Aldendifer v. Continental Air Lines, Inc., 79-3104

• Decision Date: 15 April 1981
• Docket Number: No. 79-3104,79-3104
• Citation: 650 F.2d 171
• Parties: 32 Fair Empl.Prac.Cas. 1268, 25 Empl. Prac. Dec. P 31,535 Joseph R. ALDENDIFER, Sam S. Bickford, Robert M. Powers, Appellants, v. CONTINENTAL AIR LINES, INC., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 171

650 F.2d 171

32 Fair Empl.Prac.Cas. 1268,

25 Empl. Prac. Dec. P 31,535

Joseph R. ALDENDIFER, Sam S. Bickford, Robert M. Powers, Appellants, v. CONTINENTAL AIR LINES, INC., Appellee.

No. 79-3104.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 2, 1980.

Decided Jan. 23, 1981.

As Modified Feb. 17, 1980.

Rehearing and Rehearing En Banc Denied April 15, 1981.

Colleen O'Connor, Equal Employment Opportunity Comm., Washington, D. C., Raymond C. Fay, Haley, Bader & Potts, Chicago, Ill., for appellants.

William F. Spalding, Gibson, Dunn & Cruthcher, Los Angeles, Cal., for appellee.

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

Before GOODWIN and SKOPIL, Circuit Judges, and MURPHY, ^* Senior District Judge.

GOODWIN, Circuit Judge.

Three airline pilots appeal from the dismissal of their action brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. We affirm.

Aldendifer, Bickford and Powers (the "Pilots") worked for Continental Air Lines for approximately 35 years. They served for many years as Captain, or pilot-in-command. Continental's aircraft carry a three-person cockpit crew: a Captain; a First Officer (second-in-command or co-pilot); and a Second Officer (third-in-command). FAA regulations, 14 C.F.R. § 121.383(c), prohibit certified commercial passenger airlines from using Captains or First Officers over age 60. This rule does not apply to Second Officers.

All Continental pilots "bid" for their choice of seat assignment (Captain, First Officer, or Second Officer), flight route, and aircraft model for every flight; the senior bidder prevails. In April 1976, just before their 60th birthdays, the Pilots each attempted to "downbid" for the position of Second Officer. Continental rejected their bids. The Pilots all reached age 60 in May 1976, and all were involuntarily retired on June 1, 1976, under pension plans designating age 60 as the "normal" retirement age.

The Pilots brought this action in April 1978, alleging that Continental denied their bids to Second Officer and forced them to retire in violation of ADEA Section 4(a)(1), 29 U.S.C. § 623(a)(1). At trial, Continental responded that it rejected the bids for safety reasons. Continental's only witness, the Vice President for Pilot Operations for Continental Air Lines, testified that the presence in the cockpit of Second Officers with considerably more command experience than the Captain could dilute the junior Captain's command authority during a crisis and weaken cockpit discipline.

The district court entered judgment for Continental. The court concluded that Continental's actions fell within the Section 4(f)(1) and (2) exceptions to the ADEA, 29 U.S.C. § 623(f)(1) and (2), holding that (1) the retirement plan required mandatory retirement at age 60, or alternatively permitted involuntary age 60 retirement at Continental's option; and (2) safety reasons justified rejecting the Pilots' bid to Second Officer, either as a reasonable factor other than age, or because safety considerations made age a bona fide occupational qualification.

ADEA Section 4(a)(1) makes it unlawful for an employer

"(T)o discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's age;" 29 U.S.C. § 623(a)(1)

The ADEA covers individuals between ages 40 and 65, 29 U.S.C. § 631, but does not prohibit all forced retirements prior to age 65. The version of Section 4(f)(2) in effect at the time the Pilots retired in 1976 provided in pertinent part that

"(f) It shall not be unlawful for an employer or labor organization (2) to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension or insurance plan, which is not a subterfuge to evade the purposes of this chapter, " 29 U.S.C. § 623(f) (2).

In United Air Lines, Inc. v. McMann, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977), the Supreme Court held that Section 4(f)(2) applies to retirement plans that require the mandatory retirement of plan members at a designated age. The United plan set age 60 as its "normal retirement age." However, United uniformly required the retirement of all covered personnel at age 60. The Court concluded that

"The employee has no discretion whether to continue beyond the 'normal' retirement age. United legally may retain employees such as McMann past age 60, but it has never done so: its policy has been to retire all employees at the 'normal' age. Given these facts, we concluded that for the purposes of this decision, the plan should be regarded as one requiring retirement at age 60 rather than as one permitting it at the option of the employer." (Emphasis in the original.) 434 U.S. at 196, 98 S.Ct. at 447 (quoting from the Fourth Circuit's opinion in McMann v. United Air Lines, Inc., 542 F.2d 217, 219 (4th Cir. 1976).)

The Pilots' contention that their pension plan does not require mandatory retirement for cockpit personnel at age 60 is not persuasive in light of McMann. The plan does not expressly provide for mandatory retirement at age 60, but it does designate age 60 as the "normal retirement age." The Pilots observe that the original version of an explanatory booklet distributed to all plan members describes retirement at age 60 as "voluntary". The booklet, however, was updated in 1966 and no longer contains this information. Moreover, Continental has rejected the bids of ten pilots who previously attempted to downbid to Second Officer at age 60. Twenty-one of twenty-three pilots covered by the plan retired at age 60. Those that continued working served exclusively in management positions pursuant to plan provisions for post-60 retirement.

On the basis of the specific terms of the pension plan and Continental's uniform retirement practices, we conclude that the district court's ruling that the Pilots' retirement plan provided...