Appendix — Smallwood v. United Air Lines, Inc.

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IN THE =e stated

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

GERALD E.

SMALLWOOD,

Petitioner,

Vv.

UNITED AIR LINES, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

AMENDED APPENDIX

WYATT B. DURRETTE, JR.*

MICHAEL C. MONTAVON

JOYCE ANN NAUMANN MASSEY

ROEDER, DURRETTE &

DAVENPORT, P.C.

3900 University Drive

Suite 300

Fairfax, Virginia 22030

(703) 691-1700

Counsel for Petitioner

* Counsel of Record

PO SUT ETE TS ST

TABLE OF CONTENTS

Opinion of the Court of Appeals

of February 28, 1984 ..... .-

Order of the District Court,

October 20, 1982 * s 7 — s . — .

Memorandum Opinion of the Dis-

trict Court, October 20, 1982 .

Order of the District Court,

September 20, 1982 . .. +... -»

Findings of Fact and Conclusions

of Law of the District Court,

September 20, 1982 . .«. « « « « «

Order of the District Court

Reopening Record, September 10,

1982 . ° . « - © * J * s a. _ . .

Order Denying Petition for Cert-

iorari, June 1, 1982 ..... -

Order of the Court of Appeals

Denying Rehearing and Rehearing

En Banc, January 8, 1982... .

Opinion of the Court of Appeals

Of October 8, 1981 .. -.« « « « -«

Order of the District Court,

November 28, 1979 .... «+ « «

a. United's Proposed Findings of

Fact . : + a s * . e 7 o .

-ji-

Page

101

102

103

105

131

132

Page

b. Findings and Conclusions from

the Bench, November 28, 1979 144

ll. 29 U.S.C. §§ 621, 623, 626 (1975) 152

12. 29 U.S.C. §$ 216(b) (1965) bo 'e 155

13. Rule 52 of the Federal Rules of

orn MOEN 8 ¢ 5 «6 «© 6 © «© « 156

wh tn

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Gerald E. Smallwood, Appellee,

-versus-

United Air Lines, Inc., Appellant.

No. 82-2116

Gerald E. Smallwood, Appellant,

-versus-

United Air Lines, Inc., Appellee.

Appeals from the United States District

Court for the Eastern District of

Virginia, at Alexandria. Albert V.

Bryan, Jr., District Judge. (C/A 79-446)

Argued: November 1, 1983.

Decided: February 28, 1984

Before RUSSELL, HALL and MURNAGHAN,

Circuit Judges.

Herbert Prashker (William E. Hickman,

Poletti, Freidin, Prashker & Gartner on

brief) for Appellant in No. 82-2115, and

for Appellee in No. 82-2116; Wyatt B.

Durrette, Jr. (Michael C. Montavon,

Joyce A. Naumann, Roeder, Durrette &

Davenport, P.C. on brief) for Appellee in

No. 82-2115 and for Appellant in

No. 82-2116.

RUSSELL, CIRCUIT JUDGE:

This is an action under the Age Dis-

crimination in [sic] Employment Act

(ADEA)1 in which the plaintiff (Small-

wood) challenges the refusal of the de-

fendant United Air Lines, Inc. (United)

to process his application for employment

as a flight officer under a rule provid-

ing that an application for employment as

a flight officer would not be processed

if the applicant were over 35 years of

age. The plaintiff was shown on his

application to be 48 years of age. At

trial of the action the defendant sought

to defend against the charge of a statu-

tory violation by asserting, first, that

its rule under which it refused to

process plaintiff's application met the

requirements of a bona fide occupational

129 U.S.C. § 621, et seq.

atin

qualification (BFOQ) within the Act, 2

and, second, that the plaintiff would not

have been hired as a flight officer even

if there had been no age discrimination.

The district judge, however, confined the

trial to the validity of the BFOQ claim

and refused to permit the defendant to

develop fully, or to rule on the defend-

ant's second defense.3 At the conclusion

of the testimony, the district judge

upheld the validity of the BFOQ defense

and ordered the complaint dismissed. On

appeal by the plaintiff, we reversed,

finding the defendant's rule not to be a

229 U.S.C. § 623(f)(1).

3See Smith v. Secretary of the Navy,

659 F.2d 1113, 1119-20 (D.C. Cir. 1981);

Day v. Mathews, 530 F.2d 1083, 1084-85

(b.C. Gat. Eerer<

acacia

valid bona fide occupational qualifica-

tion.* Since the district court had not

ruled on defendant's second defense, we

remanded the cause for trial of that

issue, i.e., whether the defendant would

not have hired the plaintiff if there had

been no age discrimination. Smallwood

v. United Air Lines, Inc., 66l F.2d 303

(4th Cir. 1981).

After the remand and in preparation

for the second trial, the parties engaged

in discovery. Because of the direction

of such discovery as pursued by the

defendant, the plaintiff filed a motion

for clarification of issues. In support

of his motion, the plaintiff argued 1)

that the earlier decision had resolved

4%t is odd that in Murnane vy.

American Airlines, Inc., 482 F. Supp. 135

(D.C.D. 1979), aff'd., 667 F.2d 98 (D.C.

Cir. 1981), cert. denied, 456 U.S. 915

(1982), on which the plaintiff relies on

this appeal, the court held that a rule

similar to that involved in this case was

a valid BFoQg.

all issues in the case, including the

defense that the defendant would not have

hired the plaintiff if there had been no

age discrimination; and 2) that, even if

that latter issue were still relevant on

remand, the defendant was strictly re-

stricted in proof of such defense to

evidence on “matters arising subsequent

to [the first] trial." During argument

on the motion, the district judge re-

marked that the Court of Appeals’ opinion

in the first appeal was “almost a direc-

tion for [him] to consider aspects of the

case which [he] didn't consider" and that

“the prudent way to proceed [was] to

allow the defendant to introduce this

additional [evidence which] is apparently

not a great deal of evidence." He opined

that if the case went back to the Court

of Appeals ttie record would thereby be

in a position that [the Court of

Appeals] can decide [the case] and not

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send it back here for any more testi-

mony." For this reason, he said, it was

proper “to get all that has to be gotten

or is proffered by either side into this

record now, so that we can decide this

case finally, if possible." After the

hearing, the district judge denied the

motion and, in the exercise of his

discretion allowed "the reopening of the

record and receipt of evidence on the

question whether plaintiff would have

been hired by the defendant regardless of

age." The cause thereafter proceeded to

trial. Both parties offered evidence and

at the conclusion of the trial, the

district judge, by oral decision, later

confirmed by a formal judgment with a

later “clarification,” found for the

plaintiff.

In his oral decision, the district

judge began by expressing doubt that "the

wouldn't-have-hired-anyway defense" was

“available as a defense" in this case.

Without indicating the reason for such

doubt, he proceeded, however, to find

that such defense was “available as a

defense" but that the burden of

establishing such defense by the

preponderance of the evidence rested on

the defendant.> He added, however, that

in considering evidence of the

plaintiff's alleged fraud upon his former

employer [which was the defense asserted

by the defendant], "it's true that --- or

2As the Court observed in Cohen v.

