Appeal from the United States District Court for the Eastern District of Wisconsin. No. 79 C 444 -- Aaron E. Goodstein, Magistrate.
Cummings, Chief Judge,*fn* Pell, and Cudahy, Circuit Judges. Pell, Circuit Judge, concurring.
The City of Wauwatosa, Wisconsin, appeals from the decision and order of a United States Magistrate finding the City liable, under the Age Discrimination in Employment Act (the "ADEA" or the "Act"), 29 U.S.C. §§ 621 et seq. (1976 & 1978 Supp.), for illegally terminating the employment of its Assistant Fire Chief, Stanley Orzel, upon Orzel's attainment of the City's then-mandatory retirement age of 55. The City also challenges the magistrate's finding of a "willful" violation of the ADEA and his consequent award of liquidated damages under 29 U.S.C. § 626(b). We affirm.
Plaintiff, Stanley Orzel, is currently a 59-year-old resident of Wauwatosa, Wisconsin.*fn1 In 1949, Orzel was hired as a firefighter by the Wauwatosa Fire Department; thereafter he was promoted through the ranks until reaching the position of Assistant Chief, a position he held from 1970 until his compulsory retirement in 1978. In May 1977, the City informed Orzel that he would be forced to retire from his position as Assistant Chief on December 31, 1978, pursuant to the City's then-existing compulsory retirement age of 55 for all "protective service" employees.*fn2 Orzel's request to the City's employee relations committee for an extension of employment was denied, and Orzel was, in fact, mandatorily retired on December 31, 1978.
After unsuccessfully pursuing his administrative remedies, as required by section 626 of the ADEA, Orzel filed the instant lawsuit in federal district court. In his Complaint, Orzel sought reinstatement as well as compensatory and liquidated damages under section 626(b) of the ADEA.*fn3 In its Answer and supporting papers, the City admitted that Orzel had been forced to retire at age 55, but claimed that this compulsory retirement did not violate the ADEA because age was a bona fide occupational qualification for the job of firefighter and because the ADEA could not constitutionally be applied to state and local governments.*fn4
On May 6, 1980, the district court, pursuant to stipulation, ordered the case transferred to United States Magistrate Aaron E. Goodstein. A trial was held before Magistrate Goodstein on February 11-13, 1981. Prior to trial, the parties stipulated that the plaintiff, Stanley Orzel, was "physically and mentally in excellent condition and good health and that no claim is made that he personally was not capable of performing all fire department functions."
On August 31, 1981, Magistrate Goodstein issued a Decision and Order sustaining Orzel's claim of age discrimination and awarding Orzel both actual and liquidated damages. The magistrate, however, deducted from his damage award all amounts "received by the plaintiff from unemployment compensation benefits and retirement pension benefits," Decision and Order at 18, as well as "the amount of [plaintiff's] interim earnings." Id., at 19. The magistrate also concluded, in the face of conflicting lower court authority, that damages for pain and suffering were not available under the ADEA and, hence, refused to include any such damages in his award.*fn5 In awarding liquidated (or double) damages under section 626(b) of the Act, the magistrate noted that the statute provided for liquidated damages "only in cases of willful violations of this Act." Decision and Order at 21. After reviewing in some detail the development and chronology of Orzel's age discrimination claim, the magistrate found that the violation by the City could not be characterized as "accidental or unintentional," and that the City satisfied the standard for willfulness set forth in Wehr v. Burroughs Corp., 619 F.2d 276, 280 (3d Cir. 1980).
In sustaining plaintiff's charge of discrimination, the magistrate also rejected the City's argument that age 55 constitutes a bona fide occupational qualification ("BFOQ"), under section 623(f)(1) of the ADEA, for the job of firefighter in Wauwatosa, Wisconsin.*fn6 The magistrate concluded that, although the evidence presented by both sides indicated that some age below the federally protected limit of 70 could qualify as a BFOQ, the City had failed to establish either that a mandatory retirement age of 55 was reasonably necessary to the efficient operation of its fire department, or that substantially all persons over 55 would be unable to perform firefighting duties:
It is the opinion of this court that the Wisconsin legislative history is not sufficient to satisfy defendant's burden that age 55 is a BFOQ. There is a lack of evidence to convince this court that the selection of age 55 represented the appropriate balancing test that the policy underlying the ADEA requires. There is not a scintilla of evidence to relate age 55, as opposed to ages 50 or 60, to the public interest and safety.
