796 F.2d 1408 (11th Cir. 1986), 84-8852, Iervolino v. Delta Air Lines, Inc.

Docket Nº:84-8852.
Citation:796 F.2d 1408
Party Name:Joseph A. IERVOLINO, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.
Case Date:August 15, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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796 F.2d 1408 (11th Cir. 1986)

Joseph A. IERVOLINO, Plaintiff-Appellant,


DELTA AIR LINES, INC., Defendant-Appellee.

No. 84-8852.

United States Court of Appeals, Eleventh Circuit

August 15, 1986

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Alan M. Serwer, Chicago, Ill., for plaintiff-appellant.

Eugene G. Partain, Carl Cannon, Scott Greene, Thomas J. Kassin, Delta Air Lines, Inc., Hartsfield Intern. Airport, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before JOHNSON and ANDERSON, Circuit Judges, and DYER, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Joseph Iervolino brought this action against his former employer, Delta Air Lines, Inc., alleging that Delta's refusal to permit him to transfer to the position of flight engineer violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. Secs. 621-634 (West 1985). On appeal from a judgment rendered on a jury verdict for Delta, Iervolino raises numerous challenges to the jury instructions, the denial of his motion for judgment notwithstanding the verdict ("JNOV") or alternatively for a new trial, and the district court's evidentiary rulings. We affirm.


In its commercial airline operation, Delta operates a variety of aircraft, including the Lockheed 1011. This aircraft requires three crew members in the cockpit: a captain, a first officer, and a second officer. The captain is the pilot and controls the aircraft. He is responsible for all phases of its operation. The first officer is the copilot and assists the captain. The second officer or flight engineer usually monitors a side-facing instrument panel, and does not operate the flight controls.

A regulation of the Federal Aviation Administration prohibits any person from serving as a pilot or first officer on a commercial flight "if that person has reached his 60th birthday." 14 C.F.R. Sec. 121.383(c) (1985). The FAA, however, has refused to establish a mandatory retirement age for flight engineers.

Delta employed Iervolino as a captain until his sixtieth birthday. In March 1980, five months before his retirement, Iervolino requested a transfer to the position of flight engineer so that he could continue his employment beyond age 60. Delta denied Iervolino's request, and he was retired on his sixtieth birthday.

Iervolino filed this action against Delta in the United States District Court for the Northern District of Georgia, arguing that Delta's refusal to permit him to transfer to a flight engineer position violated the ADEA. Delta defended its refusal to permit Iervolino to transfer to a flight engineer position on two grounds: (1) that its policy prohibiting captains from transferring to flight engineer positions ("two-step downbid") qualified as a reasonable factor other than age ("RFOA") within the meaning of 29 U.S.C.A. Sec. 623(f)(1) (West 1985), 1 and (2) that the under-age-60 qualification for the position of flight engineer is a bona fide occupational qualification ("BFOQ") reasonably necessary to the safe transportation of passengers. 2

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At trial, the parties offered conflicting evidence as to the existence of a policy prohibiting two-step downbids. Iervolino contended that, except for pilots approaching age 60, Delta had permitted pilots to bid for any vacancy and awarded the bids based on seniority. Between 1973 and 1984, there were 936 transfers from captain to copilot or from copilot to flight engineer by crew members under age 60 ("one-step downbid"). Iervolino presented evidence of two instances in which Delta had permitted a two-step downbid. In 1978, Delta permitted Ralph Sexton to transfer from captain to flight engineer as the result of a medical condition which precluded his continued service as a captain. When Delta acquired Northeast Air Lines, Inc. ("Northeast") in 1972, two Northeast captains were also permitted to transfer to flight engineer positions at Delta.

Iervolino also introduced evidence suggesting that former captains serving as flight engineers would not present any "role reversal" problems. Iervolino pointed out that there have been no "role reversal" problems either when senior captains ride in a cockpit observer seat with more junior captains or when captains are given proficiency checks by senior check captains or FAA inspectors. Iervolino also claimed that Delta could evaluate a former captain's ability to serve as a flight engineer on an individual basis since Delta already evaluates captains on their ability to manage their crew in all situations and observes how well crew members interact and coordinate their efforts.

