Murnane v. American Airlines, Inc.

• Decision Date: 18 December 1979
• Docket Number: Civ. A. No. 78-1217.
• Citation: 482 F. Supp. 135
• Parties: Edward L. MURNANE, Plaintiff, Ray Marshall, Secretary, United States Department of Labor, Plaintiff-Intervenor, v. AMERICAN AIRLINES, INC., Defendant.
• Court: U.S. District Court — District of Columbia

482 F. Supp. 135

Edward L. MURNANE, Plaintiff Ray Marshall, Secretary, United States Department of Labor, Plaintiff-Intervenor, v. AMERICAN AIRLINES, INC., Defendant.

Civ. A. No. 78-1217.

United States District Court, District of Columbia.

November 8, 1979.

On Motion for Rehearing December 18, 1979.

COPYRIGHT MATERIAL OMITTED

Eugene R. Fidell, Michael F. McBride, LeBoeuf, Lamb, Leiby & MacRae, Washington, D.C., for plaintiff.

Donald R. McCoy, Denver, Colo., Carin Ann Clauss, Sol. of Labor, Washington, D.C., Marshall H. Harris, Dept. of Labor, Philadelphia, Pa., Sue Ann Wolff, U. S. Dept. of Labor, Washington, D.C., on brief, for plaintiff-intervenor.

Dean Booth, John G. Grubb, Jr., William H. Boice, Seward & Kissel, Atlanta, Ga., for defendant.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

I. INTRODUCTION

This action is brought under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (1976), ("the Act" or "ADEA"). Section 4(a)(1) of the Act, 29 U.S.C. § 623(a)(1), makes it unlawful for an employer:

to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.

The defendant American Airlines, Inc., ("American"), is a commercial airline. It is an employer within the meaning of the Act. 29 U.S.C. § 630(b). The plaintiff, Edward L. Murnane, is a retired Navy and Coast Guard aviator who applied for position as a pilot with American when he was forty-three years old. He is thus a member of the protected class under ADEA, 29 U.S.C. § 631. The plaintiff-intervenor, Ray Marshall, is the Secretary of the United States Department of Labor. Under the Act, he is responsible for implementation of its provisions. 29 U.S.C. § 625.

Plaintiff Murnane filed this action on June 30, 1978, alleging that defendant American wilfully violated the Act by failing or refusing to hire or consider him for employment because of his age. On January 19, 1979, Secretary Marshall was given leave to intervene as a party plaintiff.

In his prayer for relief, plaintiff originally sought an offer of employment with the defendant upon such terms and conditions as he would have had but for the alleged discrimination. However, in his memorandum in opposition to defendant's motion for summary judgment (filed January 29, 1979), plaintiff indicated that "at this stage" he would request only injunctive relief requiring remedial flight training and consideration of his application by American. In addition, he seeks the amount of back wages he would have received if the defendant had employed him, an additional equal amount of liquidated damages as provided by the Act, 29 U.S.C. § 626, as well as costs, attorneys' fees, and other appropriate relief. The Secretary joins in these requests on plaintiff Murnane's behalf, and also seeks to permanently enjoin the defendant from violating the provisions of section 4(a)(1) of the Act, 29 U.S.C. § 623, as set forth above.

On January 22, 1979, the defendant filed a motion for summary judgment. However, since a five-day trial was held before the Court beginning on January 29, 1979, the Court will decide the case on the basis of the evidence adduced at trial.

The defendant has presented several challenges to the Court's jurisdiction over this action. It also contends that the plaintiff has failed to discharge his burden of establishing a prima facie case of age discrimination within the meaning of the Act. In addition, defendant contends, among other things, that an age lower than plaintiff's at time of hiring is within the statutory exception under the Act for bona fide occupational qualifications (BFOQ), 29 U.S.C. § 623(f)(1). Finally, the defendant argues that whether or not there was impermissible age discrimination against plaintiff, he is not entitled to relief because he would not have been hired by American in any event. Thus, the issues before the Court are:

1) Whether the Court has jurisdiction over this action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626;

2) Whether plaintiff has established a prima facie case of age discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.;

3) Whether an age lower than plaintiff's at time of hiring is a bona fide occupational qualification within the meaning of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623(f)(1);

4) Whether plaintiff would be entitled to any relief whether or not discriminated against on the basis of age.

