Opposition Brief — Delta Air Lines, Inc. v. Criswell

sepenenennes

Supreme Court, U.S,

FILED

FEB 9 4999

{BGFPH F. SPANIOL, JR,

CLERK

No. 88-1138

IN THE

Supreme Court of the United

OCTOBER TERM, 1988

ee

DELTA AIR LINES, INC.,

Petitioner,

v.

CHARLES G. CRISWELL,

Respondent,

and

EUGENE R. BLACK, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENTS

CHARLES G. CRISWELL, ef al. IN OPPOSITION

RAYMOND C. FAY

(Counsel of Record)

ALAN M. SERWER

BELL, Boyp & LLOYD

1615 L Street, N.W.

Suite 1200

Washington, D.C. 20036

(202) 466-6300

February 1989 Counsel for Respondents

WILSON - Epzs PrintinG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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COUNTERSTATEMENT OF QUESTION PRESENTED

Whether the successorship doctrine was properly ap-

plied to require the continued employment of 15 pilots

who were already working as flight engineers past age

sixty pursuant to the Final Judgment and Permanent

Injunction in Criswell v. Western Air Lines, Inc., 514

F. Supp. 384 (C.D. Cal. 1981), aff'd, 709 F.2d 544 (9th

Cir. 1983), aff'd, 472 U.S. 400 (1985).

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTION

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COUNTERSTATEMENT OF THE CASE ...................

REASONS THE WRIT SHOULD NOT BE

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I. THERE IS NO CONFLICT AMONG THE CIR-

CUITS IN THE APPLICATION OF THE SUC-

CESSORSHIP DOCTRINE ...0002202. eee eeeeee

II. DELTA’S “POLICY” DOES NOT CREATE

AN EXCEPTION TO THE SUCCESSORSHIP

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Ill. THE “CONTINUITY” FACTOR WAS PROP-

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TABLE OF AUTHORITIES

Cases: Page

Bates v. Pacific Maritime Ass’n, 744 F.2d 705 (9th

Ie seciaietecakbenck scans cchdstenioesaslicines een passim

Criswell v. Western Air Lines, Inc., 514 F. Supp.

384 (C.D. Cal. 1981), aff’d, 709 F.2d 544 (9th

Cir. 1983), aff'd, 472 U.S. 400 (1985) ................. 2, 5,8

Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408

(11th Cir. 1986), cert. denied, 479 U.S. 1090

RDI D ccasicracceicusn\tncibenasatabndiidindinndiebceaneaiteaamacetiaddl passim

EEOC v. MacMillan Bloedel Containers, Inc., 503

ie BF) Dt Ae. |» | Renn oereEnn ean 5, 6

Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27, 107 S.Ct. 2225 (1987) ....................... 5, 9, 10

Golden State Bottling Co. v. NLRB, 414 U.S. 168

EE Reet 06 ie ROE E EN ENS Ct Se mene 5

Howard Johnson Co., Inc. v. Detroit Local Joint

Executive Board, 417 U.S. 249 (1974) ................ 5, 12

John Wiley & Sons, Ine. v. Livingston, 376 U.S.

BG SD icsecaeta nasser isasehcclsicatesdan be iisiacdadianacanieiditilaas 5, 7

Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir.

RIM -ccsssesicinctarsiscsicseiannilentbainivascnnancnaasaicimananonammebineaeaeae passim

NLRB v. Burns International Security Services,

eis Ae er I SD nts esnascccceccncnceeaccaeenmnectnane 5

NLRB v. Jeffries Lithograph Co., 752 F.2d 459

LM RSA RSE ean oe etna nae ON 11

Slack v. Havens, 522 F.2d 1091 (9th Cir. 1975) .... 6

Stone v. Western Air Lines, Inc., 34 Empl. Prac.

Dec. [CCH] {% 34,351 (C.D. Cal. 1984) ................. 3

Stone v. Western Air Lines, Inc., 39 Empl. Prac.

