Orzel v. City of Wauwatosa Fire Dept.

Decision Date03 January 1983
Docket NumberNo. 81-2564,81-2564
Citation697 F.2d 743
Parties30 Fair Empl.Prac.Cas. 1070, 30 Empl. Prac. Dec. P 33,264 Stanley ORZEL, Plaintiff-Appellee, v. CITY OF WAUWATOSA FIRE DEPARTMENT, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

David Leo Uelmen, Goldberg, Previant, Uelmen, Gratz, Miller, Levy & Brueggeman, S.C., Milwaukee, Wis., for defendant-appellant.

John K. Brendel, Brendel, Flanagan, Sendik & Fahl, Wauwatosa, Wis., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, * and PELL, and CUDAHY, Circuit Judges.

CUDAHY, Circuit Judge.

The City of Wauwatosa, Wisconsin, appeals from the decision and order of a United States Magistrate finding the City liable, under the Age Discrimination in Employment Act (the "ADEA" or the "Act"), 29 U.S.C. Secs. 621 et seq. (1976 & 1978 Supp.), for illegally terminating the employment of its Assistant Fire Chief, Stanley Orzel, upon Orzel's attainment of the City's then-mandatory retirement age of 55. The City also challenges the magistrate's finding of a "willful" violation of the ADEA and his consequent award of liquidated damages under 29 U.S.C. Sec. 626(b). We affirm.


Plaintiff, Stanley Orzel, is currently a 59-year-old resident of Wauwatosa, Wisconsin. 1 In 1949, Orzel was hired as a firefighter by the Wauwatosa Fire Department; thereafter he was promoted through the ranks until reaching the position of Assistant Chief, a position he held from 1970 until his compulsory retirement in 1978. In May 1977, the City informed Orzel that he would be forced to retire from his position as Assistant Chief on December 31, 1978, pursuant to the City's then-existing compulsory retirement age of 55 for all "protective service" employees. 2 Orzel's request to the City's employee relations committee for an extension of employment was denied, and Orzel was, in fact, mandatorily retired on December 31, 1978.

After unsuccessfully pursuing his administrative remedies, as required by section 626 of the ADEA, Orzel filed the instant lawsuit in federal district court. In his Complaint, Orzel sought reinstatement as well as compensatory and liquidated damages under section 626(b) of the ADEA. 3 In its Answer and supporting papers, the City admitted that Orzel had been forced to retire at age 55, but claimed that this compulsory retirement did not violate the ADEA because age was a bona fide occupational qualification for the job of firefighter and because the ADEA could not constitutionally be applied to state and local governments. 4

On May 6, 1980, the district court, pursuant to stipulation, ordered the case transferred to United States Magistrate Aaron E. Goodstein. A trial was held before Magistrate Goodstein on February 11-13, 1981. Prior to trial, the parties stipulated that the plaintiff, Stanley Orzel, was "physically and mentally in excellent condition and good health and that no claim is made that he personally was not capable of performing all fire department functions."

On August 31, 1981, Magistrate Goodstein issued a Decision and Order sustaining Orzel's claim of age discrimination and awarding Orzel both actual and liquidated damages. The magistrate, however, deducted from his damage award all amounts "received by the plaintiff from unemployment compensation benefits and retirement pension benefits," Decision and Order at 18, as well as "the amount of [plaintiff's] interim earnings." Id., at 19. The magistrate also concluded, in the face of conflicting lower court authority, that damages for pain and suffering were not available under the ADEA and, hence, refused to include any such damages in his award. 5 In awarding liquidated (or double) damages under section 626(b) of the Act, the magistrate noted that the statute provided for liquidated damages "only in cases of willful violations of this Act." Decision and Order at 21. After reviewing in some detail the development and chronology of Orzel's age discrimination claim, the magistrate found that the violation by the City could not be characterized as "accidental or unintentional," and that the City satisfied the standard for willfulness set forth in Wehr v. Burroughs Corp., 619 F.2d 276, 280 (3d Cir.1980).

