Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 35 EPD ¶34,828, Equal Employment Opportunity Commission et al., Plaintiffs v. Commonwealth of Pennsylvania et al., Defendants., (Nov. 02, 1984), (Nov. 2, 1984)

Equal Employment Opportunity Commission et al., Plaintiffs v. Commonwealth of Pennsylvania et al., Defendants.

United States District Court, Middle District of Pennsylvania.Civil Action No. 83-0321, November 2, 1984

Age Discrimination in Employment Act of 1967

Police--Mandatory Retirement--Injunction Pending Appeal.

--An injunction was issued pending the appeal of a decision that a state’s mandatory retirement age of 60 years for police officers was not in violation of the age law. The injunction prevented the forced retirement of those officers who had reached age sixty and desired to continue to work. The officers would have suffered irreparable harm if they were to be terminated from their positions prior to an appellate ruling.

Back reference.-- ¶1149.60.

Reginald L. Sydnor, Supervisory Trial Attorney, Susan DeLarm and Alicia G. Burkman, Trial Attorneys, Equal Employment Opportunity Commission, Philadelphia, Pennsylvania, for Plaintiffs.

Francis X. O’Brien, Chief Counsel, Joseph S. Rengert, Assistant Counsel, for Defendants.

[Statement of Case]

Herman, D.J.: On October 24, 1984, this court denied plaintiffs” motion for a permanent injunction to restrain defendants from mandatorily retiring Pennsylvania State Police officers who had reached the age of sixty. After a closely contested trial, we had concluded that Pennsylvania’s mandatory retirement statute for its State Police officers, 71 P.S. §65(d), did not violate the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§621-634 , because the age requirement was a bona fide occupational qualification (BFOQ). During the litigation, however, we had granted a number of preliminary injunctions, preventing the forced retirement of certain officers who had reached age sixty and who desired to continue to work.

Plaintiffs now seek to continue those preliminary injunctions pending appeal in accordance with Fed. R. Civ. P. 62(c). Rule 62(c) provides that when an appeal is taken from a final judgment denying an injunction, as has been done here, the court in its discretion may grant an injunction during the pendency of the appeal.

[Injunction Pending Appeal]

This provision codifies the court’s inherent discretionary power to grant that relief necessary to preserve the status quo. 11 Wright & Miller, Federal Practice and Procedure §2904 (1973). As Judge Troutman articulately wrote:

[a Rule 62(c) motion] presents a “difficult inquiry” for the trial judge who has already reached the legal merits of the controversy and rendered a conclusion unfavorable to the moving party. Kawecki Berylco Industries, Inc. v. Fansteel, Inc., 517 F. Supp. 539, 541 (E.D. Pa. 1981). To prevail on a Rule 62(c) motion, movant must show a likelihood of success on the merits, irreparable injury without the stay and the absence of substantial harm to other persons specifically and the public generally. BP Oil, Inc. v. Marshall, 509 F. Supp. 802 (E.D. Pa. 1981). Importantly, in engaging in the required balancing process prior to exercising discretion under the rule, courts do not consider any single factor as determinative. Constructors” Association of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir. 1978). Rather, they seek the goal of “blend[ing] ... what is necessary ... fair ... and workable.” Kawecki Berylco Industries, Inc. v. Fansteel, Inc., 517 F. Supp. at 542.

Republic Industries, Inc. v. Central Pennsylvania Teamsters Pension Fund, 537 F. Supp. 1036, 1036-37 (E.D. Pa. 1982). Where other factors weigh heavily in favor of an injunction, the burden regarding the likelihood of success on appeal may be adjusted. Id. [1]

Accordingly, no one consideration necessarily determines whether an injunction should be granted. “Rather, proper judgment entails a ‘delicate balancing’ of all elements.” Construction Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978); Philadelphia Council of Neighborhood Organization v. Adams, 451 F. Supp. 114, 116 (E.D. Pa. 1978). “Where ... the denial of a stay will utterly destroy the status quo, irreparably harming appellants, but the granting of a stay will cause relatively slight harm to appellee, appellants need not show an absolute probability of success in order to be entitled to a stay. Providence Journal v. Federal Bureau of Investigation, 595 F.2d 889, 890 (1st Cir. 1979).

Plaintiffs argue that if the State Police officers who have reached age sixty are forced to retire prior to a decision on their appeal they will be irreparably harmed. The officers will lose their positions, salaries, and accruing benefits. While part of this loss could be compensated later with monetary damages, the loss of position and location of assignment, in addition to the loss of the satisfaction of continuing to work, is more intangible. Plaintiffs persuasively argue that the issue is not mere loss of a job, but the end of a career where the number of productive years of employment are reduced.