West Haven Bd. of Police Com'rs, 638 F.2d

496, 502, n. 10 (2d Cir. 1980) there is

some disagreement among the Circuits on

the burden borne by the defendant in

connection with this defense. We held in

Sledge v. J.P. Stevens & Co., 585 F.2d

625, 636 (4th Cir.), cert. denied, 440

U.S. 981, (1979), that the proper burden

was that of the preponderance of the

evidence. The Fifth and District of

Columbia Circuits, however, had, in Davis

v. Board of School Com'rs of Mobile

County, 600 F.2d 470, 474 (5th Cir.

1979), modified on other grounds, 616

F.2d 893 (1980), and Day v. Mathews, 530

(Continued)

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at least there is some force to the

argument that only those facts available

to the defendant as of the time of the

rejection of the plaintiff's application

ought to be considered" but that if any

evidence after the time of the rejection

of plaintiff's application were deemed

“admissible, it seems to me the Court is

entitled to be and should be, skeptical

of after-the-fact decisions as to what

5( Continued)

F.2d 1083, 1085 (D.C. Cir. 1976), opted

for the "clear and convincing" burden of

proof. We think the district court in

this case was correct in following our

decision in Sledge, 585 F.2d at 637,

especially since it is the very rule sttd

by the Supreme Court in Mt. Healthy City

Board of Ed. v. Doyle, 429 U.S. 274, 287

(1977), quoted later, and the plaintiff

has offered no objection ot this rulikng

by the district court.

See also, Walker v. Pettit Const. Co.,

Inc., 605 F.2d 128, 129 (4th Cir. 1979),

modified on other grounds, 6ll F.2d 950;

Slatin v. Stanford Research Institute,

590 F.2d 1292, 1293-96 (4th Cir. 1979);

Dean v. American Sec. Ins. Co., 559 F.2d

1036, 1038-40 (5th Cir.), cert. denied.

434 U.S. 1066 (1978).

-19-

as did the defendant in this case,

raising the claim that its rule qualified

as a bona fide employment qualification

but adding the defense that, if the rule

were not a valid BFOQ, and there were age

discrimination, still the plaintiff would

not have been hired anyway and backpay

would accordingly not be appropriate in

the case. The court tried the two issues

together and made a ruling on both

claims. It sustained the BFOQ defense®

but proceeded, also, to dispose of the

second claim, saying in that regard:

“American contends

that since the evidence

indicates that it would

not have hired plaintiff

in any event, plaintiff

could not have been in-

jured by any alleged age

discrimination and conse-

quently is entitled to no

relief. The Court con-

curs." 482 F.Supp. at

148.

8see note 4, supra.

a%Ge

On appeal that ruling on the right to

backpay was affirmed with this statement:

"In the case at

hand, as we have already

stated, there is

‘credible and persuasive

evidence’ that appellant

would not have been

selected for the position

he claims to have been

illegally denied, whether

or not the age require-

ment he objects to was

illegally discrimina-

tory. Therefore,

applying the principles

in the Supreme Court

cases just discussed, we

conclude that appellant

Cannot prevail on this

appeal." 667 F.2d at

102, cert. denied. 456

a 915.

The Court in that case thus decided both

issues on the basis of a single record.

as piles Aaa eat Sapa RR eRe A a we RI AG a DON EI a Nas Ti

While there is no question that the

; two issues, though requiring separate and

different evidence and standards of

evaluation, can be tried together, as was

done in Murnane, that is not the only way

the issues may be tried. A court may

bifurcate the trial of the two issues.

atin

Such was the procedure in a class action

approved by us. Sledge v. J. P. Stevens

& Co., 585 F.2d at 637. The district

judge made it clear throughout the first

trial in this case that he was

considering only the violation issue.

Thus, he repeatedly- ultimately, with

considerable emphasis and finality- ruled

that he would not permit the defendant to

inquire either on cross-examination of

the plaintiff or by direct evidence fully

into the circumstances of plaintiff's

termination as a flight officer by his

previous airline employer, Overseas

National Airways (ONA). He in effect by

these rulings bifurcated the two issues

in this case. If in this case the

district court had been sustained in its

decision on the defendant's BFOQ defense

in the bifurcated trial, its method of

handling the case would have saved the

court the problem of developing a full

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record and making a ruling on the remedy

issue. We however, found on appeal that

the BFOQ defense was faulty, and remanded

the cause to resolve the remedy issue, as

we said in our first opinion. Therefore,

the sole issue on remand, for trial by

the district court, was the issue the

district court did not decide, i.e.,

whether the defendant had established by

the preponderance of the evidence that it

would not have hired the plaintiff absent

age discrimination. The resolution of

that issue required the full examination

of plaintiff's termination as a flight

officer by his former airline employer,

Overseas National Airlines (ONA).

The plaintiff, however, disagrees

with this analysis of the issue that was

presented at the second trial and that is

presented on this appeal. He argues that

the BFOQ defense (which he dGenominates as

the “statutory defense") and the remedy

o23«

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defense are not separate issues but are

interdependent and that the determination

of the first, (the BFOQ defense) is

conclusive under principles of res

judicata of the second (the backpay

remedy). He phrases this argument in his

brief thus: “Asserting a BFOQ defense

logically eliminates the other statutory

defense- that the rejection was based

upon a reasonable factor other than age

(citing Murnane, supra). Since United

asserted but failed to prove its BFOQ

defense, its liability was established,

and it cannot now rely upon the (second)

defense."2 Citing § 7(a) of the ADEA, he

urges that a finding of a violation under

the Act carries with it a mandatory

finding of entitlement to backpay, and

“precludes the defense of ‘wouldn't have

9The plaintiff identifies this

second defense a the "RFOA" defense (a

reasonable factor other than age).

atte

hired anyway' (italics in brief)." Such

an argument is manifestly contradictory

of what the Supreme Court said in

Mt. Healthy, 429 U.S. at 286-87, and what

we held in Patterson v. School District

50, 696 F.2d at 295.

In Mt. Healthv, as we have seen, the

Supreme Court directed that in discrimin-

ation cases, whether under Title VII or

under ADEA, the trial court should first

determine whether there was a violation

and that, if it found a violation, then

it should consider and resolve "the

defense of ‘wouldn't have hired anyway."

Moreover, any contention that a finding

of violation carries with it an

inescapable ruling in favor of backpay is

contradictory of our first decision in

this case in which we reversed the ruling

of the district court of no-violation but

remanded the case in order that the

district court might resolve the issue

=25<

which had not been resolved by _ the

district court in its first decision,

i.e., the issue of backpay.19 oon that

remand, which would have been unnecessary

if plaintiff's argument were sound, it

was both proper and necessary for the

district court to do what the court in

Nanty v. Barrows Co., 660 F.2d 1327, 1334

(9th Cir. 1981) said it should do in such

a situation and that is: "afford [the

defendant] the opportunity to prove by

‘clear and convincing’ evidence that [the

plaintiff] eee in the absence of

discrimination , ... would not have been

hired." And this is what was done in

this case. The dispositive question in

the case thus became whether the

defendant had satisfied its burden with

proof and, if it had, it would have

rebutted the plaintiff's claim for

1O0see 661 F.2d at 306, n. 3.

~~" =

backpay. Whether the defendant has sat-

isfied this burden depends on an analysis

of the record developed at the second

trial. We accordingly turn to the

evidence on the issue before the district

court.