Dee. [CCH] § 35,908 (C.D. Cal. 1985) ................. 3

Western Air Lines, Inc. v. Criswell, 472 U.S. 400

+ RSI ER eee ES aR fr PET MES, CEMA ROTO oreo ee 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-1138

DELTA AIR LINES, INC.,

Petitioner,

Vv.

CHARLES G. CRISWELL,

Respondent,

and

EUGENE R. BLACK, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENTS

CHARLES G. CRISWELL, et al. IN OPPOSITION

Respondents Charles G. Criswell, et al. respectfully

pray that the Petition for a Writ of Certiorari of Delta

Air Lines, Inc. (‘Delta’) be denied.

1 The other respondents are: Eugene R. Black, Ernest F. Ellis,

Arlie A. Gillespie, Peter T. Hoffman, Jack L. Keyes, Ben D.

Laubacher, Jr., Robert A. Longwell, Alan L. McLaren, Phil G. Most,

9

COUNTERSTATEMENT OF THE CASE

The Court of Appeals correctly summarized the history

of the case as follows (A. 2a):

This action had its genesis more than ten years ago

when pilot Charles Criswell, and two other plain-

tiffs, were forced to retire at age 60 by Western Air

Lines (“Western”). A jury found that Western had

violated the Age Discrimination in Employment Act,

29 U.S.C. §§ 621-34 [“ADEA”], when it (1) refused

to allow DC-10 captains nearing the age of sixty to

down-bid to the position of second officers (flight en-

gineers), and (2) imposed a mandatory retirement

age of sixty on second officers as a matter of com-

pany policy. Criswell v. Western Air Lines, Inc.,

514 F. Supp. 384 (C.D. Cal. 1981). Final judgment

and a permanent injunction were issued on May 13,

1981 by Judge Tashima.

This court affirmed the district court’s decision.

709 F.2d 544 (9th Cir. 1983). A unanimous Su-

preme Court affirmed. 472 U.S. 400 (1985).

The March 13, 1981 Criswell injunction, attached to.

and incorporated by reference in the district court’s

successorship order (A. 8a) but omitted from Delta’s

Appendix, is included in the Supplemental Appendix to

this opposition (S.A. la). The Criswell systemwide in-

junction reads in relevant part (S.A. 4a-5a):

Western, its officers, agents, servants, employees,

and attorneys and all persons in active concert or

participation with it who receive actual notice of

this Final Judgment and Permanent Injunction and

Western’s successors and assigns, are hereby perma-

nently enjoined from:

(a) Refusing or failing to permit its flight deck

crew members to work or continue to work as second

officers after age 60 for any reason based on age.

Lynn M. Norton, Glen P. Shannon, Donald C. Thompson and Henry

J. Wiegand. Robert P. Elliott was an appellee below but Delta did

not petition as to him.

ne

3

(b) Refusing or failing to consider or act favor-

ably upon downbids by captains or first officers for

second officer positions for any reason based on age.

(c) Continuing to enforce its policy of requiring

all flight deck personnel, including second officers, to

retire at age 60.

(d) Any further violation of Section 4(a) of the

Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. § 623(a).

Respondent Criswell was reinstated after trial in 1981

(C.R. 421(a) at 2). Five of the respondents were re-

instated in related litigation, Stone v. Western Air Lines,

Inc., 34 Empl. Prac. Dee. [CCH] { 34,351 (C.D. Cal.

1984) ; see Stone v. Western Air Lines, Inc., 39 Empl.

Prac. Dee. [CCH] { 35,908 (C.D. Cal. 1985), and the

remaining respondents turned age sixty and continued as

flight engineers after the 1981 Criswell injunction be-

came finally effective following this Court’s decision in

1985.

During the Criswell litigation, Delta supported West-

ern’s attempts to exclude from the cockpit pilots over

age sixty. On November 15, 1984, Delta filed a brief

amicus curiae in this Court in support of Western’s posi-

tion in Criswell (C.R. 421(c) Exh. A).

