9340530, Esposito v. City of New London, Memo of Decision

Commission on Human Rights and Opportunities, : CHRO No. 9340530
v.
City of New London, Respondent

October 21, 1999

MEMORANDUM OF DECISION

I.    Procedural Background:

This proceeding was initiated by Armando Esposito ("Esposito") filing a complaint with the Commission on Human Rights and Opportunities ("Commission" or "CHRO") on May 24, 1993, which was amended on September 9, and October 1, 1993 respectively. Esposito, who turned age 65 on June 2, 1993, alleged that the City of New London Fire Department ("Respondent") terminated his employment by involuntarily retiring him because of his age in violation of C.G.S. § 46a-60(a)(l). The retirement of "Esposito" was accomplished in accordance with the provisions of the City of New London Code of Ordinances, Fire Department Sections 15-25 through 15-200 (Sec. 145), and the existing contract between the Respondent and the New London Firefighters IAFF, Local 1522.

There was a finding by the assigned investigator that there was reasonable cause to believe that an unfair employment practice was committed. After failure of conciliation, the case was certified for public hearing on or about October 28, 1993. Subsequently to that time, a private settlement was reached between Esposito and the Respondent, leading to withdrawal of the private complaint. The Commission thereupon substituted itself in place of the Complainant in this action on or about August 2, 1996, pursuant to Section 46a-54 of the Regulations of Connecticut State Agencies.

After completion of the various prescribed and scheduled pre-trial matters, this case was noticed for a Public Hearing which was conducted on May 24, May 26, and May 27, 1999.

Prior to the commencement of the Public Hearing various Exhibits were entered into the record by agreement, including Record Exhibit No. 20. This Exhibit, entitled "Commission on Human Rights and Opportunities and Respondents’ Stipulation of Facts and Documents", contains a detailed account of the procedural history of this case, and is incorporated by reference hereto. This may be referred to for a more fully developed chronology of the procedural background of this case.

This Decision is based on the records and documents, including exhibits, admitted into evidence, the testimony provided during the three (3) days of public hearing, the post-hearing briefs, and reply briefs, of the parties, and the independent review of the applicable law by the undersigned.