As we have said, the ground on which

the defendant claimed it would have re-

fused to employ the plaintiff as a flight

officer if there had been no discrimina-

tion was the circumstances of the plain-

tiff's discharge as a flight officer by

ONA on February 13, 1976. The reasons

for such discharge were summarized in

ONA's letter of discharge addressed to

the plaintiff on that date:

“Upon a full evaluation

of all of the information

available to this Com-

pany, as well as_ the

information which you

have provided, it has

been determined that you

have, in a most calcu-

lated manner, abused

privileges which were

extended to you both as

-27-

an employee of this

Company and as a flying

officer. We have con-

cluded, based on the

available evidence, that

you misused your ATP card

in that you billed

flights undertaken by

your children to- the

Company. Moreover, and

of the utmost importance,

you secured a purchase

order for an amount in

excess of $2,000 for a

move which you knew, or

should have known, was

not actually to be

accomplished.

“Overseas National Air-

ways regards each inci-

dent to be of such a ser-

ious nature that either,

standing alone, would

constitute grounds’ for

discharge. In view of

all circumstances, this

Company has no choice but

to advise you that your

services with ONA_ are

hereby terminated."

There was later a hearing on these

reasons for discharge before a Board of

Adjustment, convened on the demand of the

plaintiff under the terms of the

agreement between the plaintiff's Union

=28-

and the airline.1ll At this hearing,

which was held on February 1, 2, 3, and 8

and May 17, 1977, the plaintiff, assisted

by a representative of his Union, and the

employer were heard. Both parties stated

their respective positions and offered

evidence in support. The plaintiff does

not contend that the hearing was unfairly

conducted or that there was any denial to

him of the right to present his evi-

dence. The record is full and complete.

All the hearings and the briefs of the

parties to the proceedings preceded the

filing of plaintiff's application for

employment with the defendant and were

llunder the collective bargaining

agreement between the Pilot's Union and

ONA, an employee discharged by the em-

ployer, had a right to demand a hearing

to investigate and rule on the discharge

before an Adjustment Board, consisting of

two members selected by the Union, two by

the employer and an impartial Referee

selected by the other members of the

Board.

o26—

fully known to the plaintiff. Later the

impartial Referee filed a lengthy report,

which was concurred in by two other

members of the Board. The members of the

Board who did not concur in the result

recommended by the impartial Referee did

not, however, take any exception to the

Referee's review of the evidence, or to

his findings on the basis of = such

evidence; their objections seemingly were

directed at the severity of the penalty.

Nor, for that matter, has the plaintiff

offered any objections to the statements

in the Referee's report, summarizing the

yr xsitions of the parties or the evidence

offered, though he does argue that the

penalty was too severe. That report and

the record are a part of the trial record

herein. It seems fair under’ these

circumstances to look to this report for

a statement of the circumstances of

plaintiff's discharge.

=30-

As the report of the impartial

Referee makes clear, the first basis for

plaintiff's discharge by ONA was the

procuring by the plaintiff of a purchase

order from ONA in June, i975, to cover

moving expenses arising out of plain-

tiff's change of base from California to

New York City. Under the agreement

between the Pilots' Union and ONA,

reimbursement was to be had for "“[mJjoving

expenses ... Only when a pilot moves from

a previous base to his new base ... if

the pilot locates within one hundred

fifty (150) miles from the new base.” In

securing the purchase order, the plain-

tiff represented he was moving to Cherry

Hill, New Jersey, a location within 150

miles of plaintiff's new base of New York

City. The plaintiff, however, did not

move, and there was no evidence he ever

intended to move to Cherry Hill. He

actually moved, as he apparently always

oie

intended to Burke, Virginia. Burke was

concededly not within 150 miles of New

York. His household goods and furniture

arrived in Burke from Caiifornia on

June 24, 1975 and were placed in a home

in Burke which the plaintiff had

contracted for on June 25.

Under the explicit language of the

agreement, as quoted above, the plaintiff

was not entitled to reimbursement for

moving expenses for his move to Burke

and, had he not represented falsely that

he was moving to Cherry Hill he would not

have had a right to the purchase order

from ONA. The plaintiff would excuse his

misrepresentation as due to a misunder-

standing of the language of the agree-

ment. The Adjustment Board was unable to

accept that excuse. We are likewise

unable to accept it. The language of the

Agreement is clear. It is inconceivable

that one with the educational background

atte

and business experience of the plaintiff

could have misunderstood the simple lan-

guage of the Agreement. The plaintiff

was a graduate engineer and a graduate

lawyer who had been both a University

instructor in law and an active legal

practitioner in several states.12 In

addition, his conduct demonstrated he

understood the Agreement's' limitation

upon a right to moving expenses. ONA

offered proof that before the plaintiff

had procured his purchase order to cover

moving expenses to Cherry Hill, he had

requested a waiver of the 150-mile limi-

tation on his right to moving expenses

and his request fiad been denied. In the

face of this conduct, the plaintiff was

in no position to claim he did not under-

l2actually, his application stated

he was engaged in the practice of patent

law at the time.

a %3=

stand the provision of the Agreement

relative to moving expenses.

Moreover, a majority of the

Adjustment Board, in their findings,

concluded that the plaintiff had misled

ONA into issuing a purchase order in his

favor for moving expenses by intention-

ally misleading ONA to believe that he

was moving his residence to a location

within 150 miles of New York. The report

points out in substantiation of this

conclusion that the plaintiff ordered

stationery with his address given as

Cherry Hill, rented a post office box and

arranged for a telephone listing (though

the listing was of an answering service)

in Cherry Hill, and, after he had moved

to Burke, had written ONA “on New Jersey

stationery, and called specific attention

to his New Jersey telephone number (which

was not at his’ ‘residence')." The

Adjustment Board majority found that at

-34-

no time, either before or after his

moving to Burke, had the plaintiff made

any effort to secure, or had any inten-

tion of establishing a home in Cherry

Hill, and that, in the Referee's opinion,

his actions in procuring stationery,

showing his address as Cherry Hill, and

the use of an answering service's number

in Cherry Hill, “suggest deliberate

deception" on the plaintiff's part. This

conduct of the plaintiff, in the

Referee's opinion, “was a most serious

act, one which would normally call for

the severest of penalties" (which it

would be assumed meant discharge).

There was, also, a second delinquen-

cy charged against the plaintiff in the

letter of termination, equally serious.

It involved the use of his ATP card in

purchasing transportation for his

Children from California east. The

purpose of issuing an ATP credit card to

flight officers was "to enable employees,

such as captains" to secure transporta-

tion “from one place to another to pick

up or leave scheduled Company flights"

but specifically such card was "not to be

used for the travel of dependents, whet-

her for personal pleasure or pursuant to

a move." The use of the card by the

plaintiff for a purpose known to him to

be improper was an inadmissible charge to

ONA.

ONA, however, had proscrastinated in

taking prompt action against the plain-

tiff after discovering this misconduct on

his part. It offered what appears to

have been plausible excuses for such

delay but a majority of the Adjustment

Board decided that, because of this

delay, an eighteen (18) month suspension

rather than outright termination was in

order. But, in agreeing to such penalty,

-36-

the impartial Referee chose to add this

statement:

"A severe penalty

certainly was warranted,

since the grievant's

misconduct was extremely

serious ....

“While rescinding

the discharge, the

undersigned wants to

emphasize that he in no

way condones the

grievant's handling of

his financial relations

with the Company. Since

pilots are virtually

unsupervised in their

daily activities, they

must be completely

trustworthy, both in

large and small

transactions."