Western and Delta agreed to merge on September 9,

1986 (C.R. 421(c) Exh. F at I-1). Stockholder approval

was secured on December 16, 1986 (see C.R. 425 at 3).

Delta operated Western as a wholly-owned subsidiary

thereafter until April 1, 1987, when Western ceased to

exist as a corporate entity (C.R. 425 at 3).

In the merger Delta offered jobs to all Western

employees below the officer level (C.R. 425 at 2). All

Western pilots except respondents were to be hired as

pilots (C.R. 428 at 3). By letter dated February 13,

1987, Delta advised respondents that it refused to pro-

vide them cockpit positions as Second Officers because

4

“Delta does not allow pilots disqualified from future

service by the Age 60 FAR? or other reasons to serve

in any cockpit positions.” (C.R. 421(a) Exh. B). Delta

did not attempt to sever the employment rights of any

of the other approximately 1,500 Western pilots, includ-

ing those who had exercised “hundreds of downbids in

a wide variety of circumstances.” Criswell, 514 F. Supp.

at 392.

After the merger, the former Western flight operations

remained separate and distinct from Delta’s. Former

Western pilots continued to fly former Western planes

over former Western routes (C.R. 431 at 3-4 and Exhs.

C-E), albeit under Delta’s name. The pilot seniority lists

were not yet merged and, until that took place, the “flight

operations, equipment and routes of each company” were

to remain separate (C.R. 431, Exh. E at 4). In its

March 30, 1987 successorship order, the district court

found that “Western’s and Delta’s flight operations will

not be fully integrated until some time in the future”

(A. 8a).

In opposing a finding of successorship in this case,

Delta relied heavily on its “policy” against “two-step

downbidding” that was in issue in Jervolino v. Delta Air

Lines, Inc., 796 F.2d 1408 (11th Cir. 1986), cert. denied,

107 S.Ct. 1300 (1987). In this case, Delta made no

independent evidentiary showing regarding its “policy.”

Instead, it relied upon the reported opinion in Jervolino.

There is nothing in Jervolino to indicate that Delta had

ever previously applied its policy to persons like respond-

ents who were already in the flight engineer position |

after having attained the rank of Captain in the normal

progression.

2The FAA’s “Age 60 Rule,” 14 C.F.R. § 121.383(c). The rule

applies to Captains and First Officers, but not to Second Officers or

flight engineers. Western Air Lines, Inc. v. Criswell, 472 U.S. 400,

404 (1985).

ooo

5

Iervolino was a single-plaintiff case which challenged

Delta’s refusal to allow a Captain to “downbid” to flight

engineer at age sixty. In Jervolino, Delta presented

many defenses, only one of which was a restriction on

downbidding. Not only did Delta claim, as Western did

in Criswell, that to be younger than sixty was a “bona

fide occupational qualification” for the Second Officer

position for reasons relating to age, but Delta made re-

peated attacks on Iervolino’s health throughout the trial.

It was therefore impossible to conclude, given the general

verdict, how or on what issues the jury decided the case

for Delta. The trial court entered judgment on the gen-

eral verdict. The Court of Appeals affirmed the denial

of a motion j.n.0.v., and concluded that the jury instruc-

tions were either correct, not objected to, or incorrect

but harmless error. Delta never sought or obtained a

declaratory judgment, and neither the jury nor the courts

ever expressly upheld Delta’s “policy.”

REASONS THE WRIT SHOULD NOT BE GRANTED

I. THERE IS NO CONFLICT AMONG THE CIRCUITS

IN THE APPLICATION OF THE SUCCESSORSHIP

DOCTRINE

The Court of Appeals made a routine application of

the successorship doctrine that has been developed in a

series of labor law opinions in this Court* and has been

applied uniformly in employment discrimination cases in

the Courts of Appeals. Although Delta states that it is

3 John Wiley & Sons, Inc. v. Livingston, 376 U.S. 548 (1964);

NLRB v. Burns International Security Services, Inc., 406 U.S. 272

(1972) ; Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973);

Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board,

417 U.S. 249 (1974) ; Fall River Dyeing & Finishing Corp. ». NLRB,

428 U.S. 427, 107 S. Ct. 2225 (1987).

4 Bates v. Pacific Maritime Ass’n, 744 F.2d 705 (9th Cir. 1984);

Musikiwamba v. ESSI, Inc., 769 F.2d 740 (7th Cir. 1985); EEOC

v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974).

lice eae

6

important for the Court to grant the petition because

it has not decided a successorship case in the employment

discrimination context, Delta does not dispute that the

successorship doctrine applies in employment discrimina-

tion cases.

