The predictive value of a "positive" test (that is, the likelihood that a person with a "positive" test will actually have coronary artery disease), and the predictive value of a "negative" test (that is, the likelihood that a person with a "negative" test is healthy), depend upon the prevalence of disease in the population being evaluated. An exercise stress test will identify diseased persons with a "positive" test result 60% of the time, and will identify healthy persons with a "negative" test result 90% of the time. Therefore, in a population with a disease prevalence of 5%, a "positive" test result will have a predictive value of only 24%. In other words, three-fourths of those persons with a "positive" exercise stress test - which suggests that they have disease - will actually be healthy. Although a "negative" test result in those circumstances will be correct 97.7% of the time, the persons with a "negative" result will by definition also include 40% of those persons who actually have heart disease. With this disease prevalence, the results of an exercise stress test are of little or no value in identifying specific asymptomatic individuals who, in fact, have coronary artery disease.
The same problems remain even with a higher disease prevalence. Again, when diseased persons are likely to have a "positive" exercise stress test 60% of the time, and healthy persons likely to have a "negative" test result 90% of the time, in a population of 10,000 with a disease prevalence of 50%, 2,000 persons with disease will have a "false negative" test result, indicating that they are healthy when they are, in fact, diseased. Similarly, 500 healthy persons will have a "positive" test, suggesting that they have disease when they are, indeed, healthy. Although a "positive" exercise stress test result in those circumstances would have an 85.7% predictive value, 40% of the persons with a "positive", or abnormal, exercise test result would, in fact, be healthy. Similarly, a "negative" test result would have a 70% predictive value but, again, that figure would not be useful because 2,000 of those persons with a negative test result would, in fact, be diseased. And, as one of plaintiff's experts admitted, the test is both expensive and difficult to administer.
In light of these limits on the predictive value of both positive and negative test results, the exercise stress test, by itself, is not useful in identifying the specific asymptomatic individuals who possess significant coronary artery disease, regardless of the disease prevalence.
The combined evaluation of conventional risk factors and the response of an individual to an exercise stress test, also pressed by plaintiff, has been studied as a means of identifying asymptomatic individuals with a high likelihood of experiencing a coronary event over time. In the Seattle Heart Watch Study, researchers identified a group of individuals with a one-in-three likelihood of experiencing a coronary event in five years, a group which comprised only 1.1% of the total study population. Although the remainder of the population was considered to be at low risk (approximately 1% chance over 5 years of experiencing a coronary event), eighty percent of the total number of coronary events occurred in that low risk group. Even in the 1.1% of the population deemed to be at high risk, two-thirds of those individuals did not experience a coronary event in five years.
The inability to identify asymptomatic individuals with significant coronary artery disease with a combination of risk factors and exercise predictors was further demonstrated in recent studies of United States Air Force pilots. However, unlike the Seattle Heart Watch Study which only considered the manifestation of symptoms over time, all of the pilots studied were catheterized to determine actual disease prevalence. Although 89% of the group considered to be at "high risk" actually had disease, two-thirds of the total number with significant coronary disease were in the group considered to be at "low risk."
The low predictive value of an exercise stress test, either alone or in conjunction with conventional risk factors, is especially important in the context of State Police duties, which require arduous physical activity, often in the presence of the adrenaline response. Studies have indicated that the highly charged context of such activities can induce heart irregularities which cannot be detected in exercise stress testing conducted in the benign context of the laboratory. Thus, the low predictive value of exercise stress testing is exacerbated by the unique conditions of stress which will often accompany the peak exercise required during the performance of State Police duties. Moreover, as one of plaintiff's experts conceded, an untrained individual is 56 times more likely to suffer sudden death during exercise than at rest.
Defendants have presented a strong showing that the prevalence of significant, but asymptomatic, coronary artery disease among members of the New Jersey State Police age 55 and older presents a serious impediment to the continued health and fitness of these officers and, hence, to their ability to safely and efficiently perform their jobs. As a result of the sharp increase in significant coronary artery disease with age, there is a substantial basis for believing that this health risk must be addressed in officers age 55 and older in order to safeguard the health of the officer involved, as well as the safety of members of the public and fellow officers. In evaluating whether plaintiff is likely to succeed in its contention that this health risk does not provide a basis for the valid retirement of State Police officers at age 55, this court must determine whether the presence of significant coronary artery disease can be reliably determined on an individualized basis.