II.    Findings of Fact:

1. All Statutory and procedural prerequisites to the public hearing were satisfied and this substituted complaint was properly before the undersigned presiding human rights referee. The jurisdictional matters regarding this complaint were satisfied and stipulated to by the parties without objection. (Record Ex. 20)
2. The Commission has its offices located at 21 Grand Street, Hartford, CT, c/o David Kent, Esq., Assistant Commission Counsel.
3. The Respondents address is c/o Brian K. Estes, Conway & Londregan, P.C., Attorneys at Law, 38 Huntington Street, P.O. Box 1351, New London, CT 06320.
4. Armando Esposito, the Complainant, was employed as a full-time firefighter with the City of New London ("City") since October 7, 1958. (Record Ex. 4).
5. Esposito was born on June 2, 1928, turning age 65 on June 2, 1993. (Tn.p.16)
6. During his career Complainant had an excellent work record with the Respondent. (Rec. Ex 4 & 5; Tn.p.23-24)
7. Esposito .was told by the City Manager in April 1993 that he had to retire on his 65th birthday in accordance with the applicable City Ordinance and the contract with the New London Firefighters IAFF (Resp. Exh. L and M)
8. Pursuant to an injunction obtained by the Commission Complainant continued to work satisfactorily with the Respondent until March 21, 1994 when he voluntarily retired. (Tr.p.22).
9. The Commission initiated complaint amendment, substituting itself for "Esposito", whose complaint had been withdrawn, was filed to pursue public policy goals and in particular to obtain a relevant interpretation of C.G.S. 46a-60(a)(l) et seq. (hereinafter "FEPA") as applied to the mandatory retirement of firefighters based on age. (Exh. 20).
10. Dr. Richard Mostardi, Professor of Biology at the University of Akron testified on behalf of the CHRO as an expert in the area of exercise physiology (CHRO Exh 24). Professor Mostardi supported the CHRO in testifying in opposition to an age 65 mandatory retirement policy for firefighters. (Tr.p.45)
11. Professor Mostardi’s opinion was substantially reflective of his experience in developing the "Akron test" when he served as a consultant to the Akron Fire Department in the 1980’s. This test is a detailed comprehensive exam aimed at individually assessing a firefighter’s continued ability to safely and effectively perform the essential functions of firefighting. (Tr.57)
12. Professor Mostardi testified that, in his opinion there was no correlation between age and the ability to do the work of a firefighter (Tr.59), and that an individualized testing program (such as his) was far more suitable as a matter of public policy. (Tr.73-75)
13. The Akron Fire Department consists of 320 firefighters as opposed to the Respondent’s 74. (Tr.64-65)
14. No one tested by Professor Mostardi had ever failed the Akron test. (Tr.p.80)
15. The oldest firefighter on the Akron Fire Department was 58 (Tr.81), and the oldest person who ever passed the "Akron test" was 62.
16. Professor Mostardi testified that in his opinion no test (of any kind) would be better than an age based criteria for determining a bona fide occupation qualification (hereinafter "BFOQ") (Tr.86)
17. Professor Mostardi acknowledged that the International Association of Firefighters did not agree that individual testing regimes do, or could actually replicate actual firefighter duties. He agreed to some extent "by virtue of the fact that the stress (of an actual) fire is superimposed upon the whole business and I agree with that" … that the stress factor is a big one". (Tr.89)
18. Professor Mostardi further acknowledged that some decline in cognitive abilities, aerobic and circulatory control and capability does occur with age. (Tr.90)
19. The federal mandatory retirement age for firefighters is 55 and has been so for a quarter century. (Tr.91)
20. Dr. Daniel Mark, currently Director of Outcomes, Research, and Assessment at the Clinical Research Institute at Duke University, also testified on behalf of the CHRO. His primary area of expertise lies in the area of cardiovascular disease and its diagnosis and prognosis. (CHRO Exh 27)
21. In Dr. Mark’s opinion mandatory retirement at age 65 is arbitrary and not based on science (Tr.250-251), asserting that cardiac health could be maintained into an advanced age through suitable resistance and other physical training. (Tr.255-256)
22. Dr. Mark testified that it was not impossible or impractical to determine job fitness for firefighters on an individualized basis (Tr.291-2), and preferred no age cutoff (at any age) at all if individual testing was not involved (Tr.292-6). This included ages up to and through age 90 (Tr.292-6).
23. Respondent Fire Chief Ronald Samuel testified that he agreed with the description by the National Fire Protection Association of a firefighters job as extremely physically and mentally demanding (Tr.123), and stated that the Respondent’s attempts at required physical testing had been prohibited under the union contract in effect (Tr.121).
24. Chief Samuel strongly agreed with the views and data submitted in Congressional testimony in 1993 by the International Association of Firefighters (Resp. Exh "Q" and "R"). The Association supports mandatory age retirement requirements for firefighters with the primary reason being firefighter safety, and that of the general public.
25. Essential facts testified to by the Association were: (a) that while only one-seventh of all firefighters are over age 50 they account for more than one-third of all firefighter deaths; (b) the average age of firefighters who died from duty related causes was 52, and the average age for duty connected disability retirements was 48 for injury; (c) the inherent nature of firefighting makes it impossible to compensate for the disabilities connected with advancing age, including the cognitive ability to concentrate for prolonged periods and the ability to shift back and forth between conflicting tasks in an emergency situation; and, (d) the inability to actually (as opposed to theoretically) replicate real life firefighting experiences in a way that would allow for reliable predictive tests for individuals.
26. Chief Samuel supported all of these contentions on the basis of his own knowledge and experiences (Tr.128-9).
27. Chief Samuel testified that the age group 30-59 represented the overwhelming majority of the Respondent fire department (69 members out of 75), with only six (6) members above age 59. Only two members exceeded age 65 and both initiated CHRO complaints.
28. Chief Samuel disputed Dr. Mostardi’s testimony in favor of an "Akron Test" for a variety of reasons, including its use of 3-stories as a "high rise scenario" (being too low), the 8-1/2 minute sample test profile (being too short), and the inability to simulate the stress present for firefighters during an emergency situation (Tr.137), as well as Dr. Mostardi’s description of all firefighting operations as being the same (Tr.138).
29. The disability of one (1) firefighter in a firefighting situation had a detrimental, cumulative effect on the entire operation as firefighting is a team operation and all its parts must work together at a high level (Tr.140).
30. Dr. Martin Cherniak testified as an expert in favor of the Respondent. Dr. Cherniak is a doctor of medicine currently employed as a Professor in the Department of Medicine at the University of Connecticut. Dr. Cherniak’s emphasis has been in the area of occupational health and work related issues (Tr.163).
31. Dr. Cherniak testified that an individual between the ages of 30-60 lose about 25-30% of their oxygenic capacity even if through exercise and other means cardiac output remains static (Tr.174); that between 20-65 the average person loses between 30% of their VO2 max, a figure that applies even to a select group like firefighters who might exercise regularly (Tr.178).
32. Dr. Cherniak’s testimony was that individual occupational testing as a criteria for employment is "an extremely regressive policy that’s inaccurate, that lacks predictive quality and usually ends up with just the opposite result that people foresee" (Tr.187).
33. Dr. Cherniak’s view was that testing was largely technology driven, and the testing is often out of date and based on ultimately false technical and medical assumptions (Tr.193). He used several illustrative examples, among them being changing knowledge about tryglycerides and cholesterol and their impact on strokes and heart disease (Tr.194).
34. As a result testing may have some biases based on group characteristics that would themselves be discriminatory (i.e., against females and African-Americans) and would wind up potentially eliminating some individuals who were actually fit for the job (Tr. 87-89, 217-218).
35. Dr. Cherniak’s view was that once an individual reaches the age of 65 the risk of sudden death or cardiac emergency becomes so severe and unpredictable on an individual basis as to make a firefighters performance and projected performance hazardous (Tr.198).
36. In Dr. Cherniak’s opinion age 52 would be an appropriate age for mandatory retirement for firefighters. This figure correlates in fact with the data submitted by the International Association of Firefighters (see Finding No. 24).
37. Dr. Cherniak’s testimony was that age 65 was unequivocally a bona fide occupational qualification for a firefighter and that a lower number would be appropriate as well.

