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EEOC v. PENNSYLVANIA

October 22, 1986

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and LIEUTENANT OTTO J. BINKER, Plaintiffs
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, and the COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, Defendants



The opinion of the court was delivered by: HERMAN

 R. DIXON HERMAN, U.S.D.J.

 On July 19, 1985, the Court of Appeals for the Third Circuit remanded the above action to this court for reconsideration of the record and additional particularized fact-finding. The parties have supplemented the record at additional hearings in September, 1985 and April, 1986, and the case is now ripe for our decision.

 As the parties well know, Pennsylvania law currently provides that any member of the Pennsylvania State Police, regardless of rank, who reaches the age of sixty, must resign from the force, unless at that age he has attained less than twenty years of service. 71 P.S. § 65(d). Plaintiffs in this case attack the validity of this law under The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. Plaintiff Binker also attacks this act as a denial of equal protection and due process. The Commonwealth defends, asserting that the mandatory retirement age is a bona fide occupational qualification (BFOQ) reasonably necessary to the operation of the Pennsylvania State Police. 29 U.S.C. § 623(f)(1).

 I. PRIOR HISTORY

 In our first decision of this case, Equal Employment Opportunity Commission v. Commonwealth of Pennsylvania, 596 F. Supp. 1333 (M.D. Pa. 1984), we held that the mandatory retirement age of sixty is a bona fide occupational qualification. In reaching our decision, we held that the defendants, in order to establish their BFOQ defense, were required to prove (1) the existence of a job qualification reasonably necessary to the essence of the State Police business, and (2) that they have reasonable cause for believing either (a) that all or substantially all individuals within the excluded group are unable to perform their duties safely and efficiently, or (b) that it is impossible or impractical to determine the disqualifying trait on an individual basis. Id. at 1337-1338; 1343.

 We also held that, although the majority of State Police officers, once they reach age sixty, hold ranks higher than Trooper, the relevant occupation for evaluation of the BFOQ defense is that of Trooper. This holding was based on the fact that all officers, even though they may have varying ranks and assignments, are essentially equal members of a paramilitary organization:

 
They are all compelled to carry a gun and to take appropriate police action twenty-four hours a day, every day of the year. While officers may be assigned a particular position, they do not have a right to retain that position and are subject to transfer. Any officer can be called out at any time to perform emergency duties, such as to handle a prison outbreak or a riot. Even if an officer is assigned a desk position, if an emergency situation arises at the station (e.g., an attempted prisoner escape during fingerprinting), that officer is expected to be able to handle that situation appropriately.

 Id. at 1343.

 On appeal, the Third Circuit affirmed both of these holdings, but concluded that we had not made sufficiently particularized factual findings supporting our conclusion that good health and physical fitness and strength are job qualifications reasonably necessary to the essence of the State Police business (the first prong of the BFOQ test). Equal Employment Opportunity Commission v. Commonwealth of Pennsylvania, 768 F.2d 514, 518(3d Cir. 1985). In ordering a remand, the court suggested that we further elaborate our findings with respect to both prongs of the BFOQ test, id. at 518, fn. 3, but it made clear that the legal standard we had applied and the occupation we had assessed in our initial ruling on the case were the proper ones:

 
Given the undisputed evidence of the traditional police duties incumbent upon all PSP officers, we believe that the district court was correct in finding that PSP is a paramilitary organization as defined by the First Circuit in Mahoney. We believe, moreover, that the Mahoney formulation is correct for defining "occupations" in paramilitary police organizations where all relevant personnel are required to be ready for emergency action, regardless of rank and general duties. We hold, therefore, that the district court applied the proper legal standard in determining whether the age limitation is a BFOQ.

 Id. at 517. *fn1"

 Our task now is to review the record, including the supplementary evidence adduced at the September and April hearings, to determine if the State Police have in fact met their burden of proving a BFOQ under the standard outlined in our original decision as affirmed by the Third Circuit. We accordingly make the following findings of fact.

 II. FINDINGS OF FACT

 A. Pennsylvania State Police department is a paramilitary organization.

 1. All officers are authorized and responsible for taking necessary police action while "off duty." Officers are also strongly encouraged to carry their issued revolver or a qualified personal revolver when off duty. All officers are subject to being called to duty for emergencies. (Defendants' exhibits 1 and 2).

