Decision Date21 May 1982
Docket NumberNo. 82-4015-CV-C-5.,82-4015-CV-C-5.
Citation541 F. Supp. 272
CourtU.S. District Court — Western District of Missouri

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

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


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 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.


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

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 by the FAA suggests that an age restriction of 55 might have been a valid safety precaution. Experience may some day demonstrate the need to raise or lower the age, but no reason or evidence presently exists which demonstrates that the age 60 restriction should be abandoned or modified.

8. Though the FAA age restriction applies only to commercial airline pilots, it was considered by the Department to provide excellent guidance and was adopted out of concern for the safety of the public and Department personnel. The Department relied solely on the research conducted by the FAA and did not undertake any independent research. The Department considers the FAA age restriction applicable to its pilots, though the FAA does not consider it applicable, since its pilots do not fly with co-pilots, carry passengers 75 percent of the time, and routinely engage in hazardous low-level flying.


The ADEA, enacted in 1967, prohibits age discrimination against persons aged 40 through 64. Pub.L.No.90-202 §§ 4, 12, 81 Stat. 602, 603, 607. It was amended in 1974 to apply to state and local governments. Pub.L.No.93-259, § 28(a)(2), 88 Stat. 55, 74. Its legislative history manifests a Congressional intent to require employment decisions to be made on the basis of ability rather than age. 29 U.S.C. § 621(b). See H.R.Rep.No.805, 90th Cong., 1st Sess.; S.Rep.No.723, 90th Cong., 1st Sess. 1. The ADEA permits otherwise unlawful age discrimination, however, "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1).

The plaintiff was transferred from the position of Aircraft Chief Pilot to the position of Equipment Supervisor solely because the Department adopted an age restriction under which no pilot would be permitted to operate its aircraft after the pilot has reached the age of 60. The Department's decision to transfer the plaintiff solely on the basis of his age is a per se violation of the ADEA. Houghton v. McDonnell Douglas Corp., 553 F.2d 561, 564 (8th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 451 (1977).2 The Department, therefore, has the burden of proving that its actions were within the scope of the BFOQ exemption. Id. This burden requires the Department to show that either (1) it has a factual basis for believing that substantially all of the older employees are unable to perform their duties safely and efficiently or (2) that some older employees possess traits precluding safe and efficient job performance unascertainable other than through knowledge of the employee's age. Id.; EEOC v. City of St. Paul, 671 F.2d 1162 at 1167-68 (8th Cir., 1982); ...

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2 cases
  • Hoefelman v. Conservation Com'n of Missouri Dept. of Conservation
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 5, 1983
    ...point to the age of 55 as being the date at which significant psychomotor deterioration begins to take place. Hoefelman v. Conservation Comm., 541 F.Supp. 272, 273-74 (W.D.Mo.1982). In making these factual findings, the district court relied on the testimony of the Commission's expert witne......
  • EEOC v. Missouri State Highway Patrol, 82-4129-CV-C-5
    • United States
    • U.S. District Court — Western District of Missouri
    • December 22, 1982
    ...F.2d 561, 564 (8th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 451 (1977); Hoefelman v. Conservation Commission of Missouri Dept. of Conservation, 541 F.Supp. 272, 274 (W.D. Mo.1982). Since a per se violation is admitted, the defendants must demonstrate that the arbitrary ag......

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