Criswell v. Western Airlines, Inc.

• Decision Date: 28 June 1983
• Docket Number: 81-6013,81-5619,81-6023 and 82-5082,Nos. 81-5536,s. 81-5536
• Parties: 32 Fair Empl.Prac.Cas. 1204, 32 Empl. Prac. Dec. P 33,725, 4 Employee Benefits Ca 2042 Charles G. CRISWELL, Albert Ron, Rulon H. Starley, Plaintiffs-Appellees/Cross- Appellants, v. WESTERN AIRLINES, INC., Defendant-Appellant/Cross-Appellee, Joan Celia Lavine, Non-Party Appellant. Westcot B. STONE III, Bill H. Pelton, Jack R. Dean, Norval P. Cavett, Alan L. McLaren, Brentnall J. Higgs, Henry J. Wiegand, Albert J. White, and Robert L. Butler, Plaintiffs-Appellees, v. WESTERN AIRLINES, INC., Defendant-Appellant. Western Airlines, Inc., Third-Party Complainant/Appellant, Air Line Pilots Association International, etc., et al., Third-Party Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 544

709 F.2d 544

32 Fair Empl.Prac.Cas. 1204,

32 Empl. Prac. Dec. P 33,725,

4 Employee Benefits Ca 2042

Charles G. CRISWELL, Albert Ron, Rulon H. Starley, Plaintiffs-Appellees/Cross- Appellants, v. WESTERN AIRLINES, INC., Defendant-Appellant/Cross-Appellee, Joan Celia Lavine, Non-Party Appellant.

Westcot B. STONE III, Bill H. Pelton, Jack R. Dean, Norval

P. Cavett, Alan L. McLaren, Brentnall J. Higgs, Henry J. Wiegand, Albert J. White, and Robert L. Butler, Plaintiffs-Appellees, v. WESTERN AIRLINES, INC., Defendant-Appellant.

Western Airlines, Inc., Third-Party Complainant/Appellant,

Air Line Pilots Association International, etc., et al.,

Third-Party Defendants/Appellees.

Nos. 81-5536, 81-5619, 81-6013, 81-6023 and 82-5082.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 1982.

Decided June 28, 1983.

Raymond C. Fay, Haley, Bader & Potts, Chicago, Ill., Robert S. Venning, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., Jay P. Levy-Warren, Michael E. Abram, Cohen, Weiss & Simon, New York City, for appellees.

Donald K. Hall, Darling, Rae & Gute, Los Angeles, Cal., for Western Air Lines, Inc.

Joan Celia Lavine, Los Angeles, Cal., pro se.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY, TANG and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

Western Airlines, Inc. appeals two adverse decisions in which the district court found that it had violated the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-34. The trial court determined that Western violated the ADEA when it (1) refused to allow DC-10 captains nearing the age of sixty to downbid to the position of flight engineer and (2) imposed a mandatory retirement age of sixty on flight engineers as a matter of company policy. The plaintiff airline pilots alleged both discriminatory treatment and disparate impact. Western raised four defenses: first, that denial of the downbids could not give rise to an ADEA claim as a matter of law; second, that the age sixty requirement was a bona fide occupational qualification and, third, was justified by reasonable factors other than age, 29 U.S.C. Sec. 623(f)(1); and, finally, that its policies were prompted by business necessity. In the first case here before us, Criswell v. Western Airlines, Inc., 514 F.Supp. 384 (C.D.Cal.1981), a jury returned substantial damage awards for all three plaintiffs, and the court granted individual and systemwide injunctive relief. In a subsequent case, Stone v. Western Airlines, Inc., No. 81-5521, the district court gave collateral estoppel effect to the Criswell judgment in granting a preliminary injunction which is also before us on this appeal. We affirm the district court in both cases.

FACTS

In 1977 when this case began, Western Airlines required that all three members of a DC-10 flight deck crew retire at age sixty. The captain and the co-pilot (also known as the first officer) were required to do so under Federal Aviation Administration regulations. Aldendifer v. Continental Air Lines, 650 F.2d 171 (9th Cir.1981); Keating v. Federal Aviation Administration, 610 F.2d 611 (9th Cir.1979); 14 C.F.R. Sec. 121.383(c). The third crew member, known as the flight engineer or second officer, was required to retire by Western's policies. This retirement was not mandated by the FAA.

