The opinion of the court was delivered by: BARRY
On August 8, 1985, after hearing twelve days of testimony from thirty witnesses in Civil No. 85-2905, this court denied the preliminary injunction sought by the Equal Employment Opportunity Commission ("EEOC"), and L.1985, c.175, which reestablished the long-standing mandatory retirement age of 55 for all sworn members of the New Jersey State Police, became effective on September 1, 1985. The court's 52 page opinion stated, in conclusion, 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.
This decision was not appealed to the Court of Appeals for the Third Circuit, and 62 sworn members aged 55 and older were mandatorily retired on September 1.
Following another four days of testimony from 16 witnesses, trial on the merits in Civil No's. 84-2733 and 85-2905 has now concluded.
Plaintiff established its prima facie case in both cases; indeed, it was undisputed that the mandatory retirement age of 55 at issue in both cases restricts the continued employment of sworn New Jersey State Police officers solely with reference to age. The burden thus shifted to defendants to demonstrate that those age restrictions constituted Bona Fide Occupational Qualifications ("BFOQ") within the meaning of the Age Discrimination in Employment Act ("ADEA") and, more specifically, 29 U.S.C. § 623(f)(1). Defendants rested on the substantial factual showing made by them at the preliminary injunction hearing
and plaintiff proceeded to attempt to rebut that substantial showing. The evidence that plaintiff has presented has, if anything, strengthened the showing that defendants had heretofore made, and defendants surrebuttal case rendered inescapable the conclusion that I now reach as a matter of law - the mandatory retirement age of 55 established by L. 1985, c. 175 at issue in Civil No. 85-2905 and the mandatory retirement age of 55 at issue in Civil No. 84-2733 are valid and enforceable under the ADEA as BFOQ's which are reasonably necessary to the performance of the duties of the New Jersey State Police.
A. Continued Health and Fitness of all sworn members of the New Jersey State Police is Essential to Performance of that Agency's Public Safety Mission
There continues to be no serious dispute that the continued health and fitness of New Jersey State Police officers is essential to the safe and efficient performance of their law enforcement duties. Defendants have amply demonstrated the commitment of the New Jersey State Police to maintaining the continued health and fitness of its sworn members and plaintiff's experts have not challenged this demonstration in any meaningful way. As noted in my earlier opinion, the findings of which are incorporated by reference herein, prior to 1983 all officers participated in an annual fitness test, which measured the ability to perform rudimentary physical activities. See 620 F. Supp. at 985. As a result of the efforts of the State Police to reassess its physical fitness program following the decision of the Supreme Court in EEOC v. Wyoming, supra, it developed a comprehensive In-Service Fitness Screen to evaluate the physical condition of its members. Id. Following that assessment, the New Jersey State Police established what is known as the Well Trooper Program, which requires all sworn members to undergo complete annual medical examinations. In addition, as of the date of my earlier opinion, the Superintendent of State Police was awaiting the recommendation of a Physical Standards Committee as to ongoing physical training and performance standards for the State Police, as well as recommendations from the Duty Status Review Board as to appropriate action to be taken with respect to officers with health problems. Id. at 986.
The testimony at trial has confirmed this court's prior findings as to the critical importance of the continued health and fitness of sworn New Jersey State Police officers, as well as the ongoing commitment of the New Jersey State Police to assure that all sworn members, of whatever age, possess the level of physical and medical fitness needed to safely and efficiently perform their duties. Specifically, the New Jersey State Police has continued not only the free medical care that has always been available but also its Well Trooper Program, with medical examinations of all sworn members presently being performed. In addition, a physical standards program has been adopted under which sworn members will pursue physical training and, commencing in the Spring of 1986, will be tested in a test to be given twice a year for adequate performance of a number of physical exercises, including a 1.5 mile timed run which will assure that all members possess a level of aerobic capacity of at least 41 mililiters of oxygen per kilogram per minute ("ml/kg/min."). With proper training, officers under age 55 of both sexes will be able to achieve and to maintain the aerobic capacity of 41 ml/kg/min. which I earlier found to be the minimum capacity necessary to perform basic law enforcement tasks. It should be noted that if an officer does not successfully complete the test or fails to take the test he or she shall be subject to reclassification in the former instance and disciplinary action in the latter.
The EEOC, in its attempt to show that health and fitness are not as important to the New Jersey State Police as it suggests, points to at least 59 sworn members with temporary or permanent disabilities and others whom the EEOC describes as having "serious" medical problems and who were still employed as of the date of trial. In this attempt, the EEOC ignores the fact that it is only recently that the Duty Status Review Board submitted its recommendations to the Superintendent and he immediately began to act on those recommendations. If over the many years of the existence of the State Police it was able to take care of its own including those injured in the line of duty, it has recognized for some time that, consistent with the paramilitary nature of the organization and the sincere emphasis it places on health and fitness, it cannot do so now. This tragic consequence prompts me to note that it comes with some ill grace for the EEOC in the course of raising the rights of one group to suggest that others should be precipitously discharged.
The EEOC also points to the testimony of Dr. Richard Mostardi, a physiologist who testified on behalf of the EEOC and offered his opinion that while some health and fitness is necessary to perform the job of a New Jersey State Police officer, the level of health and fitness defendants require is unnecessary. This opinion, which I reject, was based on four conclusions: (1) there has not been a meaningful evaluation of health and fitness during the careers of New Jersey State Police officers and the programs now in place, while "excellent", "meaningful", and "acceptable", would have to be functioning at a high level of efficiency for several years to be significant; (2) there are a number of officers with serious medical problems who have performed their assigned duties effectively and efficiently;
(3) based on his discussions with the supervisors of six officers aged 55 and older who worked for a short time at tasks of which Dr. Mostardi was unaware, those officers also functioned effectively ("That is a small component as it applies to my opinion" T.309); and (4) there is much emphasis on health and fitness upon entry into the State Police yet, from that point on, officers are never again checked.