736 F.2d 394 (7th Cir. 1984), 83-2398, Monroe v. United Air Lines, Inc.

Docket Nº:83-2398, 83-2758, 84-1099 and 83-1305.
Citation:736 F.2d 394
Party Name:5 Employee Benefits Ca 1745 Gerry W. MONROE, et al., Plaintiffs-Appellees-Cross-Appellants, and Equal Employment Opportunity Commission, Intervening Plaintiff-Appellee, v. UNITED AIR LINES, INC., and Air Line Pilots Association International, Defendants-Appellants-Cross-Appellees. Lee F. HIGMAN, et al., Plaintiffs-Appellees-Cross-Appellants, and Eq
Case Date:May 30, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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736 F.2d 394 (7th Cir. 1984)

5 Employee Benefits Ca 1745

Gerry W. MONROE, et al., Plaintiffs-Appellees-Cross-Appellants,


Equal Employment Opportunity Commission, Intervening



UNITED AIR LINES, INC., and Air Line Pilots Association

International, Defendants-Appellants-Cross-Appellees.

Lee F. HIGMAN, et al., Plaintiffs-Appellees-Cross-Appellants,


Equal Employment Opportunity Commission, Intervening



UNITED AIRLINES, INC., and Air Line Pilots Association

International, Defendants-Appellants-Cross-Appellees.

Eugene J. GORMAN, Plaintiff-Appellant,


UNITED AIRLINES, INC., Defendant-Appellee.

Nos. 83-1245, 83-1273, 83-1498, 83-1979, 83-2178, 83-2251,

83-2397, 83-2591, 83-2646, 83-2252 to 83-2255,

83-2398, 83-2758, 84-1099 and 83-1305.

United States Court of Appeals, Seventh Circuit

May 30, 1984

Argued Jan. 6, 1984.

As Amended June 21, 1984.

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[Copyrighted Material Omitted]

Page 396

[Copyrighted Material Omitted]

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Edward L. Foote, Winston & Strawn, Chicago, Ill., for defendants-appellants-cross-appellees.

Raymond C. Fay, Haley, Bader & Potts, Chicago, Ill., for plaintiffs-appellees-cross-appellants.

Barbara Lipsky, E.E.O.C.-O.G.C.-Appellate Div., Washington, D.C., George F. Galland, Jr., Davis, Miner, Barnhill & Galland, Chicago, Ill., for intervening plaintiff-appellee.

Before CUMMINGS, Chief Judge, and PELL and CUDAHY, Circuit Judges.

PELL, Circuit Judge.

These consolidated cases involve claims by 115 individual plaintiffs that defendant United Air Lines (United) violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634. The Monroe plaintiffs served as second officers on United's flight crews and challenged United's requirement that all second officers retire at age 60. The Higman plaintiffs served as captains and first officers and challenged United's refusal to allow them to transfer to second officer positions when they reached age 60, the age at which the Federal Aviation Administration (FAA) requires pilots to cease flying for commercial airlines. The cases were presented to a jury, which rejected United's claim that an under-sixty age requirement was a bona fide occupational qualification (BFOQ) for second officers and the claim that the refusal to allow the transfers was based on reasons other than age, in this case United's bona fide seniority system. Plaintiffs were permitted to elect reinstatement and were awarded actual damages and an equal

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amount as liquidated damages when the jury found that United willfully violated the ADEA. See 29 U.S.C. Sec. 626(b).

United raises a number of challenges to the district court's trial rulings and the post-trial relief ordered by the court. We will begin by examining the facts and arguments raised in United's principal claims: the court's instruction to the jury to evaluate United's defenses under an improper legal standard, and the court's error in not granting United's request for a judgment notwithstanding the verdict. Both parties presented extensive evidence on the disputed issues, and we will review only so much as is necessary to resolve the appeal.

I Facts

United uses a three-person flight crew on certain jets. This crew consists of the captain, who is in command at all times, the first officer, who assists the captain in flying the aircraft, and the second officer or "flight engineer," who mans an instrument panel behind the pilots and monitors the various systems of the aircraft, such as the electrical and hydraulic. In the usual course of events a crew member begins his career at United as a second officer and progresses to first officer and then captain, although United does employ some career second officers.

