# Stanley ORZEL, Plaintiff-Appellee, v. CITY OF WAUWATOSA FIRE DEPARTMENT, Defendant-Appellant > Court of Appeals for the Seventh Circuit · January 3, 1983 · 697 F.2d 743 URL: https://www.frixlaw.com/law-library/cases/9470152 ## Case - **Full name:** 30 Fair empl.prac.cas. 1070, 30 Empl. Prac. Dec. P 33,264 Stanley Orzel v. City of Wauwatosa Fire Department - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** January 3, 1983 - **Citations:** 697 F.2d 743; 30 Fair Empl. Prac. Cas. (BNA) 1070; 30 Empl. Prac. Dec. (CCH) 33,264; 1983 U.S. App. LEXIS 27922 - **Precedential status:** Published - **Opinion:** Concurrence by Pell - **Judges:** Cummings, Pell, Cudahy - **Cited by:** 118 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9470152 ## How later opinions describe it (automated extraction) - holding that defendant’s offer to reinstate plaintiff which was expressly conditioned on plaintiff taking and passing a physical examination was not unconditional where acquiescence in the demand for a physical examination might jeopardize plaintiffs legal position - concluding that after Manhart a “cost-justification defense [is] not available in Title VII action” - noting that deduction of collateral source benefits is “normally a matter within the discretion of the district , court” ## Opinion text PELL, Circuit Judge, concurring. I am persuaded by Judge Cudahy’s well-reasoned opinion, and my own participation in reading the briefs and hearing oral argument that a proper result has been reached in this case. I therefore concur in his opinion. Nevertheless, I deem it appropriate to comment on what I regard as some of the troublesome aspects of this case. If I were viewing the matter of whether compulsory retirement of fire fighters at the age of 55 was a bona fide occupational qualification (BFOQ) as a matter of first impression, rather than, as we must, in the context of well established law, I might have been inclined to say that it was a reasonably necessary BFOQ. I am not impressed by the fact that there had been no major fires in Wauwatosa in many years. There is no crystal ball to foretell when catastrophe will pay a visitation. It can and does happen. The fire department should be prepared to cope, having for that purpose adequate equipment and corps of physically and mentally able fire fighters. Judge Cudahy’s opinion refers to “the degenerative and hard-to-detect physical and sensory changes which begin in a person’s late thirties and progress steadily thereafter.” This is a fact of life and pointing out the Bernarr Macfaddens who exist does not refute it. It is simply a part of the aging process. Not only does a fire fighter have to be prepared to engage in strenuous physical activity but he or she must have the reaction timing of a young person. Quick decisions, indeed quick intuitive reactions, followed by accelerated action can be required. It can’t be argued, I believe, that these degenerative processes do not apply with some degree of equality to all of the physiological and psychological aspects of a human being. These include the respiratory system. From newspaper reports of fires, oftentimes not a major fire in a residence, we know the cause of fatalities frequently is asphyxiation rather than incineration. I am not unmindful that fire departments often have a rule that its fire fighters not enter a burning structure without wearing gas masks. Yet, we know also that fire fighters as well as occupants are sometimes overcome by the deadly fumes released by certain combustible materials. We, however, are not considering the matter on an a priori basis. As Judge Cudahy’s opinion correctly points out, the burden is on the employer to demonstrate that the BFOQ is reasonably necessary to the normal operation of the particular business. This, Wauwatosa, despite its protestations to the contrary, simply has failed to do. Judge Cudahy’s opinion refers to federal fire fighters as “a wholly different group of employees, operating under different working conditions and performing significantly different job functions.” It strikes me that “a rose is a rose is a rose” might be applicable here but Wauwatosa has failed to demonstrate any nexus between the federal and municipal fire fighters’ situation, nor that Congress implicitly intended to include all fire fighters in those to be treated in the BFOQ category. The setting of a retirement age as a BFOQ in certain occupations would seem to be a permissible governmental objective and in the case of fire fighters this would relate both to the citizens of the community and the fire fighters themselves. Wauwatosa has failed to demonstrate that this age should be 55. I am also troubled by the matter of not stopping the assessment of damages as of the date when Orzel was offered reinstatement. It seems to me that the condition of taking a physical examination prior to his reassuming the potentially arduous duties was not an unreasonable one. If he had *761 been offered unconditional reinstatement, I would assume that he would have been subject to periodic required physical examinations. In view, however, of all of the peculiar circumstances in this case, as outlined in Judge Cudahy’s opinion, I am unable to state that the result reached was incorrect. Finally, the matter of allowing liquidated damages is always a difficult area in application. Congress clearly did not intend, as it did in other areas such as the Fair Labor Standards Act, this to be an automatic doubling. The present case, in view of the then less settled law, and the recent inclusion of municipalities strikes me as a close case on liquidated damages; nevertheless, I think the opinion of Judge Cudahy correctly applies the principles of Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149 (7th Cir.1981). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9470152. Public record. Not legal advice.