All of these facts, so carefully

spelt out in the Report of the Referee

were exposed both by ONA's investigation

and at the Board's’ hearings, which

occured before plaintiff filed his

application for employment with the

defendant. The plaintiff sought’ to

moderate this serious transgression by

asserting that he admitted to the ONA in

o37e@

August, 1975, that he had actually moved

to Burke and not to Cherry Hill, and that

he had reimbursed ONA for his children's

transportation His admission of his move

to Burke, however, was quite some time

after he had procured his purchase order

on the representation he was then in the

process of moving to Cherry Hill, accord-

ing to the Referee's Report; his reim-

bursement for his misuse of his ATP card

occurred only after ONA had discovered

the misuse and was threatening disciplin-

ary action against plaintiff. He con-

ceded at the hearing that his actions

under investigation may have been

"questionable" and that he may have been

negligent in saying he was moving to

Cherry Hill rather than Burke, but “he

was under great [domestic] pressures" at

the time and in any event “the penalty

—

was grossly inappropriate." The

plaintiff even contended at one time that

ONA had "deliberately entrapped" him into

making admissions related to his

transgressions as an employee of ONA.

There can be under this record no

reasonable basis for finding that the

plaintiff had not engaged in misconduct

reflecting on his trustworthiness, which

misconduct led to his lengthy suspension

by ONA as a flight officer.

The district judge, in his oral

decision at the conclusion of the trial

herein finding that the above evidence

did not persuade him that the plaintiff

would not have been hired anyway, made no

specific findings of fact of his own nor

did he indicate disagreement with any of

the factual findings set forth in the

Report filed by the impartial Referee of

the Adjustment Board, filed as a part of

the record herein. The only clue to the

district judge's rationale for his

decision against the defendant's defense

appears in three comments made by him in

his oral opinion and in his. later

clarification. No one of these comments

relates to the actual facts and

circumstances of the “alleged fraud"

practiced by the plaintiff against his

employer, ONA. The factual showing in

the record of such misconduct by the

plaintiff while in the employment of ONA

seems to have been accepted by the

district judge. The district judge's

primary objection to the defendant's

defense as based on these undisputed

facts was that these facts and _ the

conclusion they required represented an

"“after-the-fact rationale," because the

afQe

facts had not been "available" to the

defendant at the time the latter refused

to process plaintiff's application for

employment. He declared that he had

great doubt whether such "after-the-fact"

evidence should be admitted but if

“admissible” it was the duty of the court

to view it with skepticism. It seems,

also, that the district judge felt that

the defendant should have, before

refusing to process the plaintiff's

application, offered the plaintiff an

opportunity to give his side of his

difficulty with ONA.

The idea that the defense, based as

it was on undisputed facts, should be

dismissed or burdened with a heavy cloak

of skepticism because it was an "“after-

the-fact rationale" is a reason that is

completely contrary to the bellwether

-4l]-

case in this area of Mt. Healthy. In

that case, the Court said:

"Initially, in this

case, the burden was

properly placed upon

respondent to show that

this conduct was a

‘substantial factor'- or,

to put it in other words,

that it was a ‘motivating

factor' in the Board's

decision not to hire

him. Respondent having

carried that burden,

however, the District

Court should have gone on

to determine whether the

Board had shown by a

a preponderance of the

evidence that it would

have reached the - same

decision as to respon-

dent's reemployment even

in the absence of the

protected conduct." 429

U.S. at 287.

adja

In short, the Supreme Court instructed

district courts in cases where the issue

is such as here that they "should" pro-

ceed to make the “after-the-fact

rationale" which the district court in

this case deprecates. Moreover, it

nowhere countenanced the idea that the

evidence on this issue was to be treated

with skepticism; the clear inference is

that such evidence was to be weighed by

the same standards as other testimony.

This construction of Mt. Healthy has

been followed in repeated decisions; in

fact, we have found no authority which

supports the district court's condem-

nation of what it chacterizes as the

"after-the-fact rationale" in this con-

text. Certainly, the court did not

follow this reasoning of the district

court in Murnane, in which, as we have

seen, the airline had, as the defendant

oii,

here, first refused to process’ the

plaintiff's application under a policy of

not processing applications for employ-

ment as a flight officer by one who was

over 40 years of age. But the defendant

was permitted to prove by other facts

later deveioped it wouldn't aes hired

the plaintiff anyway. We did the same in

Patterson, 696 F.2d 293. Moreover, this

procedure is, as the Court described it

in Gibson v. Mohawk Rubber Co., 695 F.2d

1093, 1097 (8th Cir. 1982), “[cJonsistent

with the ADEA's purpose of recreating the

circumstances that would have existed but

for the illegal discrimination" in deter-

mining whether a claimant is entitled to

backpay. And, there is nothing unusual

in a court resolving what a party to

litigation would or should have done

under certain circumstances. It is done

repeatedly in tort cases. Courts have

- 44-

not bridled in these cases at making

“after-the-fact rationale[s]." Neither

may they in cases such as this.

Similarly, there is no support in

the authorities for the doubt expressed

by the district court in its oral opinion

on the availability (“not available") of

the defense that the plaintiff “wouldn't

have been hired anyway" because that

point was not raised at the time the

plaintiff's application was initially

denied processing. Murnane is a perfect

answer to such expression of doubt. The

deferdant there did not raise plaintiff's

disqualification for employment when it

refused to process plaintiff's appli-

cation and the evidence on which it

rested its contention that the plaintiff

would not have been hired "anyway" all

involved incidents occurring months after

- 454

the court had found the defendant had

refused to process plaintiff's appli-

catic:. because of his age. Our own case

of Patterson, 696 F.2d at 295-96, is

likewise in point. There the district

court found that the defendant, in fill-

ing a vacancy of assistant principal, had

“improperly discriminated against [the

plaintiff] in violation of Title VII."

The defendant did not on appeal except to

this finding. Its defense was that “at

least four of the five interviewers [who

made the selection in question] would

have selectea another female applicant

ahead of piaintiff for reasons other than

prohibited discrimination," and thus the

plaintiff would not have been selected

"anyway." It supported this contention

with the evidence of the interviewers.

We ordered judgment in favor of the

defendant on the issue of backpay because

~46<

the evidence demonstrated that the plain-

tiff would not have received the pro-

motion had there been no sex discrimi-

nation. Even in Rodriguez v. Taylor, 569

F.2d 1231, 1240-41 (3d Cir.), cert.

denied, 436 U.S. 913 (1978), the court

said that if the defendant had offered

proof at trial [there was no bifurcation

of issues in this case] that the plain-

tiff at any time prior to trial had

failed the civil service examination, he

would have been denied backpay. In

summary, what these cases show is that

the disqualification for employment and

thus for backpay, based on a “recreating

[of] the circumstances that would have

existed but for the illegal discrimi-

nation,"13 may be established by evidence

l3Gibson v. Mohawk Rubber Co., 695

F.2d at 1097.

al Fa

which had not been developed at the time

the claimant was denied employment, pro-

vided such evidence is proved at trial of

the remedy issue. In this case, the

defendant's evidence that the plaintiff

would not have been hired absent age dis-

crimination because of the circumstances

of his discharge for misconduct by his

prior airline employer was in existence

at the time the plaintiff's application

was denied processing [a fact different

from Murnane where the evidence of dis-

qualification occurred after refusal to

process] and _ the evidence that the

defendant would not have hired anyone

guilty of such misconduct as a flight

officer was undisputed.