In sustaining plaintiff's charge of discrimination, the magistrate also rejected the City's argument that age 55 constitutes a bona fide occupational qualification ("BFOQ"), under section 623(f)(1) of the ADEA, for the job of firefighter in Wauwatosa, Wisconsin. 6 The magistrate concluded that, although the evidence presented by both sides indicated that some age below the federally protected limit of 70 could qualify as a BFOQ, the City had failed to establish either that a mandatory retirement age of 55 was reasonably necessary to the efficient operation of its fire department, or that substantially all persons over 55 would be unable to perform firefighting duties:

It is the opinion of this court that the Wisconsin legislative history is not sufficient to satisfy defendant's burden that age 55 is a BFOQ. There is a lack of evidence to convince this court that the selection of age 55 represented the appropriate balancing test that the policy underlying the ADEA requires. There is not a scintilla of evidence to relate age 55, as opposed to ages 50 or 60, to the public interest and safety.

Magistrate's Decision and Order at 14 (emphasis supplied).

On appeal, the City challenges the magistrate's conclusion that age 55 is not a valid BFOQ for the job of firefighter. Citing this court's decision in EEOC v. Janesville, 630 F.2d 1254 (7th Cir.1980), the City argues that "once it is conceded that an age less than 70 is a BFOQ, the judgment made by the appropriate local officials should be approved." Appellant's Br. at 22. The City also argues that its selection of age 55 is supported by (1) federal and state legislative history; (2) findings made and reported in other judicial decisions; and (3) the medical and other evidence submitted in this case. Id.

On the question of damages, the City urges that because the legal issues surrounding the application of the ADEA to the compulsory retirement of municipal firefighters "were at no time clear and unambiguous," and because "[t]he City had and still has a legally justifiable basis for contesting plaintiff's claim," the magistrate erred in finding a willful violation of the Act and in awarding double damages pursuant to 29 U.S.C. Sec. 626(b) (1976). The City also argues that the magistrate's award of actual damages should be significantly reduced because the plaintiff violated his duty to mitigate and that, in any event, the plaintiff should not be compensated for any damages incurred subsequent to December 21, 1979, when he rejected an offer by the City to return to work. 7 We shall first address the BFOQ issues before turning to the question of damages. 8


The ADEA, originally enacted in 1967, makes it unlawful for any employer, employment agency or labor organization to discriminate on the basis of age against persons between the ages of 40 and 70. 9 Congress' goals in passing the ADEA were threefold: to promote the employment of older workers based on ability rather than age; to prohibit arbitrary age discrimination in employment; and to aid employers and workers in studying the relationship between age and employment. 29 U.S.C. Sec. 621(b) (1976); EEOC v. Elrod, 674 F.2d 601, 604 (7th Cir.1982). Although the ADEA generally prohibits employers from relying solely upon age as a measure of individual ability, the Act contains several exceptions which allow the use of age as an employment criterion in certain, limited, situations. The most important of these exceptions--the BFOQ exception--allows an employer to discriminate, on the basis of age, against members of the statutorily protected class if "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. Sec. 623(f)(1) (1976) (emphasis supplied).

Because the BFOQ exception frees an employer from the ADEA's general requirement of making individualized judgments regarding the ability of older workers, overuse of the exception involves the risk of reintroducing on a broad scale the very age stereotyping the ADEA was designed to prevent. For this reason, and because of the general maxim that exceptions to a remedial statute are to be "narrowly and strictly construed," Sexton v. Beatrice Foods Co., 630 F.2d 478, 486 (7th Cir.1980), the courts have consistently held that the BFOQ exception to the ADEA is to be interpreted narrowly, and that the burden is on the employer to demonstrate its applicability. See, e.g., EEOC v. Janesville, 630 F.2d 1254, 1258 (7th Cir.1980); Smallwood v. United Air Lines, Inc., 661 F.2d 303, 307 (4th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2299, 73 L.Ed.2d 1302 (1982); Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 451 (1977); cf. Dothard v. Rawlinson, 433 U.S. 321, 324, 97 S.Ct. 2720, 2724, 53 L.Ed.2d 786 (1977) (BFOQ exception to Title VII was meant to be an "extremely narrow exception"). Moreover, both the Department of Labor, the federal agency originally entrusted with the enforcement of the ADEA, and the Equal Employment Opportunity Commission, to whom enforcement responsibilities were transferred in 1979, have consistently advocated an extremely narrow interpretation of the BFOQ defense. 10 Such an interpretation by the agencies charged with enforcement of the ADEA is, of course, entitled to considerable weight. Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 854-55, 28 L.Ed.2d 158 (1971); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).

With these general considerations in mind, we turn to an examination of the particular BFOQ defense asserted by the City in the instant case. In contending that age 55 constitutes a valid BFOQ for...

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