*1 requires trine of ‘renvoi’which inclusion of foreign Conflict of Laws rule involved the forum decides foreign

when is law general resorted to seems

rejected by greater number of the deci- question

sions in which the has been con-

sidered”); Lorenzen, The Renvoi Doctrine Application Law, Foreign

and the (“The

Col.L.Rev. renvoi doctrine

is, therefore, part Conflict of States”); Roger United

Laws Cram-

ton, al., Cases, et Conflict of Laws: Com-

ments, Questions (1981). suggestion find no

We in the Missis authorities

sippi Mississippi courts doctrine; adopt the renvoi light

would above,

the authorities discussed we decline adopt

to take the initiative and it for them.

Under conflict of laws

rules, the wrongful Alabama death statute remedy. brought Nailen’s He

action more than three months after the long

statute limitations had run and discharged he had been

after as administra

tor of the deceased’s estate.

Accordingly, of the district dismissing

court Nailen’s action is

AFFIRMED.

EQUAL EMPLOYMENT OPPORTUNI COMMISSION,

Plaintiff-Appellant,

MISSISSIPPI STATE TAX COMMIS

SION, Defendant-Appellee.

No. 87-4659. Peggy Mastroianni, Atty., R. Charles A. Shanor, Counsel, E.E.O.C., Washing- Gen. United States Appeals, Court of ton, D.C., plaintiff-appellant. Fifth Circuit. Kitchens, Gen., Atty. John T. Asst. Rich- May Mitchell, Gen., Sp. Atty. D. ard Asst. Bob- Long, R. Atty., Chief Miss. State Tax Com’n, Pittman, Lloyd Atty. Gen., Edwin Jackson, Miss., defendant-appellee. *2 98 business, (2)