The feeling of consideration for the

plaintiff, as expressed by the district

judge in his comment that the defendant

should have given the plaintiff an oppor-

tunity to give his side of his contro-

- 48-

ana mY eben

versy with ONA is misplaced. Of course,

the defendant had not occasion to discuss

the plaintiff's discharge by ONA with the

plaintiff at the time it refused to pro-

cess plaintiff's application. It had

disqualified the plaintiff for employment

because his statement of his age in the

very first part of the plaintiff's appli-

cation made any inquiry into plaintiff's

prior employment unnecessary under the

defendant's BFOQ rule. It was only later

when it made inguiry of ONA that the fact

of plaintiff's discharge came to

defendant's attention. It acquired then

the full proceedings before the Adjust-

ment Board. The plaintiff had given such

explanation as he could with reference to

the two actions resulting in his dis-

charge at the hearing before that Board.

His discharge was injected into the case

at both trials in this court, though the

-49.

court at the first trial denied the

defendant opportunity to examine it

fully. At both of these trials, the

plaintiff had his opportunity to make

such explanation as he _ wished. The

tenuousness of that explanation is

evident in the record both of this trial

and of the Adjustment Board hearings. In

view of these opportunities to explain

his “side of the story" it would have

been a waste of time to request of the

plaintiff another explanation.

It is thus clear that, so far as any

of the reasons assigned even obliquely by

the district court as a basis for dis-

missing the defendant's defense, they

cannot justify a dismissal of the

defendant's defense. Moreover, the facts

in support of the defense [the grounds

for plaintiff's discharge by ONA] are

- 50.

fully detailed in the record and com-

pletely justified the defendant's

action. Under these circumstances, the

district court's conclusion dismissing

this defense based on the _ reasoning

stated by such court, is clearly

erroneous.

But the plaintiff himself, in his

brief in this Court, has sought to state

reasons other than those suggested by the

district judge for upholding the court's

decision awarding backpay. . ae

interesting that these reasons do not

relate to the accuracy of the conclusions

by the Adjustment Board majority on

plaintiff's misconduct while employed by

ONA. His reasons in effect assume the

correctness of the findings of the

Adjustment Board majority and rest on the

- 5l-

hypothesis that the plaintiff's conduct

so established and found, and as estab-

lished in the record here was irrelevant

and any evidence of such misconduct

should not have been received. It is

doubtful that the plaintiff ever raised

properly this issue before the trial

judge. Whether plaintiff did or not, it

is manifest from the record that the dis-

trict judge never ruled on the point.

Certainly, there is no reference to the

claim either in the district judge's oral

decision or his’ clarification. But,

assuming that the point is properly

before us, though, we find it without

merit.

This argument of the plaintiff is

that proof of his "alleged fraud" upon

his former airline employer which caused

that employer to discharge him is

irrelevant to his qualifications mechani-

at?

cally to operate and pilot an airplane

and is, therefore, irrelevant to the

issue to be resolved herein, which, he

contends, is confined to the ability

mechanically to operate and pilot an air-

plane such as that used by the defendant

in its operations. To be more specific:

What the plaintiff contends is that

trustworthiness, reliability and honesty

are in no way required or expected of a

pilot of a large commercial plane, to

whose substantially unsupervised com-

petency, trustworthiness, reliability,

and fidelity to the rules and regulations

is committed the safety of the scores of

passengers on the plane he pilots. We

are unwilling to accept this argument.

The logs a pilot maintains, the accuracy

of his reports, the faithful and exacting

observance of all the safety rules and

regulations and their accurate and punc-

~ 53.

tual recording, all are vital to the

safety of the plane’s passengers and all

depend on the trustworthiness, truthful-

ness and reliability of that pilot aloft,

where he operates largely free from any

effective supervision. Any argument that

the only qualification of such a flight

officer is his mechanical ability to

manipulate the various controls of the

plane completely lacks conviction. And

the evidence in this record demonstrates

the necessity for these additional

qualifications of trustworthiness’ and

reliability.

The officer of the defendant, who

had the responsibility for evaluating

applications for employment as flight

officers by the defendant, testified to

the reasons why trustworthiness and

reliability were essential qualifications

for employment by a commercial airline of

a flight officer. He said:

-54-

“Well, I think

there are two major

reasons. The first

being a general

statement that United

Air Lines is involved

with providing a ser-

vice to the public

and we have to create

an honest and sincere

image with the pub-

lic. So any employee

of United must demon-

strate integrity and

honesty. In the case

of a cockpit crew

member, however, I

think there is an

added factor that

comes into it, and

that is that cockpit

crew members for the

most part are people

that you have to

trust since you can't

oversee their oper-

ations on a day-to-

day basis. You sim-

ply can't supervise

them. If you're mak-

ing widgets, you walk

down on the floor and

see how production is

going; but in the

case of a flight

crew, they may be at

39,000 feet or two

miles up and there is

no way that you can

on a daily basis

supervise their

work. So it's doubly

important that they

demonstrate integrity

and honest."

ain

The impartial Referee on the Adjustment

Board who, undoubtedly was selected by

the other members of the Board because of

his expertise in employment relationships

involving commercial airlines, had

earlier confirmed this essential

qualification for a flight officer on a

commercial airline. He had written in

his formal report on plaintiff's

grievance against ONA: "Since pilots are

virtually unsupervised in their daily

activities, they must be - completely

trustworthy, both in large and small

transactions." Moreover, a majority of

the Adjustment Board was of the opinion

that such trustworthiness and reliability

were to be deemed requirements for the

proper performance of a flight officer's

employment. If this were not so, there

would have been no justification for an

eighteen months’ suspension of the

- 56

plaintiff or of his discharge. Nor was

this all that was in the record on this

point. The plaintiff himself had, prior

to his discharge by ONA, sat as a member

of an Adjustment Board, investigating

another flight officer's grievance

arising out of misconduct similar to that

of the plaintiff here, and the plaintiff

joined in a penalty of ane eighteen

months' suspension for the offending

employee. Thus, in the opinion of the

plaintiff, his transgression was of such

a serious character so as to justify the

severe penalty. That penalty could not

have been justified if that misconduct

had not gone to the faithful performance

of his duties and responsibilities as a

flight officer. In the face of this

record, this point loses any value.

«a Sis

Finally, the plaintiff argues that,

even if we were to conclude that it was

Clear error for the district court not to

uphold defendant's defense, this decision

should not operate to "cut-off [plain-

tiff's] entitlement to damages prior to

the time that the disqualification deter-

mination was made." In effect, the

plaintiff is contending that, though we

may find that the plaintiff would not

have been hired anyway based on facts

existing at the time he filed his appli-

cation for employment with the defendant

and facts upon which would have been

developed in a reasonable processing of

such application by the defendant - - a

finding which, the plaintiff seemingly

concedes for purposes of the argument

would foreclose a backpay award-- that

finding would only operate to bar backpay

from the date we made that determination

-58-

OOOO Eee ee es rr —— a eee ee we ee ee ae

and that for the period between the date

when he would have been employed if there

had been no disqualification and that of

our determination, he would be entitled

to backpay. This argument we find unten-

able. This question is whether the

plaintiff would not have been hired had

the defendant followed its normal pro-

cedure and processed the plaintiff's

application as it did all others. Such

processing would have included inquiries

of the plaintiff's former airline

employer as listed on his application

form. That inquiry would have elicited

the full evidence of the circumstances of

plaintiff's discharge by ONA. The infor-

mation received from ONA would have meant

the plaintiff would never have been hired

by the defendant as a flight officer.

