Mahoney v. Trabucco

• Decision Date: 02 July 1984
• Docket Number: No. 83-1862,83-1862
• Citation: 738 F.2d 35
• Parties: 35 Fair Empl.Prac.Cas. 97, 34 Empl. Prac. Dec. P 34,513 Charles P. MAHONEY, Plaintiff, Appellee, v. Frank J. TRABUCCO, Commissioner, Massachusetts Department of Public Safety, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 35

738 F.2d 35

35 Fair Empl.Prac.Cas. 97, 34 Empl. Prac.

Dec. P 34,513

Charles P. MAHONEY, Plaintiff, Appellee, v. Frank J. TRABUCCO, Commissioner, Massachusetts Department of Public Safety, et al., Defendants, Appellants.

No. 83-1862.

United States Court of Appeals First Circuit.

Argued March 8, 1984.

Decided July 2, 1984.

H. Reed Witherby, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Thomas A. Barnico, Asst. Atty. Gen., Boston, Mass., Government Bureau, were on brief, for defendants, appellants.

E. David Wanger, Elizabeth K. Boyer and Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C., Boston, Mass., on brief for State Police Ass'n of Mass., amicus curiae.

Wayne B. Hollingsworth, Boston, Mass., with whom Theresa A. Kelly and Hollingsworth & Associates, Boston, Mass., were on brief, for plaintiff, appellee.

Before COFFIN and BOWNES, Circuit Judges, and GIERBOLINI, ^* District Judge.

COFFIN, Circuit Judge.

Defendants-appellants, Frank J. Trabucco, Commissioner, Massachusetts Department of Public Safety, and the Massachusetts State Board of Retirement, appeal a judgment finding that the Commonwealth violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634, by mandatorily retiring plaintiff-appellee, Massachusetts State Police Sergeant Charles P. Mahoney, at age 50 pursuant to Mass.Gen.Laws ch. 32, Sec. 26(3)(a). 574 F.Supp. 955.

Massachusetts divides its state police force of somewhat more than 1,000 persons into a uniformed branch and non-uniformed branch. Members of the former receive a pension after twenty years service, which is more generous than that provided all other state employees. Mass.Gen.Laws Ann. ch. 32, Sec. 26(3). They are also entitled, by virtue of Mass.Gen.Laws ch. 32, Sec. 94, to a presumption that any heart-related disability is job-related for disability retirement purposes. But they are also required to retire at age 50. Mass.Gen.Laws Ann. ch. 32, Sec. 26(3)(a). ¹ It is this requirement that is challenged in the case at bar.

Plaintiff-appellee, a veteran sergeant of the uniformed branch of the state police with over 26 years of service, reached his 50th birthday on September 15, 1983. Upon being notified that he had to retire on that date, he brought suit against defendants charging that his forced retirement under Sec. 26(3)(a) would violate the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634.

Massachusetts claims that age 50 is a bona fide occupational qualification (BFOQ) for state police officers and that Mahoney's mandatory retirement was authorized under that section of the ADEA which provides:

"(f) It shall not be unlawful for an employer, employment agency, or labor organization--

(a) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of 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. Sec. 623(f)(1) (emphasis added).

The district court, after a trial, issued a thoughtful opinion, concluding that Mass.Gen.Laws ch. 32 Sec. 26(3)(a) is invalid as applied to plaintiff and that defendants must be enjoined from enforcing the statute against him "so long as he continues to work at his current assignment."

The court began by noting the generally accepted standard for evaluating the adequacy of a BFOQ defense as set forth in Usery v. Tamiami Tours, Inc., 531 F.2d 224, 235-36 (5th Cir.1976), and Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743, 753 (7th Cir.1983). Under that standard an employer must show that the age qualification is "reasonably related to the 'essential operation' of its 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, 697 F.2d at 753 (emphasis original) (footnote omitted).

