Gathercole v. Global Associates, C-81-2976 SAW.
| Decision Date | 31 March 1983 |
| Docket Number | No. C-81-2976 SAW.,C-81-2976 SAW. |
| Court | U.S. District Court — Northern District of California |
| Parties | Clark B. GATHERCOLE, Plaintiff, v. GLOBAL ASSOCIATES, International Atlas Service, Atlas Corporation, H.C. Smith Construction Company, James J. Morena, D.D. Mcafee, and Does I through XX, inclusive, Defendants. |
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Kim Malcheski, Donaldson, Malcheski & Parker, Willdorf & Stevens, San Francisco, Cal., for plaintiff.
Pillsbury, Madison & Sutro, Alson R. Kemp, Jr., William G. Alberti, San Francisco, Cal., for defendants.
ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR NEW TRIAL
Plaintiff filed this action in 1981 alleging that he was discharged by defendant Global Associates (Global) in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Prior to his discharge, plaintiff was employed by Global as a co-pilot and then as a pilot of aircraft from approximately 1964 to 1979. By contract with the Department of the Army (Army), Global provides air transportation for the Kwajalein Missile Range (Kwajalein) on the Marshall Islands. On August 5, 1979, when plaintiff reached the age of sixty, he was discharged as an aircraft pilot by Global on the basis of his age.
Following a three day trial, on January 7, 1983, the jury returned a verdict in favor of plaintiff in the sum of $226,406.50. Defendants move for judgment notwithstanding the verdict or, in the alternative, for new trial.
A motion for judgment notwithstanding the verdict is properly granted only "if, without accounting for the credibility of the witnesses, * * * the evidence and its inferences, considered as a whole and viewed in the light most favorable to the nonmoving party, can support only one reasonable conclusion—that the moving party is entitled to judgment notwithstanding the adverse verdict." William Inglis & Sons Baking Co. v. ITT Cont. Baking Co., 668 F.2d 1014, 1026 (9th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 57-58, 74 L.Ed.2d 61 (1982). A new trial is appropriate if "the jury's verdict was clearly contrary to the weight of the evidence." Id. at 1027.
Defendants offer three grounds in support of their motion. First, they assert that the so-called "Age 60 Rule," which requires mandatory retirement of pilots at age 60, is a bona fide occupational qualification (BFOQ) for their pilots under Section 4(f) of the ADEA, 29 U.S.C. § 623(f), because the Army incorporated the Age 60 Rule into Global's employment contract. Defendants further urge that the Army has regulatory authority over air transportation on Kwajalein within the meaning of 29 C.F.R. § 860.102 (1981)1 and, pursuant to that authority, has validated the Age 60 Rule for Global's pilots.
The record does not support defendants' motion on this ground. Assuming that the Army has regulatory authority over air transportation on Kwajalein comparable to that which the Federal Aviation Agency (FAA) exercises over commercial air transportation,2 the evidence does not demonstrate that the Army "clearly imposed the Age 60 Rule on Global's operations on Kwajalein for the safety and convenience of the public." 29 C.F.R. § 860.102 (1981). Defendants presented no evidence at trial of the Army's basis for requiring that its airline contractor at Kwajalein adhere to the Age 60 Rule other than a letter from an Army official to plaintiff stating that the Rule was imposed "for reasons of safety in air transportation at the Kwajalein Missile Range."3 This bald assertion does not constitute evidence that "an appropriate federal agency has determined after a full hearing that, as to persons over the age of 60, it is not possible to use factors other than age to predict the likelihood of the onset of a sudden condition that could imperil the passengers" (emphasis added). Tuohy v. Ford Motor Co., 490 F.Supp. 258, 264 (E.D.Mich. 1980), rev'd on other grounds, 675 F.2d 842 (6th Cir.1982). Absent evidence of the Army's basis for its decision, the fact that the Army seeks to require defendants to engage in discriminatory employment practices in violation of the ADEA does not insulate defendants from liability under that Act.4
Second, defendants assert that medical evidence presented at trial conclusively establishes that the Age 60 Rule is a BFOQ for Global's pilots. Because the parties presented conflicting evidence on this issue, defendants are not entitled to judgment or to a new trial on this ground. The jury could reasonably have concluded from the evidence that application of the Age 60 Rule to Global's pilots was not reasonably necessary to the essence of its business, that Global did not have a sufficient factual basis for believing that pilots past age 60 would be unable to perform their duties safely and efficiently, and that it was not highly impractical to deal with pilots past age 60 on an individualized basis.5 See Criswell v. Western Air Lines, 514 F.Supp. 384, 389 (C.D.Cal.1981).
