Criswell v. Western Air Lines, Inc., CV 78-2184 AWT.

• Decision Date: 12 May 1981
• Docket Number: No. CV 78-2184 AWT.,CV 78-2184 AWT.
• Citation: 514 F. Supp. 384
• Court: U.S. District Court — Central District of California
• Parties: Charles G. CRISWELL, Albert Ron, Rulon H. Starley, Plaintiffs, v. WESTERN AIR LINES, INC., Defendant.

514 F. Supp. 384

Charles G. CRISWELL, Albert Ron, Rulon H. Starley, Plaintiffs, v. WESTERN AIR LINES, INC., Defendant.

No. CV 78-2184 AWT.

United States District Court, C. D. California.

May 12, 1981.

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Raymond C. Fay, and Alan M. Serwer, Haley, Bader & Potts, Chicago, Ill., for plaintiffs.

Paul L. Giannini, Darling, Hall, Rae & Gute, Los Angeles, Cal., William John Kennedy, Beverly Hills, Cal., for defendant.

MEMORANDUM OPINION

TASHIMA, District Judge.

Introduction

This is an action under Section 7 of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 626,¹ brought by two former captains and a second officer for damages and equitable relief, including reinstatement. The complaint alleges, in essence, that the refusal of defendant Western Air Lines, Inc. ("Western") to continue them in employment as second officers after their respective sixtieth birthdays was in violation of Section 4(a) of the ADEA (§ 623(a)).² All three plaintiffs sought preliminary injunctions pendente lite. The application of plaintiff Ron, who was then a second officer, was granted and those of plaintiffs Criswell and Starley, who were then captains, were denied. Thus, plaintiff Ron has been continued in his employment and plaintiffs Criswell and Starley have been retired since shortly after the commencement of this action.

Pursuant to plaintiffs' demand therefor, this matter was first tried to a jury. After a 15-day trial,³ the jury returned verdicts for all three plaintiffs, assessing damages in the amounts of $60,393.87, $52,088.94 and $5,000, for plaintiffs Criswell, Starley and Ron, respectively. The jury further found that Western's violations of the ADEA were "willful" with respect to each plaintiff. ADEA, § 7(b), (§ 626(b)).

The jury having performed its function, the Court must now address the issue of equitable relief.

The Prima Facie Case⁴

Plaintiff Criswell was involuntarily retired by Western in July 1978, upon attaining his sixtieth birthday. Prior to his retirement, Criswell had been employed by Western for 41 years, the last 37 of which was as a pilot. At his retirement and for a number of years prior thereto, Criswell had been a DC-10 captain. Prior to reaching his sixtieth birthday, Captain Criswell submitted a bid to become a DC-10 second officer. This bid was made in accordance with Western's established procedures which, to the extent applicable, conformed to the requirements of the collective bargaining agreement (the "Pilot Agreement") between Western and the Air Line Pilots Association ("ALPA"), the union which represented Western's flight deck personnel. On Western's wide-bodied aircraft (DC-10's) the second officer is the third member of the flight deck crew and is equivalent to a flight engineer, as that term is employed by the Federal Aviation Administration ("FAA").

Captain Criswell's bid was rejected by Western, not because there were no second officer openings or because none were contemplated or for any other reason normally associated with consideration of bids by flight deck personnel, but solely because he was approaching age 60 and because Western had a policy which required all flight deck personnel to retire at age 60.

Plaintiff Starley was also involuntarily retired by Western at age 60 in July 1978. The circumstances of his retirement, however, are even more explicitly age-related and deserve recounting because they clearly indicate that Western, beyond any doubt, has enforced a mandatory retirement rule at age 60 for all flight deck personnel.

Starley had been employed by Western as a pilot or copilot for 32 years and had been a DC-10 captain for the last five years prior to his retirement. One year prior to his sixtieth birthday, Captain Starley learned that Western would soon have DC-10 second officer openings, resulting from the acquisition of new aircraft. After discussing the matter with Western's Vice President for Flight Operations, Captain Starley, in September 1977, submitted a bid for a DC-10 second officer position. In the following month, the bid was actually awarded to Captain Starley and he discussed with Western personnel the training normally given by Western to flight deck personnel who move from one position to another. In February 1978, Western changed its position and, claiming that the position had been awarded to him in error, informed Captain Starley that he would be retired at age 60, which was the normal retirement age set forth in its pilot pension plan negotiated with ALPA.

