Smith v. City of Des Moines, Iowa, 95-3802

• Decision Date: 02 January 1997
• Docket Number: No. 95-3802,95-3802
• Citation: 99 F.3d 1466
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 628, 69 Empl. Prac. Dec. P 44,459, 65 USLW 2415, 6 A.D. Cases 14, 9 NDLR P 22 Jerry O. SMITH, Appellant, v. CITY OF DES MOINES, IOWA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1466

99 F.3d 1466

72 Fair Empl.Prac.Cas. (BNA) 628,

69 Empl. Prac. Dec. P 44,459, 65 USLW 2415,

6 A.D. Cases 14, 9 NDLR P 22

Jerry O. SMITH, Appellant, v. CITY OF DES MOINES, IOWA, Appellee.

No. 95-3802.

United States Court of Appeals Eighth Circuit.

Submitted May 17, 1996.

Decided Nov. 12, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Jan.

2, 1997. ^*

Charles Eugene Gribble, Des Moines, IA, argued (Pamela J. Prager, on the brief), for appellant.

Bruce E. Bergman, Des Moines, IA, argued, for appellee.

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Appellant Jerry O. Smith brought suit against the City of Des Moines, claiming that he was fired from his position as a city firefighter in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634 (1994), and the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213 (1994). The District Court ¹ granted summary judgment in favor of the city on all of Smith's claims. Smith appeals, and we affirm.

I.

At the time of his dismissal, Smith had been a firefighter with the Des Moines Fire Department for thirty-three years and had risen to the rank of fire captain. In 1988, the city began to require annual testing of all firefighters at the rank of captain or below to determine whether they could safely fight fires while wearing a self-contained breathing apparatus (SCBA). Each firefighter underwent spirometry testing, which gauges pulmonary function by measuring the capacity of the lungs to exhale. Any firefighter whose forced expiratory volume in one second (FEV1) exceeded 70% of lung capacity was approved to wear a SCBA. If a firefighter scored less than 70%, he or she was required to take a maximum exercise stress test, which measures the capacity of the body to use oxygen effectively. The city required firefighters to establish a maximum oxygen uptake (VO sub2 max) of at least 33.5 milliliters per minute per kilogram of body weight in order to pass the stress test.

Smith failed both tests in 1988 and was not approved to wear a SCBA that year. In 1989, 1990, and 1991, Smith passed the spirometry test and was approved for SCBA use. In August 1992, Smith narrowly failed the spirometry test and was referred to Dr. Steven K. Zorn, a consultant to the city, for further testing. In Dr. Zorn's office, Smith passed the spirometry test but registered a VO sub2 max of only 22.2 on the stress test. The fire department placed Smith on sick leave. In January 1993, Smith returned to Dr. Zorn but scored only 21.1 on a stress test. The fire department offered to allow Smith to remain on sick leave until April, when he would turn age fifty-five and thus be eligible for retirement.

In the interim, the fire department sent Smith to another physician, Dr. John Glazier, for a second opinion. Additionally, when Smith did not file for retirement in April, the fire chief filed an application for disability retirement on Smith's behalf. Before ruling on this application, the state pension board required Smith to be examined by a panel of three additional physicians. Dr. Glazier did not perform a stress test, but the panel of three physicians did (Smith's VO sub2 max was 28.9). All four physicians concluded that Smith was physically capable of working as a firefighter. After receiving these recommendations, the pension board denied the application for disability retirement, finding that Smith was not disabled from working as a firefighter.

The fire department did not permit Smith to return to work but did offer to place him on leave of absence with benefits until July 1, 1994, when he would be eligible for maximum pension benefits. Smith did not file for retirement at that time, however, and the city discharged him on July 18, 1994 for failure to meet the fire department's physical fitness standards.

After obtaining right-to-sue letters from the Equal Employment Opportunity Commission (EEOC) and the Iowa Civil Rights Commission, Smith brought suit against the city in federal district court, raising claims under the ADEA, the ADA, and the Iowa Civil Rights Act, Iowa Code Ann. §§ 216.01-.20 (West 1994 & Supp.1996). The District Court granted summary judgment in favor of the city on all counts. The court, assuming Smith could establish that the city's testing standards have a disparate impact on older firefighters, held that the city had established a "business necessity" defense because firefighters require "a high standard of physical fitness." Similarly, Smith's ADEA disparate treatment claim failed because he was not qualified for the job, and the state law claim failed because Iowa law mirrors federal law. The District Court also concluded that Smith did not have a disability and granted summary judgment for the city on his ADA claim. Smith's appeal raises only the disparate impact and ADA claims.