The Court will first set forth background information which it considers relevant to its decision. American's policies concerning pilot hiring are more properly articulated in light of its contention that an age lower than forty at time of hiring is a bona fide occupational qualification for the position of Flight Officer within the meaning of ADEA, as amended, 29 U.S.C. § 623(f)(1). The Court then will consider the issues set forth above seriatim. Accordingly, the following constitutes the Court's findings of fact and conclusions of law.

II. BACKGROUND

A. The Plaintiff's Application

Plaintiff applied for employment with American on April 1, 1976. He submitted an employment application and a "pilot supplemental sheet" at American's Los Angeles personnel office. The position for which he applied was that of Flight Officer, the entry level pilot position, which ultimately may result in advancement to the Captain position. The information received by American indicated that the applicant was forty-three years old. He had served on active duty as an aviator with the Navy and the Coast Guard for a total of twenty-six years. All agree that he met the basic requirements for the position of Flight Officer, which are discussed in detail below. He also possessed a Federal Aviation Administration (FAA) Flight Engineer Certificate, which must be obtained to perform the duties of Flight Officer. In addition, he possessed the Air Transport Pilot's rating which is required to act as co-pilot or pilot of a commercial aircraft.

In September, 1976, plaintiff Murnane contacted the defendant's employee, Mrs. Juanita McCullough, who had received his application in Los Angeles, to inform her of his temporary move to another city and to update his application. In November, 1976, the application was transferred to American's Dallas-Fort Worth, Texas office, with other pending pilot applications. Plaintiff was informed of this transfer in January, 1977. Apart from this, he heard nothing from American concerning the application.

During January, 1977, plaintiff complained to American representatives that his application was not being considered because of his age. This complaint was founded upon his familiarity with an industry-wide reluctance to hire older pilots. He was referred to American's Equal Employment Opportunity (EEO) officer, but was not given any reason at that time for failure to afford him an interview.

On February 1, 1977, plaintiff filed a complaint with the United States Department of Labor, alleging discrimination on the basis of age. He was notified on May 17, 1977, that the Department was undertaking informal remedial and conciliation efforts on his behalf. See 29 U.S.C. § 626(d)(2). On November 21, 1977, the Department notified plaintiff that the attempt at informal conciliation had failed, and he was therefore free to pursue independent legal action under the Act. At some time prior to May 26, 1977, a parallel complaint was filed with the California Fair Employment Practices Commission (FEPC).¹ This complaint was formalized on February 15, 1978. In response to the state agency's request for information regarding its hiring policies, American suggested that since plaintiff had chosen to pursue his federal remedies, the FEPC investigation should be closed, and refused to furnish the information requested.

For purposes of this lawsuit, all parties agree that defendant's conduct after December 31, 1976, with respect to plaintiff's application, is irrelevant. This agreement is based on the grounds that (a) any rejection of the plaintiff which the Court finds to have occurred must have occurred during 1976 and (b) plaintiff filed his federal employment discrimination complaint shortly after that date, on February 1, 1977. Plaintiff's conduct and performance on other jobs after December 31, 1976, however, is relevant to the issue of whether plaintiff would be entitled to any relief whether or not discriminated against on the basis of age. This issue will be considered in detail by the Court in part III. E., supra, of this memorandum opinion.

III. THE JURISDICTIONAL CHALLENGES

Defendant American presents three challenges to the Court's jurisdiction over this action. The first two challenges encompass American's argument that plaintiff failed to comply with the "jurisdictional prerequisites" of the Act. The final challenge is founded upon the applicable statute of limitations. The Court will consider these challenges seriatim.

First, American challenges plaintiff's filing of his formal "Notice of Intent to Sue" with the Department of Labor on April 25, 1977, as untimely under § 7(d)(1) of the Act, 29 U.S.C. § 626(d)(1). Prior to the Act's amendment in 1978, this section required a complainant to file a formal "Notice of Intent to Sue" with the Department of Labor within 180 days of the occurrence of the alleged unlawful employment practice.² However, § 7(d)(1) of the Act simply is not applicable to plaintiff. Rather, it is § 7(d)(2) of the Act, 29 U.S.C. § 626(e)(2), with which plaintiff must comply. Where, as here, the alleged unlawful practice occurs "in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from...