Plaintiff Ron, whose sixtieth birthday was in June 1978, is a "career" second officer with Western, neither having been required to nor chosen to advance to first officer (copilot) or captain (pilot). He has been employed by Western since 1945 and as flight engineer or second officer since 1954. He, too, discussed staying on with Western with its management personnel and in December 1977 gave Western written notice of his intention to remain past his sixtieth birthday in his then position of DC-10 second officer. In February 1978, Western informed Ron, as it had Starley, that he would be retired at the normal retirement age of 60 under the pilot pension plan.

As indicated earlier, a preliminary injunction was issued in Ron's favor, prohibiting Western from terminating his employment as a second officer pending the outcome of this lawsuit. Plaintiff Ron has, thus, continued to fly the line for Western as a DC-10 second officer during the two and one-half years between the commencement and trial of this action. He has continued to perform all of the normal duties of DC-10 second officer on both domestic and international flights efficiently, without untoward incident and without any complaint from flight operations management respecting his job performance.

Given the facts summarized above, Western conceded that plaintiffs had established a prima facie violation of the ADEA. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Kelly v. American Standard, Inc., 640 F.2d 974, 980 (9th Cir. 1981). Western's case, rather, was predicated on two statutory defenses. Its first defense was that retirement of second officers at age 60 was a "bona fide occupational qualification reasonably necessary to the normal operation" of its business ("BFOQ"). ADEA, § 4(f)(1), (§ 623(f)(1)). Its second defense was that its policy of not allowing captains to "down-bid" to second officers was "based on reasonable factors other than age." Id. This defense, which was asserted against plaintiffs Criswell and Starley only, was combined with the non-statutory "business necessity defense" ("BND"). See Harriss v. Pan American World Airways, Inc., 649 F.2d 670 at 674 n.2 (9th Cir. 1980). All of these defenses were overlaid with a special gloss applied in cases involving public carriers which "have uniformly recognized the relevance of the safety factor" in assessing the justification for these defenses.⁵E. g., Id. 675 n.4; Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 236 (5th Cir. 1976). We turn then to an analysis of Western's defenses.

The BFOQ Defense

Western's BFOQ defense has its genesis in the FAA's Age 60 Rule, 14 CFR § 121.383(c). This rule prohibits certificated air carriers, such as Western, from employing pilots or copilots past age 60. It is based on the FAA's determination that the onset of disease and other debilitating conditions is age-related and that there is no practical way of predicting in pilots over age 60 on an individual basis whether such a disease or condition which would pose a flight or safety risk would occur. This exercise of the FAA's discretion, based on its special expertise, has been upheld by the courts. See, e. g., Keating v. FAA, 610 F.2d 611 (9th Cir. 1979). The Age 60 Rule has also been recognized as a BFOQ for commercial airline pilots and copilots.⁶ The rule, however, by its own terms, has no application to flight engineers. Western's contention is that the same reasons which support the Age 60 Rule for pilots support its application by Western to its second officers.

As might be expected, testimony on this subject was conflicting. Western relied primarily on the expert opinion of a former FAA Deputy Federal Air Surgeon. His testimony was that the onset of at least certain diseases is age-related, that with advancing age the likelihood of onset of disease increases and that in persons over age 60 it could not be predicted whether and when such diseases would occur. In particular, he was concerned with the occurrence of a cardiovascular event, such as a miocardial infarction, in flight.

On the other hand, plaintiffs' experts, a medical doctor of aerospace medicine and aging and a professor of psychiatry, specializing in the psychology of aging, cognition and gerontology, testified to the contrary. In their opinion, physiological deterioration is not caused by nor does it necessarily accompany aging between the ages of 60 and 70. There are a number of healthy individuals older than age 60 and it is not unusual for an individual over age 60 to be healthier than a much younger person. Deterioration is caused by disease and not by aging. The aging process itself, which commences at conception, occurs at different rates in different individuals and the differences which result from these differential rates becomes increasingly pronounced in increasingly older age groups. Plaintiffs' expert on aerospace medicine also testified that it was feasible to determine on the basis of individual medical examinations whether flight deck crew members, including those over age 60, were physically qualified to continue to fly.

The jury's verdict is consistent with a finding that application of the Age 60 Rule to Western's second officers was not reasonably necessary to the essence of its business, that Western did not have a sufficient factual basis for believing...