) there are not sufficient grounds to support a determination that there has been a violation of the equal protection clause, and that (b) therefore, no basis exists for the award of remedies under 42 U.S.C. Sec. 1983.
We next consider plaintiffs' claim under the Age Discrimination in Employment Act of 1967. At the time the City established the F & PERS, the ADEA had not yet been enacted. The Act prohibits "various forms of age discrimination in employment, including the discharge of workers on the basis of age." Equal Employment Opportunity Commission v. Wyoming, --- U.S. ----, ----, 103 S.Ct. 1054, 1058, 75 L.Ed.2d 18 (1983); 29 U.S.C. Sec. 623(a). In 1974 the ADEA was extended generally to the states and their political subdivisions as employers. 29 U.S.C. Sec. 630(b)(2). It also was made applicable to a number of federal instrumentalities, but not to the agencies hiring federal police or firefighters. See 29 U.S.C. Sec. 633a(a).
The Act initially protected workers between the ages of forty and sixty-five. 29 U.S.C. Sec. 631. In 1978, Congress raised the maximum age to seventy. Age Discrimination in Employment Act Amendments of 1978, 92 Stat. 189. 4
The ADEA, however, does not flatly prohibit consideration by employers of age in all instances. Instead, consistent with its underlying purpose of eradicating arbitrary age discrimination, the Congress recognized that "criteria based on age are occasionally justified." EEOC v. Wyoming, --- U.S. at ----, 103 S.Ct. at 1058. The ADEA therefore deems lawful certain otherwise prohibited employment practices
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.
In EEOC v. Wyoming, supra, the Supreme Court provided guidance for determining the existence of a bona fide occupational qualification. There the Court considered the State of Wyoming's policy of mandatory retirement of its game wardens at age fifty-five. The Court rejected the state's contention that the Tenth Amendment, 5 as construed in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), rendered Wyoming immune from federal intervention with respect to the regulation of its game wardens.
The Court did not, however, declare the state's mandatory retirement age invalid under the ADEA. To the contrary, it reiterated that the mandatory retirement age could remain undisturbed if the state could prove that age was a bona fide occupational qualification for game wardens.
Perhaps more important, appellees remain free under the ADEA to continue to do precisely what they are doing now, if they can demonstrate that age is a "bona fide occupational qualification" for the job of game warden. [Citation omitted]. Thus, in distinct contrast to the situation in National League of Cities, supra, [426 U.S.] at 848 , even the State's discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard.
EEOC v. Wyoming, --- U.S. at ----, 103 S.Ct. at 1062. 6 The Court remanded the case for a determination as to whether the mandatory retirement at fifty-five was in fact a bona fide occupational qualification, i.e., did it satisfy a reasonable federal standard test. 7
In light of the Court's disposition of EEOC v. Wyoming, we must initiate a search for a "reasonable federal standard" by which to test whether age is a bona fide occupational qualification for the City of Baltimore's firefighters. Congress has, however, made the search a simple one. With respect to federal firefighters, Congress has provided the standard. The same Congress that extended the ADEA to the states and their political subdivisions reinvigorated the requirement mandating retirement as a general matter at fifty-five 8 for federal police and firefighting employees. Pub.L. 93-350, 88 Stat. 356, 5 U.S.C. Sec. 8335(b). 9 The Legislative History accompanying the passage of P.L. 93-350 reveals the Congressional concern for the taxing nature of firefighting endeavors:
The history of retirement legislation dealing with law-enforcement officers and firefighters shows Congressional intent to liberalize retirement provisions so as to make it feasible for these employees to retire at age 50. This intent has been based on the nature of the work involved and the determination that these occupations should be composed, insofar as possible, of young men and women physically capable of meeting the vigorous demands of occupations which are far more taxing physically than most in the Federal Service. They are occupations calling for the strength and stamina of the young rather than the middle age. Older employees in these occupations should be encouraged to retire.
Sen.Rep. No. 93-948, 93d Cong., 2nd Sess. in 1974 U.S.Code Cong. & Ad.News 3698, 3699. 10
Where Congress itself has...
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