Kodish v. United Airlines, Inc.

• Decision Date: 23 January 1979
• Docket Number: Civ. A. 78-A-1146.
• Parties: Mark KODISH, Plaintiff, v. UNITED AIRLINES, INC., Defendant.
• Court: U.S. District Court — District of Colorado

463 F. Supp. 1245

Mark KODISH, Plaintiff, v. UNITED AIRLINES, INC., Defendant.

Civ. A. 78-A-1146.

United States District Court, D. Colorado.

January 23, 1979.

Galchinsky & Silverstein by Herbert H. Galchinsky, Denver, Colo., for plaintiff.

James J. Soran, III, and Richard O. Campbell, Denver, Colo., and Paul M. Tschirhart, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ARRAJ, District Judge.

Plaintiff has brought this action for damages and injunctive relief to redress the airline's alleged refusal to hire him because of his age. The amended complaint sets out three claims for relief. The first claim for relief is brought under §§ 102(a)(3) and 404(b) of the Federal Aviation Act of 1958, as amended, 49 U.S.C. §§ 1302(a)(3)¹ and 1374(b). The second claim for relief is brought pursuant to § 1 of the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981. The third claim for relief is asserted under Executive Order 11141, 29 Fed.Reg. 2477 (1964).² Defendant has moved to dismiss for failure to state a claim on which relief can be granted and for lack of jurisdiction over the subject matter. At the hearing on its motion defendant stipulated that the allegations contained in the complaint can be assumed as fact for purposes of this motion. After reviewing the complaint and the law I find that the case is in an appropriate posture for disposition of defendant's motion pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.

The complaint alleges that Mark Kodish applied for a job as a pilot with United Airlines, Inc. (United), at the age of 30 years. At that time United required that applicants for flight crew positions be between the ages of 21 and 29 years, inclusive. Accordingly, United rejected Kodish's application. United subsequently changed the upper limit for flight crew applicants to 35 years and allowed Kodish, still 30, to reapply. United again rejected the application citing the greater experience of other applicants. Kodish contends, and for purposes of this motion it may be assumed, that the second application was also denied because of plaintiff's age. Now 32 years of age, Kodish filed this complaint when he was 31 years old. Plaintiff contends that he is the victim of age discrimination for which 49 U.S.C. §§ 1302(a)(3) and 1374(b), 42 U.S.C. § 1981, and Executive Order 11141 provide an implied private right of action. Plaintiff filed a complaint with the Civil Aeronautics Board in February of 1978. Citing the Board's lack of expertise in the area of pilot qualifications and training, and the lack of harm to the travelling public, the Board's Director of Consumer Protection dismissed the complaint.

In its motion to dismiss United contends that the cited provisions of the Federal Aviation Act of 1958, as amended, and the Civil Rights Act of 1866, as amended, do not create a private right of action for putative pilots who are denied employment on account of age. Additionally United contends that this Court lacks jurisdiction over the subject matter of a claim arising out of an executive branch policy expressed in an Executive Order. The answers to these questions of law raised by United control the outcome of the motion to dismiss.

I

The first claim for relief seeks redress under 49 U.S.C. §§ 1302(a)(3)³ and 1374(b).⁴ At the outset I note that § 1302(a) is a statement of six principles which the Civil Aeronautics Board and the courts are to consider as matters in the public interest. As such the section should be referred to when construing or applying other sections of the Act. Such a statement of principles or purpose cannot, standing alone, be the source of a private right of action. Rather, the principles set out should be considered when interpreting § 1374(b) to determine whether or not that latter section provides plaintiff with a remedy.

II

The test set out in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), should be applied in determining whether or not a private right of action should be implied for this case from § 1374(b). See, e. g., Mason v. Belieu, 177 U.S.App.D.C. 68, 74, 543 F.2d 215, 221 (1976), cert. denied 429 U.S. 852, 97 S.Ct. 144, 50 L.Ed.2d 127; and Polansky v. Trans World Airlines, Inc., 523 F.2d 332, 334 (3rd Cir. 1975). The Cort opinion requires an analysis of the facts of each case against four factors. First, was the statute intended to protect this particular class of person from this particular harm. Second, did the legislature indicate any intent to create a private remedy. Third, would the private remedy be consistent with the legislative goals. Fourth, is the cause of action one traditionally left to state law. 422 U.S. at 78, 95 S.Ct. 2080.