There is no conflict in the Circuits regarding the appli-

cation of the successorship doctrine. The Ninth Circuit

stated (A. 3a):

In an employment discrimination action, there are

three principal factors relating to successor liability:

(1) continuity in operations and work force of the

successor and predecessor employers;

(2) notice to the successor employer of its prede-

cessor’s legal obligation; and

(3) ability of the predecessor to provide adequate

relief directly.

The above formulation is derived from Bates, 744 F.2d

at 709-10, not cited in the petition. The Bates formula-

tion is a condensation of the nine-part formuiation in

Slack v. Havens, 522 F.2d 1091, 1094-95 (9th Cir. 1975).

Other circuits are in accord with this formulation.

Musikiwamba, 760 F.2d at 750; EEOC v. MacMillan

Bloedel Containers, Inc., 503 F.2d at 1094. Delta’s peti-

tion presents no issue of importance or conflict regarding

the Ninth Cireuit’s formulation of the successorship

doctrine that warrants review by this Court.

II. DELTA’S “POLICY” DOES NOT CREATE AN EX-

CEPTION TO THE SUCCESSORSHIP DOCTRINE

Delta argues that its “policy” against ‘two-step down-

bidding” prevents the application of the successorship

doctrine in this case. The Court of Appeals rejected

Delta’s argument as a matter of law, holding essentially

that it was an impermissible collateral attack on the suc-

cessorship doctrine itself (A. 4a-5a), and upheld the dis-

zy f

trict court’s “highly fact-specific” successorship analysis

(A. 5a-6a) which included consideration of Delta’s

“policy” as one of the equitable concerns to be taken into

account. This treatment by the Court of Appeals is fully

consistent with the way other courts have interpreted the

successorship doctrine.

Delta’s argument that Mr. Criswell should be forced

to undergo another decade of costly litigation in a new

action against Delta undermines the very purpose of the

successorship doctrine. As the Court of Appeals explained

(A. 4a-5a):

Delta’s argument ignores a basic tenet of succes-

sorship doctrine: the obligation imposed on the suc-

cessor is preexisting. As this court noted in Bates,

“fiJn successorship cases, it is necessary to distin-

guish between the necessity for finding discrimination

in the first instance, and the enforcement of an al-

ready established obligation against a successor em-

ployer . . . . Successorship liability, [] rests upon the

consent decree itself, not upon some independent ad-

mission of wrongdoing.” 744 F.2d at 709. Plaintiffs

are not challenging Delta’s new policies per se; they

they are simply insisting on a fulfillment of obliga-

tions owing to them because of Western’s actions and

the injunction remedying them. “[T]he disappear-

ance by merger of a corporate employer . . . does not

automatically terminate all rights of the [previous]

employees . . .[;] the successor employer may [still]

be required to arbitrate with the union under the

[prior] agreement.” John Wiley & Sons, Inc. v.

Livingston, 376 U.S. 548, 548 (1964). Delta may

be free to execute its own policies to other employees,

but it is not free to abrogate its predecessor’s obli-

gations to plaintiffs under the injunction.°

5 Similarly, the Court of Appeals rejected Delta’s argument that

respondents needed to meet separately the criteria for injunctive

relief (A. 5a):

Delta’s final argument, that petitioners must meet the cri-

teria for injunctive relief, is misdirected; the real issue in this

8

Delta’s attempt to circumvent these successorship prin-

ciples is distinguished principally by a lack of candor.