Addressing the first part of this test, the court found the age requirement was reasonably related to the state police function of protection of persons, property, law and order, as indicated by Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (holding that the Massachusetts state police mandatory retirement age did not violate the equal protection clause). Then, after considering the testimony of a number of witnesses, the court concluded that both the second and third prongs of the test had been met for members of the uniformed state police "generally". It held:

"Uncontradicted medical testimony indicates that all or substantially all 50 year-olds could not safely and effectively perform the duties of a State Police officer. In addition, uncontradicted medical evidence indicates that it is impracticable or impossible for the Commonwealth to make individual determinations of an officer's fitness to serve on the State Police after age 50."

The court then turned its attention to the meaning of "duties of the job", and, following the approach of the Eighth Circuit in E.E.O.C. v. City of St. Paul, 671 F.2d 1162 (8th Cir.1982), rather than that of the Seventh Circuit in E.E.O.C. v. City of Janesville, 630 F.2d 1254 (7th Cir.1980), decided that "the policies of the ADEA are best effected by evaluating the Commonwealth's BFOQ defense against the requirements of the job that Sergeant Mahoney has actually performed in the past and is likely to perform in the future", rather than the duties performed by uniformed state police officers generally.

Sergeant Mahoney, a 26 year veteran of the State Police, has spent the last 14 years at the Boston headquarters in an administrative capacity as liaison officer to a unit, headed and staffed by civilians, that collects and exchanges computerized criminal justice information with other law enforcement agencies, both within and outside Massachusetts. He also trains other officers in the use of the police telecommunications system. His work week is from 8:25 a.m. to 5:00 p.m., Monday through Friday. He occasionally volunteers for an overtime shift. He carries a gun, but wears civilian clothes. He is subject to reassignment and may be called to perform traditional police duties in the event of an emergency. During his service in this administrative post he has been called to special duty several times. He was assigned road duty for six weeks in 1972, he worked as a "radio man" at two prison disturbances in the early 1970's, and he performed communications duties during the visit of the "Tall Ships" in 1976, the "Blizzard of 1978", and the visit of Pope John Paul II in 1980. Although he weighs some 255 pounds, and has a mild arthritic condition, he has never failed a biennial physical examination.

Based on this record, medical testimony that plaintiff's age is no barrier to the performance of his administrative duties, the likelihood that plaintiff would not be assigned to other duty, and the "bare possibility that the plaintiff may be called upon to perform strenuous physical activity in an emergency", the court held that the Commonwealth had failed to satisfy the BFOQ defense.

We begin our own analysis by observing the implications of the district court's approach. On the one hand, the whole idea of a BFOQ is to carve out a limited occupational field where an employer may enforce a retirement age requirement, free from the duty of making individual judgments, provided that the Tamiami--Orzel factors are established. On the other hand, the court, although finding that the uniformed branch of the state police was such a field, felt obliged to analyze the particular present and likely future work assignment of the plaintiff to see if an age requirement was justified as applied to that assignment. This means that within any strenuous occupation where age is likely to be a BFOQ--pilot, firefighter, policeman, game warden--any administrative or supervising assignment would, if found by a court likely to endure, not be subject to the requirement. In a paramilitary organization where, as here, all members are subject to service in emergencies and to reassignment, this would mean either that superannuated poor-risk persons would be subjected to the most demanding tasks or that the force would be restricted in calling out and reassigning desk-bound personnel. Under the court's decision some members of the uniformed state police would not be available for general duties.

The district court was fully conscious of the problems posed by its fine-tuning approach. It noted that there is no correlation between rank and strenuous activity; officers in each rank may or may not be required to perform such activity. It recognized that "the possibility of inconsistent treatment of officers of the same rank may be expected to cause some difficulties", and that both officers approaching 50 and those in charge of duty assignments would have difficulty making assignment decisions. The court also acknowledged that the kind of particularistic case-by-case analysis it had undertaken "might interfere with the smooth operation of the state pension system." We would add that this approach may also tempt some to seek a "safe harbor" assignment, penalize the dutiful, discourage promotion, encourage litigation, and necessitate judicial determinations that turn on quality judgments, such as how sedentary is the assignment, and probability judgments, such as how long is the assignment likely to last and how likely is emergency duty.

Does the ADEA, as the district court concluded, mandate this approach? We think not. The BFOQ statutory exception applies "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business". 29 U.S.C....