It is not contended other than that the safe operation of aircraft depends both upon the crew's skill and physical condition. United spends a substantial amount of time and money ensuring that crew members are qualified on both counts. There was no dispute concerning the high quality of United's medical department or over the qualifications of Dr. Kidera during his 25 year tenure as head of that department. The medical department administered an annual physical examination of all flight crew members. This examination exceeded the requirements of the FAA. In addition, crew members must pass an FAA administered physical examination once a year to maintain their medical certificates.

The parties did dispute, however, United's ability to detect or predict physical deterioration in crew members over the age of 60. Both sides presented evidence, including expert testimony, on the effects of aging and the ability of medical science to separate the fit from the unfit after this age. The parties also presented conflicting testimony regarding the importance of screening out unfit second officers in ensuring the safe operation of the aircraft.

United's expert, Dr. Kidera, testified that United instituted a policy requiring all crew members to retire at age 60 in 1950. According to Dr. Kidera, this policy was based on concerns about the increase in unpredictable medical conditions after age 60. Since 1960, the FAA has required pilots of commercial aircraft to retire at age 60, see 14 C.F.R. Sec. 121.383(c) (1983), because of similar concerns. Unlike United's rule, the FAA "age 60 rule" only applies to commercial carrier pilots and not to second officers on any type of aircraft or to pilots of other public craft. See Gathercole v. Global Associates, 560 F.Supp. 642 (N.D.Cal.1983) (FAA rule does not justify forced retirement of pilot of noncommercial aircraft). Nonetheless, United contends that the inability to detect physical deterioration in crew members over 60 justifies application of the age 60 rule to all crew members. Plaintiffs presented expert testimony that United could detect medical problems related to aging. Plaintiffs argued that United had been motivated to require retirement at age 60 for economic reasons, a decision that was legal in 1950, and was simply using the alleged safety concerns to justify the retirement policy in the face of ADEA proscriptions against age discrimination.

Both parties presented evidence concerning the importance of the second officer to the operation of the aircraft. The second officer controls various aspects of the craft's operations, but does not "fly" the plane in the ordinary sense of that word. Plaintiffs introduced evidence that operations performed by the second officer can be performed by other crew members in an emergency. In support of their claim that the second officer is not necessary to safety, plaintiffs introduced testimony concerning

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United's policy of allowing pilots under 60 grounded by heart attacks and certain other illnesses to return to duty as second officers. This policy, which is not inconsistent with FAA regulations, was initiated after United studied the effects of second officer incapacitation on the returning pilots' ability to function in the cockpit. United admitted that it had such a policy, but indicated that the success rate of those return pilots had not been high.

United claimed that, regardless of the validity of the age 60 rule as applied to the Monroe plaintiffs, the Higman plaintiffs were denied transfers for a reason other than age; except in limited situations United does not allow pilots of any age to downgrade to second officers. This aspect of United's seniority system was designed, according to United, to ensure that second officer positions are filled by persons working toward positions as first officers and captains. To allow pilots of any age who can no longer serve as first officers or captains, and who will not be able to do so in the future, to fill second officer positions would hamper United's training of new pilots. The Higman plaintiffs, however, introduced evidence that younger pilots are permitted to downbid to second officer for a number of reasons.


The ADEA was enacted in 1967 in response to growing concern over unemployment among older workers and Congress' belief that much of the problem was attributable to "arbitrary discrimination in employment because of age." 29 U.S.C. Sec. 621 (Congressional statement of findings and purpose). One step Congress took in dealing with age discrimination was to make it unlawful for an employer "to fail or refuse to hire or to discharge any individual ... because of such individual's age." 29 U.S.C. Sec. 623(a)(1). The ADEA's protections extend to individuals between 40 and 70 years of age. 29 U.S.C. Sec. 631(a).

Of particular importance to this case are those provisions that exempt certain employer actions from the coverage of the Act. Section 623(f)(1) makes it legal to take action otherwise prohibited by the ADEA "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age." When enacted ADEA also allowed an employer "to observe the terms of a bona fide seniority system or any bona fide employee benefit plan ... which is not a subterfuge to evade the purposes of this chapter, except that no such employee plan shall excuse the failure to hire any individual." 28 U.S.C. Sec. 623(f)(2). Congress became concerned as courts read (f)(2) to allow mandatory retirement based on age under pension plans and amended that section in 1978. S.Rep. No. 493, 95th Cong., 2d Sess., reprinted in 1978 U.S.Code Cong. & Ad.News 504, 513. As amended Section 623(f)(2) provides that "no such seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual...

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