Sullivan v. Board of Police Com'rs of City of Waterbury

Page 1096

491 A.2d 1096

196 Conn. 208, 47 Fair Empl.Prac.Cas. (BNA) 538

Frederick T. SULLIVAN v. The BOARD OF POLICE COMMISSIONERS OF the CITY OF WATERBURY et al.

Supreme Court of Connecticut.

Argued March 8, 1985.

Decided May 7, 1985.

Donald McPartland, Waterbury, with whom, on the brief, was Gary B. O'Connor, Waterbury, for appellants-cross appellees (defendants).

Dennis M. Buckley, Waterbury, for appellee-cross appellant (plaintiff).

Philip A. Murphy, Jr., Raymond P. Pech and Juan Figueroa, Hartford, filed a brief as amici curiae (Connecticut Com'n on Human Rights and Opportunities).

Before PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and BRENNAN, JJ.

PETERS, Chief Justice.

This case concerns the effect of federal and state statutes forbidding age discrimination on the mandatory retirement provisions of a local charter. The plaintiff, Frederick T. Sullivan, brought suit against the Waterbury board of police commissioners and the Waterbury retirement board, to enjoin the defendants from forcing him to retire at age sixty-five from his position as superintendent of the Waterbury police department. The trial court agreed with the plaintiff that his mandatory retirement would violate both the federal Age Discrimination in Employment Act (ADEA); 29 U.S.C. §§ 621 et seq.; ¹ and the Connecticut Fair Employment Practices Act (CFEPA); General Statutes §§ 46a-51 et seq.; ² and issued an injunction barring the plaintiff's involuntary retirement. The defendants have appealed, and the plaintiff has cross appealed claiming a right to recover attorney's fees. We find error on the appeal and consequently dismiss the cross appeal as moot.

The relevant facts are undisputed. The plaintiff became superintendent of the Waterbury police department in 1968. On September 11, 1981, he wrote to Waterbury mayor Edward Bergin, chairman ex officio of the defendant board of police commissioners, announcing his intention to remain police superintendent after October 21 1981, the date of his sixty-fifth birthday. The mayor replied that the plaintiff would have to vacate his position on October 21, 1981, because § 2741 of the Waterbury charter makes retirement at the age of sixty-five mandatory for all police and fire personnel. ³ This lawsuit ensued.

Immediately upon the filing of the plaintiff's lawsuit on October 16, 1981, the trial court issued an ex parte temporary injunction, ordering the defendants to desist from attempting to remove the plaintiff from his position. After a full hearing, the trial court concluded: (1) that the ADEA was not unconstitutional in its application to state and local government employees; (2) that the defendants had failed to meet ADEA requirements for the establishment of a bona fide occupational qualification for discrimination based upon age; 29 U.S.C. § 623(f)(1); ⁴ and (3) that the defendants had also failed to meet CFEPA requirements for the establishment of a bona fide occupational qualification for discrimination based upon age; General Statutes § 46a-60(a)(1). ⁵ Accordingly, the trial court granted the plaintiff's prayer for injunctive relief, barring his involuntary retirement "until a valid BFOQ (bona fide occupational qualification) is established excluding the plaintiff, or plaintiff exceeds the age protected by the statutes, plus taxable court costs but not attorney's fees." Throughout the pendency of these proceedings, the plaintiff has continued to serve as Waterbury police superintendent.

In this court, the defendants urge us to hold that they have established that being younger than sixty-five is a valid BFOQ for police personnel. They argue that the Waterbury charter provision is legal because it meets each of the two tests commonly applied to questions of age discrimination: the rational relation to public safety test and the two-tiered test permitting a general disqualification when either substantially all persons in the excluded class are incapable of performing the job or when it is highly impractical to make appropriate individual assessments of employability. They further claim that the trial court erred in failing to recognize that age is a per se BFOQ in this case because of special statutory provisions that apply to all employees engaged in police work. See 5 U.S.C. § 8335(b); ⁶ General Statutes § 46a-60(b)(1)(C). ⁷