Under those circumstances, the plaintiff

would have, like the plaintiffs in

-59.

Murnane, Patterson and Gibson, not been

entitled to backpay. Neither Rodriguez

v. Taylor, 569 F.2d 1231, nor Houghton

v. McDonnell-Douglas Corp., 627 F.2d 858

(8th Cir. 1980), the two authorities

cited by the plaintiff in support of his

theory, is on point.14

14%n Rodriguez the defendant had

stood mute after the plaintiff had estab-

lished a prima facie case, even though it

had a perfect defense that the plaintiff

would never have been employed because he

could not pass the required civil service

examination. Had the defendant offered

proof of that fact, if it had given the

test before trial and proved the plain-

tiff's failure, the defense against the

award of backpay would have been sus-

tained and the action dismissed so far as

that issue of backpay was involved. And

the Court said exactly this. What the

defendant did was to delay until after

judgment before it gave the test. That

it was this delay that was the basis for

dismissal of the defendant's defense is

obvious from this language of the

opinion:

- 60-

It follows from what we have said

that it is incontestable on the record

that the plaintiff would never have been

employed by the defendant as a flight

officer on the basis of his 1977 appli-

cation. The circumstances of his termi-

nation by ONA, fully developed in the

record, were such that, under its cus-

tomary procedure for evaluating appli-

cants for employment as flight officers,

the defendant would unquestionably not

14 (continued)

"The City might well have

satisfied its burden of produc-

tion and conclusively settled

the ultimate issue of Mr.

Rodriguez's qualifications had

they only administered to him

the written civil service exam

-6l1-

have found the plaintiff qualified for

employment. Neither the district court

nor the plaintiff has suggested a single

fact or circumstance that would support a

contrary conclusion. The district

court's purely conclusory statement

supported by no explicit fact finding, is

inadequate. EEOC v. Federal] Reserve Bank

of Richmond, 698 F.2d 633 (4th Cir.

1983); Holsey v. Armour & Company, 683

F.2d 864 (4th Cir. 1982).

14 (continued)

prior to trial. Instead, the

City failed to promptly

administer the written exam

precluding development of

material evidence on this issue

until after trial. The

importance of requiring

employers to adhere to their

evidentiary burden at trial is

underscored by consideration of

the consequences of delaying

final determinations of Mr.

Rodriguez's back pay award

until the exam was taken

(Emphasis added)." 569 F.2d at

1240.

=6 20

It remains to be decided what dis-

position to make of this appeal under

these circumstances. Ordinarily, the

procedure would be to remand the cause to

14 (continued)

The defendant in this case has not stood

mute or delayed to present its evidence

until after trial. The defendant has at

trial adduced clear proof why it would

never have employed plaintiff absent dis-

crimination.

In Houghton, the defendant had no

specific age limitation on retention of

test pilots. The plaintiff had been ter-

minated for age, it being the defendant's

contention that the plaintiff “could no

longer qualify" as a production test

pilot. The testimony was addressed to

the point whether the plaintiff was

qualified at the time he was fired and up

to February 18, 1975. Both parties

adduced testimony directed to such

point. The jury decided in a verdict

that he was so qualified.

(Continued)

att.

the district court for resolution. How-

ever, this appears to be one of those ex-

ceptional cases such as Patterson where

it is obvious from a thorough review of

the undisputed record that there is but

one possible resolution of the critical

issue on this appeal and that “any other

14 (Continued)

The court in the first appeal decided

that up to February, 1975, the plaintiff

was entitled to backpay but ruled that,

after that date, his qualifications were

open to proof. The cause was remanded to

determine that question. On remand that

question was resolved against the plain-

tiff. That case presents a situation un-

like the one here.

As we have said, neither case

parallels the present case. Unlike the

defendant in Rodriguez, the defendant in

this case sought and was denied at the

first trial the right to prove the plain-

tiff's disqualification for employment;

at the second trial, however, the

defendant did establish such disqualifi-

cation.

- 64.

ee a

resolution by the district court would be

Clearly erroneous." In that situation it

is not necessary to follow the unusual

rule of remanding the cause to _ the

district court for further action: it is

appropriate for us to make the finding

that the defendant would not have hired

the plaintiff if there had been no age

discrimination and thus’~ reverse’ the

finding of the district court that the

plaintiff is entitled to backpay and

order dismissal of plaintiff's claim to

the processing of his application and to

backpay.

Reversed and remanded for the entry

of an appropriate judgment.

- 65.

IN THE UNITED STATES COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

GERALD E. SMALLWOOD, )

)

Plaintiff, )

)

V. ) CIVIL ACTION

) NO. 79-466-A

UNITED AIR LINES, INC., )

)

Defendant. )

ORDER

For the reasons set forth in

the Memorandum Opinion this date filed,

it is hereby ORDERED that:

l. The defendant United Air

Lines, Inc., shall forthwith process the

employment application of the plaintiff,

Gerald E. Smallwood. The processing of

Mr. Smaliwood's application shall

commence at the point previously

terminated and shall include all normal

testing, training and evaluative

procedures as applied to all applicants

processed at the time of his original

application.

-66-

All such processing shall be completed by

January 1, 1983. Provided he success-

fully completes the application process,

the plaintiff Smallwood shall be included

in and trained with the first class to

enter United's Flight Training Center

upon the event of its re-opening. For

purposes of initial training, the pro-

bationary year of employment and all

further and future recurrent training,

Smallwood shall be treated in like manner

as a United Air Lines employee similarly

situated. Provided he successfully

completes Flight Training Center initial

training, Smallwood shall receive all

rights and benefits normally afforded

United Air Lines pilot employees,

including seniority and longevity rights

as though he had been hired with the

Class of January 9, 1978.

siFe

2. On issues related to

Smallwood's pension benefits, the court

finds that Smallwood shall have the right

to elect between the alternatives that

would have been available to him if he

had been hired with the class of January

9, 1978 and furloughed on September 15,

1981. These alternatives include allow-

ing pension contributions to remain on

deposit for an accrued monthly benefit of

$182.27 per month upon attaining age 60,

or electing to receive the present cash

value of the fund in the amount of

$10,720.63. Plaintiff Smallwood shall

make his election in this regard within

sixty days of the date of this order.

3. Attorneys’ fees and costs

are granted as follows:

Attorneys’ fees $125,000.00

Costs 2,160.30

Total $127,160.30

-68-

4. The order of September 20,

1982 is amended so that the date appear-

ing on the last line in the text on the

second page reads January 9, 1978,

instead of January 9, 1981.

/s/

United States District Judge

Alexandria, Virginia

October 20th, 1982

- 69 -

oe NON ata.

a 2

IN THE UNITED STATES COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

GERALD E. SMALLWOOD,

Plaintiff,

V. CIVIL ACTION

)

) NO.79-466-A

)

UNITED AIR LINES, INC., )

)

Defendant. )

MEMORANDUM OPINION

As contemplated by the court's

order of September 20, 1982, injunctive

relief and the extent of plaintiff's

entitlement to an award of costs and

attorneys' fees were to be the subject of

a future decree and ruling, respective-

ly. The defendant also asked for a

clarification of the court's prior

ruling.