In response, defendants claim that money will compensate plaintiffs should they recover. They further observe that the court has the power to order additional relief and that the State Police regulation which forbids rehiring of a former officer is thus irrelevant here. While the State Police have a point, we note that they have never offered to reinstate the officers should the plaintiffs prevail on appeal. Moreover, the State Police has repeatedly claimed that the shifting of positions and men is a complex administrative matter. We see no guarantee that every officer will be able to be restored to his prior position.

Plaintiffs also assert that defendants will not suffer any substantial harm by a continuance of the preliminary injunctions and the status quo. Defendants counter that the status quo is for officers to be mandatorily retired and not to remain in their positions. We disagree with this interpretation. The State Police also cite morale as an additional problem, pointing out that some officers cannot be promoted while older officers remain on the force. They argue that they have no other way to open promotion opportunities, absent a full court martial.

First, defendants” argument as to lost promotion opportunities appears to support plaintiffs” position that the retirement age is not a BFOQ. Second, the trial testimony revealed that many more officers retire early at age 50 than those compelled to retire at 60. Third, this will not be the first time that qualified individuals could not be promoted quickly due to equitable court relief. Finally, as the State Police has contended many times since the beginning of this case, State Police members have no right to any position, location, or duty assignment.

As to the likelihood of success on appeal, plaintiffs raise numerous points that are not frivolous. In respectfully arguing their position, plaintiffs present the following aspects:

--the Seventh Circuit opinion in Helar v. Crawford County, Wisconsin, Daily Labor Report (BNA) (No. 83-1872)(7th Cir. Aug. 20, 1984), persuasively observes that a mandatory retirement age is not reasonably necessary when the county fails to give periodic exams to discover diseases or conditions that disable officers from performing hazardous physical activities at an earlier age.

--a court has never before addressed the question of whether establishing a decline in performance abilities at a much earlier age that the mandatory retirement age validates or invalidates a BFPQ defense.

--those State Police officers younger than sixty who failed the physical test battery or the preceding medical exam are still performing their duties.

--since the court rejected the physical test battery results, it erred in relying upon some of the underlying data.

--the additional expense of individual testing is not a valid reason justifying a BFOQ.

--the court erred in not applying the BFOQ analysis to the different ranks or positions within the State Police.

Defendants, not surprisingly, argue that there was no error and that plaintiffs will fail on appeal. Additionally, they claim the issues on appeal are truly factual and not legal, thus increasing plaintiffs” burden on appeal.

Finally, plaintiffs assert that the public’s interest will not be harmed. They note that in the eighteen months that the injunctions have been in force, no injuries have occurred.

We have carefully considered the parties” arguments and have balanced all the elements. We conclude that respectable minds could differ as to the various legal issues we have addressed and that certain of these issues have not been clearly decided before in this circuit. We further find that plaintiffs would suffer irreparable harm if they are terminated from their positions now. Defendants, to the contrary, would not suffer any substantial harm by the issuance of an injunction pending appeal; nor do we find any harm to the public interest by granting an injunction. Thus, we find that the ends of justice will be served by maintaining the status quo pending a final decision by the appellate court.

An appropriate order will be entered.

Order

And now, this 2nd day of November, 1984, in accordance with the accompanying memorandum, It is hereby Ordered that plaintiffs” motions for an injunction pending appeal pursuant to Fed. R. Civ. P. 62(c) are granted. Pending a determination by the United States Court of Appeals for the Third Circuit of plaintiffs” appeals of the October 24, 1984, order of court, defendants are enjoined from mandatorily retiring the following Pennsylvania State Police officers

Lt. Otto J. Binker

Tpr. Edward A. Poplawski

Corp. Leonard Morgan

Tpr. W.E. Wertz

Major Michael Donahue

Lt. Robert Gorman

Capt. Francis McGann

Lt. George Martin

Sgt. Joseph Dean

Lt. Leon Salada

Tpr. John S. Mengak

Sgt. Thomas Osieski

Sgt. Franklin Fetterloff

Lt. John G. Flannery

Sgt. Francis Aruscavage

Sgt. Walter Mackiw

Tpr. Daniel Wengrenovich

Sgt. Jack P. Bednar

It is further Ordered that plaintiffs will not be compelled to post bond pursuant to the agreement of counsel that the aboveenumerated Pennsylvania State Police officers will submit a pledge in writing that any costs which may be incurred will be deducted from the officers” retirement accounts before disbursement is made in the event that plaintiffs do not succeed.