A

As to the second Cort factor, I have reviewed the relevant Congressional Records and Senate and House Reports, but I have been unable to find any expression of legislative intent to create a private right of action one way or the other. Accordingly, I will be guided by the opinion in Mason, supra, 177 U.S.App.D.C. at 74, 543 F.2d at 221, and will base my conclusions in the instant case solely on the remaining three considerations.

B

The first and third considerations require inquiry into the statutory purposes underlying the Federal Aviation Act. Mason, supra, contains the most comprehensive guidance for such an inquiry. That case involved a would-be Pan Am passenger and his wife, the Masons. Mr. Mason, after having been forcibly deported from the Panama Canal Zone, booked a flight back to Panama. Pan Am refused permission for Mason to board without prior assurances from the government of Panama that it would allow Mason to enter the country. Mason sued for damages occasioned by the carrier's refusal of transportation. Mrs. Mason, who remained in Panama throughout these events, sued for damages resulting from emotional distress. In holding that Mr. Mason did have an implied cause of action for damages under § 1374(b), but Mrs. Mason did not, the court undertook a thorough review of the legislative history. The court concluded that the statute was intended solely to assure fair and equitable air transport rates and equal access to the use of interstate transportation facilities. In other words, the Federal Aviation Act is designed to protect the consumers of interstate air transportation from discriminatory treatment. 177 U.S.App.D.C. at 71-72, 543 F.2d at 218-19. See also Sanders v. Air India, 454 F.Supp. 1371 (S.D.N.Y.1978). Thus § 1374(b) has been used to prohibit racially segregated facilities in airline terminals, United States v. City of Montgomery, 201 F.Supp. 590 (M.D.Ala.1962), and to provide a remedy for passengers "bumped" from overbooked flights, Mortimer v. Delta Air Lines, 302 F.Supp. 276 (N.D.Ill.1969). My own research efforts have failed to find any case granting someone other than a passenger or cargo owner a cause of action under § 1374(b).

Plaintiff would distinguish Mason and Polansky v. Trans World Airlines, Inc., 523 F.2d 332 (3rd Cir. 1975) from the instant case on the ground that the disallowed claims in Mason and Polansky were for injuries "too remote" from actual carrier operations. In Polansky the court denied an implied cause of action under § 1374(b) to plaintiffs who claimed that "inferior ground accommodations" were provided to some, but not all, passengers on a group excursion sponsored by a regulated carrier. In denying the requested relief the court specifically stated that "the statute aims to protect the right of access to air facilities from discriminatory interference by the air carrier." 523 F.2d at 335 (emphasis in original). While plaintiff's observation concerning the "remoteness" of the injuries in Mason and Polansky may be valid, that observation nevertheless overlooks the explicit reason given by each court for its refusal to imply a cause of action—namely, the statutory purpose of protecting equal access to air transport facilities.

Consequently, as to the first and third considerations set forth by the Cort opinion, I find that plaintiff is not the type of person the statute is intended to protect, nor is he suffering from the kind of harm which the statute is intended to remedy. Plaintiff is not attempting to use or "consume" the facilities of air transportation, nor is he being denied access to those facilities in a discriminatory manner. An implied private remedy, therefore, would not further the legislative goal of promoting equal access to the facilities of interstate air transportation.

C

The Cort opinion phrases the fourth consideration in terms of whether or not the cause of action is one traditionally left to state law. In the context of the age discrimination claimed in this case I think it appropriate to rephrase the fourth factor so that the question is whether the cause of action is one traditionally left to state or other areas of federal law. Although Colorado does not appear to have an age discrimination statute—the Colorado Antidiscrimination Act of 1957, Colo.Rev.Stat. §§ 24-34-301, et seq. (1973), applies only to discrimination due to "race, creed, color, sex, national origin, or ancestry"—the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (the Age Discrimination Act) is a comprehensive statutory scheme which provides an express private remedy for age discrimination.

Kodish, it appears, cannot avail himself of the remedy provided by the Age Discrimination Act. 29 U.S.C. § 631 provides that only "individuals who are at least forty years of age but not more than seventy years of age" are protected by the statute. The legislative history and regulations promulgated by the Secretary of Labor make clear the fact that a 32 year old plaintiff, such as Kodish, does not have a cause of action for age discrimination under federal law. The House Report for this statute cited the example of airline stewardesses, who must apparently "retire" by the age of 32, as people beset by an...