Tuohy v. Ford Motor Co.

Decision Date19 May 1980
Docket NumberCiv. A. No. 79-71517.
Citation490 F. Supp. 258
PartiesJerome R. TUOHY, Plaintiff, v. FORD MOTOR COMPANY, a Delaware Corporation, Defendant.
CourtU.S. District Court — Western District of Michigan

William D. Parsley, Kenneth W. Beall, Loomis, Ewert, Ederer, Parsley, Davis & Gotting, Lansing, Mich., for plaintiff.

Jesse Womack, Kermit G. Bailer, Dearborn, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

Plaintiff, a pilot formerly employed by defendant's Air Transportation Office, brought this action pursuant to 29 U.S.C. 621 et seq. and M.C.L.A. § 37.2101 et seq. in an attempt to overturn the defendant's employment rule that no one over the age of 60 will be employed as a pilot. Defendant, basing its position entirely on a regulation promulgated by the Federal Aviation Administration, asserts that its employment rule is consistent with the theory of that regulation and that it may lawfully discriminate on the basis of age in this narrow area.

The following facts are not in dispute. Defendant operates its own private air transportation system to move executive personnel quickly and efficiently. Plaintiff was employed by defendant from 1954 until 1978, first as a co-pilot, and then as a pilot. Defendant terminated plaintiff's employment in this capacity in December of 1978 when plaintiff reached the age of 60.

While defendant does not dispute the general proposition against discrimination based upon age as contained in 29 U.S.C. 623(a) and M.C.L.A. § 37.2202(1)(a), it claims that the Federal Aviation Administration regulation which prohibits the use of pilots over the age of 60 by commercial air lines, 14 C.F.R. § 121.383(c), justifies its position that the rule being challenged in this case is excepted from the general rule by 29 U.S.C. § 623(f)(1) and M.C.L.A. § 37.2208.

Those sections of the Age Discrimination in Employment Act and Elliott Larsen Civil Rights Act permit age discrimination in situations where the employer can show that age is a "bona fide occupational qualification" (bfoq) "reasonably necessary to the normal operation" of the particular business. Defendant contends that its rule meets the statutory test.1

Plaintiff asserts that in order to come within the narrow exception relied upon, defendant must convince the finder of fact that its rule is "reasonably necessary." The only real dispute between the parties involves the weight to be accorded to the FAA regulation. Defendant asserts that the regulation alone is sufficient to justify the rule in question. Plaintiff, on the other hand, argues that a bfoq may only be established after a finder of fact has been given an opportunity to consider and weigh all of the evidence presented on both sides of the issue. Thus, it is plaintiff's position that while the regulation may be of some evidentiary force, it is not of such force as to prevent the plaintiff from presenting opposing evidence to the finder of fact.

The underlying dispute between the parties is whether or not there is a way to predict, independent of age, the likelihood that a pilot over the age of 60 will suffer a sudden illness which would endanger the lives of his or her passengers. After reviewing the state of medical science, the FAA determined, in promulgating the regulation relied upon by defendant, that predictions based on factors other than age were not sufficiently practicable given the enormous risks involved. The plaintiff asserts (1) that the FAA was incorrect and (2) that even if the FAA was correct at the time, advancements in medical science since that time have been such as to completely undermine the basis for continued reliance on the regulation.2

Plaintiff wants an opportunity to present all of his medical evidence to a jury and let them decide whether or not the defendant's employment rule is "reasonably necessary." Defendant asserts that the law does not force it to meet plaintiff's medical evidence or to present the issue to a fact finder. Defendant believes that it may rely wholly upon the theory of the FAA which underlies the regulation.

Thus, the question presented by defendant's motion for summary judgment is whether or not 14 C.F.R. § 121.383(c) in and of itself establishes a bfoq which permits defendant to terminate pilots in its private air transportation system simply because they have reached the age of 60. The court believes that in order to give proper deference to an administrative agency which is much better equipped than is the court to handle issues concerning the safety of those involved in domestic air traffic, and in order to avoid a needless duplication of effort, it is bound to answer the question affirmatively.