We have jurisdiction over Smith's appeal pursuant to 28 U.S.C. § 1291 (1994). Our review of a grant of summary judgment is de novo. Krenik v. County of Le Sueur, 47 F.3d 953, 959-60 (8th Cir.1995). We will affirm "only if the record, when viewed in the light most favorable to the nonmoving party and giving the nonmoving party the benefit of all reasonable factual inferences, shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Weber v. American Express Co., 994 F.2d 513, 515 (8th Cir.1993).

II.

A.

We consider first the city's argument, which the District Court rejected, that a claim of disparate impact is not cognizable under the ADEA. Disparate impact claims challenge " 'employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.' " Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 1705, 123 L.Ed.2d 338 (1993) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977)). A disparate impact plaintiff need not prove a discriminatory motive. Id.

Like Title VII of the Civil Rights Act of 1964, to which the disparate impact theory was first applied in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the ADEA contains two prohibitions relevant here:

It shall be unlawful for an employer--

(1) 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;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age....

29 U.S.C. § 623(a) (1994).

We have on several occasions applied disparate impact analysis to age discrimination claims. See Houghton v. SIPCO, Inc., 38 F.3d 953, 958-59 (8th Cir.1994) (reversing plaintiff's verdict because of erroneous jury instruction); Nolting v. Yellow Freight Sys., Inc., 799 F.2d 1192, 1196-99 (8th Cir.1986) (affirming judgment for defendant); Leftwich v. Harris-Stowe State College, 702 F.2d 686, 690-93 (8th Cir.1983) (affirming judgment for plaintiff).

Several years ago, in a disparate treatment case under the ADEA, the Supreme Court noted that it had never decided whether a disparate impact theory is available under the ADEA. Hazen Paper, 507 U.S. at 610, 113 S.Ct. at 1706. In a concurring opinion, three Justices stated that "there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA." Id. at 618, 113 S.Ct. at 1710 (Kennedy, J., concurring). Other language in the lead opinion can be read as a suggestion by the Court that the ADEA does not permit disparate impact actions. See id. at 610, 113 S.Ct. at 1706 ("Disparate treatment, thus defined, captures the essence of what Congress sought to prohibit in the ADEA."); id. at 611, 113 S.Ct. at 1706 ("When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears.").

Before the Supreme Court decided Hazen Paper, many courts of appeals had recognized a disparate impact theory under the ADEA. See EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1079 n. 1 (7th Cir.1994) (Cudahy, J., dissenting), cert. denied, --- U.S. ----, 115 S.Ct. 2577, 132 L.Ed.2d 828 (1995). Since Hazen Paper, several circuits have revisited the issue. See DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 732-34 (3d Cir.) (opinion of Greenberg, J., alone) (doubting disparate impact theory cognizable), cert. denied, --- U.S. ----, 116 S.Ct. 306, 133 L.Ed.2d 210 (1995); Lyon v. Ohio Educ. Ass'n & Prof'l Staff Union, 53 F.3d 135, 139 n. 5 (6th Cir.1995) (noting doubt as to disparate impact theory); Francis W. Parker Sch., 41 F.3d at 1076-78 (suggesting disparate impact theory not cognizable); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1474 (9th Cir.1995) (suggesting disparate impact theory is cognizable); Ellis v. United Airlines, Inc., 73 F.3d 999, 1007-10 & n. 12 (10th Cir.) (holding disparate impact theory not cognizable under § 623(a)(1) and suggesting it is not cognizable under § 623(a)(2)), cert. denied, --- U.S. ----, 116 S.Ct. 2500, 135 L.Ed.2d 191 (1996). ²

Our opinion in Houghton, however, postdated Hazen Paper and continued to recognize the viability of disparate impact actions under the ADEA. See Houghton, 38 F.3d at 958-59. ³ As a result, even if we believed that Hazen Paper cast doubt on the validity of Leftwich and Nolting, Houghton represents the law of this Circuit, which we follow absent a "clear indication" that it has been overruled. FDIC v. Bowles Livestock Comm'n Co., 937 F.2d 1350, 1354 (8th Cir.1991). We conclude that disparate impact claims...