ticular age is a necessary job qualifications, for those either (a) because there is a factual basis for believing substantially that all or people age over a certain would be unable to satis CLARK, Judge, Chief Before fy job qualifications, (b) those or there is GEE, RUBIN, REAVLEY, GOLDBERG, proof testing that individual job for those JOHNSON, POLITZ, KING, qualifications impossible is highly im WILLIAMS, GARWOOD, JOLLY, practical. Criswell, Western Air Lines v. HIGGINBOTHAM, DAVIS, JONES, 400, 413-15, 2743, 105 S.Ct. 2751- DUHE, Judges. Circuit SMITH 52, (1985); 86 Usery L.Ed.2d 321 v. Tamia Tours, Inc., 224, (5th mi Trail 531 F.2d 235 REAVLEY, Judge: Circuit Cir.1976). Equal Employment Opportunity The Some courts hold that an is (EEOC) challenges the manda- Commission precluded making showing, from the first age Mississippi 60 of tory retirement i.e., that qualification related is Tax scales enforcement State Commission necessary, by develop, imple a failure to court found officers. The district ment, and enforce minimum standards for qualification, occupational justi- fide bona qualification. that See EEOC Common fying mandatory retirement state law1 392, Pennsylvania, wealth 829 F.2d 395 Age in Employ- within the Discrimination — (3d Cir.1987), denied, U.S. —, cert. of these ment Act.2 work officers who 1109, (1988); 108 S.Ct. 99 L.Ed.2d 271 ac Mississippi pertaining revenue laws enforce Kentucky cord EEOC v. State Police highways to commercial vehicles and is ex- 665, Dept., Cir.1988). 860 F.2d 668-69 plained in the court’s at 693 enforcement, Other courts treat the or lack F.Supp. panel A 516. this court re- enforcement, of minimum standards as versed remanded and. giving probative it different val evidence— ue—on the issue of determinations, holding pay back necessity of the failed to establish Commission job qualifications. asserted See EEOC v. physical occupational fitness was an Patrol, Missouri Highway State 748 F.2d qualification in the absence of mini- 447, (8th Cir.1984), denied, 454 cert. any attempt mum standards or to monitor 828, (1985) U.S. 106 S.Ct. employees’ health and fitness. 848 F.2d (“Moreover, the physical relevance of a fit 526, 530. The en banc court declines program ness to the question issues ... is physical hold fitness can never be held able.”); Jersey, EEOC v. New necessary job perform- reasonably be (D.N.J.1986), aff'd, 815 F.2d 694 ance unless established (3d Cir.1987) (the police department’s com monitoring proce- standards maintaining mitment the continued dures, but we believe the district court health and fitness its officers forecloses incorrectly failed to consider all of the evi- dispute qualifica serious those judg- dence on the issue. We vacate the tions are essential the safe and efficient ment and for further remand consideration. performance duties); of their EEOC v. City Providence, East 798 F.2d I. (1st Cir.1986) (“low 530-31 physical stan qualify exception To under the dards, coupled factors, might with other ADEA, (1) must show: persuade a district court that fit job qualifications justify invoked necessary job ness was deemed quali not reasonably discrimination nec- employer); fication” Heiar v. essary par- Wis., to the normal County, 746 F.2d Crawford officers, (Supp.1988). 623(i), 1. Miss.Code Ann. 27-5-75 appli- § law enforcement § is not began prior cable to the case because it 2. 29 U.S.C. § 623. The amendment con- January affecting firefighters cession for state laws denied, (7th Cir.1984), cert. 472 dence and the district court’s not periodic that the Commission had no 105 S.Ct. 87 L.Ed.2d U.S. physical examinations or tests. (1985) (“[i]f County required [pe fitness Crawford testimony EEOC elicited en scales fitness riodic exams or tests] whole, forcement on the fail to (we argue with what could need decide exemplify type employee the Com success) genuineness that this showed the *3 required mission job. contends for the physical the fitness of of its concern with expert EEOC, An witness called the Dr. sheriffs”). deputy its Leon, opinion quar Arthur stated his that a prior panel A of this circuit drew employees overweight, ter of the are writing Third Circuit’s when it affirmed the exercise, cigarettes, two-thirds smoke few rejection Mississippi’s district court’s of the quite prob and a few have serious medical game mandatory ward- Among problems lems. the medical of cur Mississippi, 837 F.2d 1398 ens. EEOC employees rent under retirement are Cir.1988). disagree We do not with diabetes, orthopedic problems, prob mental stressing panel, judge, and the trial in that lems, high pressure. and blood The district weight the of standards of health and fit- may court did not discuss this evidence and determination; only say ness in the fact we inquiries have confused the distinct raised may job qualifica- physical fitness be a separate prongs under the two of the Tam despite tion the lack of formal standards. so, iami test. If district court the is not weight given The to be the existence or alone. Highway See Missouri State Pa of formal standards is for the fact absence trol, 454; Heiar, 748 F.2d at 746 F.2d at cf decide, finding subject finder to with its (the court’s simultaneous treatment of appropriate appellate review on the en- the prongs inquiry prompts of the both empha- The tire record. Criswell confusion from its discussion of minimum importance sizes the of fact impossible impractica standards and of or “case-by-case the ADEA basis” under testing). ble individual at 2755. structure. S.Ct. prong, Under the first the must job qualifications establish that certain —in II. case, physical ability and this stamina satisfy prong the first of the Tamia- reasonably To neces- stress —are withstand test, sary operation par- the district court found: “that mi to the normal inquiry looks neither MSTC has established that ticular business. good faith of Commission officials ability to stamina and the withstand highway the ideal tax enforcement nor to working conditions are essential stressful program, operation to the normal of but and efficient execution of the to the safe program Mississippi. Whether the of Enforcement Officer.” duties a Scales enforces the stated Commission F.Supp. at 526. In view of the failure job qualifications by standards and tests or sup- of the court to discuss the evidence certainly to the deter- otherwise is relevant porting the EEOC’s contention that health prong. If of this first standards mination ignored by in fact and fitness were (for testing per- employed example, by are Commission, finding may refer the stated designed to physical exercises formance of to an ideal scales officer force—or what job qualifications as purported mirror the operation than the might be done—rather 1508), Jersey, New Mississippi actually place. has in employees tends to show State