Houghton v. McDonnell Douglas Corp.

• Decision Date: 13 August 1980
• Docket Number: Nos. 79-1693,79-1715,s. 79-1693
• Citation: 627 F.2d 858
• Parties: 23 Fair Empl.Prac.Cas. 757, 23 Empl. Prac. Dec. P 31,180 Phillip W. HOUGHTON, Appellant, and Equal Employment Opportunity Commission, Intervenor, v. McDONNELL DOUGLAS CORPORATION, Appellee. Phillip W. HOUGHTON, and Equal Employment Opportunity Commission, Appellants, v. McDONNELL DOUGLAS CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 858

627 F.2d 858

23 Fair Empl.Prac.Cas. 757,

23 Empl. Prac. Dec. P 31,180

Phillip W. HOUGHTON, Appellant, and Equal Employment Opportunity Commission, Intervenor, v. McDONNELL DOUGLAS CORPORATION, Appellee.

Phillip W. HOUGHTON, and Equal Employment Opportunity

Commission, Appellants, v. McDONNELL DOUGLAS CORPORATION, Appellee.

Nos. 79-1693, 79-1715.

United States Court of Appeals Eighth Circuit.

Submitted March 12, 1980.

Decided Aug. 13, 1980.

Mark S. Flynn, Atty., E.E.O.C. (argued), and Leroy D. Clark, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, Washington, D. C., on brief, for E.E.O.C.

Anna R. Lavin (argued), and John J. Schlueter, Alan S. Mandel, Edward J. Calihan, Jr., Chicago, Ill., Davidson & Schlueter, St. Louis, Mo., on brief, for Houghton.

Thomas C. Walsh (argued), Bryan Cave, McPheeters & McRoberts, Veryl L. Riddle and Michael G. Biggers, St. Louis, Mo., on brief, for McDonnell Douglas.

John S. Yodice and Charles J. Peters, Washington, D. C., on brief, for amicus curiae Aircraft Owners and Pilots Ass'n.

Before BRIGHT and ROSS, Circuit Judges, and HANSON, Senior District Judge. ^*

BRIGHT, Circuit Judge.

We now consider the third appeal in this age discrimination suit in which Phillip Houghton, a former production test pilot for McDonnell Douglas Corporation (McDonnell Douglas or the Company), seeks relief under the ADEA ¹ from his removal from flight status and subsequent discharge. The district court denied any relief to Houghton or to the intervenor, Equal Employment Opportunity Commission (EEOC). ² These appeals followed. We reverse and remand for entry of an appropriate judgment granting Houghton backpay and attorneys' fees.

We first review the proceedings prior to the litigation that gave rise to the present appeals. Initially, we considered an appeal from an interlocutory order denying intervention by the Secretary of Labor. We reversed and authorized the intervention. Brennan v. McDonnell Douglas Corp., 519 F.2d 718 (8th Cir. 1975). Thereafter, the district court denied Houghton and the Secretary relief on the merits, holding that Houghton at age fifty-two could no longer qualify for flight status because age constitutes a bona fide occupational qualification (BFOQ) under the ADEA, 29 U.S.C. § 623(f)(1) (1976). ³ We reversed this judgment and remanded the case to the district court to fashion appropriate relief. Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 451 (1977) (Houghton I ).

The district court thereafter heard additional evidence and found Houghton unqualified to fly at the time of his removal from flight status and denied any relief to him or to the intervenor. Houghton v. McDonnell Douglas Corp., 474 F.Supp. 193 (E.D. Mo. 1979). Houghton and the EEOC bring these appeals.

I. Background.

Our review of the district court's denial of any relief to the appellants requires that we initially focus on our opinion in Houghton I. Appellants contend, among other things, that the district court failed to follow our mandate in Houghton I. We agree with appellants' assertion.

Houghton I recited the facts underlying McDonnell Douglas' decision initially to remove Phillip Houghton from flight status, and subsequently to discharge him. In brief, the court's opinion related that Houghton, born October 1, 1919, had worked for McDonnell Douglas since 1946, serving as Chief Production Test Pilot from 1956 until December 1972. The Company, which followed no set age policy for the transfer of test pilots to nonflying positions, relied solely on "intuitive judgment" and removed him from flight status on December 31, 1971. ⁴ Ultimately the Company terminated him in December of 1972, allegedly for nonproductivity in his capacity as a nonflying employee.

