Commission on Human Rights and Opportunities

9730288, Jankowski v. City of Meriden, Final Decision

9730288, Jankowski v. City of Meriden, Final Decision

CHRO No. 9730288

Commission on Human Rights and Opportunities ex rel. Laurence Jankowski, Complainant : 
v.
City of Meriden, Respondent : April 6, 2000

FINAL DECISION

Laurence Jankowski ("complainant") filed an Affidavit of Illegal Discriminatory Practice ("complaint") dated December 31, 1996 with the Commission on Human Rights and Opportunities ("commission") in which he alleged that he was illegally discriminated against by the City of Meriden ("respondent"). He alleged that, on the basis of his age, he was terminated and also discriminated against in the terms and conditions of his employment in violation of General Statutes § 46a-60(a)(1).

For the reasons stated herein, the respondent’s mandatory retirement age of 65 for its firefighters is found to be a per se statutory bona fide occupational qualification and the complaint is dismissed.

I PARTIES

At the time of the complaint, the complainant resided at 96 North Pearl Street, Meriden, CT 06450. The commission is located at 21 Grand Street, Hartford, CT 060106. The respondent is located at 142 East Main Street, Meriden, CT 06450.

II PROCEDURAL HISTORY

The complaint was filed with the commission and assigned to an investigator. The investigator found reasonable cause for believing that an unfair practice was committed as alleged in the complaint. On November 9, 1998, the investigator certified the complaint to the executive director of the commission and to the Attorney General. Upon certification of the complaint, John F. Daly, III, was appointed as the presiding officer to hear the complaint. Subsequently, the undersigned Human Rights Referee was appointed as presiding officer in substitution of Hearing Officer Daly pursuant to General Statutues § 46a-57. A public hearing was held on November 29, 1999. None of the parties offered testimony. In lieu of testimony, the parties submitted stipulated facts and exhibits. Briefs were ordered to be filed on or before February 22, 2000. Reply briefs were ordered to be filed on or before March 21, 2000. The parties timely filed their briefs and reply briefs, and the record was closed on March 21, 2000.

III PARTIES’ POSITIONS

The sole issue is whether the General Statutes provide a per se statutory bona fide occupational qualification ("b.f.o.q.") permitting municipalities to involuntarily retire their firefighters at age 65 without factual proof that age is a b.f.o.q.

The commission and complainant argue that the respondent’s mandatory policy of retiring firefighters at age 65 violates General Statutes § 46a-60(a)(1). They further argue that the respondent is required, and has failed, to factually show that age is a b.f.o.q. for firefighters.

The respondent argues that General Statutes §§ 46a-60(b)(1)(C) and 7-430 carve out a statutory exception for police and firefighters from the general prohibition against mandatory retirement. The respondent contends that because of this statutory exception it is not required to factually prove that age is a b.f.o.q. for its police and firefighters. The respondent also contends that the state legislature has historically allowed municipalities to establish a mandatory retirement age for their uniformed services. The respondent further argues that its interpretation of the Fair Employment Practice Act is entirely consistent with the state’s Home Rule provisions. Finally, the respondent argues that, even if state law does not permit the mandatory retirement of a firefighter, federal law permits mandatory retirement thereby preempting any state law to the contrary.

IV FINDINGS OF FACT

Based upon a review of the pleadings, exhibits, testimony, the Stipulation of Facts signed and submitted by the parties on November 29, 1999 ("Stipulation"), and the transcript, the following facts relevant to this decision are found:

  1. All procedural, notice, and jurisdictional prerequisites have been satisfied and this matter is properly before this presiding officer to hear the complaint and render a decision. (Stipulation; Commission’s Exs. 1-4.)
  2. The complainant is a member of a protected class in that his date of birth is August 12, 1931 and was 65 years old at the time of his involuntary retirement. (Commission’s Ex. 2.)
  3. The respondent is a political subdivision of the state. (Respondent’s Ex. 7.)
  4. Special Act 237 was enacted by the Connecticut legislature in 1949. The Act provides for mandatory retirement of Meriden’s firefighters when they reach the age of 65, except those serving as permanent firefighters on January 1, 1950. (Stipulation; Respondent’s Ex. 6.)
  5. In 1977, the respondent amended its Charter to incorporate Special Act 237. (Stipulation.)
  6. Special Act 237 is also incorporated into the collective bargaining agreements between the respondent and its firefighters’ union. (Stipulation; Commission’s Ex. 9, Appendix B; Respondent’s Exs. 9, 10, 11, and 12.)
  7. The respondent currently employs approximately 96 full-time firefighters. (Stipulation; Commission’s Ex. 9.)
  8. The respondent hired the complainant on January 1, 1960. (Stipulation.)
  9. The complainant served as a firefighter from January 1, 1966 until his retirement on December 11, 1996. At all times, he was a member of the firefighters’ union. During his tenure with the respondent, the complainant’s performance on the job was satisfactory or better. (Stipulation.)
  10. The complainant turned 65 on August 12, 1996. (Stipulation.) On or about December 10, 1996, the respondent involuntarily retired the complainant pursuant to its Special Act. (Stipulation; Commission’s Ex. 2; Respondent’s Exs. 2 and 4.) At that time, the complainant did not want to retire. (Stipulation; Commission’s Ex. 2.)
  11. The mandatory retirement age in effect on December 10, 1996 was age 65. The complainant did not return to work after December 1996. (Stipulation.)
  12. The complainant continued to suffer from work-related injuries as well as cancer following his retirement in December 1996. As of January 15, 1997, he was fully disabled from work and was unable to perform the functions of a firefighter due to disabling medical conditions. He remains unable to perform the essential functions of his job and does not expect to recover such that he could return to his work as a firefighter. (Stipulation.)
  13. The complainant received the same amount of money pursuant to his age-based retirement as he would have received had he received a disability pension. (Stipulation.)
  14. The firefighter’s pension plan is a defined benefit plan funded by employee contributions and the respondent’s funds. The pension plan makes regular payments to eligible participants, including the complainant. (Stipulation.)
  15. From January 1, 1997 until his death, the complainant collects the following benefits from the respondent:
    1. monthly pension in the amount of 50% of his base pay as set forth in the collective bargaining agreement;
    2. medical insurance payment in the amount of 50% of the COBRA Premiums;
    3. longevity payments of $16.67 per month;
    4. holiday pay in the amount of 50% of the holiday pay set forth in the collective bargaining agreement; and
    5. life insurance payment of $5.67 per month.

Such payments shall increase commensurate with changes in the collective bargaining agreement between the respondent and the union. Pension payments are paid monthly for the preceding month. (Stipulation.)

  1. Between December 10, 1996 and December 31, 1996, the complainant was paid a pro rata share of his monthly pension benefits as set forth above. (Stipulation.)
  2. The complainant settled all workers’ compensation claims with the respondent for $113,066.45 for claims including permanent and/or temporary partial/total disability for hearing loss, injury to his right elbow, and injury to his thumb. (Stipulation)
  3. The complainant and his dependent shall remain covered by the respondent’s Group Health Insurance Plan until July 2003. This represents a value of approximately $702 per month. (Stipulation.)

V ANALYSIS

Applicable Statutes

The commission and the complainant allege that the respondent violated General Statutes § 46a-60(a)(1). Said statute provides in relevant part that "[i]t shall be a discriminatory practice in violation of this section: (1) [f]or an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, … to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s … age …."

The respondent argues that the relevant state statutes are General Statutes §§ 46a-60(b)(1) and 7-430. Section 46a-60(b)(1) provides in relevant part that "[t]he provisions of this section [46a-60(a)] concerning age shall not apply to … (C) the termination of employment of persons in occupations, including police work and fire-fighting, in which age is a bona fide occupational qualification …."

Section 7-430 provides in relevant part: "Involuntary retirement; temporary retention. …. Any member, except an elective officer, who has attained the age of sixty-five years if employed as a policeman or fireman shall be retired on the day following the attainment of such age, except that any such member, at his request and with the annual approval of the legislative body, may be retained in the employ of the participating municipality …provided, for any member, except an elective officer, who at or before the end of three years after the effective date of participation has attained the age of sixty-five years if employed as a policeman or fireman, the compulsory retirement date shall be the end of such three years after such effective date, unless application for retirement is made before such compulsory date by the legislative body of the municipality." (Boldface type in the original.)

Application

The issue of the involuntary retirement of firefighters at age 65 has recently been addressed in Commission on Human Rights and Opportunities ex rel. Armando Esposito v. City of New London, CHRO No. 9340530 (October 21, 1999). In that decision, the presiding Human Rights Referee determined that under General Statutes §§ 46a-60(b)(1)(C) and 7-430 a mandatory retirement age of 65 for firefighters is a statutory b.f.o.q. Alternatively, that presiding referee found that even if age 65 is not a statutory b.f.o.q., the expert evidence in that case established that such an age is a b.f.o.q. for municipal firefighters.