Delta argues that respondents were “unqualified” em-

ployees mounting an independent challenge to Delta’s

“presumptively lawful” downbidding policy. First, Delta’s

policy is not “presumptively lawful.” In Jervolino, Delta

raised numerous defenses and obtained a general verdict

against a single plaintiff. In affirming the verdict, the

Eleventh Circuit did not uphold, validate, or otherwise

declare “presumptively lawful” Delta’s downbidding policy.

Second, respondents did not challenge Delta’s policy, nor

did they need to, because they were already working as

flight engineers for up to six years and therefore were

not seeking to downbid like the plaintiff in Jervolino.®

Third, the successorship order here did not require Delta

to “hire unqualified Western employees.” Like the other

1,500 former Western pilots, respondents met all of

Delta’s job qualifications, except for the age barrier pro-

scribed by the Criswell injunction.” Thus, this case simply

case is whether successorship liability attaches. Because the

merits of Criswell’s claims have already been adjudicated, and

because the obligation is preexisting, the plaintiffs need not

make an independent showing for injunctive relief. Nor need

they file a new action.

That the new employer is not a party of the consent

decree is of course irrelevant, for that is the whole point of

the successorship doctrine. The question is whether the

successorship doctrine applies and, if so, on what rationale.

Bates, 744 F.2d at 709.

6 Although Delta argued in Jervolino that its policy was not age-

based, here Delta applied it only to the 15 individuals who were age

sixty. Delta did not apply the policy to bar the employment of any

of Western’s other 1,500 pilots, including numerous younger down-

bidding pilots. At Western, there were “hundreds of downbids in

a wide variety of circumstances,” Criswell, 514 F. Supp. at 392,

including “two-step” downbids from Captain to flight engineer by

pilots under age sixty. Id.

7 The Criswell injunction barred Western from refusing to employ

flight engineers “because of age” (S.A. 5a) and did not, as Delta

9

does not present the hypothetical facts urged in the peti-

tion concerning a challenge by unqualified employees to a

policy that has been held lawful under prior court orders.

Delta was far more candid about the limited scope and

effect of the successorship order in describing the order

to another court:

That Order did not affect any Delta pilots or even

other similarly situated former Western pilots. It is

specifically limited to the 15 movants. More im-

portantly, in that action, plaintiffs did not purport

to challenge Delta’s policy and the court did not hold

that Delta’s policy was unlawful. Accordingly, Delta’s

merger of Western into itself and the limited succes-

sorship finding with respect to 15 former Western

pilots has no relevance to former Delta pilots or the

presumptive lawfulness of Delta’s independent policy.®

Stripped of its mischaracterizations, Delta’s petition

presents no issue of conflict among the Circuits in treat-

ment of the successorship doctrine, either in the holdings

of the courts or “in principle” (Pet. 12). Delta’s attack

on the factual successorship finding is merely an attempt

to elevate the importance of Delta’s policy above all other

facts before the district court. Delta ignores the admoni-

tion by this Court that the successorship inquiry “is pri-

marily factual in nature and is based upon the totality of

the circumstances of a given situation.” Fall River Dye-

ing & Finishing Corp., 107 S. Ct. at 2236. Furthermore,

the “successor doctrine is derived from equitable prin-

ciples.” Musikiwamba, 760 F.2d at 750; see Bates, 744

F.2d at 710-711. The court seeks to balance the pur-

argues, force Delta to take on employees who “did not meet the

acquiring company’s independent experience, skill or even eyesight

qualifications” (Pet. 10).

8 September 28, 1987, “Defendant’s Memorandum of Law in

Opposition to Plaintiff’s Application for Preliminary Injunction,”

Owen v. Delta Air Lines, Inc., No. 3-86-1227-T (N.D. Tex:) at 11

(footnote omitted, emphasis in original).

10

poses of the underlying legislation—here the ADEA—

with the legitimate interests and expectations of the

affected employees and employer. Bates, 744 F.2d at 709.