The medical testimony strongly supports the conclusion that it is impossible or impractical on the basis of current medical techniques to determine, among a group of asymptomatic individuals, the specific persons who suffer from "silent" coronary artery disease of a significant nature. Although the evaluation of conventional risk factors, such as smoking, cholesterol and blood pressure, can assist in counseling individuals and enabling them to lessen the risk of suffering a coronary event, and while risk factors do indeed accelerate or exacerbate coronary artery disease, an evaluation of those factors cannot identify the specific persons who will suffer cardiac difficulties, much less those persons who actually have "silent" disease.
Exercise stress testing, either alone or in conjunction with these conventional risk factors, similarly cannot identify the specific individuals with disease. Again, this technique can only identify a small percentage of the population at high risk of suffering a coronary event over time. It cannot be used in lieu of age as a basis for determining which individuals over age 55 can continue to perform State Police duties because it would frequently suggest that individuals who actually have the disease are healthy, permitting them to resume arduous State Police duties. Similarly, it would identify a substantial number of actually healthy individuals as having disease, and thus subject them to possible termination or invasive testing procedures. It is, thus, not possible to rely on exercise stress testing to determine, on an individualized basis, which State Police officers aged 55 and older suffer from significant coronary artery disease.
It is possible to determine with a high degree of accuracy which particular individuals suffer from significant coronary artery disease on an individualized basis through cardiac catheterization. In light of the degree of risk it presents, however, catheterization is not medically acceptable as a routine screening device for determining the presence of significant coronary artery disease in asymptomatic individuals, and plaintiff does not suggest otherwise.
Is, therefore, age an appropriate "proxy" for determining the continued health and fitness of members of the New Jersey State Police? It was demonstrated that the incidence of heart disease increases dramatically with age. An individual aged 55-64 is 80 times more likely to die of heart disease as an individual aged 25-34. Moreover, it was demonstrated that age is the single most important conventional risk factor, whether considered in terms of the proportional increase in risk over time, or the absolute increase in risk in comparison with other conventional risk factors. Indeed, perhaps half of all individuals aged 55 have significant coronary artery disease, and the level of prevalence may be higher. In light of the fact that the presence of significant coronary artery disease cannot practically be determined in asymptomatic persons on an individualized basis, the only alternative to mandatory retirement would be for the State Police to ignore this serious health risk and wait for an older officer to experience a coronary event, possibly in circumstances which would place the officer, fellow officers, and members of the public at risk. It is, therefore, likely that defendants will establishing at trial that the mandatory retirement age of 55 is an appropriate "proxy" for determining the continued fitness to perform New Jersey State Police duties.
Given plaintiff's failure to satisfy its burden of demonstrating a reasonable likelihood of eventual success on the merits, this court need not consider the probability of irreparable harm if equitable relief is not granted. It is clear, however, that harm that will be "irreparable" has not been shown.
The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.
Sampson v. Murray, 415 U.S. 61, 90, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974), quoting Virginia Petroleum Jobbers Assn v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958) (emphasis in original). The injury must be of a "peculiar nature", so that compensation in money cannot atone for it. A. O. Smith Corporation v. Federal Trade Commission, 530 F.2d 515, 525 (3d Cir. 1976). The fact that the damage might otherwise be "serious or substantial" is unimportant in the absence of proof that it is manifestly irreparable. Glasco v. Hills, supra, 588 F.2d at 181.
A preliminary injunction will normally be inappropriate in employment termination cases. In Sampson v. Murray, the Court held that although the granting of a preliminary injunction was not "wholly foreclosed" in such cases, the plaintiff "at the very least must make a showing of irreparable injury sufficient in kind and degree to override [those] factors cutting against the general availability of preliminary injunctions in Government personnel cases." 415 U.S. at 84.
