Hoefelman v. CONSERVATION COM'N OF MO. DEPT., ETC., No. 82-4015-CV-C-5.

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Writing for the Court: Robert J. Swift, Jr., Jefferson City, Mo., for plaintiff
• Citation: 541 F. Supp. 272
• Parties: Allen C. HOEFELMAN, Plaintiff, v. CONSERVATION COMMISSION OF the MISSOURI DEPARTMENT OF CONSERVATION, et al., Defendants.
• Decision Date: 21 May 1982
• Docket Number: No. 82-4015-CV-C-5.

541 F. Supp. 272

Allen C. HOEFELMAN, Plaintiff,
v.
CONSERVATION COMMISSION OF the MISSOURI DEPARTMENT OF CONSERVATION, et al., Defendants.

No. 82-4015-CV-C-5.

United States District Court, W. D. Missouri, C. D.

May 21, 1982.

Robert J. Swift, Jr., Jefferson City, Mo., for plaintiff.

Cyril Hendricks, Jefferson City, Mo., Steven Steinhilber, Morris & Foust, Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

SCOTT O. WRIGHT, District Judge.

This action arises under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. The plaintiff asserts that his transfer by the Conservation Commission of the Missouri Department of Conservation from his position as Chief Aircraft Pilot to Equipment Supervisor when he reached the age of 60 constituted unlawful discrimination. 29 U.S.C. § 623(a)(2). The Department has instituted a policy under which none of its pilots may continue to fly its aircraft once the pilot has attained the age of 60. The ADEA permits otherwise unlawful discrimination "where age is a bona fide occupational qualification "BFOQ" reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1).

A bench trial was held in order to determine whether the age restriction applied by the Department of Conservation to its pilots is a BFOQ reasonably necessary for the

541 F. Supp. 273

normal operation of the Department's business. After consideration of the evidence presented at trial, and the oral arguments and briefs of both parties, the Court finds that the age 60 restriction adopted by the Department is a BFOQ and that the plaintiff is not entitled to any relief in this Court

I. FINDINGS OF FACT

1. Allen Hoefelman is 61 years old and has been an employee of the Missouri Department of Conservation since January 1, 1984. In July of 1962, he was appointed Chief Pilot of the Conservation Commission. That position was changed to Aircraft Chief Pilot in July of 1976 and carries a Missouri Civil Service Rating of GS-18. On April 15, 1981, he was transferred by the Department from the position of Aircraft Chief Pilot to the position of Equipment Supervisor. The change in position involved no alteration of salary, grade, or job benefits. The duties of the Equipment Supervisor include the management of the Department's fleet of motor vehicles and administrative paper work. The job entails a great deal of paper work, but does not include any flying responsibilities.

2. As Aircraft Chief Pilot, the plaintiff transported passengers on approximately 75 percent of the missions flown for the Department and engaged in low-level flying when conducting wildlife surveys and fire patrols. Other duties of the Aircraft Chief Pilot include supervision of all flight operations, preparation of an annual aviation budget, maintenance of Federal Aviation Administration ("FAA") manuals, and preparation of an operations manual.

3. In 1977, the plaintiff prepared an "Operations Manual" for the Conservation Commission. The Manual provided that any pilot who has reached the age of 60 could not engage in hazardous low-level flying missions. The plaintiff placed this provision in the Manual because he believed that the aging processes significantly affected a pilot's ability to safely engage in low-level flying. Plaintiff believed that aging slowed the reaction time of a pilot and led to increased fatigue. Both of these considerations led to his decision to restrict low-level flying to pilots who have not attained the age of 60.

4. Out of concern for the safety of its pilots and others, the Commission instituted an official policy under which persons who attain the age of 60 would not be permitted to pilot Department aircraft. The Commission adopted the FAA's requirements for commercial airline pilots and applied those requirements to its own pilots. As a result of this policy, the plaintiff was notified on April 15, 1981 that he was being reassigned from the position of Aircraft Chief Pilot to the position of Equipment Supervisor.

5. The plaintiff currently holds a valid First Class Medical Certificate from the FAA. The FAA exam is not able to sufficiently detect whether or not a particular pilot is a safety risk. The exam is only an indication of the pilot's health at the moment it is conducted. The effects of aging, apart from the determination of senility, are not measurable by the FAA exam.

6. The aging process affects the psychomotor functioning of pilots over the age of 60 in a manner which impairs their ability to operate an aircraft safely under particular circumstances. Medical science cannot predict, on an individual basis, the likelihood that a pilot who has reached the age of 60 will become incapacitated during flight. Neither the state of knowledge nor feasible evaluation systems presently exist that would enable businesses to convert to an "open-ended" system which evaluates aging pilots on an individual basis.¹

541 F. Supp. 274

7. The age of 60 has been arbitrarily chosen as the age where the concerns for safety outweigh the greater experience possessed by older pilots. The age 60 restriction favors pilots since the data compiled...