The plaintiff, on the other hand, maintains that the trial court correctly concluded that state and federal laws require an employer charged with age discrimination to demonstrate that a BFOQ is precisely tailored to the specific requirements of a particular employment situation. The plaintiff notes that in the context of discrimination based upon sex or physical disability, we have defined a BFOQ narrowly to permit such a defense only if "no member of the class excluded is physically capable of performing the tasks required by the job." Evening Sentinel v. National Organization for Women, 168 Conn. 26, 36, 357 A.2d 498 (1975); Connecticut Institute for the Blind v. Commission on Human Rights & Opportunities, 176 Conn. 88, 95, 405 A.2d 618 (1978). He argues further that federal law, which applies both by its terms to his ADEA claim; see 29 U.S.C. §§ 623, 630, 631; EEOC v. Wyoming, 460 U.S. 226, 234-44, 103 S.Ct. 1054, 1059-65, 75 L.Ed.2d 18 (1983); cf. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. ----, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985); and as a persuasive resource for interpretation of our CFEPA; see Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982); Evening Sentinel v. National Organization for Women, supra, 168 Conn., 36-37, 357 A.2d 498, imposes strict constraints upon the establishment of a BFOQ. See generally 29 C.F.R. § 1625.6(a). The Supreme Court of the United States has recently held, in an age discrimination case under the ADEA, that a BFOQ must reflect the requirements of the particular position which the claimant seeks to fill or to retain rather than those of the industry as a whole. Trans World Airlines, Inc. v. Thurston, 469 U.S. ----, ----, 105 S.Ct. 613, 622, 83 L.Ed.2d 523 (1985). In addition, the equal employment opportunity commission (EEOC) has adopted the detailed standards for testing a BFOQ defense formulated in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 235-36 (5th Cir.1976). See 29 C.F.R. § 1625.6(b).

Resolution of the merits of these conflicting arguments about the appropriate definition of a BFOQ for age discrimination claims would present an issue of first impression for this court. That issue cannot, however, be reached in this case because of its procedural posture. It is familiar learning that this court lacks the jurisdiction to decide the merits of a case over which the trial court lacked jurisdiction, and that jurisdictional matters must be addressed whether or not the parties have raised them in their pleadings. Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n. 1, 485 A.2d 1272 (1984); Kulmacz v. Kulmacz, 177 Conn. 410, 412, 418 A.2d 76 (1979); LaReau v. Reincke, 158 Conn. 486, 494, 264 A.2d 576 (1969); Foss v. Foss, 105 Conn. 502, 512, 136 A. 98 (1927). In this case the trial court had no jurisdiction to hear the plaintiff's claim because of his failure to invoke his federal or state administrative remedies. That failure bars him from judicial remedy under both the ADEA and the CFEPA.

The plaintiff's complaint nowhere alleges that he gave notice of his age discrimination claim to the equal employment opportunity commission. The ADEA makes such notice a prerequisite to a private action. The ADEA provides that "[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Commission.... Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(d). ⁸ The purpose of the sixty day notice of intent to sue requirement is two-fold: to afford an employer the opportunity, upon notification of a complaint, to take appropriate remedial action unilaterally, and to enable the EEOC to attempt to resolve the problem through informal conciliation or mediation in advance of litigation. Bihler v. Singer Company, 710 F.2d 96, 99 (3d Cir.1983); H.R.Conf.Rep. No. 950, 95th Cong., 2d Sess. 12 (1978), reprinted in 1978 U.S. Code Cong. & Ad.News 504, 534. While the provisions of 29 U.S.C. § 626(d) have been interpreted flexibly in light of the remedial nature of the ADEA; see Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1288-89 (7th Cir.1978), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1197-99 (5th Cir.1975); Schlei & Grossman, Employment Discrimination Law (2d Ed.1983), pp. 489-92; the complete failure to give notice to the EEOC bars the plaintiff's action under the ADEA. See Whitfield v. City of Knoxville, 756 F.2d 455, 459, 37 FEP Cases 288, 290-91 (6th Cir.1985); Newcomer v. International Business Machines Corporation, 598 F.2d 968 (5th Cir.), cert. denied, 444 U.S. 984, 100 S.Ct. 491, 62 L.Ed.2d 413 (1979); Bengochea v. Norcross, Inc., 464 F.Supp. 709, 711-12 (E.D.Pa.1979). ⁹

The plaintiff's claim under the CFEPA is similarly flawed because of his failure to file a claim of discrimination with the Connecticut commission on human rights and opportunities (CHRO). The provisions of the CFEPA that prohibit discriminatory employment practices; General Statutes §§ 46a-58 through 46a-81; must be read in conjunction with the act's provisions for the filing of complaints concerning alleged discriminatory practices with the CHRO; General Statutes §§ 46a-82 through 46a-96. Section 46a-83(a) provides: "After the filing of any discriminatory practice...