The Court accordingly held that deprivation of income for an indefinite period of time and damage to reputation or embarrassment as the result of being discharged did not provide an adequate basis for the entry of preliminary injunctive relief. 415 U.S. at 89. It based this conclusion on the fact that monetary loss could be adequately compensated in the ordinary course of litigation, and on its belief that "no significant loss of reputation would be inflicted" and that whatever damage in this regard might occur would be fully corrected should plaintiff ultimately prevail on the merits. 415 U.S. at 91.
The Court noted:
We recognize that cases may arise in which the circumstances surrounding an employee's discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found. . . . We have held that an insufficiency of savings or difficulties in immediately obtaining other employment - external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself - will not support a finding of irreparable injury, however severely they may affect a particular individual. 415 U.S. at 92 n. 68, (emphasis added).
The Supreme Court, therefore, concluded that the granting of preliminary injunctive relief would be improper in an employee termination case in the absence of proof that what was presented was a "genuinely extraordinary situation." Id. See also Moteles v. University of Pennsylvania, 730 F.2d 913, 918-19 (3d Cir.), cert. denied 469 U.S. 855, 105 S. Ct. 179, 83 L. Ed. 2d 114 (1984).
There is no such proof here.
Plaintiff initially posited several difficulties which will face those sworn members who will be mandatorily retired, but the evidence has clearly established that certain of those difficulties are more imagined than real. Thus, all members of the State Police subject to mandatory retirement will receive substantial pensions of up to more than $40,000 annually, with cost of living adjustments made periodically. Pursuant to the State Police retirement system, an officer retiring after 20 years of service receives 50% of final compensation, while an officer retiring after 25 years receives 60% of final compensation, with 1% per year additional thereafter, up to a limit of 70% of final compensation. These pension benefits are in addition to any other income received by the retiring officer, whether through subsequent employment or otherwise. Retired officers are also covered by life insurance at state expense. Any temporary diminution in income is, of course, readily compensable were plaintiff to eventually prevail and does not constitute irreparable harm.
Similarly, while there may be tension and while there may be problems of morale within the Division given that others will have been promoted to the vacated positions, there will be no "inability" to command where sworn members now in positions of command returned to their current or similar positions at some future point in time. Each of the affected officers recognizes the paramilitary structure of the Division with its highly formal chain of command and given that structure, as one put it, "I will command."
The loss of job skills and the difficulty in retraining officers who are out of their positions for a period of time have also been urged upon this court. Any difficulties in these regards and, indeed, any difficulty with reference to the ability to command are, I suggest, more properly raised by defendants. In any event, defendants have represented to the court that they are fully willing to shoulder the burden of retraining officers should plaintiff ultimately prevail so that, if reinstated, those individuals will regain the proficiency necessary to perform their jobs competently. The two officers who testified to a fear of losing their job skills have conceded that they could successfully undergo such retraining. Moreover, any sworn member who is transferred (as he or she can be at any time) to a new substantive area of responsibility would require retraining and retraining is frequently undergone successfully when officers on sick leave return to work. Accordingly, there is no basis for this court to conclude that the loss of job skills during the pendency of this case will present irreparable harm to the officers subject to retirement.
That those who will seek new employment will be unable to find positions utilizing their experience and of equivalent status remains a matter of speculation. This record is replete with examples of officers who have retired from the Division and have gone on to prestigious and responsible positions in law enforcement as well as in other fields. Indeed, officers of the New Jersey State Police are often actively sought by both the private and governmental sectors upon retirement.
Even were one's inability to find a position which he deems suitable sufficient to constitute irreparable harm, and I do not for one moment suggest that it would,
there is no evidence that any of the 62 affected officers will be unable to find such a position or that, upon the passage of the statute, any one of them even attempted to do so. Indeed, one officer testified that it was "probable" that he could find a position of appropriate status and responsibility. Be that as it may, whether the affected officers will or will not encounter difficulty in this regard remains a matter of speculation, and speculation does not constitute irreparable harm.
It is the emotional and psychological difficulties which are now and will be suffered by those who are required to retire on September 1st which have, correctly, been the focus of the parties' attention. It is unexceptional, of course, that officers, some or all, may wish to remain. It is also unexceptional and somewhat understandable that those officers feel anxiety, loss of self esteem, and anger.