Tax Chairman of regardless age. their physically fit of insisted that the officers Commission physically in order to required prong, fit Under the second tasks, necessary and the Commission is a perform their must establish job qualifications, presented evidence of tasks for the stated substantial that it is managed only by proof of is to show challenges which could be one method indi- highly impractical to test ability impossible or with stamina and the officers qualifications. employees for those difficulty the evi- vidual handle stress. The with manifestly prove failed testing may burden demonstrate example, For ability to physical fitness and show: that to disclose the heart fail reasonably neces- stress withstand were officer on the older could fell disease perform sary to enable exertion. his next stressful of occasion on them the that were incumbent duties signifi- remember Courts at the time normal of its business per- examinations of cance on all of its it forced retirement separate with tests differs formance age of 60. were over the Tamiami inquiries. standards establishment case to the district court remand the We course, not, prerequisite to fitness is enforce- fully the Commission’s to consider necessity good showing the reasonable enforcement, ment, stated lack of health, that business but to demonstrate physical stamina and qualifications job physical fitness of older necessity requires do stress. We ability to withstand *4 that at employees, the must show Tamiami the prong of the second reach fitness, some standards of least may elect to take The district court test. required for informal, employees.2 are resolving evidence, may de- and further —in only exacted Physical fitness cannot be job qualifica- the claratory relief—consider employees, for that sort of difference older changes operations if tions under patently employment requirements in occurred. have I, therefore, in that discriminatory. concur VACATED; RE- CAUSE JUDGMENT opinion reversing part majority the the MANDED. court, I from the re- district but dissent case, the record demon- mand of the which RUBIN, Judge, B. Circuit ALVIN futile, and which strates is bound to be has GOLDBERG, POLITZ, with whom sought by Mississippi been State never WILLIAMS, JOHNSON, S. and JERRE Tax Commission. concurring part in Judges, join Circuit Mississippi State Tax Commission dissenting part: and retiring age 60 who persons insists opinion points to no error of majority they willing to do the work are and able it states by district court. While although law always done it has never have incorrectly court “the district only are less that these shown evidence,” the all of the jobs failed to consider than the physically to do their able actually have concluded majority therefore at younger record, find- that, regulations district court’s on the In with work. accordance erroneous, for Equal Employment Op ings fact were promulgated might Commission,3 Supreme it only portunity on which Court that is the basis v. agree held Air Lines Criswell4 judgment.1 I Western reverse the “ ‘con wrong result on court defense district reached “ ” reason, given narrowly’ and ‘limited That is strued the record before it. “ it is scope application’"5 because ‘an however, give losing party a new general extremely exception to the narrow try prove what had the chance to 1027, denied, Cir.1984), (7th 52(a). 1200 cert. 1. Fed.R.Civ.Proc. 3500, (1985); but see 87 L.Ed.2d 631 S.Ct. 105 1398, Mississippi, F.2d 2. See EEOC v. 837 1401 524, Providence, City 798 F.2d EEOC v. East Cir.1988); (5th Kentucky State see also EEOC v. (1st Cir.1986). 528-31 665, Cir.1988); Dept., F.2d Police 860 Agency, Resources (1988). EEOC v. Tennessee C.F.R. § 3. 29 1625.6 Wildlife — denied, 24, (6th Cir.1988), cert. 859 F.2d 26 —, S.Ct. 103 L.Ed.2d 811 U.S. 109 S.Ct. 4. 472 U.S. 105 (1989); Pennsylvania, (1985). F.2d EEOC v. 395 — —, denied, (3rd Cir.1987), U.S. cert. Criswell, (1988); 105 S.Ct. at 2750 Heiar U.S. S.Ct. L.Ed.2d (1984)). Wis., (quoting § 29 C.F.R. 860.102b County, 1198- 746 F.2d Crawford ” prohibition’ against age political discrimination.6 reasons and who could not be Referring findings to the of the House weeded Thus, out other fashion. Report “chronological age Committee district court’s recounts how the poor per- is a indicator of alone MSTC decided to institute its mandatory job,” emphasized form a the Court plan: retirement applies special ADEA with in the force case The Chairman of MSTC at the time the mandatory-retirement provisions.7 MVCO MSTC’s predecessor] was [the Forced impose can Lambert, abolished was A.C. Sr. Lam- hardships persons on older inflicts bert determined that extraordinary mea- society costs on as a whole because skills sures would have to be improve taken to experience are lost from the work the enforcement arm of the former force, resulting gross in reduced national MVCO. Testimony contended that product greater cost government MVCO had been abolished due to lack of programs, income-maintenance such so- management, political cronyism, and, security.8 cial generally, inefficient enforcement of the ADEA, therefore, requires that dis- law. Lambert called experience qualification to work on account of and resourcefulness of a career en- law something more than “convenient” or “rea- officer, forcement Stringer, Wood majority opinion As the sonable.” correct- make recommendations for the contem- ly emphasizes, such discrimination must be plated reorganization. needed Lambert “reasonably necessary particular ... to the Stringer agreed positions *5 business,” that, which means when the requiring closest were scrutiny those in- qualification is a factor” “reasonable other spection employee positions station re- age, than compelled ferred to as Inspectors Revenue or Field rely to on proxy.9 as its Inspectors. Stringer became Administrative Assist- majority opinion discusses some of ant to Lambert and set to showing out conduct a evidence that the MSTC did thorough investigation analysis of not exact stamina positions question. He to found that working withstand stressful conditions positions these had repay been used to from who were less than political obligations, regard often without years unnecessary, therefore, old. It is to experience, to age, or physical capability. ample detail the additional evidence that Though persons some hired had a law only very MSTC used broad minimum background, enforcement this was standards of health and hiring fitness when exception rather than the rule. employees, attempts made no to monitor employees’ MVCO, health and fitness they once Under many persons hired force, were on the did require simply not job.10 not do the did younger employees its perform to the most petition In its rehearing banc, for en physically demanding and hazardous tasks. MSTC recites: not,

