U.S. E.E.O.C. v. City of St. Paul

Decision Date02 March 1982
Docket NumberNo. 81-1037,81-1037
Citation671 F.2d 1162
Parties28 Fair Empl.Prac.Cas. 312, 28 Empl. Prac. Dec. P 32,523 U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee, v. CITY OF ST. PAUL, Appellee, James Fee (Intervenor below), Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Jan Stuurmans, argued, Stuurmans & Kelly, P. A., Minneapolis, Minn., for James Fee.

Edward P. Starr, City Atty., Terry Sullivan, Asst. City Atty., St. Paul, Minn., for City of St. Paul.

Leroy D. Clark, Gen. Counsel, Philip B. Sklover, Acting Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, Allyson K. Duncan, argued, Equal Employment Opportunity Commission, Washington, D. C., for appellee.

Before BRIGHT and ROSS, Circuit Judges, and GIBSON, Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

This is an appeal from that part of the judgment of the district court 1 holding that the application of the City of St. Paul's mandatory retirement age of 65 for district fire chiefs violates the Age Discrimination in Employment Act (ADEA). 29 U.S.C. §§ 621-634 (1976 and Supp. II 1978).

I. Facts

The ADEA was enacted in 1967 and prohibited age discrimination against persons aged 40 through 64. Pub.L.No.90-202, §§ 4, 12, 81 Stat. 602, 603, 607. It was amended in 1974 to apply to state and local governments. Pub.L.No.93-259, § 28(a)(2), 88 Stat. 55, 74 (codified at 29 U.S.C. § 630(b) (1976)), and was again amended in 1978 to extend coverage to persons through age 69. Pub.L.No.95-256, § 3(a), 92 Stat. 189 (codified at 29 U.S.C. § 631 (Supp. II 1978)). The ADEA permits otherwise unlawful age discrimination "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1) (1976).

Minnesota law provides for retirement at age 65 for persons on the fire department payroll. Minn.Stat.Ann. § 423.075, subd. 1 (West Supp.1981). St. Paul enacted Ordinance No. 16591 on October 18, 1979, which establishes a mandatory retirement age of 65 for uniformed fire employees. It was to take effect on December 26, 1979. The United States Equal Employment Opportunity Commission brought an action on December 18, 1979, on behalf of the charging party, District Fire Chief George Schmidt, and sought an order restraining the City from enforcing the ordinance. Such an order was issued on the effective date of the ordinance, December 26, 1979. Local 21 of the Uniformed Fire Fighters of St. Paul and Captain James Fee, who was first on the list of those eligible for promotion to fire chief, intervened.

The trial was conducted May 19-22 and June 10-12, 1980. The district court ruled that age is a bona fide occupational qualification (BFOQ) for all positions in the uniformed division of the fire department except that of district fire chief. All parties agree that the job of the fire chief is substantially different from that of other firefighters. The chief is responsible for administration in his district and he supervises and coordinates activities at the scene of a fire. Other firefighters are directly responsible for the suppression of the fire. Occasionally, the chief performs the tasks usually performed by other firefighters. The court enjoined the City from enforcing the ordinance against chiefs, but it did not enjoin the State because there was no evidence that the State intended to enforce the statute. Captain Fee appealed from the determination that age is not a BFOQ for chiefs. The City did not appeal and is therefore an appellee, but it, too, in a brief it filed, argues that age is a BFOQ for chiefs. 2 The EEOC voluntarily dismissed a cross-appeal relating to all uniformed personnel except district fire chiefs. We now affirm the judgment of the district court.

II. Age as a BFOQ for Fire Chiefs

The City makes two arguments 3 in advocating reversal. First, the City argues that the district court should have considered whether age is a BFOQ for firefighting personnel in general, rather than considering chiefs separately. Second, the City argues that the evidence does not support the district court's conclusion that age is not a BFOQ for district fire chiefs. The EEOC originally argued that age was not a BFOQ for firefighting personnel, and on appeal is now contending that age is not a BFOQ for district fire chiefs.