I say "somewhat understandable" because each affected officer joined the New Jersey State Police with knowledge that he would be required to retire at age 55 and each affected officer had lived under that requirement for a period of up to 30 years when, in March 1983, the statute was declared unenforceable. The "adequate period" of time which plaintiff's psychiatrist deemed important in terms of alleviating feelings of distress upon retirement has certainly been afforded.
It is, therefore, apparent that the evidence presented by plaintiff is no more compelling than that which is regularly presented in a standard employee termination case. Accordingly, and even assuming that older employees present a somewhat special situation, there is simply no basis for concluding under Sampson that any "peculiar" or "genuinely extraordinary" psychological or other harm which could be deemed "irreparable" will be suffered by these officers warranting removal of this case from the general rule precluding the entry of preliminary injunctive relief.
A PRELIMINARY INJUNCTION WOULD ADVERSELY AFFECT THE PUBLIC INTEREST AND THE DIVISION OF STATE POLICE
The entry of preliminary injunctive relief in this case would have an adverse effect on the public interest by presenting a risk of harm to public safety if defendants ultimately prevail in their contention that mandatory retirement at age 55 constitutes a valid BFOQ. Defendants' position, as should by now be clear, is that the mandatory retirement age is necessary because all or substantially all officers over the age of 55 cannot safely and efficiently perform State Police work, and that it is impossible and impractical to determine on an individualized basis, except with reference to age, those persons older than 55 who can safely and efficiently perform those duties. If defendants are ultimately correct in this contention, the retention of officers over the age of 55 during the pendency of this action will present a risk of harm to the individuals involved, to other officers, and to the members of the public they are sworn to protect. It is hardly a startling proposition that a law enforcement organization, and the public it serves, must be able to rely on the physical abilities of its members to perform their duties.
Somewhat related, and yet somewhat different, is the fact that the entry of a preliminary injunction would cause the average age of troopers performing road duty to rise because officers aged 55 and older - some, many, or all - would remain on the force. Indeed, the average age of the road trooper has already increased by virtue of the suspension of the prior mandatory retirement statute in March of 1983. This rise in age of those who are on patrol functions day in and day out would make it even more likely that officers with an unacceptably low aerobic capacity or with silent heart disease would be required to perform arduous physical duties which would place themselves and others at risk.
Moreover, preliminary injunctive relief barring the enforcement of the mandatory retirement age would diminish the numbers of higher ranking officers leaving the force, thereby reducing the employment opportunities available to lower-ranking personnel and increasing the likelihood that they will leave. But even were they to remain, the effect on their morale and the effect of morale on productivity and, hence, on the public safety must be considered. As the Superintendent testified, the practical management of a police organization demands that when individuals perform above the norm there must be a reward, and "promotions are it." Promotions have been substantially reduced since the demise of mandatory retirement in 1983 and the perception that there is no opportunity to get ahead has been the most significant "morale breaker" within the State Police. And while the Superintendent does not now perceive a breakdown in productivity, he is concerned that that possibility exists, a possibility which will not eventuate, at least at this juncture, if a preliminary injunction is denied. While promotions and morale have not been offered to support the BFOQ exception, the effect of these factors on the public interest in terms of the grant or denial of a preliminary injunction is not something I can ignore.
It is, therefore, this court's determination that plaintiff has demonstrated little likelihood of success on the merits. Rather, defendants have made a substantial showing 1) that health and fitness are reasonably necessary to the essence of the business of the State Police which is to enforce the law and protect the public; 2) that all or substantially all State Police officers aged 55 and over cannot safely and efficiently perform State Police duties because of diminished aerobic capacity; and 3) that a large percentage of officers aged 55 and older possess significant, but silent, coronary artery disease which would place themselves and others at risk during the performance of arduous State Police duties, and that the presence of coronary artery disease of this magnitude cannot be determined among officers over age 55 on an individualized basis except with reference to age.
Additionally, plaintiff has not demonstrated irreparable harm were this injunction not to issue and defendants have demonstrated the adverse effect on them and on the public interest if an injunction were to issue.
Accordingly, plaintiff's application for a preliminary injunction is denied.