In making its successorship determination here, the dis-

trict court balanced the interests involved by taking the

lervolino policy fully into account as one of the “equi-

table concerns,” Bates, 744 F.2d at 711 (Tr. 40-41; see

id. at 34-36), and by finding that Delta would suffer no

significant harm or hardship from having to employ the

respondents (A. 8a). In upholding the district court’s

factual findings, the Court of Appeals emphasized the

limited scope of the successorship order and its lack of

impact on the Iverolino policy. The Court of Appeals

stated that “Delta need not change its up-or-out policy

as it applies to others in order to accord relief to plain-

tiffs’ (A. 4a), and concluded: “Delta may be free to

execute its own policies to other employees, but it is not

free to abrogate its predecessor’s obligations to plaintiffs

under the injunction” (A. 5a). Delta has presented no

issue of novelty or importance that would warrant this

Court’s review of the “highly fact-specific enterprise”

(A. 5a) of successorship determination in this case.

Ill. THE “CONTINUITY” FACTOR WAS PROPERLY

APPLIED

The Court of Appeals’ treatment of the “continuity”

or “sameness” prong of the successorship test is fully

consistent with the treatment given it by this and other

courts, both in the context of the successorship doctrine

as a whole as well as in the context of the narrow ob-

jections raised by Delta here. In advocating a mechanis-

tic application of the continuity test, Delta disregards

this Court’s admonition that successorship is determined

by the “totality of the circumstances.” Fall River Dyeing

& Finishing Corp., 107 S. Ct. at 2237. Delta also disre-

gards the two factors which are “critical to the imposi-

tion of successor liability,” Musikiwamba, 760 F.2d at

a th ae Nh Sid tea

11

750 (A. 3a-4a)—notice to the successor of the predeces-

sor’s obligation and the inability of the predecessor to

provide relief—which were not in dispute in this case.

Delta argues that the Ninth Circuit’s finding of con-

tinuity conflicts “at least in principle” with the decisions

of other Circuits because the Court of Appeals picked

the wrong date to apply the continuity factor. Again,

Delta boosts its argument with a mischaracterization of

the record. April 1, 1987 was not “the first day after the

effective date of the expected acquisition” (Pet. 16). Delta

and Western agreed to merge in September 1986 (C.R.

421(c) Exh. F at I-1). The merger was effective in De-

cember 1986 and Western was operated thereafter as a

wholly-owned subsidiary of Delta until the merger was

completed on April 1, 1987 (C.R. 425 at 2-3; A. 2a).

Thus, April 1 was not the “beginning of a transition

period” (Pet. 13), but rather was a date months after

Delta acquired Western.

There is no authority to support the proposition that

successorship determination should await some wholly

arbitrary future date set by the acquiring company “af-

ter the dust settles” (Pet. 18). In duty-to-bargain suc-

cessorship cases where the appropriate date to deter-

mine successorship has been in issue, the NLRB’s “sub-

stantial and representative complement” standard has

been’ approved in lieu of a “full complement” standard.

Fall River Dyeing & Finishing Corp., 107 S. Ct. at 2238;

NLRB v. Jeffries Lithograph Co., 752 F.2d 459, 464

(9th Cir. 1985). The “complement” test is obviously im-

portant in the collective bargaining context, because the

determination of the will of the majority may shift with

changes in workforce composition. In the employment

discrimination context, however, individual rights are at

stake, so there is no reason to wait beyond the change

in the employment relationship to determine successor-

ship. In any event, even the “complement” tests were

met here. By taking on virtually all Western employees,

12

Delta achieved both a “substantial and representative”

and “full” complement of employees immediately after

the merger.