III.    Discussion:

The Commission initiated complaint in this case is wholly based on its reading of C.G.S. § 46a-60(a)(l) ("FEPA"). There is no dispute but that the Respondent involuntarily terminates/mandatorily retires all firefighters on the basis of their age alone once they reach age 65. Therefore, such actions would be prima facie a violation of FEPA as a discriminatory employment practice in the absence of other statutory provisions which would permit an exception.

However there are other statutes which raise the issue of what constitutes a BFOQ exemption for firefighters from the normal reach of age discrimination claims under "FEPA". As our Supreme Court said in Sullivan v. Board of Police Commissioners of the City of Waterbury et al, 196 Conn. 208, 491 A.2d 1096 (1985) resolution of the conflicting arguments involved "present an issue of first impression for this court" (Sullivan at 213). They still do, which in all likelihood is one reason for the prosecution of this case at hand.

In the Sullivan case supra, which was decided on procedural rather than substantive grounds, the defendants squarely raised the issue as to whether or not age is a per se BFOQ, for police officers in that case, because of the legislature’s adoption of 46a-60(b)(l)(C). That provision reads in relevant part that "the provisions of this section shall not apply to … (C) the termination of employment of persons in occupations, including police and fire-fighting, in which age is a bona-fide occupational qualification" (emphasis added.) "It is a well-established tenet of statutory construction that the fundamental objective is to ascertain and give effect to the apparent intent of the Legislature … and to discern that intent, we look to the words of the statute itself … and to its relationship to the existing legislative and common law principles governing the same general subject matter": Poulos v. Pfizer, Inc. 244 Conn. 598, 605 (1988), Connecticut National Bank v. Giacomi 242 Conn. 17, 32 (1997).