The presiding referee in the New London case found the statutory language of § 46a-60(b)(1)(C) "to be actually very precise and unambiguous. Clearly the legislature was carving out what it said it was carving out: namely an express exception to the law prohibiting age discrimination in the circumstances or situations where age constituted a bona fide occupational qualification ("BFOQ"), and it proceeded to forthwith name two specific examples, police and firefighting." Id. at 9.

In his analysis of §7-430, the presiding referee noted that even though the statute "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 do, that the Legislature was fully cognizant of [the Connecticut Fair Employment Practices Act], and in particular with the exception it had earlier carved out for firefighters in Section 46a-60(b)(1)(C). This clearly amounts to a ratification of the Respondent’s position in this regard." Id. at 10. Notwithstanding that §7-430 provides for the retention of police and firefighters after age 65, the presiding referee observed that "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." Id. at 11.

Having reviewed the stipulated facts, exhibits, briefs, case law, and statutes relevant to this case, I also find that General Statutes §§ 46a-60(b)(1)(C) and 7-430 provide for a per se mandatory retirement age of 65 for firefighters.

Statutory Interpretation

Citing Evening Sentinel, Connecticut Institute, and General Statutes § 46a-60(a), the commission and the complainant argue that Connecticut has permitted adverse employment action based on a protected class provided, however, that the classification met a "stringent and narrow" b.f.o.q. exception to the general prohibition on class-based discrimination. They argue that § 46a-60(b)(1)(C) does not alter this test. The commission and the complainant also point to several court cases purporting to hold that the age of 65 years is not, in itself, a b.f.o.q. for the involuntary termination of a firefighter: Sullivan v. Board of Police Commissioners, 196 Conn. 208 (1985); Boise v. Board of Police Commissioners, 12 CLT No. 22, p. 36 (June 9-15,1986) (Sup. Ct., April 25, 1986); Public Defender Services Commission v. Connecticut Commission on Human Rights and Opportunities, Superior Court, Judicial District of Hartford/New Britain at Hartford, Docket No. CV 80-250068 (November 17, 1981); Walsh v. Pellegrino, 10 CLT No. 22, pp. 11-18 (May 28, 1984) (Super. Ct., February 6, 1984), and Civil Service Commission v. Trainor, 39 Conn. Sup. 528 (1983).

The respondent agrees that § 46a-60(a)(1) requires factual proof under a stringent and narrow test that an age-based classification is indeed a b.f.o.q. The respondent argues, however, that this case does not involve a factual determination under § 46a-60(a)(1) but a statutory exemption under §§ 46a-60(b)(1)(C) and 7-430. The respondent correctly notes that the cases cited by the commission and the complainant do not address §§ 46a-60(b)(1)(C) and 7-430 and that the cases are clearly distinguishable for additional reasons. Boise addresses only the federal Age Discrimination in Employment Act ("ADEA") rather than the Connecticut statutes. Evening Sentinel, Connecticut Institute, and Trainor do not involve the termination of a firefighter’s employment. Public Defenders addresses a mandatory retirement statute that was enacted prior to § 46a-60 and therefore repealed by implication; here, however, § 7-430 was amended subsequent to the enactment of § 46a-60. The state Supreme Court observed that §§ 46a-60(a) and 46a-60(b) were at issue in Sullivan but dismissed the case on procedural grounds without addressing the issue. The charter provision in Walsh had a mandatory age of 60 that conflicted with the state mandatory age of 65.

Likewise, the hearing officer decision cited by the commission is also not persuasive as it predates the 1996 ADEA amendments that expressly permit mandatory retirement and also predates the 1989 amendment to § 7-430 that implicitly reaffirms mandatory retirement. The decision makes no reference to § 7-430 and fails to recognize that § 46a-60(b) must have a meaning other restating § 46a-60(a).

The respondent’s arguments are more persuasive for several reasons. First, the commission and the complainant want to read both §§ 46a-60(a) and 46a-60(b) as requiring a factual determination of age as a b.f.o.q. This reading would unnecessarily fail to differentiate the two sections; subsume (b) into (a); and render § 46a-60(b), as well as § 7-430, meaningless. Indeed, such a reading would also ignore repeated admonishments from the federal and state courts that "[a] statute should be construed so that all of its parts are given effect, and a construction ascribing to two separate statutory provisions the same meaning and scope is therefore disfavored." (Internal citations and quotation marks omitted.) United States v. Stephenson, 183 F.3d 110, 121 (2nd Cir. 1999). "Statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment." Biasetti v. City of Stamford, 250 Conn. 65, 81 (1999). "We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions. … Accordingly, care must be taken to effectuate all provisions of the statute." (Citations and internal quotation marks omitted.) General Motors Corp. v. Dohmann, 247 Conn. 274, 287 (1998).