Houghton brought this action in January of 1973. At trial, the Company admitted that it had removed Houghton from flight status solely because of his age. The Company asserted, however, that, by reason of age, Houghton could no longer qualify to fly as a production test pilot and that the age barrier to flight status constituted a BFOQ for production test pilots under section 4(f) (1) of the ADEA, 29 U.S.C. § 623(f)(1) (1976). ⁵ Testimony by examining physicians disclosed Houghton to be in good health and medically qualified to fly high performance aircraft. The Company, however, produced opinion evidence from two medical experts "who believed that age is an appropriate BFOQ for production test pilots, based on * * * studies reflecting physiological and psychological changes that accompany the aging process in the general population." Houghton I, supra, 553 F.2d at 563.

In examining the evidence presented in the first trial, this court observed that

the Company's evidence was of a general nature applicable only to the general population * * * (and) it shed little light on the relative capabilities of test pilots as a group to adequately perform their tasks beyond a certain age. (Id. at 564.)

The court added these comments on the evidence:

Houghton's evidence, however, was of a specialized nature, showing age changes are much slower among test pilots as a group than among the general population. Indeed, there was no evidence that a test pilot's ability to perform his duties, both safely and effectively, was impaired in such manner as to justify the imposition of the arbitrary age limit applied by the Company here. * * * ( ⁶ The record reflects that the safety record of the older professional pilots, within the sample studied, is better than that of the younger ones due to their experience. To cap the climax, even the Company doctors found Houghton in excellent physical condition, and we note a total absence of evidence which would indicate he was not capable of performing test pilot functions. (Id. at 564.)

The opinion in Houghton I concluded that "the findings of the district court to the effect that age constitutes a BFOQ for Houghton are clearly erroneous." Id. at 564.

We further held that, although Houghton had been discharged at a date later than his transfer from flight status, "(h)is illegal transfer from flight status, in the face of his insistence upon his statutory rights was the root cause of his severance. He is thus entitled to relief." Id. at 564. In our mandate we said:

If on remand it is found that Houghton is still physically capable of safely and effectively performing the duties of Chief Production Test Pilot, he must be reinstated in that position, awarded such damages as he has suffered by reason of his discharge, and other relief, including attorney fees, to which he is entitled. In calculating damages, the District Court should appropriately consider the substantially lesser salary Houghton would have earned in the position offered him by the Company and such other factors as it deems relevant.

In the event the District Court finds on remand that Houghton is unable at that time to physically qualify for the position of Chief Production Test Pilot, it should then determine from the evidence when such disability occurred and fix the damages accordingly, including those suffered since such disability, awarding any other relief and damages as deemed appropriate. (Id. at 565.)

Subsequently, in response to a motion by Houghton to clarify the mandate of this court, we denied clarification and reiterated:

The opinion states that the sole question on remand is whether Houghton is still physically capable of safely and effectively performing the duties of Chief Production Test Pilot. If he is, he must be awarded such damages as he has suffered by reason of his discharge and other relief, including attorneys fees to which he is entitled.

If Houghton is unable at this time to physically qualify for the position of Chief Production Test Pilot, it should then be determined from the evidence when such disability occurred and fix the damages accordingly. (Houghton v. McDonnell Douglas Corp., No. 76-1652 (8th Cir., Nov. 3, 1978) (order denying motion to clarify).) ⁷

With that background, we examine the subsequent proceedings in the district court.

II. Proceedings on Remand.

A. Physical Examination.

In August of 1978, the Company referred Houghton to Earl T. Carter, an eminently qualified physician in aerospace medicine serving on the staff of the Mayo Clinic, to undergo a comprehensive medical examination. ⁸ Dr. Carter performed a general physical examination and reviewed laboratory and x-ray tests. Dr. Harold Mankin of the Division of Cardiovascular Diseases at the Mayo Clinic performed an exercise electrocardiogram study while the patient was subject to a strenuous exercise level. Dr. Ivnik of the Clinical Psychology Division performed psychometric studies. Dr. Gordon Moore of the Department of Psychiatry carried out a detailed interview with the patient and reviewed the psychometric studies. None of these tests produced evidence of any underlying organic or psychiatric disorder. Dr. Moore reported that in cognitive skills Mr. Houghton functioned in the 90-95th percentile. No evidence existed of any past or present psychopathology.

Dr. Robert A. Bruce, a world-renowned cardiologist at the University of Washington, Seattle, undertook to subject Houghton to a comprehensive cardiovascular examination at Houghton's request. Dr. Bruce referred Houghton to Dr. Thomas H. Holmes, Professor of Psychiatry and Behavioral Sciences at the University of Washington, for psychological testing. All tests showed normal results and disclosed Houghton to be a very healthy individual with little possibility of sustaining any type of cardiovascular failure within a year's time from the examination.

B. Opinion Evidence.

Four physicians testified at the hearing on remand. Dr. Proper, who had testified at the prior trial and had examined Houghton in 1975, concluded from his review of all the examinations that Houghton's...