Delta also argues that the Ninth Circuit incorrectly

focused on the pilot group and flight operations, instead

of “the overall operation of Delta’s business after the

acquisition” (Pet. 15). Delta’s argument ignores the

specific scope of the successorship inquiry here, which was

limited to the employment of 15 pilots, and ignores this

Court’s acknowledgement that an employer may be a

successor for some purposes and not others. Howard

Johnson Co., 417 U.S. at 249, 262 n. 9. Delta is also

incorrect in asserting that the successorship finding was

based “solely on the narrow factual conclusion” that the

pilot seniority lists were not integrated (Pet. 15). As the

Court of Appeals explained, continuity extended to the

entirety of the carriers’ flight operations (A. 4a).

CONCLUSION

For the foregoing reasons, Delta’s Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,

RAYMOND C. Fay .

(Counsel of Record)

ALAN M. SERWER

BELL, BoyD & LLoypD

1615 L Street, N.W.

Suite 1200

Washington, D.C. 20036

(202) 466-6300

February 1989 Counsel for Respondents

SUPPLEMENTAL

APPENDIX

ee

la

SUPPLEMENTAL APPENDIX

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV 78-2184 AWT

CHARLES G. CRISWELL, ALBERT RON, RULON H. STARLEY,

Plaintiffs,

V.

WESTERN AIR LINES, INC.,

Defendant.

FINAL JUDGMENT AND

PERMANENT INJUNCTION

[Filed May 12, 1981]

This action came on for trial before the Court and a

jury and the issues having been duly tried and the jury

having duly rendered its verdict and the Court having

signed and filed its findings of fact and conclusions of

law in the form of a memorandum opinion, pursuant to

Rule 52 (a), Fed. R. Civ. P.,

IT IS ORDERED, ADJUDGED AND DECREED:

A. Money Judgments

1. Plaintiff Criswell. The jury returned a verdict for

Criswell and against defendant Western Air Lines, Inc.

(‘Western’) in the amount of $50,393.87. This verdict

2a

covers the 28-month period from August 1978 to Novem-

ber 1980. Criswell is awarded additional liquidated dam-

ages in a like amount of $50,393.87. Criswell is further

awarded lost wages of $5,116.41 per month for the six-

month period from verdict to judgment (December 1980

to May 1981), or $30,698.46.

Recap of Damages Payable by Western to Criswell:

Actual pre-verdict damages $ 50,393.87

Liquidated damages 50,393.87

Actual post-verdict damages 30,698.46

Total $131,486.20

Plus interest on actual damages from accrual (pre-

verdict damages accruing monthly at the rate of 1/28th

of $50,393.87 per month, commencing on August 1, 1978,

and post-verdict damages accruing monthly at the rate

of $5,116.41 per month, commencing on December 1,

1980) to the entry of judgment, at the rate of seven per-

cent (7% ) per annum.

2. Plaintiff Starley. The jury returned a verdict for

Starley and against Western in the amount of $52,088.94.

Starley is awarded additional liquidated damages in a

like amount of $52,088.94. Starley is further awarded

lest wages of $5,116.41 per month for the six-month

period from verdict to judgment (December 1980 to May

1981), or $30,698.46,

Recap of Damages Payable by Western to Starley:

| Actual pre-verdict-damages $ 52,088.94

| Liquidated damages 52,088.94

Actual post-verdict damages 30,698.46

Total $134,876.34

Plus interest on actual damages from accrual (pre-

verdict damages accruing monthly at the rate of 1/28th

of $52,088.94 per month, commencing on August 1, 1978,

| and post-verdict damages accruing monthly at the rate

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of $5,116.41 per month, commencing on December 1,

1980) to the entry of judgment, at the rate of seven per-

cent (7%) per annum.

3. Plaintiff Ron. The jury returned a verdict for Ron

and against Western in the amount of $5,000. Because

Ron has continued working pursuant to a preliminary

injunction, no damage adjustment is necessary. He is,

however, awarded additional liquidated damages in a like

amount. The total money judgment in favor of Ron is

$10,000. No prejudgment interest is awarded to plaintiff

Ron.

B. Equitable Decree.

1. Plaintiffs Criswell and Starley shall immediately be

reinstated as employees by Western under the following

terms and conditions:

(a) Full seniority on the pilot seniority list, as of

their respective, original dates of hire as pilots.