Third, defendants contend that their good faith reliance on the Department of Labor's validation of the Age 60 Rule, see 29 C.F.R. § 860.102 (1981), constitutes a defense to plaintiff's claim pursuant to Section 7(e) of the ADEA, 29 U.S.C. § 626(e), which incorporates Section 10 of the Portal-to-Portal Act, 29 U.S.C. § 259. That Section provides in pertinent part:
29 U.S.C. § 259. Defendants are not entitled to a good faith defense based upon 29 C.F.R. § 860.102 (1981), because that regulation validates the FAA's Age 60 Rule only for commercial pilots and not for pilots of "public" aircraft. Defendants' pilots operated aircraft owned by the Army. Hence, defendants did not act "in conformity with" that regulation when they discharged plaintiff. Thus, their asserted reliance on 29 C.F.R. § 860.102 (1981) does not entitle them to a good faith defense. See Gathercole v. Global Associates, 545 F.Supp. 1280 (N.D.Cal.1982); Pilkenton v. Appalachian Regional Hosp., 336 F.Supp. 334, 340 (W.D. Va.1971).
Defendants also assert that their reliance in discharging plaintiff on the Army's adoption of the Age 60 Rule in its contract with Global entitles them to a good faith defense. The good faith defense, however, is available to defendants only if they relied in good faith upon a regulation issued by the Department of Labor. See 29 U.S.C. § 259. The Army is not authorized to issue binding regulations interpreting the ADEA, which is administered by the Department of Labor. See United States v. Stocks Lincoln Mercury, 307 F.2d 266, 271 (10th Cir.1962) (). Consequently, assuming that the Army's incorporation of the Age 60 Rule into its contract with Global constitutes an administrative regulation within the meaning of 29 U.S.C. § 259(a), defendants cannot invoke that regulation as the basis for a good faith defense.6
Defendants offer four grounds in support of their motion for new trial. First, they contend that submission of a general verdict without interrogatories to the jury was improper and prejudicial. Use of a general verdict is proper in an ADEA action. See Cancellier v. Federated Dept. Stores, 672 F.2d 1312, 1317 (9th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982).
Second, defendants urge that comments by the Court during trial prejudiced their case and hence require that a new trial be granted. A federal district court judge has broad powers to control the conduct of trials, to examine witnesses, and to comment on evidence. See Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). At the same time, a judge must make "clear to the jury that all matters of fact are submitted to their determination." Id. at 469, 53 S.Ct. at 699. The jury was so charged in this case (Tran., Jan. 7, 1983, at 79-80). Under these circumstances, the Court's comments were neither improper nor prejudicial to defendants.
Third, defendants contend that the admission into evidence of Defendants' Exhibit 16, the Report of the National Institute on Aging Panel on the Experienced Pilots Study, was improper, prejudicial, and requires that a new trial be granted.7 That study is a public report that Congress ordered be prepared and hence was properly admitted pursuant to Fed.R.Evid. 803(8)(B).
Finally, defendants argue that the jury's damages award was excessive, and that consequently a new trial is required. They offer three grounds in support of this contention. First, defendants urge that plaintiff is entitled to backpay only for the period from the date of his discharge, August 8, 1979, to the date his "FAA Class I Flight Certificate" (Flight Certificate) expired, February 3, 1980.8 After his Flight Certificate expired, defendants assert, plaintiff was not qualified for employment as a pilot by Global.
This contention is without merit. After his discharge by Global, plaintiff retired as a commercial pilot and obtained employment outside...
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