Mahoney v. Trabucco

• Citation: 574 F. Supp. 955
• Decision Date: 10 November 1983
• Docket Number: Civ. A. No. 83-2681-MA.
• Parties: Charles P. MAHONEY, Plaintiff, v. Frank J. TRABUCCO, Commissioner, Massachusetts Department of Public Safety, Defendant, and Massachusetts State Board of Retirement, Intervenor-Defendant.
• Court: U.S. District Court — District of Massachusetts

574 F. Supp. 955

Charles P. MAHONEY, Plaintiff, v. Frank J. TRABUCCO, Commissioner, Massachusetts Department of Public Safety, Defendant and Massachusetts State Board of Retirement, Intervenor-Defendant.

Civ. A. No. 83-2681-MA.

United States District Court, D. Massachusetts.

November 10, 1983.

Wayne B. Hollingsworth, and David M. Banash, Boston, Mass., for plaintiff.

H. Reed Witherby, E. Michael Sloman, Thomas A. Barnico, Asst. Atty. Gen., Boston, Mass., for defendant.

OPINION

MAZZONE, District Judge.

This action is brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Massachusetts State Police Sergeant Charles P. Mahoney challenges the Massachusetts statute that requires all members of the uniformed branch of the State Police to retire at age 50. The plaintiff turned 50 on September 15, 1983, and would have been retired by the state on the last day of September but for an order of this Court, issued on September 14, 1983, with the consent of the parties, enjoining the plaintiff's retirement pending a trial on the merits. The case was tried to the Court on October 27 and October 28, 1983. Pursuant to Rule 52(a), Fed.R.Civ.P., I make the following findings and rulings.

Sergeant Mahoney seeks a declaration that the mandatory retirement statute, M.G.L. c. 32 § 26(3)(a), is invalid as applied to him, and seeks an order enjoining the defendants, the Commonwealth's Commissioner of Public Safety and the State Board of Retirement, from ordering his retirement in accordance with that statute. M.G.L. c. 32 § 26(3)(a) provides as follows:

Any member of the uniformed branch who has performed service in the division of state police in the department of public safety for not less than twenty years, shall be retired by the state board of retirement upon his attaining age fifty or upon the expiration of such twenty years, whichever last occurs.

Although the statute by its terms provides for retirement at age 50 or after 20 years service, whichever comes later, as a practical matter the statute requires all but a few members of the uniformed branch to retire upon reaching 50, because a second statute, M.G.L. c. 22 § 9A, prohibits the State Police from enlisting individuals older than 30 for the uniformed branch.

This action is not the first challenge to the Commonwealth's mandatory retirement age for uniformed state troopers. In Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), the Supreme Court held that the statute was rationally related to a legitimate public purpose and did not, therefore, violate the Equal Protection Clause. Id. at 315, 96 S.Ct. at 2568. The Court explicitly noted, however, that the plaintiff in Murgia based his challenge to the statute strictly on constitutional grounds, and had not invoked the protections provided by the ADEA. Id. at 310 n. 2, 96 S.Ct. at 2565 n. 2. That fact distinguishes Murgia from the present action; here, the plaintiff bases his claim squarely on the ADEA.

Enacted in 1967, the ADEA was the product of several years of study, by both Congress and the Executive Branch, of the problems of older Americans. See generally E.E.O.C. v. Wyoming, ___ U.S. ___, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). It was adopted to meet two pressing problems: the cost of age discrimination to the national economy and the harm done to individual workers deprived of the opportunity to remain active members of the nation's work-force. At the heart of the ADEA is 29 U.S.C. § 623(a)(1), which provides that "It shall be unlawful for any employer ... to fail or refuse to hire or 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...."

As originally enacted, the ADEA did not cover employees of state and local governments. Those workers were brought within the Act's protection by an amendment adopted by Congress in 1974. Because the amendment extending the scope of the ADEA's coverage was part of a broader package of amendments to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., there is little legislative history relating to the decision to subject state and local governments to the requirements of the Act. E.E.O.C. v. Elrod, 674 F.2d 601, 605 (7th Cir.1982). The legislative history does, however, contain the remarks of Senator Bentsen, the sponsor of the amendment, upon its approval by the Senate. He said: "The passage of this measure insures that government employees will be subject to the same protections against arbitrary employment discrimination based on age as are employees in the private sector." 120 Cong.Rec. 8768 (1974), quoted in Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 699 (1st Cir.1983). The legislative history also contains a statement offered in support of the amendment by President Nixon in 1972, when it was first proposed:

Discrimination based on age — what some people call `age-ism' — can be as great an evil in our society as discrimination based on race or religion or any other characteristic which ignores a person's unique status as an individual and treats him or her as a member of some arbitrarily-defined group. Especially in the employment field, discrimination based on age is cruel and self-defeating; it destroys the spirit of those who want to work and it denies the National sic the contribution they could make if they were working.