The record reveals that MSTCdid Testimony presented during the course fact, retire employees 60 be- of by the trial witnesses for both the poor cause their or advancing years health MSTC and the EEOC demonstrat- perform them made less able to their jobs ed that the prior of the MVCO younger than 1, 1980, scales-enforcement July to manage- from suffered inefficiencies, because wanted to rid MSTC itself ment corruption, inade- appointed had been quate leadership, political cronyism, and Rawlinson, (quoting 6. Id. Dothard v. 8. Id. 97 S.Ct. (1977)); Tours, Usery see v. Tamiami Trail Tamiami, 9. See 531 F.2d at 235. (5th Cir.1976). F.2d (S.D.Miss.1987). 10. Id., (quoting 472 U.S. at 105 S.Ct. at 2750 95-527, H.R.Rep. pt. p. (1977)). No. employees. ap- younger Unless standards a lackadaisical importantly most informal, kind, adopted of the laws some formal or the enforcement proach to charged by stat- agency was the fitness and stress-resili- to determine which enforcing. required younger employees, ute with ance determining the cannot a substitute for court, en banc the MSTC In its brief to qualities. absence of those assertion. repeats this background requires An its older em- supposed MSTC age as a need to establish prove ployees possess the attributes it does would fitness. Instead this younger employees vi- specifically exact of work, the state did not history demonstrates that employees’ right to olates the older mandatory program adopt its designed protect. ADEA right the was that the MSTC scales-enforcement ensure minimum standards In the absence healthy and fit as officers would be determine, attempt serious politi- employees, out younger but weed monitor, employees’ and fit- other health hacks attrition. cal ness, lay fails to a factual may rest a foundation which court remanded? Why then should this case be specified degrees of health and once tried. The MSTCbore It has been reasonably necessary the es- fitness are of a establishing the existence burden of its business. sence is,,there- BFOQ. It failed to do so. There fore, requiring dis- justification for reasons, For these I would not remand again whether the trict court to ascertain the case but would reverse us, has, the record now before MSTC the district court. and fitness and the abili- proved that health reasonably nec- ty to withstand stress were business, of its or to

essary to the essence provide opportunity to it a second

afford supply the first time. it failed to

evidence asked, either in its has never MSTC opportu- argument, for the

brief or oral

nity to do so. BENAVIDEZ,

Indeed, Roy could the new evidence P. what Plaintiff-Appellant, might bring MSTC now adduce? It forth expects it additional evidence what cannot that it scales but it show INC., BUSCH, ANHEUSER physical require- the same exacted Defendant-Appellee. it ments of below the as officers has of 60. It has never officers over No. 88-2779 suggested new evi- that it has discovered Summary Calendar. dence, opportunity let alone asked for Appeals, United States Court adduce it. Fifth Circuit. majority’s remand for additional unwillingness findings May is occasioned develop, conclude that an implement, minimum stan- and enforce rely fitness in order to

dards of health and BFOQs, an un- these characteristics referring

willingness qualifies by that it respect,

“formal In this standards.”

makes of law that the dis- the same error assuming

trict error of court made: quality for a can ever be demanded of quality

unless that is in fact