Houghton v. McDonnell Douglas Corp.
| Citation | 553 F.2d 561 |
| Decision Date | 01 June 1977 |
| Docket Number | No. 76-1652,76-1652 |
| Parties | 14 Fair Empl.Prac.Cas. 1594, 13 Empl. Prac. Dec. P 11,623 Phillip W. HOUGHTON, Plaintiff-Appellant, and W. J. Usery, Jr., Secretary of Labor, United States Department of Labor, Intervenor Plaintiff Appellant, v. McDONNELL DOUGLAS CORPORATION, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Carin Ann Clauss, Associate Sol., U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellant; William J. Kilberg, Sol. of Labor, Carin Ann Clauss, Associate Sol., Herman Grant, Regional Sol., U. S. Dept. of Labor, Chicago, Ill., and John J. Schlueter, St. Louis, Mo., on brief.
Veryl L. Riddle, St. Louis, Mo., for defendant-appellee; names appearing on brief are Veryl L. Riddle, Thomas C. Walsh and Michael G. Biggers, St. Louis, Mo., on brief.
John S. Yodice, Washington, D. C., for amicus curiae, Aircraft Owners and Pilots Ass'n.
Before CLARK, Associate Justice, * HEANEY and WEBSTER, Circuit Judges.
Appellant Phillip W. Houghton brought this age discrimination action against McDonnell Douglas Corporation (the Company) following his removal at the age of 52, from the position of Chief Production Test Pilot and his subsequent termination from the Company's employ. He sued for reinstatement to his former position, an injunction against future discrimination, reimbursement of lost wages, liquidated damages, counsel fees and costs. The District Court found that age is a bona fide occupational qualification (BFOQ) for test pilots and that Houghton was properly terminated due to his inability to adjust to the new nonflying position offered him, thus denying him any relief. Houghton and the Secretary of Labor, who had intervened in the suit, have appealed. We find that the BFOQ is not a controlling test, under the facts here, and that Houghton was improperly terminated from his position as Chief Production Test Pilot. We, therefore, reverse the judgment and remand it for a new trial in accordance with this opinion.
1. The Facts: Houghton was hired by the Company in 1946 as an assistant aerodynamicist and in ten years was the Chief Production Test Pilot, a position he held until December, 1972. In July, 1971, the Company found it necessary to reduce its pilot staff due to a declining production rate, and it decided to do so by age. Houghton, as the oldest test pilot in The Company's history, and two other test pilots who were ages 48 and 46, were transferred from flight status. The Company had no set age policy for the transfer of test pilots to nonflying positions, relying solely on "intuitive judgment."
Houghton was offered a choice of placement either in the Flight Safety or Flight Simulation Departments. However, after interviews with the appropriate department managers, he decided that both positions were "very clearly . . . a large step downward . . . in job appeal, job status (and salary)." He advised the Company that neither was acceptable and sought outside employment but failed. He returned to the Company and assumed his former position without flight duties but this, too, was not satisfying. In November, 1972, he was offered a place in the Space Shuttle Simulation Program but rejected it for similar reasons. Ultimately, Houghton was terminated in December of 1972 for nonproductivity.
At all times during this period, Houghton maintained that the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. was being violated, particularly § 4(a) of the Act which made it unlawful to discharge or discriminate against an employee with respect to compensation, terms, conditions or privileges of employment. This section further provides that to limit, classify or segregate employees or deprive any individual of employment opportunities or otherwise affect his status because of age is unlawful. The Company admitted that Houghton was removed from flight status solely because of his age, but asserted that age was a BFOQ for test pilots under § 4(f)(1) of the Act.
2. The Evidence: Houghton was examined by Dr. Womack of the Company's medical staff in October, 1972, and was found to be in good health and medically qualified to fly high performance aircraft. In February, 1975, Houghton was examined by Dr. Proper who found him to be in exceptional physical condition even when compared to pilots and test pilots. He declared Houghton to be 99.9% certain of not suffering a heart attack or stroke while in flight. In support of its case, the Company called two experts who believed that age is an appropriate BFOQ for production test pilots, based on their studies reflecting the physiological and psychological changes that accompany the aging process in the general population. However, each conceded that changes in the aging process occur at diverse rates and varying degrees in different persons. In short, some pilots could fly beyond the age limit proposed, but in the absence of a functional test as to individual capability, an arbitrary age limit was necessary. In this connection, we note that each of the nine fatalities of the Company in the testimony of its planes involved pilots in their thirties.
While the Secretary's expert medical testimony agreed with that of the Company as to the general population, it went on to show that the aging process occurs more slowly and to a lesser degree among professional pilots. The evidence was, in our judgment, insufficient to support an inference of diminished ability among pilots of the age of Houghton to adequately perform their work.
Moreover, statistical studies reveal that the accident rate of professional pilots decreases with age. The former Director of...
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