Magistrate's Decision and Order at 14 (emphasis supplied).
On appeal, the City challenges the magistrate's conclusion that age 55 is not a valid BFOQ for the job of firefighter. Citing this court's decision in EEOC v. Janesville, 630 F.2d 1254 (7th Cir. 1980), the City argues that "once it is conceded that an age less than 70 is a BFOQ, the judgment made by the appropriate local officials should be approved." Appellant's Br. at 22. The City also argues that its selection of age 55 is supported by (1) federal and state legislative history; (2) findings made and reported in other judicial decisions; and (3) the medical and other evidence submitted in this case. Id.
On the question of damages, the City urges that because the legal issues surrounding the application of the ADEA to the compulsory retirement of municipal firefighters "were at no time clear and unambiguous," and because "the City had and still has a legally justifiable basis for contesting plaintiff's claim," the magistrate erred in finding a willful violation of the Act and in awarding double damages pursuant to 29 U.S.C. § 626(b) (1976). The City also argues that the magistrate's award of actual damages should be significantly reduced because the plaintiff violated his duty to mitigate and that, in any event, the plaintiff should not be compensated for any damages incurred subsequent to December 21, 1979, when he rejected an offer by the City to return to work.*fn7 We shall first address the BFOQ issues before turning to the question of damages.*fn8
The ADEA, originally enacted in 1967, makes it unlawful for any employer, employment agency or labor organization to discriminate on the basis of age against persons between the ages of 40 and 70.*fn9 Congress' goals in passing the ADEA were threefold: to promote the employment of older workers based on ability rather than age; to prohibit arbitrary age discrimination in employment; and to aid employers and workers in studying the relationship between age and employment. 29 U.S.C. § 621(b) (1976); EEOC v. Elrod, 674 F.2d 601, 604 (7th Cir. 1982). Although the ADEA generally prohibits employers from relying solely upon age as a measure of individual ability, the Act contains several exceptions which allow the use of age as an employment criterion in certain, limited, situations. The most important of these exceptions -- the BFOQ exception -- allows an employer to discriminate, on the basis of age, against members of the statutorily protected class if "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) (emphasis supplied).
Because the BFOQ exception frees an employer from the ADEA's general requirement of making individualized judgments regarding the ability of older workers, overuse of the exception involves the risk of reintroducing on a broad scale the very age stereotyping the ADEA was designed to prevent. For this reason, and because of the general maxim that exceptions to a remedial statute are to be "narrowly and strictly construed," Sexton v. Beatrice Foods Co., 630 F.2d 478, 486 (7th Cir. 1980), the courts have consistently held that the BFOQ exception to the ADEA is to be interpreted narrowly, and that the burden is on the employer to demonstrate its applicability. See, e.g., EEOC v. Janesville, 630 F.2d 1254, 1258 (7th Cir. 1980); Smallwood v. United Air Lines, Inc., 661 F.2d 303, 307 (4th Cir. 1981), cert. denied, 456 U.S. 1007, 102 S. Ct. 2299, 73 L. Ed. 2d 1302 (1982); Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966, 54 L. Ed. 2d 451, 98 S. Ct. 506 (1977); cf. Dothard v. Rawlinson, 433 U.S. 321, 324, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977) (BFOQ exception to Title VII was meant to be an "extremely narrow exception"). Moreover, both the Department of Labor, the federal agency originally entrusted with the enforcement of the ADEA, and the Equal Employment Opportunity Commission, to whom enforcement responsibilities were transferred in 1979, have consistently advocated an extremely narrow interpretation of the BFOQ defense.*fn10 Such an interpretation by the agencies charged with enforcement of the ADEA is, of course, entitled to considerable weight. Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971); Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965).
With these general considerations in mind, we turn to an examination of the particular BFOQ defense asserted by the City in the instant case. In contending that age 55 constitutes a valid BFOQ for local firefighters, the City raises essentially three arguments. First, the City notes, correctly, that federal firefighters are ordinarily required by statute to retire at age 55.*fn11 Observing that the relevant federal retirement statute was passed by the same Congress that extended the proscriptions of the ADEA to state and local governments, the City argues that Congress could not possibly have intended to prohibit state and municipal employers from adopting age 55 as a mandatory retirement age for local firefighters while, at the same time, authorizing compulsory retirement of federal firefighters at that same age. We find this argument unpersuasive for several reasons.
