8. The purpose of the Illinois statute requiring state
police to retire at age 60 is to protect the public by
assuring the physical preparedness of its uniformed police.
9. An individual's physical ability declines with age. One
measure of an individual's physical ability is their aerobic
capacity, which measures the amount of oxygen a body can
absorb. Based upon the most strenuous aspects of a state
trooper's job, a trooper should have an aerobic capacity of
3.0 liters of oxygen per minute. Aerobic capacity decreases
with age, and the average 60 year old has an aerobic capacity
of 2.1 or 2.2 liters per minute. Regular, vigorous exercise
can only inprove aerobic capacity by 10 to 15%.
10. Coronary artery occlusion, which restricts the flow of
blood to the heart, could cause an individual exposed to high
levels of physical exertion to suffer a heart attack. By age
60, approximately 70% of men have significant coronary artery
disease in the form of obstruction of at least one coronary
artery to a degree of at least 50%. There is no practicable
means to detect the presence of coronary artery occlusion in
asymptomatic individuals. At age 55 and over, age is the most
significant factor in predicting the presence or absence of
coronary artery occlusion.
11. Robert J. Popkins filed this lawsuit on June 16, 1983.
He notified the Secretary of Labor of his intent to file suit
by filing a complaint with the Equal Employment Opportunity
Commission on May 20, 1983.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over this action under
28 U.S.C. § 1331. The plaintiff has requested relief under the
Discrimination in Employment Act, 29 U.S.C. § 626; the
Declaratory Judgment Act, 28 U.S.C. § 2201 & 2202; the Age
Discrimination in Federally Assisted Programs Act, 42 U.S.C. § 6104;
the civil rights statutes, 42 U.S.C. § 1981 and § 1983;
and unspecified provisions of state law.
2. The plaintiff has not stated a claim under 42 U.S.C. § 1981
because he has not alleged any discriminatory treatment
on account of his race.
3. The plaintiff's claim under the Age Discrimination in
Federally Assisted Programs Act is not properly before the
Court. Under 42 U.S.C. § 6104(e), a party is required to notify
the Secretary of Health and Human Services, the Attorney
General of the United States, and the defendants thirty days
prior to commencement of the action. A litigant is required to
exhaust administrative remedies under 42 U.S.C. § 6104(f).
Because the plaintiff has not demonstrated compliance with
these provisions, the Court lacks jurisdiction over this claim.
4. The plaintiff's unspecified state law claims are barred
by the Eleventh Amendment, because a claim that state
officials violated state law in carrying out their official
responsibilities is a claim against the state, and the relief
sought would have a direct impact on the state itself.
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,
104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
5. The plaintiff's requests for a declaratory judgment and
§ 1983 relief are premised, in part, on an alleged violation of
the equal protection clause of the Fourteenth Amendment. Under
the equal protection clause, a mandatory retirement law for
state police must be sustained if the state has a rational
basis for the law, even though other state employees are not
required to retire until age 70. Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d
520 (1976). The Illinois statute requiring state police to
retire at age 60 (Ill.Rev.Stat. 1983, ch. 121, § 307.12-1)
meets the requirements of the equal protection clause, as it
rationally furthers the purpose of protecting the public by
assuring the physical preparedness of the state's uniformed
police. Murgia, supra.
6. A claimant under the Age Discrimination in Employment Act
("ADEA") may not commence a lawsuit until 60 days after a
charge has been filed with the Secretary of Labor through the
Equal Employment Opportunity Commission. 29 U.S.C. § 626(d).
Every appellate court that has considered this question has
concluded that the 60-day notice provision is a jurisdictional
prerequisite. Cannon v. University of Chicago, 559 F.2d 1063
(7th Cir. 1976), rev'd in part and remanded on other grounds,
441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Vance v.
Whirlpool Corp., 707 F.2d 483, 489 (4th Cir. 1983). The purpose
of the 60-day waiting period is to permit the appropriate
federal officials an opportunity to bring about compliance with
the act by informal methods. Because the defendants in this
action acted pursuant to state statute, efforts at conciliation
would be meaningless. The law does not require the performance
of meaningless acts, and consequently, the Court has
jurisdiction over the ADEA claim even though the plaintiff
provided only 27 days' notice before commencing this lawsuit.
7. Even though the plaintiff was discharged solely because
of his age, the discharge did not violate the ADEA because
under the facts presented, age is a bona fide occupational
qualification ("BFOQ") reasonably necessary to the operation
of the state patrol. To prevail on a BFOQ defense, "an
employer must show that the challenged age qualification is
reasonably related to the essential operation of its business,
and must demonstrate either that there is a factual basis for
believing that all or substantially all persons above the age
limit would be unable to effectively perform the duties of the
job, or that it is impossible or impracticable to determine
job fitness on an individualized basis." Orzel v. City of
Wauwatosa Fire Dept., 697 F.2d 743 (7th Cir.), cert. denied,
___ U.S. ___, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983). The first
step in this inquiry is satisfied for the same reasons that the
Court sustained the statute under the equal protection clause.
Supra. The defendants have sustained their burden under the
second step in the inquiry by presenting undisputed medical
testimony that substantially all persons over age 60 lack the
physical capacity to effectively work as Illinois State
Troopers, and the impracticability of determining which persons
over age 60 are capable of performing this work. The
plaintiff's particular assignment at the time of his
termination is not relevant to this inquiry, because the BFOQ
focus is on the "business" and not on the assignment. Equal
Employment Opportunity Commission v. City of Janesville,
630 F.2d 1254, 1258 (7th Cir. 1980). This point is especially
important in this case, because a trooper is not permanently
assigned as Public Information Officer, and may be reassigned
to patrol duties at any time. So long as the Department of Law
Enforcement requires its information officers to be state
troopers, individuals holding that position must meet all the
standards required of troopers. The plaintiff has presented no
evidence that suggests that retirement at age 60 is not a BFOQ
for the generic class of state troopers, and the plaintiff's
nonmedical physical examination does not establish his fitness
to perform as a state trooper.
IT IS THEREFORE ORDERED that this action is DISMISSED.
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