196 Conn. 208 | Conn. | 1985
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.;
The relevant facts are undisputed. The plaintiff became superintendent of the Waterbury police depart
Immediately upon the filing of the plaintiffs 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) (l);
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);
The plaintiff, on the other hand, maintains that the trial court correctly concluded that state and federal
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).
Read in its entirety, the CFEPA not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the CHRO. It is the CHRO that is charged by the act with initial responsibility for the investigation and adjudication of claims of employment discrimination. That the act does not provide an unconditional private right of action for claimants like the plaintiff is underscored by the terms of General Statutes § 46a-99, which expressly provides such a direct right of action when the allegedly discriminatory employer is a state agency. The plaintiff, having failed to follow the administrative route that the legislature has prescribed for his claim of discrimination, lacks the statutory authority to pursue that claim in the Superior Court. See Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979); Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357-59, 377 A.2d 1099 (1977).
Although we have recognized that in exceptional circumstances a claimant may bypass administrative remedies in favor of direct judicial action, the plaintiffs complaint does not fall within the narrow reach
In sum, this plaintiff had available to him administrative remedies that could have afforded him meaningful relief under the federal and state statutes that govern his claim of age discrimination. His failure to
There is error on the appeal, the judgment is set aside and the case is remanded with direction to dismiss the plaintiff’s complaint. The plaintiff’s cross appeal is dismissed as moot.
In this opinion the other judges concurred.
The ADEA provides in relevant part at 29 U.S.C. § 623: “EMPLOYER practices, (a) It shall be unlawful for an employer — (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
The CFEPA provides in relevant part at General Statutes § 46a-60: “(a) It shall be a discriminatory practice in violation of this section: (1) For an employer . . . except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or 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 . . . .”
Section 2741 of the Waterbury town charter provides: “Qualifications for retirement of fire and police participants.
“Any fire or police participant who has served as a member of the fire or police department for at least fifteen years, who has completed twenty-five years of service as a full-time employee of the City of Waterbury, and who has attained the age of fifty-five years shall, at his option, be eligible for retirement for service under the provisions of this act, and upon his written request to the board having jurisdiction and the retirement board of the City of Waterbury, shall be permanently retired. At the age of sixty-five it shall be mandatory that such member be retired from either of said departments, except that any such employee may be continued in service, from time to time, at the request of his department head and with the approval of the retirement board, but in no case after the attainment of the age of sixty-eight.”
29 U.S.C. § 623 provides in relevant part: “(f) It shall not be unlawful for an employer ... (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business . . . .”
See footnote 2, supra.
5 U.S.C. § 8335 provides in relevant part: “(b) A law enforcement officer . . . shall be separated from the service on the last day of the month in which he becomes 55 years of age or completes 20 years of service if then over that age.”
General Statutes § 46a-60 provides in relevant part: “(b) (1) The provisions of this section concerning age shall not apply to . . . (C) the termination of employment of persons in occupations, including police work . . . in which age is a bona fide occupational qualification.”
29 U.S.C. § 626 (d) provides in full: “filing of charge with commission; TIMELINESS; CONCILIATION, CONFERENCE, AND PERSUASION “[CIVIL ACTIONS];
“No civil action may be commenced by an individual under this section
“(1) within 180 days after the alleged unlawful practice occurred; or
“(2) in a case to which section 638 (b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.
“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.”
For the text of 29 U.S.C. § 633 (b), see footnote 9, infra.
29 U.S.C. § 626 (d) imposes two requirements: (1) that the EEOC be notified 60 days before suit is brought and (2) that this notice be given within 180 days of the alleged discrimination, or, if the complainant also has a
We also note that the plaintiff’s ADEA claim is affected by 29 U.S.C. § 633 (b), which provides: “In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated.” See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979).
The CHRO filed a brief amicus curiae in this appeal in which it urged that the trial court’s judgment be upheld. The agency subsequently filed a motion that addressed the plaintiff’s failure to exhaust state administrative remedies and that purported to waive this requirement. Because the CHRO is not a party in the appeal, the motion was dismissed. See Practice Book § 3098. Without in any way deprecating the motives of the CHRO, we cannot permit a brief amicus curiae and an improper motion to serve as a substitute for an agency investigation, hearing, and determination.