Second, the difference in language between §§ 46a-60(a) and 46a-60(b)(1)(C) is noteworthy. When prohibiting a discriminatory practice absent a b.f.o.q., § 46a-60(a) refers to "except in the case of a bona fide occupational qualification" ((a)(1), (2), and (6)); or "unless such action is based on a bona fide occupational qualification" ((a)(3)); or "unless such information is directly related to a bona fide occupational qualification" ((a)(9)). Clearly, the language of "except" and "unless" in this subsection places on the respondent the burden of justifying its actions by producing an explanation.

The language of § 46a-60(b), however, differs significantly. This section clearly says that § 46a-60(a)’s prohibition on age discrimination "shall not apply to … the termination of employment of persons in occupations … in which age is a bona fide occupational qualification". (Emphasis added.) § 46a-60(b)(1)(C). The "in which", unlike the "except" or "unless", language establishes that age is indeed a statutory b.f.o.q. without requiring factual proof for certain "occupations, including police work and fire-fighting". § 46a-60(b)(1)(C). Section 7-430 then establishes the mandatory retirement age of firefighters and police at age 65. To read these statutes as an affirmative defense rather than an automatic exemption would require every municipality to litigate every time it terminated a 65-year-old employee. Such a reading would eviscerate both statutes and render them meaningless.

The commission fears that reading § 46a-60(b)(1)(C) as creating a statutory exemption would, through the section’s use of "including", result in "an exemption so broad as that it virtually swallows the prohibition against discrimination". However, the word "including" can be a word of limitation as well as a word of enlargement, depending on the legislature’s intent. State of Connecticut v. DeFrancesco, 235 Conn 426, 435 (1995); Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 150 (1971). In this statute, the use of police and fire-fighting as the only two examples, particularly in light of the historic legislative history of this exemption, clearly limits the exemption to occupations involving periods of extreme physical endurance in ensuring public safety.

Third, the commission argues that if the legislature intended to create a statutory exemption for police and firefighters it could have added the language "‘provided that persons engaged in police work and firefighting may be retired at age sixty-five.’" In fact, the legislature did so by using the mandatory language, rather than the commission’s proposed permissive language, in § 7-430.

Fourth, the commission and complainant fail to give the appropriate weight to the 1989 amendment to §7-430. "When changes have been introduced by amendment to a statute, the presumed change does not go any further than that which is expressly declared or necessarily implied." (Citations and internal quotation marks omitted.) Iovieno v. Commissioner of Correction, 242 Conn. 689, 699 (1997). Through P.A. 89-162, the legislature amended § 7-430 to eliminate the mandatory retirement age of 70 for municipal employees other than police and firefighters while retaining the mandatory age of 65 for its police and firefighters. Pursuant to the amendment, police and firefighters over the age of 65 may only remain in their employment at the discretion of the municipality by the annual approval of its legislative body. In enacting this Act, the legislature expressly and impliedly reaffirmed its historic declaration of mandatory retirement for police and firefighters.

Also, §§ 46a-60(a) and 7-430, as amended, need not be read in conflict but rather as mutual and reciprocal in which the recognition in § 46a-60(b)(1)(C) of age as a per se b.f.o.q. for police and fire-fighters complements the mandatory retirement age of 65 for police and fire-fighters in § 7-430.

Finally, the respondent’s arguments are more persuasive than the commission and the complainant’s because they provide for a reasonable, consistent interpretation of §§ 46a-60(a), 46a-60(b), and 7-430 that effectuates the state’s policies of ensuring civil rights and public safety. "In order to determine the meaning of a statute, we must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation." (Citations and internal quotation marks omitted.) Commission on Human Rights and Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349 (1996). "We note, finally, that, in construing legislation found in separate statutes, we endeavor to advance the legislature’s purpose of creating a consistent, rational and harmonious body of law." Kim v. Magnotta, 249 Conn. 94, 109 (1999). "Furthermore, we presume that laws are enacted in view of existing relevant statutes … and that statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law." (Citations and internal quotation marks omitted.) Casey v. Northeast Utilities, 249 Conn. 365, 369-370 (1999).