I find the above statutory language to be actually very precise and unambiguous. Clearly the legislature was carving out what it said it was carvng out: namely an express exception to the law prohibiting age discrimination in the circumstances or situations where age constituted a bona fide occupation qualification ("BFOQ"), and it proceeded to forthwith name two specific examples, police and firefighting. It is also well established that "we (can) assume that the legislature attempts to create a consistent body of law …assuredly we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law" CHRO v. Truelove & MacLean, Inc., 238 Conn. 337, 347 (1996). "There is a presumption that the legislature, in enacting a law, did so in view of existing relevant statutes and intended it to be read with them so as to make one consistent body of law." Citrano v. Berkshire Mutual Insurance Co., 148 Conn. 255 (1976); Cagiva North America, Inc. v. Schenk, 239 Conn. 1, 8 (1996).

The above principle is especially important and relevant to this case because of the existence of C.G.S. § 7-430. The latter provides in pertinent part: "Any member [of a municipal employee retirement plan], except an elective officer, who has attained the age of sixty-five years if employed as a policemen or fireman shall be retired on the day following the attainment of such age, except any such member, at his request and with the annual approval of the Legislative body, may be retained at the participating municipality …" (emphasis added). The plain meaning of this Act puts it in direct conflict with the CHRO position that a mandatory retirement at age 65 illegally violates the FEPA.

After the parties submitted their post-hearing briefs on July 26 the undersigned requested on July 27 that each incorporate in their reply briefs an analysis of C.G.S. 7-430. Both did so. The Respondent argues that the language of the statute is plain and unambiguous, and in such instances" we need look no further than the words themselves because we assume the language expresses the legislature’s intent" Cashman v. Cashman, 41 Conn. App 382, 385-6 (1996). It contends that the logical way to read Section 7-430 and Section 46-60(b)(l)(C) together in a way that is consistent would be to conclude that age 65 is a legislatively accepted BFOQ age for firefighters in Connecticut.

I concur in this analysis. Even though Section 7-430 was amended in 1989 and 1993, the core mandated municipal retirement age of 65 for police and firefighters has been conspicuously maintained. It must be assumed, that in doing so, that the Legislature was fully cognizant of FEPA, and in particular with the exception it had earlier carved out for firefighters in Section 46a-60(b)(l)(C). This clearly amounts to a ratification of the Respondent’s position in this regard.

The CHRO in its reply brief argues that Section 7-430 actually supports its position in this case. It emphasizes the amendment of the Statute by P.A. 89-162, which allows police officers and firefighters to work after the age of 65, albeit with the annual approval of the legislative body of the employing municipality (CHRO brief, 8/25/99, 8-9). The CHRO construes this amendment as being legislative acknowledgment that age 65 is not a BFOQ for firefighters. My view is to the contrary, as the fact that continuation in service past 65 requires annually an affirmative vote of the legislative body (eg. Town Council) – not that of the Chief, the Mayor, or some other executive official – emphasizes the unusual nature of the deviation required from the otherwise mandatory requirement for retirement.

It is in my view impossible to accept the CHRO’s position without effectively eviscerating the mandate contained in C.G.S. 7-430, for in its application to a particular firefighter it would always be a violation of the FEPA under the CHRO analysis. It cannot be assumed that he General Assembly passed, and has continued in force with minor amendments, a statutory nullity. It is in this context that C.G.S. 46a-60(b)(l)(C) should be read, and which requires me to conclude that age 65 is per se a statutorily approved BFOQ for municipal firefighters. As was stated by the Court in State v. Campbell, 180 Conn.557, 429A, 2d 960 (1980), "the unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result."

This conclusion is itself dispositive of the CHRO’s claims. However, even if it were determined otherwise from a statutory construction point of view, the evidence presented at the Hearing itself is such that a factual determination can be made that age 65 is a legitimate BFOQ even under the legal framework accepted by the CHRO. This analysis starts within the framework that, although the language of the relevant federal and state statutes differ, it is clear that as a general matter the legislature intended in adopting FEPA that it be coextensive with the federal law, State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464,469-70 (1989). Our courts have therefore generally adopted federal standards for review, Wroblewski v. Lexington Gardens, Inc. 188 Conn. 4, 53 (1982), even though "we must be mindful that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject." State, supra, 211 Conn. 470.