In September 1977, plaintiff Starley was fifty-nine years old and a DC-10 captain who had thirty-two years of seniority as a pilot with Western. He entered a downbid for a position as second officer (flight engineer). Starley's seniority placed him near the head of the pilots' list. ¹ The position Starley bid for was awarded on the basis of seniority under Western's collective bargaining agreement with the Air Line Pilots Association (ALPA), which represented the pilots. The bid was awarded to him immediately, but six months later Western canceled it. In November 1977, Captain Charles Criswell, who had worked for Western for forty-one years, thirty-seven of them as a pilot, submitted a downbid to move from his position as a DC-10 captain to that of DC-10 second officer, timed to take place just prior to his sixtieth birthday. This bid was denied. Plaintiff Albert Ron was a "career" second officer, having been such for twenty-three of the thirty-two years during which he had served the airline. Prior to his sixtieth birthday, he gave Western written notice of his intention to remain at work in his position beyond his sixtieth birthday.

In February 1978, Western informed all three plaintiffs that they would be required Before the System Board ruled, the federal court action had been filed. All plaintiffs sought preliminary injunctions. As to plaintiff Ron, equitable relief was granted and he has remained employed as a second officer with Western throughout the litigation of this case. Criswell and Starley were retired on their sixtieth birthdays. After a fifteen-day trial, a jury returned verdicts for all three plaintiffs--for Criswell in the amount of $60,394; for Starley in the amount of $52,099; and for Ron, who had continued to work, in the amount of $5,000. The jury also found on a special interrogatory that Western's violations were "willful" with respect to each plaintiff.

to retire at the age of sixty as established in the pilot pension plan. Claiming that the denial of downbids violated the Pilot Agreement, Criswell and Starley pursued their collectively bargained for grievance procedures. Their grievances were heard by the Western Air Lines Pilots System Board of Adjustment, which, in a decision accompanied by a vigorous dissent, denied them relief on the basis that, although the language of the agreement would have permitted their bids, such bids were never contemplated or intended by the parties. The board held that the parties had intended to permit downbidding only "in rare and carefully defined circumstances."

Six months later, after additional hearings and briefing, the trial court filed an opinion and order which also granted the equitable relief originally sought. Criswell v. Western Air Lines, 514 F.Supp. at 387-97. The court ordered Western to reinstate Criswell and Starley with full seniority, to award them positions as second officers, to continue Ron in his position, and not to require their retirement prior to age seventy. The systemwide relief enjoined Western from its previous practices with regard to mandatory retirement of second officers at age sixty, age-based refusal of downbids from captains or first officers seeking second officer positions, and further violation of the ADEA. ² The court also awarded prejudgment interest, liquidated damages, damages, costs and fees.

Six months after entry of judgment in Criswell, Stone was filed. Eight of its nine plaintiffs were DC-10 captains for Western, while the ninth, Albert White, was a second officer. They alleged that Western's refusal to continue them in employment as second officers after their sixtieth birthdays violated the ADEA and sought preliminary injunctions. The court denied injunctions to the pilots but granted one to the second officer, White. In granting relief, the court gave collateral estoppel effect to the Criswell judgment. On appeal Western's position with regard to White is legally identical to its position with regard to plaintiff Ron in Criswell.

ANALYSIS

On this appeal Western argues (1) that the district court failed to accord proper deference to the System Board determination that the collective bargaining agreement did not permit the downbids attempted here, thereby depriving the airline of an absolute statutory exemption, (2) that its age sixty requirement for second officers is a bona fide occupational qualification (BFOQ), and (3) that the jury was misinstructed in a number of respects. In Criswell, Western also appeals the failure to join ALPA, the grant of systemwide relief, and the awards of attorneys' fees and prejudgment interest. In Stone, it appeals as well the grant of injunctive relief to the second officer and the denial of injunctive relief which it sought against ALPA.

I. The Deference Due the System Board

Western first contends that the bona fide seniority system set up by the collective bargaining agreement between itself and the Air Line Pilots Association will not permit downbids of the type submitted by Criswell and Starley. It insists that this matter was not open for de novo investigation by the district court because the System Board of Adjustment had already made that determination in 1978. The airline urges that the System Board has exclusive jurisdiction to interpret the agreement and that its decision may not be reconsidered or collaterally attacked in court. Reliance on this argument is misplaced. The right of the plaintiffs to go before the System Board is contractual, arising out of their collective bargaining agreement. Their right to come before this court is statutory, arising out of the ADEA. As the Supreme Court has said in similar circumstances:

The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.

Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 745-46, 101 S.Ct. 1437, 1447, 67 L.Ed.2d 641 (1981), quoting with approval Alexander v. Gardner-Denver, 415 U.S. 36, 49-50, 94 S.Ct. 1011, 1020, 39 L.Ed.2d 147 (1974).

Both Alexander and Barrentine are immediately relevant to the issue in this case. While Alexander dealt with Title VII, substantive rights arising under the ADEA are to be similarly construed. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755-56, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979); Sutton v. Atlantic Richfield Co., 646 F.2d 407, 411 (9th Cir.1981). Barrentine extended Alexander into the related Fair Labor...