Legislative History

As the respondent correctly notes, the predecessor statutes to General Statutes

§§ 7-430 and 46a-60 and the legislative history of General Statutes § 46a-60 have repeatedly provided for an involuntary, mandatory retirement of police and firefighters. Age in itself has been repeatedly acknowledged as a statutory b.f.o.q. for these two occupations. Even the legislative history cited by the complainant and the commission, when read in its entirety, supports the respondent’s position. The legislative debate either repeatedly referenced and assumed mandatory retirement or was concerned with pension participation rather than retirement.

Further, the fact that § 7-430 was amended after the enactment of § 46a-60 and that those amendments retained the mandatory retirement language is further indication of the legislature’s intent that § 46a-60(b) be read as a statutory exemption to the b.f.o.q. language of § 46a-60(a). As previously discussed, § 7-430 was amended in 1989 to delete the mandatory retirement at age 70 for municipal workers other than police and firefighters. P.A. 89-162. Significantly, the mandatory retirement age of 65 was retained, and continues to be retained, for police and firefighters.

Respondent’s Home Rule Argument

The respondent argues that that under Connecticut’s Home Rule provisions, pensions and the system of qualification for the office of firefighter are a matter of local concern and expressly left to a municipality to regulate. The respondent further argues that even if there were a conflict between a state statute and the respondent’s charter, the statute prevails only if it pertains to matters of general concern to the people of the State of Connecticut.

As the commission correctly notes, delegating administrative authority to a municipality over its internal management is far different from delegating authority to override the state’s civil rights statutes. Under the respondent’s theory of Home Rule, a municipality could improperly attempt to use its authority through the charter or a collective bargaining agreement to exclude women or racial and religious minorities from qualifying for the office of firefighter. Further, discrimination is indeed a serious matter of general concern to Connecticut’s residents and the public policy of this state as repeatedly enunciated by the legislature, courts, and commission hearing officers is to prohibit and punish illegal discrimination. I agree with the commission that Home Rule provisions do not supercede the state’s antidiscrimination statutes.

Federal Preemption

The complainant and the commission argue that the ADEA prohibits the involuntary retirement of any municipal employee prior to the age of seventy and they cite pre-1996 federal cases that conclude that the ADEA supercedes and voids any contradictory municipal ordinance or state statute.

The respondent contends that the 1996 ADEA amendments allow mandatory retirement of police and firefighters without factual proof of age as a b.f.o.q.. The respondent further contends that these amendments were intended by Congress to preclude any requirement that municipalities factually prove that age is a b.f.o.q. and that any state law requiring such proof is preempted by these amendments.

A fair reading of the federal statute and its legislative history indicates that Congress gave the states and municipalities the option of setting mandatory retirement ages for their police and firefighters. Connecticut has taken advantage of this option by permitting municipalities in their discretion either to involuntarily retire its firefighters at age 65 or to continue their employment with an annual review.

Respondent’s retention of two employees over the age of 65

The complainant notes that the respondent had previously retained a police officer and an assistant fire chief after they had reached the age of 65. The complainant also refers to correspondence from the respondent to the commission in which the respondent agrees that age is not a b.f.o.q.. However, pursuant to General Statutes § 7-430, a municipality may in its discretion extend on an annual basis the employment of firefighters after the mandatory retirement age of 65. Exercise of such discretion by the respondent in these two instances does not constitute a permanent waiver of its statutory rights under §§ 46a-60(b) and 7-430.

VI CONCLUSIONS OF LAW

The ADEA permits the states to impose mandatory retirement on its police and firefighters. Connecticut, historically and as allowed under the ADEA, has established a per se statutory mandatory retirement age of 65 for municipal police and firefighters through §§ 46a-60(b) and 7-430 and their predecessors. However, Connecticut has also given municipalities the discretion to waive this involuntary retirement provision on an annual basis by an act of the municipality’s legislative body. In this case, the respondent, through its charter and its collective bargaining agreements, has exercised this discretion and determined that it will not as a matter of policy retain firefighters who are over the age of 65.

VII ORDER OR RELIEF

The complaint is dismissed.

__________________________

Hon. Jon P. FitzGerald, Presiding Human Rights Referee

C:  Mr. Laurence Jankowksi
Atty. Thomas A. Weaver
Ms. Carolyn Ware
Atty. Anne Noble Walker
Atty. David L. Kent
Atty. Raymond P. Pech