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EEOC v. COUNTY OF ALLEGHENY

August 11, 1981

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
COUNTY OF ALLEGHENY and Commonwealth of Pennsylvania, and Richard Thornburg, individually and in his capacity as Governor, and Edward Biester, individually and in his capacity of Attorney General, Defendants



The opinion of the court was delivered by: ZIEGLER

In this action, we are asked to determine whether the avowed policy of the County of Allegheny by which it refuses to consider applicants over the age of 35 for positions as police officers violates the Age Discrimination in Employment Act of 1967 (ADEA). *fn1"

The central facts are not in dispute. The County of Allegheny, Pennsylvania, has for many years maintained a policy of refusing to permit individuals over the age of 35 to take the police examination, and has refused to hire such individuals as police officers. This policy is predicated on a state statute, applicable to Allegheny County alone, which provides that:

 
No person shall be eligible to apply for examination (for county employment) unless he is more than eighteen years of age and, with respect to applicants for the police force not over thirty-five years at the date of application ....

 16 P.S. § 4510.

 The Equal Employment Opportunity Commission instituted this action on behalf of three individuals claiming that Allegheny County's hiring policy violates federal law. Each claimant was denied the opportunity to take the County Police Examination, and was not considered for appointment to the police force because he was older than thirty-five.

 The EEOC argues that the County's hiring policy amounts to a per se violation of ADEA, and has moved for summary judgment. The Commission seeks broad injunctive relief to dismantle the County's hiring policy, as well as money damages, and immediate appointment plus retroactive seniority for each individual plaintiff. *fn2"

 For the reasons set out below, we conclude as a matter of law that the County of Allegheny has engaged in a policy of discrimination in violation of the Age Discrimination in Employment Act of 1967. We will order injunctive relief to prohibit continuation of the hiring practice, and order that the three individual plaintiffs be administered the County Police Examination, and then considered for employment if otherwise qualified.

 However, we also conclude that material issues of fact remain as to whether the individual plaintiffs have sustained any injury as a result of the discriminatory hiring policy. We therefore deny the motion of the EEOC for summary judgment as it relates to the individual plaintiffs' claims for back pay, appointment, retroactive seniority, and liquidated damages, pending further development of the facts.

 I.

 The Act reads as follows in relevant part:

 
It shall be unlawful for an employer
 
(1) to fail or refuse to hire or 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.

 29 U.S.C. § 623(a)(1).

 The enactment of ADEA, and the subsequent amendments, reflect a national awareness of the injustice that age discrimination imposes upon "elderly" citizens. Congressional testimony surrounding the passage of this statute suggests two central purposes, to wit, the reduction of unemployment, welfare, and waste which accompanies the underutilization of experienced workers; and, the alleviation of economic, psychological and health problems faced by the individual victims of discrimination. See, Note, Damage, Remedies Under the Age Discrimination in Employment Act, 43 Brooklyn Law Review 47, 47-48 (1977).

 Although ADEA was enacted separately from Title VII of the Civil Rights Act of 1964, *fn4" the two statutes share a common heritage, and are generally regarded as lineal descendents. As the Supreme Court has observed:

 
There are important similarities between the two statutes, to be sure, both in their aims the elimination of discrimination from the workplace and in their substantive prohibitions. In fact, the prohibitions of the ADEA were derived in haec verba from Title VII.

 Lorillard v. Pons, 434 U.S. 575, 584, 98 S. Ct. 866, 872, 55 L. Ed. 2d 40 (1977).

 As a procedural matter, the burdens of proof in Title VII cases are to a large extent applicable to the area of age discrimination. See, Loeb v. Textron, Inc., 600 F.2d 1003, 1015 (1st Cir. 1979). Under ADEA, and Title VII, a discrimination action is dissected into three procedural steps. See, generally, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). *fn5"

 First, a plaintiff bears the burden of establishing, by a preponderance of the evidence, a "prima facie" case of discrimination. McDonnell Douglas Corp. v. Green, supra, at 802, 93 S. Ct. at 1824. Second, if the plaintiff satisfies the threshold test, the burden shifts to the defendant "to articulate some legitimate, non-discriminatory reason for the employee's rejection." Id. at 802, 93 S. Ct. at 1824. Third, if the defendant carries this burden, the plaintiff must then be afforded the opportunity to prove by a preponderance of the evidence that the reasons suggested by the defendant are not legitimate, but are a pretext for discrimination. Id. at 804, 93 S. Ct. at 1825. See also, Schlei and Grossman, Employment Discrimination Law, at 401-402 (1976). Our first task here is to determine whether the EEOC has established a prima facie case of age discrimination.

 In the leading case of McDonnell Douglas Corp. v. Green, supra, the Supreme Court articulated the four-part test which a plaintiff must satisfy in order to establish a prima facie case of employment discrimination. In that action for race discrimination predicated on Title VII, the Court ...


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