As was noted in Finding of Fact No. 18 supra, it is not disputed that the comparable mandatory retirement age for federal firefighters is 55. The U.S. Supreme Court in Johnson et al. v. Mayor and City Council of Baltimore, 472 U.S. 353, 105 S.Ct.2717 (1985) held that 5 U.S.C. § 8335(b), did not by itself establish age 55 as a BFOQ for non-federal firefighters under the Age Discrimination in Employment Act ("ADEA"), but reflected Congress’ right to exempt such federal employees as it saw fit from the application of the ADEA for purposes of federal retirement policies. (Johnson supra at 366) In that sense 5 U.S.C. § 8335(b) is not unlike C.G.S. Section 7-430. In this case, however, the CHRO is pursuing this claim on the shoulders of FEPA, and not the ADEA.

The U.S. Supreme Court has clearly enunciated standards for evaluating the BFOQ defense in ADEA cases, and as there are no apparent, equivalent Connecticut court cases, they necessarily serve as our guide. In Usery v. Tamiani Trail Tours, Inc., 531F.2 224 (1976) the Fifth Circuit Court of Appeals identified a two part inquiry that was later endorsed by the Supreme Court in Western Air Lines, Inc. v. Criswell et al., 472 U.S 400, 105 S.Ct. 2743 (1985). In essence, these cases require that an employer must establish reasonable cause for believing that substantially all persons over the stated age would be unable to perform the duties (here of a firefighter), and/or the employer must establish that age was a legitimate proxy for safety related job qualifications by proving that it was impractical to test older employees on an individualized basis. Usery v. Tamiani, Western Airlines v. Criswell supra.

In Western Airlines the Supreme Court quoted the Senate Conference report on the 1978 amendments to the ADEA to the effect that: "in certain types of particularly arduous law enforcement activity, there may well be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and it may be impossible or impractical to determine through medical examinations … and other objective tests the employees capacity or ability to continue …" (Western Airlines, supra, p.415). Of relevance to this case was the Courts’ statement that in the area of public safety "it will not be overly burdensome to persuade a trier of fact that the (age) qualification is reasonably necessary to safe operation … the uncertainty implicit in the concept of managing safety risks always makes it "reasonably necessary" to err on the side of caution in a close case." (Western Airlines at p.420).

"Substantially all" persons has been defined as 95% of an affected group for purposes of the ADEA (Resp. Exhibit Q p.3). Therefore, for the first prong of the BFOQ test to be met it must be found that approximately that percentage of firefighters above the age of 65 are or would be unable to safely perform their admittedly dangerous and demanding tasks. Before discussing the conflicting testimony of each party’s experts at the Public Hearing, certain figures not in dispute or otherwise part of the record should be noted. First, as previously observed, all (100%) federal firefighters have been mandatorily retired at age 55 since 1974. Secondly, CHRO’s own expert testified that the oldest firefighter on the Akron Fire Department was 58 (Tr.81) on a roster consisting of approximately 320 firefighters. That expert witness also testified that no one over the age of 62 had ever passed his own designed ("Akron") test. Third, the record shows that the Respondent Fire Department consists of 75 members, only 2 of whom (including the original Complainant) reached the age of 65. Additionally, the International Association of Firefighters (Resp, Ex "Q" and "R") reported extensive data confirming the disproportionate ratio of death and disability experienced by firefighters over the age of 50, with average ages for death/disability that were job related being 52 and 48 respectively.

These figures, and other evidence in the record, provide the real-world backdrop to the testimony provided at the Public Hearing. They offer strong support for the views and opinions of Dr. Cherniak and Chief Samuel. It is to be recalled that Dr. Cherniak’s expert medical opinion was that a mandatory age cut-off of 52 could be empirically and medically supported (Finding of Fact No. 35). Dr. Cherniak’s testimony, based on more chronologically current studies than was the case for the CHRO witnesses, was for example persuasive in highlighting the substantial degradation in lung and oxygenic capacity experienced between the age of 30-60 even where through exercise and other means cardiac output remains relatively static. I also found credible his expert opinion that after the age of 65 the risk of sudden death or a cardiac emergency is so severe and so unpredictable on an individual basis (emphasis added) as to make projected performance hazardous and pure conjecture.

