Long v. Dept. of Admin., Div. of Retirement

428 So. 2d 688
CourtDistrict Court of Appeal of Florida
DecidedFebruary 8, 1983
DocketAL-51
StatusPublished
Cited by9 cases

This text of 428 So. 2d 688 (Long v. Dept. of Admin., Div. of Retirement) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Dept. of Admin., Div. of Retirement, 428 So. 2d 688 (Fla. Ct. App. 1983).

Opinion

428 So.2d 688 (1983)

Hughlan LONG, Appellant,
v.
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.

No. AL-51.

District Court of Appeal of Florida, First District.

February 8, 1983.
Rehearing Denied April 6, 1983.

*689 Jerold Feuer, Miami, for appellant.

*690 Augustus D. Aikens, Jr., Div. Atty., Div. of Retirement, Tallahassee, for appellee.

PER CURIAM.

Long appeals the final order of the Department of Administration, Division of Retirement, which finds him not eligible for a two percent credit for his past service. Long presents several points on appeal, three of which merit discussion. First, whether Rule 22B-7.05, Fla. Admin. Code, is sexually discriminatory and thereby violates Title VII of the 1964 Civil Rights Act. Second, whether the above rule violates the Florida and Federal Constitutions. Third, whether the State should be equitably estopped from denying Long a two percent credit for past service. We affirm.

Appellant was employed in various state positions prior to 1970. As such, he was a member of the State and County Officer and Employee Retirement System (SCOERS). Prior to his appointment as a Judge of Industrial Claims in 1970, appellant voluntarily transferred from SCOERS to the Florida Retirement System (FRS). Appellant was erroneously advised by letter in 1972 that he would receive a 2% credit for his past service, although at the time he was eligible only for a 1.6% credit. Based on this information, appellant paid a total of $4,092.27 to purchase his 10.18 years of prior service. In 1975, the Division discovered its error and sent appellant a letter advising him that his percentage had been incorrectly computed because he did not have three continuous years of service before transferring to FRS. In 1981, appellant requested data on his retirement credit and was advised he would get a 1.6% credit for his past service. At that time Long filed a request for a hearing pursuant to section 120.57, Fla. Stat. (1981), and the case was assigned to the Division of Administrative Hearings. The prehearing stipulation listed two issues: (1) whether Long was entitled to credit at 2% for his 10.18 years of prior service; and (2) whether the Florida Retirement System is sexually discriminatory. The hearing was held and the Hearing Officer recommended that appellant not be given the 2% credit, but that appellant should have the option of recouping his $4,092.27 along with six percent interest if he chose not to accept the 1.6% past service credit. The recommended order made no mention of the constitutional and statutory sex discrimination issues. The Department of Administration, Division of Retirement then issued the final order which is here appealed. The final order is substantially similar to the Hearing Officer's recommended order, with the exception that it states that the agency is unable to rule on the constitutional claim.

Rule 22B-4.10, Fla. Admin. Code, provides for optional retirement benefits for members of FRS.[1] Option 1 is the maximum *691 retirement benefit payable to the member during his lifetime. Option 3 is a retirement benefit which is payable during the joint lifetime of both the member and a joint annuitant, and which continues after the death of either, during the lifetime of the survivor, in the same amount. Option 4 is a retirement benefit payable during the joint lifetime of the member and a joint annuitant, and which continues after the death of either, during the lifetime of the survivor, in an amount equal to 66 2/3% of the amount which was payable during the joint lifetime of the member and his joint annuitant. Paragraph (2) of Rule 22B-4.10 provides that the benefits payable under Options 3 and 4 shall be the actuarial equivalent of the amount to which the member is *692 entitled under Option 1. It is in determining this actuarial equivalency that appellant contends the rules are sexually discriminatory. Appellant attacks Rule 22B-7.05 which provides the factors to be used to determine the benefits which are payable during the joint lifetime of a male member and a female joint annuitant when the member has elected to receive benefits under Option 3 or 4. These factors take into account the fact that women, as a class, live longer than men. Because women live longer, the actuarial equivalent of the Option 1 benefit is greater for a female member. Therefore, the factors of Rule 22B-7.05 which determine the amount payable to a male member and a female joint annuitant under Options 3 and 4 do not provide for as large a benefit as the factors of Rule 22B-7.06 which determine the amount payable to a female member and a male joint annuitant of the same age and under the same option.[2] Appellant claims that since Options 3 and 4 provide different benefit amounts to male members with female joint annuitants and female members with male joint annuitants of the same age, that Rule 22B-7.05 violates Title VII of the 1964 Civil Rights Act, specifically, 42 U.S.C. section 2000e-2 and also the Federal and Florida Constitutions in that the rule is sexually discriminatory.

Turning first to appellant's statutory claim, we hold that state courts do not have jurisdiction over Title VII claims.[3]Dickinson v. Chrysler Corp., 456 F. Supp. 43 (E.D.Mich. 1978); Fox v. Eaton Corp., 48 Ohio St.2d 236, 358 N.E.2d 536 (Ohio 1976). Therefore, the agency and hearing officer below did not err in ignoring appellant's Title VII claim.

The agency and hearing officer also lacked jurisdiction to hear appellant's *693 constitutional argument. This court, however, can hear the constitutional argument on appeal since the complete record necessary for such a decision was preserved in this case. Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). We hold that Rule 22B-7.05, Fla. Admin. Code, does not violate the equal protection clause of either the fourteenth amendment of the United States Constitution or article I, section 2 of the Florida Constitution. To pass muster under the equal protection clause of the Federal Constitution, a sexually discriminatory law must bear a fair and substantial relationship to an important governmental objective. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Purvis v. State, 377 So.2d 674 (Fla. 1979). Similarly, under the Florida Constitution, any such law must bear a just and reasonable relation to a legitimate purpose. In re Estate of Reed, 354 So.2d 864 (Fla. 1978). The rule in the case at bar distinguishes between men and women based on mortality tables. The important state purpose is to provide for an actuarily sound state retirement system. Since it is an actuarial fact that women as a class live longer than men, the distinction drawn under this rule bears a substantial relationship to the important governmental purpose. Cf. In re Estate of Rincon, 327 So.2d 224 (Fla. 1976); Shevin v. Kahn, 273 So.2d 72 (Fla. 1973), aff'd, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). Rule 22B-7.05, therefore, does not violate the equal protection provisions of either the Federal or Florida Constitution.

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428 So. 2d 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-dept-of-admin-div-of-retirement-fladistctapp-1983.