Delta, on the other hand, introduced evidence that it has a long-standing policy prohibiting captains from bidding down to flight engineer positions. Delta asserts that this policy was based on the safety problems associated with two-step downbids. Expert testimony indicated that when former captains serve as flight engineers, the roles of the crew members may become confused or ambiguous and former captains serving as flight engineers may intimidate other crew members during an emergency. Several pilots also testified as to the potential problems that could result from former captains serving as second officers. Delta also argued that since an individual pilot may be entirely unaware of any difficulty in his transition to a flight engineer position until after a problem occurs, it is impossible to predict which former captains would have difficulty in making the transition.

With respect to the question of whether the under-age-60 rule is a BFOQ for the flight engineer position, Iervolino offered a variety of evidence to support his contention that a flight engineer's normal duties are less critical to the safety of a flight than those of a captain or first officer. For example, the FAA has not extended the age-60 rule to the flight engineer position because the evidence indicates that flight engineers have rarely been a contributing cause or factor in commercial aircraft accidents and because flight engineers do not manipulate any flight controls. Iervolino also introduced evidence that 485 flight engineers over the age of 60, including 134 former captains, were serving on other commercial airlines. Finally, several former captains serving as flight engineers testified that they had experienced no difficulty in safely performing the flight engineer position.

Iervolino also offered evidence that it would be possible for Delta to evaluate its flight engineers on an individual basis for potentially disqualifying medical conditions. For example, Delta has relied on FAA-mandated medical examinations to assess, on an individual basis, the ability of pilots and flight engineers to perform their jobs safely and efficiently. Iervolino pointed out that Delta had permitted pilots to return to flight duty following the diagnosis of serious medically disqualifying conditions, provided these pilots could later pass medical examinations. Delta also has a system of proficiency checks designed to ascertain whether crew members can perform the required duties of the job safely and efficiently.

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Delta contended, however, that the age-60 requirement is a BFOQ for the flight engineer position. First, Delta offered evidence that the flight engineer position is essential to flight safety. Several pilots testified that a flight engineer's failure to perform his duties properly could adversely affect flight safety, especially during emergencies. An aircraft simulator demonstration and various accident reports were also introduced to illustrate the importance of a flight engineer's duties and the need for close coordination among cockpit crewmembers.

Delta also presented evidence that certain age-related diseases and infirmities (e.g., heart attacks, strokes, dementia, susceptibility to adverse drug reactions) become more prevalent at or around the age of 60, and that medical science cannot predict who will be susceptible to these diseases. Dr. John Rowe and Dr. Donald Kline concluded that there presently exists no reasonable method for Delta to evaluate its crew members on an individual basis.

After trial the jury returned a general verdict in favor of Delta, and the district court denied Iervolino's motion for JNOV or alternatively for a new trial. The following appeal ensued.


On appeal, Iervolino challenges the jury instructions concerning Delta's policy prohibiting two-step downbids and the BFOQ defense, the denial of his motion for JNOV or for a new trial, and various evidentiary rulings. We consider each contention in turn.

A. Jury Instructions

Iervolino raises numerous challenges to the jury instructions concerning Delta's policy prohibiting two-step downbids and the BFOQ defense. On appeal, we examine "the challenged instructions 'as part of the entire charge, in view of the allegations of the complaint, the evidence presented, and the arguments of counsel, to determine whether the jury was misled and whether the jury understood the issues.' " National Distillers & Chemical Corp. v. Brad's Machine Products, Inc., 666 F.2d 492, 497 (11th Cir.1982) (quoting First Virginia Bankshares v. Benson, 559 F.2d 1307, 1316 (5th Cir.1977)); see also Western Air Lines v. Criswell, --- U.S. ----, 105 S.Ct. 2743, 2755, 86 L.Ed.2d 321 (1985) (reviewing jury instructions in the " 'context of the overall charge' and the circumstances of the case," including defendant's closing argument) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)).

1. Downbidding Policy

Iervolino raises three challenges to the jury instructions with respect to Delta's policy prohibiting two-step downbids: (1) that the district court erroneously applied the test set forth in McDonnell Douglas v. Green, 411 U.S....

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