The law in this area is still in its formative stages, but by analyzing the cases which have construed the statute involved, the court finds that while there is a major dispute between the parties over the actual ability of doctors to predict sudden incapacitating illnesses, this factual dispute is not material to the question presented and will not prevent the entry of summary judgment in favor of defendant.

I. THE TEST TO BE APPLIED

The two leading statements of the burdens on employers attempting to establish bfoq's are contained in Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir. 1974), cert. denied sub nom. Brennan v. Greyhound Lines, Inc., 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 822 (1975), and Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976).

In Hodgson, the Seventh Circuit held that the defendant bus company had established that its rule against hiring new drivers over the age of 35 fit into the ADEA exception for bfoq's. The court said that this result was compelled by the defendant's showing that the elimination of the rule might increase the risk of harm to defendant's passengers. In setting out this rule, the court indicated that any increase in the risk, no matter how minimal, would be sufficient to establish a bfoq.

Later, in Tamiami, the Fifth Circuit criticized some of the analysis in Hodgson, but it also held that a bus company was justified in setting a maximum age for new drivers (Here, the age was 40). The difference between the two opinions lies in the theories relied upon by the two courts.

The Tamiami court, building upon two sex discrimination cases, developed a two level test to be used in any case involving the bfoq defense. First, "the job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business." 531 F.2d at 236. (Emphasis in original). Second, the employer must show either (a) that "it had reasonable cause, that is, a factual basis, for believing that all or substantially all persons over the age relevant to the particular situation would be unable to perform safely and efficiently the duties of the job involved," or (b) that "it is impossible or impractical to deal with persons over a certain age on an individualized basis." Id.

The first level of this test is designed to make certain that the qualification being scrutinized is one that is so important to the operation of the business involved that reasonable people would not expect the business to continue without it.

The second level is designed such that employers will only be permitted to discriminate on the basis of sex or age in situations where they have shown that they cannot successfully deal with prospective applicants as individuals. If only a minute percentage of those in a given age group or sex would be qualified, the law does not force an employer to undertake individual examinations to find the very few who are qualified. Similarly, if individual examinations would not enable the employer to distinguish the qualified from the unqualified, no such examinations will be required. Thus, the outer limits of the bfoq will be no wider than is necessary to permit the employer to conduct its business in a reasonable way.

Both Hodgson and Tamiami dealt with issues of safety to the public. In each case, the employer claimed that the challenged age limit was used in order to protect passengers from the disasters that could befall them if drivers were to suffer debilitating illnesses while on the road. Previous cases dealing with bfoq's had not dealt with this problem; they had focused only upon the interests of the persons being discriminated against. See Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971); Weeks v. Southern Bell Telephone and Telegraph Co., 408 F.2d 228 (5th Cir. 1969).

The Tamiami court criticized the way that the Hodgson court seemed to have lumped all of the parts of this issue together, but in its effort to define a neat test with which to solve every potential bfoq problem, the Tamiami court seems to have gone too far in separating the several considerations.

According to that court, the safety factor comes into play only on the first level of the test. If safety is involved, the court must determine whether or not it is something that goes to the "essence" of the business. If the court determines that safety is of the essence, then the court is to turn to the second level of the test without regard to the fact that it is safety that is at the heart of the bfoq.

This analysis may work well enough in some situations, but where the decision on the second level of the test is a difficult and close one, the court must keep in mind the safety factor and the extent of the potential problems that could result. Here, plaintiff contends that he is in excellent health and that none of his passengers would be endangered by flying with him. Defendant, on the other hand, is concerned that the personnel who are piloted by the plaintiff may be in danger of losing their lives because of the possibility that plaintiff may become incapacitated during a flight.

The essential argument between the parties in this case is whether or not doctors are able to predict the likelihood of...

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