(b) Each such plaintiff shall be awarded a position

as DC-10 second officer, either as was originally bid by

him or any other position as to which plaintiff would

have been entitled to have his bid awarded which was

opened for bidding on or after each such plaintiff’s

retirement.

(c) Full salary reflecting each such plaintiff’s senior-

ity and position.

(d) In-house training customarily given by Western to

DC-10 pilots downbidding or downgraded to DC-10 sec-

ond officers.

(e) Western shall restore to the respective pension

trusts all amounts paid under the Western-ALPA Fixed

and Variable Pilot Pension Plans to plaintiffs Criswell

and Starley. In satisfying the money judgments in favor

of said plaintiffs, however, Western may offset all

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amounts paid to them under the Variable Plan subse-

quent to November 1980.

2. Plaintiff Ron shall be continued in his employment

by Western as a DC-10 second officer. He shall retain his

position on the pilot seniority list.

3. With respect to all plaintiffs, Western:

(a) Shall continue to make regular, required contri-

butions to the Pilots Variable Pension Plan for each

plaintiff’s account.

(b) Shall allow each plaintiff to elect whether or not

to commence receipt of the benefits to which he is en-

titled under the Pilots Fixed Pension Plan retroactive to

his sixtieth birthday or upon actual retirement. Said

election shall be made within thirty (30) days hereof.

If any plaintiff elects retroactive commencement of pen-

sion payments, all back payments shall be at seven per-

cent (7%) interest from accrual to payment. If any

plaintiff elects deferral to actual retirement date, his

benefits shall be actuarially adjusted to reflect the shorter

life expectancy resulting from such deferred commence-

ment.

(c) May, until the first renewal of the Pilot Agree-

ment, require, in addition to current medical certificates

required by the Federal Aviation Administration, such

further medical examinations as Western deems neces-

sary or appropriate to enable it to discharge its respon-

sibilities as a certificated air carrier. Such examinations

shall be at Western’s expense.

(d) Shall not require plaintiffs to retire and shall not

discriminate against any of them in the terms, conditions

or privileges of their employment for any reason based

on age, prior to plaintiffs’ respective seventieth birthdays.

4. Western, its officers, agents, servants, employees,

and attorneys and all persons in active concert or par-

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ticipation with it who receive actual notice of this Final

Judgment and Permanent Injunction and Western’s suc-

cessors and assigns, are hereby permanently enjoined

from:

(a) Refusing or failing to permit its flight deck crew

members to work or continue to work as second officers

after age 60 for any reason based on age.

(b) Refusing or failing to consider or act favorably

upon downbids by captains or first officers for second

officer positions for any reason based on age.

(c) Continuing to enforce its policy of requiring all

flight deck personnel, including second officers, to retire

at age 60.

(d) Any further violation of Section 4(a) of the Age

Discrimination in Employment Act of 1967, as amended,

29 U.S.C. § 623 (a).

The provisions of paragraph B.3 of this Final Judg-

ment and Permanent Injunction shall apply to this para-

graph 4.

5. Western shall require that its chief executive officer

and all officers who have any responsibility over flight

operations and flight deck personnel be furnished with

a copy of and read part B of this Final Judgment and

Permanent Injunction. Within 60 days of the date

hereof, Western’s chief executive officer or such other

officer as may be delegated by him for this purpose, shall

file and serve an affidavit of compliance, certifying that

the provisions of this paragraph 5 have been complied

with.

6. The Court reserves jurisdiction over this action to

alter, amend, modify and enforce this Final Judgment

and Permanent Injunction.

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C. Attorneys’ Fees and Costs.

Plaintiffs are awarded reasonable attorneys’ fees, the

amount of such award to be determined by an order

after judgment, as provided in the memorandum opinion

filed concurrently herewith.

Plaintiffs shall recover of defendant their costs of suit.

Dated: May 12, 1981

/3/ A. Wallace Tashima

A. WALLACE TASHIMA

United States District Judge