Attorneys‘ Fees

Under Anderson v. Morris, 658

F.2d 246 (4th Cir. 1981), the court

should first determine the number of

oFeu

hours the requesting attorneys reasonably

expended in the prosecution of the

action, and multiply that by the

attorneys’ customary hourly rate of com-

pensation. The figure thus'- reached

should then be adjusted using the other

ten factors outlined in Barber v.

Kimbrell's, Inc., 577 F.2d 216, 226 (4th

Cir. 1978).1/

The determination of what hours

were expended is not to be made by

blindly accepting the attorneys' time

sheets. Instead a determination of what

is reasonable must be made.

le Factors 1 and 5 of the 12 factors

prescribed by Barber are those

factors which, under Anderson,

enable the court to arrive at the

initial figure.

Here the plaintiff asserts that

approximately 1,070 hours were expended

by various attorneys on the case, and 317

hours by persons who were law clerks or

paralegals. The total amount claimed, at

current rates, on strictly a time basis

is $112,198.50. In the court's view,

current rates are an appropriate factor

to be considered in view of the delay in

any payment during the progress of the

suit, inflation, and lack of § any

allowance of interest. The suit has been

ongoing since May 18, 1979. In addition

to the $112,198.50, asserted as_ the

“lodestar" figure, plaintiff asserts that

the other factors to be considered by the

court warrant an increase of the fee to

$200,000.

An examination of the

plaintiff's time sheets reveals no

ascertainable duplication of work or any

= Tow

wasted effort or proliferation of

attorneys. While there is some travel

time, the court is unwilling to reduce

the award on this basis. The attorneys

had to travel and that time is time that

they could have used otherwise at their

regular hourly rate. The employment of

paralegals for routine tasks and law

clerks for research are practices now

accepted in most law offices, and while

the time required for a paralegal or law

clerk to do the work may be longer than

the time required for an attorney to do

it, this probably averages out in the

differences in the hourly rates charged.

No unnecessary pleadings were filed in

the case. It was appropriate for the

plaintiff to prepare for the expected

defenses, particularly the economic

defense anticipated at trial. The use of

two attorneys, review by those attorneys

oa 73

of the work of the paralegals and law

clerks, and the telephone calls and con-

ferences all seem reasonably necessary to

a proper prosecution of the case. Nor

can the court say that the time spent in

monitoring the Murnane2/ case was waste-

ful. It could well have resulted in a

more expeditious handling of the instant

case. Accordingly, the court finds that

the hours expended were reasonable.

Moreover the court also finds that the

rates charged for this type of work and

consistent with the rates charged for

that work in this geographic area.

Novelty and difficulty of the ques-

tions raised. The case was not complex

factually. It was tried in a day. The

ae Murnane v. American Airlines, Inc.,

462. F.Supp. 135 (D.D.C. 1979),

aff'd. 667 F.2d 98 (D.C. Cir. 1981),

cert. denied U.S. (1982).

-~74-

plaintiff presented three witnesses and

the defendant two. However, the legal

issue presented was novel if not com-

plex. Until the decision of the Court of

Appeals, apparently no court had decided

the precise issue granted in plaintiff's

favor. Indeed the Murnane case was

apparently against the plaintiff. Some

upward adjustment is warranted under this

factor.

The skill required to perform

properly the legal services rendered.

Counsel for plaintiff performed their

tasks well. Faced with an adverse ruling

at the trial court, they obtained a

reversal by the Court of Appeals and suc-

cessfully opposed the defendant's appli-

cation for certiorari to the Supreme

Court. On remand they were successful in

defeating the defendant's alternative

“wouldn't-have-hired-anyway" defense.

= 7S-

That the case was tried in the

district court in such a relatively short

time was in part because it was well

organized and expeditiously presented.

The written submissions were expertly

prepared and the legal issues thoroughly

researched. Some upward adjustment is

warranted under this factor.

The attorney's opportunity

costs in pressing the instant liti-

gation. There is no evidence that in

accepting this engagement counsel for the

plaintiff forewent any other retainer,

although of course time was spent on this

action which presumably could have been

profitably spend for other paying

clients. There is no indication that

counsel have time on their hands, or that

this was their firm's only case or one of

relatively few cases.

The attorneys' expectations at

the outset of the litigation. The case

was Originally taken on a contingent fee

basis of 1/3 of recovery (PX 8). After

the October 8, 1981 decision of the Court

of Appeals the fee arrangement was

modified by letter of May 6, 1982 (PX

8). That letter indicates that the

original 1/3 fee arrangement extended

only through trial and, indeed, the 1/3

contingent fee arrangement so provides.

At the original trial of course the

plaintiff secured nothing. While there

is authority for the proposition that a

litigant should not be awarded a fee

greater than he was contractually bound

to pay, Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714, 718 (5th

Cir. 1974), under the circumstances here

it would be unfair to limit attorneys’

fees to 1/3 of the monetary recovery.

aWa

CO i a era ae gen re” - i sell Ns il il tl i a ll lB he ee — ” - Li

The time limitation imposed by

the client or circumstances. This is not

a relevant factor in this case. The only

time limitation was a rather’ tight

discovery and trial schedule imposed by

the court - a limitation suffered by all

litigants in this court.

The amount in controversy and

the results obtained. The amount in con-

troversy has turned out to be approxi-

mately $185,000. This, however, should

not in this case be determinative of an

appropriate fee. The result obtained

insures his being reprocessed for hiring,

and the ruling of the Court of Appeals

will benefit others. Some upward adjust-

ment is warranted in this factor.

Experience, reputation and

ability of counsel. The reputations of

counsel for the plaintiff are excellent,

but not so great that they would put

their services at a premium sufficient to

warrant an increase or up\.ard adjustment

in the fee.

The undesirability of the case

within the legal community in which the

suit arose. There is no indication that

this case is undesirable from the point

of view of counsel's contemporaries.

The nature and length of the

professional relation between attorney

and client. There is no evidence that

this is anything except a single instance

of representation of this plaintiff by

these attorneys.

Attorney's fees awarded in

Similar cases. Fees in cases of this

novelty which progress through the Court

of Appeals and the Supreme Court are

substantial. While novel, however, the

issue was narrow; the nu:ber of others

- 79

benefited by the ruling is not shown to

be great; the amount of time spent on the

case in its preparation and particularly

its trial, is not unusual, although the

result obtained, as indicated, is

excellent. Under these circumstances,

with a monetary recovery of $185,000,

similar cases command a fee in the

$100,000 range.

In light of the foregoing, a

fee of $125,000, representing a lodestar

figure of $112,000 plus a bonus for the

factors warranting adjustments of

approximately 10%, will be awarded.