A. Relevant Class for Determining Age as a BFOQ.

The City argues that the district court should have limited its inquiry to whether age is a BFOQ for all firefighting personnel. The ordinance at issue requires retirement at age 65 for "all uniformed fire employees." According to the City, the district court should not have given separate consideration to the subclass of fire chiefs.

The City relies on a Seventh Circuit case, EEOC v. City of Janesville, 630 F.2d 1254 (7th Cir. 1980). There the court held that a district court should have looked at whether age is a BFOQ in the particular business, rather than the particular occupation. Specifically, the court remanded a case in which the district court considered whether age was a BFOQ for police chiefs, and held that it was. The Seventh Circuit said the inquiry should have been limited to whether age is a BFOQ for "the generic class of law enforcement personnel employed by the City to operate the 'business' of its police department," id. at 1258, rather than the position of police chief.

The Seventh Circuit felt this approach was required by the ADEA. Section 623(f)(1) allows age discrimination where "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." The court felt the words "particular business" precluded consideration of an occupation like police chief. The court said it found nothing in the legislative history that would allow a court to consider just the occupation. However, the court did not cite any legislative history, apparently because it felt the plain meaning of the term "particular business" precluded consideration of a particular occupation or an individual officer in an ongoing business operation. Id.

After reviewing Janesville, the ADEA, and the legislative history, we choose not to follow the Seventh Circuit opinion. 4 First, we disagree with the idea that the phrase "bona fide occupational qualification reasonably necessary to the normal operation of the particular business" precludes consideration of a particular occupation within that particular business. It seems to us that the plain meaning of the phrase is that age can be considered relevant in an occupation within the particular business. The different readings of the plain meaning of the phrase by this court and the Seventh Circuit make inquiry into the legislative intent appropriate. See Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917); United States v. American Trucking Association, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940).

The legislative history shows a congressional intent to require employment decisions to be made on the basis of ability rather than age. The ADEA includes a section with congressional findings and a statement of purpose. The stated purpose of the statute is "to promote employment of older persons based on their ability rather than age." 29 U.S.C. § 621(b) (1976). Likewise, the House Report states: "It is the purpose of H.R.13054 to promote the employment of older workers based on their ability." H.R.Rep.No.805, 90th Cong., 1st Sess., reprinted in 1967 U.S.Code Cong. & Ad.News 2213, 2214. See also S.Rep.No.723, 90th Cong., 1st Sess. 1 (1967).

The Seventh Circuit's interpretation of the Act would not require that employment decisions be based on ability rather than age if the generic class as a whole would fall in the category of which age is a BFOQ. It would be inconsistent with the goal of ability-based decisions to allow a city to retire a fire chief or a police chief who was completely able to fulfill his duties because he was unable to fulfill the duties of another position within the department, such as fire captain or patrolman. Furthermore, it is not clear to us how a "generic class" of employees would be determined. If the class would be determined by state law, the Act could be completely subverted. State law could create a class of "all state employees" and thereby allow the state to retire a clerk because he or she is too old to fight fires. 5 If the district court is to make the determination itself, we believe it should make the determination most relevant to the parties before it. 6 We cannot believe that the ADEA was intended to allow a city to retire a police dispatcher because that person is too old to serve on a SWAT team. We believe the district court was correct in giving separate consideration to the different occupations within the fire department instead of confining its inquiry to a generic class as a whole.

B. Age as a BFOQ for Fire Chiefs.

1. The Law of the Case.

The next inquiry is whether the district court erred in deciding that age is not a BFOQ for fire chiefs. Our review is limited to determining whether the district court's findings of fact were correctly applied to the law, and whether those findings are clearly erroneous. Fed.R.Civ.P. 52(a); Horner v. Mary Institute, 613 F.2d 706, 713 (8th Cir. 1980).

This court has held that an employer's decision to retire employees solely on the basis of age is a per se violation of the ADEA. Houghton v. McDonnell Douglas Corp., 553 F.2d 561, 564 (8th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 451 (1977). The employer has the burden of proving that its actions were within the scope of the BFOQ exemption. Id. This burden requires the employer to show that either it has a factual basis for believing that substantially all of the older employees are unable to perform their duties safely and efficiently or that some older employees possess traits...

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