Initially, we note that the federal retirement statute contains an express provision allowing the head of the appropriate federal agency, "when in his judgment the public interest so requires, [to] exempt [a federal firefighter] from automatic separation under this subsection until that employee becomes 60 years of age." 5 U.S.C. § 8335(b) (1976). Thus, unlike the compulsory retirement scheme in place in Wauwatosa at the time of Orzel's termination, the federal retirement scheme expressly allows for individualized determinations of fitness in exceptional cases.*fn12
More important, the fact that Congress has determined that age 55 is an appropriate retirement age for one group of firefighters does not automatically establish that the same retirement age is a valid BFOQ, under section 623(f) of the ADEA, for a wholly different group of employees, operating under different working conditions and performing significantly different job functions. See Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir. 1982) (existence of FAA "Age 60 Rule" for commercial airline pilots does not establish, as valid BFOQ, same retirement age for non-commercial pilots). Nothing in the record here indicates that the tasks performed by local firefighters in Wauwatosa, Wisconsin are substantially identical to those carried out by federal firefighting personnel; indeed, the City, in its appellate brief, seems to suggest the opposite.*fn13 Moreover, as a legal matter, mandatory retirement schemes approved by Congress for federal employees are not subject to the strict requirements of the ADEA, Stewart v. Smith, 218 U.S. App. D.C. 94, 673 F.2d 485 (D.C. Cir. 1982); rather, such schemes need only be rationally related to a permissible government objective. Vance v. Bradley, 440 U.S. 93, 97, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979). Only those age limitations that are so unreasonable as to constitute an arbitrary and capricious exercise of legislative power will fail this test. Id.; see Starr v. Federal Aviation Administration, 589 F.2d 307 (7th Cir. 1978) (upholding, under abuse of discretion standard, FAA rule prohibiting persons over age 60 from serving as commercial airline pilots; distinguishing between this standard and BFOQ analysis necessary to sustain age qualification against challenge brought pursuant to ADEA). Under the ADEA, by contrast, compulsory retirement schemes must not only be arguably rational; they must also be reasonably necessary to the operation of the particular business in question. 29 U.S.C. § 623(f)(1) (1976); Harriss v. Pan American World Airways, 649 F.2d 670, 677 (9th Cir. 1980) (district court applied erroneous BFOQ standard in requiring only that challenged policy be "reasonable" in light of safety factors rather than "reasonably necessary" to the efficient operation of the employer's business). Thus, an employer seeking to justify its mandatory retirement age as a valid BFOQ must satisfy a much more stringent evidentiary test than the mere rationality requirement imposed on federal retirement schemes. Tuohy v. Ford Motor Co., 675 F.2d 842, 845-46 (6th Cir. 1982).
Also noteworthy in this regard is the fact that in April 1982, the Sixth Circuit reversed the district court decision upon which the City here principally relies to support its contention that the federal retirement statute establishes, as a matter of law, the "reasonable necessity" of the City's analogous retirement age. In Tuohy v. Ford Motor Co., 490 F. Supp. 258 (E.D. Mich. 1980), a district court had granted summary judgment in favor of an employer in an ADEA action on the ground that the employer's adoption, for its own pilot-employees, of the age 60 retirement rule promulgated by the FAA for commercial pilots was per se reasonable and, hence, qualified as a valid BFOQ for purposes of the ADEA. 490 F. Supp. at 264. The district court in Tuohy concluded that where safety is a paramount factor, as it is in the case of airline pilots, the ADEA required no more of an employer than that its rule be "reasonable"; it then held that a mandatory retirement age based upon the related determination of an "appropriate federal agency" necessarily satisfied that standard. Id. at 263-64.
The Sixth Circuit, in Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir. 1982), reversed, holding that the existence in the record of conflicting evidence regarding "the ability of medical science to make determinations concerning a particular pilot's state of health independent of age," created a material issue of fact bearing upon the "reasonable necessity" of Ford's mandatory retirement policy. 675 F.2d at 845. In its opinion, the Sixth Circuit expressly rejected the district court's conclusion that the "Age 60 Rule" promulgated by the FAA pre-empted further inquiry into the "reasonable necessity" of Ford's analogous mandatory retirement scheme:
The presence of an overriding safety factor might well lead a court to conclude as a matter of policy that the level of proof required to establish the reasonable necessity of a BFOQ is relatively low. However, this is quite different from dispensing with the requirement of necessity and holding that a BFOQ has been established as a ...