Ellis v. United Airlines, Inc.
| Decision Date | 04 January 1996 |
| Docket Number | Nos. 94-1351,95-1034,s. 94-1351 |
| Citation | 73 F.3d 999 |
| Parties | 151 L.R.R.M. (BNA) 2306, 69 Fair Empl.Prac.Cas. (BNA) 1167, 67 Empl. Prac. Dec. P 43,834, 64 USLW 2423 Crist ELLIS and Norma Wong-Larkin, Plaintiffs-Appellants, v. UNITED AIRLINES, INC., a Delaware corporation, Defendant-Appellee. Equal Employment Opportunity Commission, Amicus Curiae. Crist ELLIS and Norma Wong-Larkin, Plaintiffs-Appellants, v. UNITED AIRLINES, INC., a Delaware corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John Mosby, Denver, Colorado (Elisa Moran, Denver, Colorado, with him on the briefs), for Plaintiffs-Appellants.
Kris J. Kostolansky (Michael D. Nosler and Susan L. Strebel, with him on the briefs), of Rothgerber, Appel, Powers & Johnson, Denver, Colorado, for Defendant-Appellee.
Paul D. Ramshaw (James R. Neely, Jr., Gwendolyn Young Reams, and Vincent J. Blackwood, with him on the brief), for Amicus Curiae.
Before EBEL and MCKAY, Circuit Judges, and COOK, * District Judge.
Plaintiffs Crist Ellis ("Ellis") and Norma Wong-Larkin ("Wong-Larkin") filed this action against United Air Lines, Inc. ("United") after United refused to hire them as flight attendants when they applied for positions following the bankruptcy of their former employer Frontier Airlines ("Frontier"). Plaintiffs contended that United's refusal to hire them violated (1) the Age Discrimination in Employment Act ("ADEA"), codified as amended at 29 U.S.C. Secs. 621-34; and (2) the Airline Deregulation Act ("ADA"), codified as amended at 49 U.S.C. Secs. 42101-03 (formerly codified at 49 U.S.C.App. Sec. 1552). United stated that it rejected Plaintiffs' applications because Plaintiffs failed to meet United's weight requirements for new flight attendant hires. In response, Plaintiffs argued that United's explanation was a pretext for intentional discrimination against them because of their age, in violation of the ADEA. Plaintiffs also argued that, even if United did not intentionally discriminate against them because of age, United's age-neutral weight requirements disparately impacted them because of their age, in contravention of the ADEA. Plaintiffs further claim that the weight requirements, whether discriminatory or not, cannot excuse United's failure to grant Plaintiffs the preferential hiring treatment to which they were entitled under the ADA as airline employees displaced by deregulation.
The district court granted summary judgment for United on Plaintiffs' ADEA and ADA claims, and then denied Plaintiffs' motion for the payment of certain expenses associated with United's deposition of Plaintiffs' expert witness. Plaintiffs appeal both rulings, and we affirm. We reject Plaintiffs' ADEA claim because Plaintiffs have failed to submit evidence raising a genuine dispute that United's explanation for not hiring them is pretextual, and because we hold that ADEA claims cannot be based on a disparate impact theory of discrimination. Plaintiffs' ADA claim fails because, once again, Plaintiffs failed to produce evidence raising a genuine dispute that United's explanation for not hiring them is pretextual. Finally, we conclude that the district court did not abuse its discretion in ruling that Plaintiffs are not entitled to the payment of further expert witness fees because their motion for such fees was untimely.
Ellis and Wong-Larkin worked as flight attendants for Frontier from 1972 and 1970 respectively until they lost their jobs as a result of Frontier's bankruptcy in August 1986. Following Frontier's demise, they applied for flight attendant positions with United on several occasions, but United refused to hire them because they both allegedly failed to meet its weight standards for new flight attendant hires.