 2. While "off duty" or emergency action is not undertaken frequently, such situations do arise and must be addressed by any member regardless of rank. (N.T. 3:75 (6/13/83); 6:81-83 (6/13/83); 7:57 (11/7/83); 7:74 (11/7/83)). *fn2"

 Officers of higher ranks than Trooper are called upon to perform the tasks of a Trooper in the normal course of their work, including performing such physical tasks as assisting stranded motorists in snow storms, pushing disabled vehicles off the roadway, chasing suspects on foot, chasing suspects by vehicle at speeds of seventy to eighty miles per hour, subduing suspects, and removing victims of accidents from wrecked vehicles. (N.T. 6:45 (6/13/83); 6:93-94 (6/13/83); 6:110-112 (6/13/83); 7:56 (11/7/83); 7:66-71 (11/7/83)).

 B. Good health and physical fitness, strength, and dexterity are job qualifications reasonably necessary to the essence of the State Police business.

 1. The industrial psychologist, David J. Wagner, expert witness for the State Police, performed a job analysis for the State Police in which he identified 554 tasks performed by a Trooper. (Defendants' exhibit 12).

 2. Mr. Wagner arrived at this list of 554 tasks by conducting a series of in-depth interviews with state police officers to find out what they did in their jobs. (N.T. 6:15 (6/13/83)).

 3. The preliminary list of tasks culled from the interviews was verified and modified through a series of questionnaires completed by three to four hundred state police troopers. (N.T. 6:15 (6/13/83)).

 4. Each of these 554 tasks finally identified can be broken down into components to determine the skills, knowledge, abilities, and personal characteristics necessary to perform the tasks. (Defendants' exhibit 12).

 5. Analysis of the tasks and the skills, abilities, knowledge, and personal characteristics required to perform these tasks reveals that there are eleven physical abilities or dimensions which are necessary for the adequate performance of the job of a State Trooper. (Defendants' exhibit 14 at 44-63).

 6. These eleven physical dimensions required to perform the job of a State Police Officer are as follows:

 
a. Eye-hand Coordination -- the ability to make precise movements of the hands when vision is used.
 
b. Manual Dexterity -- speed of skilled arm-hand movements of relatively large objects.
 
c. Finger Dexterity -- the ability to manipulate small objects which primarily involves the use of the fingers.
 
d. Reaction Time -- the speed with which an individual is able to respond to a stimulus.
 
e. Absolute Strength -- strength in moving a heavy object other than body weight or applying force to an immovable object (e.g., pushing car; subduing, restraining, apprehending; lifting; dragging; breaking up fight).
 
f. Relative Strength -- strength in moving body weight, or strength per pound of body weight (e.g., climbing).
 
g. Absolute Power -- strength or force in moving an external weight quickly and explosively (e.g., breaking down door, breaking through window; restraining).
 
h. Relative Power -- strength or force in moving body weight quickly and explosively (e.g., chasing, dodging obstacles).
 
i. Aerobic Endurance -- endurance in moving large muscle groups repeatedly for three minutes or more but preferably over five minutes (e.g., chasing for longer distances, walking, searching).
 
j. Anaerobic-Aerobic Endurance -- endurance in moving large muscle groups repeatedly for at least one minute but not for more than two minutes (e.g., chasing for shorter distances; pushing car; apprehending; carrying, dragging).
 
k. Absolute Muscular Endurance -- endurance in repeatedly lifting an external weight, or sustaining it by an isometric contraction (e.g., apprehending; breaking up fights; lifting). (Defendants' exhibit 14 at 44-63).

 7. Put more simply, the physical capacities necessary to perform the job of a State Police Officer include the aerobic capacity to run and pursue a suspect; the strength to disengage automobiles, to assist accident victims, or to drag incapacitated victims from dangerous situations; the coordination to handle firearms; the intact reflexes to operate automobiles at a highly demanding level of skill in all weather conditions; the visual, auditory and other sensory capabilities to be aware of circumstances in the environment; and freedom from disabling disease that would compromise an individual's "ability to perform under stresses of long hours and taxing physiological circumstances." (N.T. 2:3-4 (6/13/83)).

 8. Approximately 137 of the 554 tasks identified by defendants' expert require one or more of the following psychomotor capabilities or dimensions in order to be performed adequately:

 
- eye-hand coordination
 
- manual dexterity
 
-finger dexterity
 
- reaction time

 (Defendants' exhibit 14 at ...


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