In Respondent’s Exhibit R, the Congressional testimony of the International Association of Firefighters, reference is made to a follow up study conducted by one of the researches who drafted the "Penn State Study" that was quoted so often by Dr. Mostardi during his testimony. That study concluded that 96% of the firefighters aged 60-65 years would be considered poor in their overall fitness for firefighting (Resp. Exh "R", p.17). That study involved simulated physical tasks that were not performed in the heated environment normally associated with firefighting. "Thus, with the additional burden placed on the cardiovascular system by heat, it may be inferred that the aerobic capacity of such a firefighter is not, on the average, adequate …" (Resp. Exh "R" – cite to 14 Med Sci Sport Exer 65, 66, 1982).

I find ample, credible evidence in the record therefore to support the contention that "substantially all" persons over the age of 65 are unable to perform the demanding functions of a firefighter.

As was noted previously, Dr. Cherniak and Chief Samuel both testified that in their opinion it was impossible to design an individual testing regime with sufficient predictive ability (Dr. Cherniak) and which adequately and accurately replicated the firefighting function (Chief Samuel). The two principal witnesses for the CHRO, Dr. Mostardi and Dr. Mark testified to the opposite effect. Based on my careful review and analyses of the entire record, and of the testimony itself, I find the evidence offered by Dr. Cherniak and Chief Samuel to be the more credible. Dr. Mark’s testimony to the effect that no mandatory age cutoff, even up to and including age 90 (!) was preferable, should there not be individual testing, was not credible. It evidenced a philosophical commitment to a premise, itself in dispute, such as to raise questions with respect to the objectivity of his testimony.

Dr. Mostardi’s views were extensively influenced by his belief, understandable as it might be, in the efficacy of his self-developed "Akron test". However, its accuracy and relevance to the issue at hand is in doubt, in view of the fact that his statistical universe was limited to individuals less than 58 years of age. Also, his own testimony indicated that no one over age 62 had ever passed his test. Further, both Dr. Mostardi and Dr. Mark conceded that no test could guarantee a firefighters physical fitness after the test (Tr. p.293), and that the tests proposed are subject to interpretation and modification by the test giver (Tr. ;.294). Dr. Mostardi’s interest in validation of this test also diminishes his credibility, in my view.

There was, and is, also the question raised as to whether an individual testing regime could fairly replicate the stresses involved in true life-threatening scenarios. Even Dr. Mostardi conceded the fairness of this question and the issues raised by it (Tr. p.89). There were additional reservations raised about this "Akron test" by Chief Samuel (See Finding of Fact No.27) which I found to be credible.

In conclusion, I find that the weight of the credible evidence before me, in reviewing the record in its entirety, supports the assertion that the mandatory age requirement of 65 established in the New London Code, and in its collective bargaining agreement with the New London IAFF, amounts to a legitimate substitute for the impracticality of testing older firefighters on an individual basis. As such, it adequately passes the BFOQ tests established in the Western Airlines v. Criswell line of cases.

In arriving at this conclusion, based on an extensive record, a particular piece of that record bears repeating. In testimony before Congress the Director of Governmental Affairs for the International Association of Firefighters (Resp Exh "Q"), said as follows:

IV. Conclusion:

I find that the mandatory age for retirement for firefighters, at age 65, is statutorily a bona fide occupational qualification for firefighters in Connecticut.

I alternatively find that, even if age 65 is deemed not to be a statutory bona fide occupational qualification, that the evidence in this case establishes that such an age is a bona fide occupational qualification for municipal firefighters.

V. Order:

Accordingly, I find for the Respondent on the alternative grounds set forth above. This action is accordingly DISMISSED.

Dated at Hartford this 21^st day of October 1999.

Hon. Gordon T. Allen
Human Rights Referee

c: Armando Esposito
Michael Passero, Esq.
Mr. Clark VanderLyke, City of New London
Brian Estep, Esq.
Attorney David Kent, Assistant Commission Counsel II
Attorney Raymond Pech, Deputy Commission Counsel
Ann Galer-Pasternak, Public Hearings Administrator