Appeal from the United States District Court for the Western District of Pennsylvania -- Pittsburgh.
Hunter, Weis, and Higginbotham, Circuit Judges.
The Equal Employment Opportunity Commission ("EEOC") filed a complaint against the County of Allegheny, Pennsylvania ("County"), alleging that the County maintained a discriminatory policy in its hiring of police officers in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1976 & Supp. V 1981) ("ADEA"). On August 11, 1981, the United States District Court for the Western District of Pennsylvania granted partial summary judgment in favor of the EEOC. EEOC v. County of Allegheny, 519 F. Supp. 1328 (W.D. Pa. 1981). The County appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) (1976).
Although the case was argued on March 1, 1982, we decided to delay our decision pending the Supreme Court's disposition of EEOC v. Wyoming, 514 F. Supp. 595 (D. Wyo. 1981), prob. juris. noted, 454 U.S. 1140, 71 L. Ed. 2d 291, 102 S. Ct. 996 (1982). That case presented the question of whether Congress violated the tenth amendment when it amended the ADEA in 1974 to include state and local governments within the coverage of the Act. Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 74 (codified at 29 U.S.C. § 630(b) (1976)). In EEOC v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054, 75 L. Ed. 2d 18 (1983), the Supreme Court decided that question, holding that the amendment of the ADEA was constitutional. We will now address the issues presented on this appeal, and we will affirm the holding of the district court.
The County has for years maintained a policy of refusing to allow individuals over the age of thirty-five to take its police examination. That examination is mandatory for individuals who want to become County police officers. The County adopted its hiring policy pursuant to a Pennsylvania statute applicable to Allegheny County.*fn1 That statute provides in part:
Each person desiring appointment to the police force . . . shall apply to the commission for examination. . . .
No person shall be eligible to apply for examination unless he is more than eighteen years of age and, with respect to applicants for the police force not over thirty-five years of age at the date of application.
16 Pa. Cons. Stat. Ann.§ 4510 (Purdon Supp. 1982-83).
The EEOC filed suit in the district court on behalf of three individuals who were not allowed to take the County's police examination because they were over thirty-five years old. The EEOC claimed that the County's hiring policy violated the ADEA. It sought an injunction against the continuation of the hiring policy,*fn2 and it also sought immediate appointment of the three individuals with retroactive employment benefits and monetary damages.
The district court concluded as a matter of law that the County's hiring policy violated the ADEA. County of Allegheny, 519 F. Supp. at 1330. It found that the County's refusal to allow individuals over thirty-five years old to take the police examination established a prima facie case of age discrimination in violation of section 4(a)(1) of the ADEA. 29 U.S.C. § 623(a)(1) (1976).*fn3
The court then concluded that the County had failed to produce evidence to satisfy either of the statutory defenses provided in section 4(f)(1) of the ADEA. 29 U.S.C. § 623(f)(1) (1976). That section permits an employer to avoid liability if it can show either 1) that "age is a bona fide occupational qualification [bfoq"] reasonably necessary to the normal operation of the ...