United employs two different weight standards for its flight attendants. One standard sets weight limits which must initially be met by new job applicants and the second standard establishes maximum weight limits that cannot be exceeded by flight attendants after they are hired. Both standards specify maximum weights according to height. The standard applied to initial job applicants disregards age entirely, while the weight standard for employees makes allowances for weight gain according to age. United argues that the standard for employees, which allows for some weight gain with age, was a product of its collective bargaining agreement with the flight attendant union.
The following weight chart applied to Plaintiffs as initial job applicants:
Height Maximum Weight
5' 4" 132
5' 4 1/4 " 133
5' 4 1/2 " 134
* * *
5' 6" 139
5' 6 1/4 " 140
5' 6 1/2 " 141
Had Plaintiffs been hired, they would then have had to keep their weight below the following limits in order to maintain their jobs as flight attendants:
Maximum Weight
Height Age 34 & younger 35-44 45-54 55 & older
5' 4" 134 137 140 143
5' 4 1/4 " 135 138 141 144
5' 4 1/2 " 136 139 142 145
* * *
5' 6" 141 144 147 150
5' 6 1/4 " 142 145 148 151
5' 6 1/2 " 143 146 149 152
As the charts reveal, the height/weight requirements for all new job applicants are the same regardless of the applicant's age, while a nine-pound differential exists between the maximum weights for the youngest and oldest employed female flight attendants of a given height. Thus, new job applicants could fail to satisfy the age-neutral weight requirements used for hiring and yet still be within the weight requirement for existing employees of their same age.
Ellis first applied for a flight attendant position at United in August 1986. Ellis is 5' 4 1/2" application, stating that she failed to meet its weight requirements and informing her that "[y]our weight history over the past twelve months suggests you would be unable to maintain your weight within our standards." United, however, invited her to apply for other positions that did not have a weight requirement. Unfortunately, no records remain of Ellis' actual weight at that time; however, Ellis has introduced no evidence challenging or denying United's conclusion that she exceeded its weight limits for flight attendant applicants.
Ellis applied a second time on February 4, 1987. She listed her weight as 120 pounds and stated that the heaviest she weighed in the last twelve months was 122 pounds. Based on that application, as updated in September 1988, United interviewed Ellis on December 14, 1988. At that time, United recorded Ellis' weight as 139 pounds, five pounds over the maximum allowable weight for new job applicants. 1 United noted that she was overweight and then sent Ellis a letter stating that it had hired more qualified candidates. Ellis applied a final time in September 1990, and United again refused to hire her. The record before us does not contain any information about Ellis' weight at that time, but, again, Ellis introduced no evidence that she met United's weight requirements at that time.
Wong-Larkin first applied for a flight attendant position at United in September 1986 when she was 38. Some dispute exists concerning Wong-Larkin's height. Plaintiffs maintain that she is 5' 6 1/2"' tall, as stated on her resume, and as listed in some of her applications described below. United contends that she is 5' 6"', as it recorded after her September 1986 application and as she stated in a deposition. At 5' 6" ', she could weigh 141 pounds as an applicant for a flight attendant position.
In any event, United interviewed Wong-Larkin following her September 1986 application. No record remains of her weight at that time; however, Wong-Larkin recalled that United recorded her height as 5' 6"' and she agreed that was her height. She felt at the time that she weighed about 142 pounds because that is what she weighed at Frontier in January 1986. United asserted that it did not hire her because of her weight, although she contends that United never articulated a reason for not hiring her until this litigation arose.
Wong-Larkin applied again on August 29, 1988, at the age of 40, listing her height as 5' 6 1/2" " ' and her weight as 150 pounds. The record before us does not contain any information on the disposition of this application; however, United explains, and Plaintiffs do not dispute, that United again denied her application at least purportedly because of her weight.
Based on these events, Plaintiffs filed suit against United, claiming that United (1) discriminated against them in violation of the ADEA; and (2) denied them preferential hiring treatment, as required by the ADA for employees displaced by deregulation of the airline industry. 2 In a related action, United moved for summary judgment against different plaintiffs on their ADA claims in that case, arguing that those plaintiffs had waived their first-hire rights and were...
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