H.R.Rep. No. 93-913, 93d Cong. 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 2811, 2849, quoted in Ramirez v. Puerto Rico Fire Service, 715 F.2d at 699.

In sum, then, the legislative history, though limited, supports the view that the Act was intended to outlaw "... irrational, unjustified employment decisions based upon assumptions about the relationship between age and ability which classify older workers as incapable of effective job performance." E.E.O.C. v. Elrod, 674 F.2d at 605.

Notwithstanding the broad remedial purpose of the ADEA, it is clear that not every age-based employment decision violates the Act. As the Supreme Court noted in E.E.O.C. v. Wyoming, ___ U.S. at ___, 103 S.Ct. at 1058, the case which freed from doubt the constitutionality of the 1974 amendment extending the ADEA to state and local governments, the states may establish mandatory retirement ages for state employees if they can prove that age is a "bona fide occupational qualification (BFOQ)" for the job that the plaintiff complaining of age discrimination performs. It is this BFOQ defense which is the central issue in this action, as there is no doubt that the statutory mandatory retirement age constitutes a prima facie violation of the ADEA. The Commonwealth asserts, and sought to prove at trial, that age is a BFOQ for members of the uniformed branch of the Massachusetts State Police.

The BFOQ defense is embodied in 29 U.S.C. § 623(f)(1), which provides that:

It shall not be unlawful for an employer, employment agency or labor organization ... to take any action otherwise prohibited by the statute where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business...

The BFOQ defense has been the subject of considerable judicial scrutiny. With near unanimity, those courts that have addressed the scope of the BFOQ defense have followed the interpretation put forward by the court in Usery v. Tamiami Tours, Inc., 531 F.2d 224, 235-36 (5th Cir.1976). Under that view of the BFOQ defense, which I follow here,

... in order to prevail on a BFOQ defense, an employer must show that the challenged age qualification is reasonably related to the essential operation of the business, and must demonstrate either that there is a factual basis for believing that all or substantially all persons above the age limit would be unable to effectively perform the duties of the job, or that it is impossible or impracticable to determine job fitness on an individualized basis.

Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743, 753 (7th Cir.1983). See also E.E.O.C. v. University of Texas Health Science Center, 710 F.2d 1091, 1093 (5th Cir.1983); E.E.O.C. v. City of St. Paul, 671 F.2d 1162, 1166 (8th Cir.1982); E.E.O.C. v. Missouri State Highway Patrol, 555 F.Supp. 97, 104 (W.D.Mo.1982); E.E.O.C. v. City of Minneapolis, 537 F.Supp. 750, 756 (D.Minn.1982).

Thus, under the prevailing legal standard, the threshold question is whether the mandatory retirement age is reasonably related to the essential operation of the Massachusetts State Police. This is a limited inquiry; I must assess the function of the State Police and determine whether the mandatory retirement age is reasonably related to that function. The essential function of the Massachusetts State Police is to protect and serve the citizens of the Commonwealth. See Massachusetts Board of Retirement v. Murgia, 427 U.S. at 310, 96 S.Ct. at 2565 ("The primary function of the Uniformed Branch of the Massachusetts State Police is to protect persons and property and to maintain law and order."). I rule that the mandatory age requirement is reasonably related to the protection and service of the citizens of Massachusetts. In so ruling, I am guided by the Supreme Court's opinion in Murgia, as the initial focus of analysis in evaluating a BFOQ defense is on the reasonableness of the state policy, an inquiry in many respects similar to the inquiry in an Equal Protection case in which a traditional rather than strict or intermediate level of scrutiny is called for. As the Court held in Murgia, "since physical ability generally declines with age, mandatory retirement at age 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age. This clearly is rationally related to the State's objective." 427 U.S. at 315, 96 S.Ct. at 2567. Thus, I conclude that the Commonwealth has sustained...