Costs

Costs disbursed in the amount

of $3,854 are requested. In the court's

view such things as telephone calls,

Xeroxing, copying costs, and delivery

service costs are part of ordinary office

overhaad. While they may be appropriate

-80-

in billing a private client, they ought

not to be assessed against a third

party. The travel and lodging costs of

Mr. Huennekens for a trip to Fairfax

apparently to assist in legal research

will not be allowed. Nor will the mile-

age and parking costs. Those costs which

will be allowed are:

Court costs $ 515.18

Deposition costs 581.70

Printing costs 584.42

Expert witness fee 479.00

Total $ 2,160.30

Injunctive Relief

Each party has submitted a pro-

posed injunction. The court finds the

one proposed by the defendant to be

appropriate and has incorporated it in

the order atcompanying this Memorandum

Opinion. The plaintiff's submission

included a determination of the amount

owed under the pension plan and a

doubling of this amount as liquidated

damages as well as a retention of juris-

atts

diction to determine, apparently,

whether, if the plaintiff is rejected for

reasons other than age, that rejection is

proper. The court is unwilling to award

the liquidated damages as requested but

prefers to allow the plaintiff the option

referred to in the order. Moreover the

court sees no need to monitor. the

defendant's processing of the plaintiff

for hire.

Clarification

The court is of the opinion

that its order of September 20, 1982

adequately addresses the issue on which

the defendant seeks clarification; how-

ever, lest there be any uncertainty in

the matter, the court found that the

defendant had not shown by a preponder-

ance of the evidence that it would not

have hired the plaintiff in any event

-2 -

because of the plaintiff's alleged fraud

against his prior employer. The court's

feelings at the time it ruled, as well as

now, are that the after-the-fact

rationale and testimony of the defendant

in this regard, particularly where no

opportunity had been given the plaintiff

to explain the prior transaction with his

former employer, were just not

persuasive.

/s/

United States District Judge

Alexandria, Virginia

October 20th, 1982

IN THE UNITED STATES COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

GERALD E. SMALLWOOD, )

)

Plaintiff, )

)

V. ) CIVIL ACTION

) NO.79-466-A

UNITED AIR LINES, INC., )

)

Defendant. )

ORDER

For the reasons stated from the

bench, which the court adopts as its

findings of fact, it appearing that the

defendant has not shown by a preponder-

ance of the evidence that it would not

because of reasons other than age have

employed the plaintiff anyway; that the

plaintiff would have been employed with

those persons who were employed by the

defendant on January 9, 1978; and that

the defendant's conduct was wilful under

Spagnuolo v. Whirlpool Corporation, 641

F2d 1109 (4th Cir. 1981), in that the

defendant was aware, at the time in ques-

tion here, that its conduct was governed

by the Age Discrimination in Employment

Act,

it is hereby ORDERED that:

l. The plaintiff will be awarded

damages for back pay and fringe benefits

computed as follows:

Average salary from 1/9/78

to 9/15/811/ $112,832.86

Fringe benefits 1/9/78 to

9/15/81 9,313.452/

122,146.31

Less: Total Earnings 29,645.00

92,501.31

Liquidated Damages 92,501.31

Total $185,002.62

Those persons in the "class of

January 9, 1978, were furloughed

over the period August 1, 1981

through October 31, 1981. Since it

is impossible to state at what time

the plaintiff would have been

furloughed or what option he might

have taken which would have allowed

him to continue employment to a date

between August 1 and October 3l, the

2. Judgment is awarded in favor of

the plaintiff Gerald E. Smallwood against

the defendant United Air Lines, Inc., in

the amount of $185,002.62.

3. The court retains jurisdiction

to make an award of costs and attorneys'

fees and to enter an injunction with

regard to the terms and conditions of

defendant's employment of the plaintiff

as of January 9, 1981.

/s/

United States

District Judge

Alexandria, Virginia

September 20th, 1982

Le (Continued)

court has taken the mid-point

between these two dates, September

15, 1981.

2. The fringe benefits actually total

$44,698.96; however, all of that

except $9,313.45 would have been put

aside for the plaintiff's benefit in

a pension plan. The injunctive

relieve to be awarded shall provide

that the plaintiff shall have the

same options with regard to _ the

pension as he would have had he

worked until September 15, 1981.

- 86-

lll

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

GERALD E. SMALLWOOD

Plaintiff

Civil Action

UNITED AIR LINES, INC.

Defendant :

Monday, September 20, 1982

Alexandria, Virginia

Transcript of the trial proceedings

in the above captioned matter.

BEFORE:

The Honorable ALBERT V. BRYAN,

JR., Judge United States District Court

APPEARANCES :

FOR THE PLAINTIFF:

WYATT B. DURRETTE, JR., Esquire

OF: MALONEY AND CHESS

3900 University Drive

Fairfax, Virginia 22030

FOR THE DEFENDANT:

HANS U. STUCKI, Esquire

-87-

Page 97

Lines 16-25

THE COURT:

Whether the wouldn't-have-

hired-anyway defense is

available to the plaintiff

in this case is a serious

question. I think it is

available as a defense.

Needless to say, the bur-

den is on the defendant

asserting it to prove it

by a preponderance of the

evidence. And it's true

that -- or at least there

is some force to the argu-

ment that only those facts

available to the defendant

as of the time of the

rejection of the plain-

tiff's application ought

to be considered.

-88-

FR IRIS EL IEP PIES MLE IRE TA IO IS AIRE AE MI 0S NEE TNY H FI " EF PRIEY PE: tae —

Page 97

(cont' )

Page 98

e*s mw Little

hard to recreate the situ-

ation as

it existed then, but

assuming that the addi-

tional evidence adduced

today by the defendant is

admissible, it seems to me

the Court is entitled to

be, and should be, skep-

tical of after-the-fact

decisions as to what the

defendant would have done

had it known what it knows

now.

The inquiry that

could have been made then

was foreclosed by an act

-39-

Page 98

(con't)

which has now been deter-

mined to be - discrimi-

natory. Had there been an

absence of the discrimi-

natory rejection because

of his age, then a suit-

able inquiry would have

been made as to whether or

not this plaintiff was an

employee, whether or not

his activity with his

former employer was such

that it would warrant the

defendant from rejecting

him as an applicant. As I

say, that inquiry has been

foreclosed by what has now

been determined to be a

discriminatory act on the

part of the defendant.

~$O -

Page 98

(con't)

It seems to me

the stating that he was an

employee is robbed of some

of its sinister character

by the fact that his

former employer was

listed. It was reasonable

to assume that his pro-

spective employer, United,

would contact his former

employer, where that

former employer would give

its view of whether he was

still an employee, what

were the circumstances

under which he was ter-

minated, if he was

actually terminated, and

then, as did happen in all

of the other instances in

which terminations or

refusal to

a@ie@

Bivied S20 ith ears WO a tae ce ai a tone

kei cantar nine the

rarer

Page 99

continue with the proces-

sing of applications, the

applicant himself would

have been either inter-

viewed routinely or some

conversation with him had

so that he could have at

least have given his side

of the story. That was

not done here.

As I say, the

reason it was not done was

because he was rejected on

the basis of his age, a

reason which has now been

determined not to be

proper and to have been

actually a violation of

the Age Discrimination

[sic] Employment Act.

=92<

Soh pb eth AAG IAT > Me

LB ni a TA AEE AS) te

Page 99

(con't)

I find that the

defendant has not borne

its burden of proof by a

preponderance of the

evidence that he would

have been hired anyway

after viewing their

evidence, bolstered as it

has been in the interim

between the November 1979

hearing and now.

It will there-

fore be the judgment of

the Court that the

plaintiff is entitled to

damages and injunctive

relief.

I find, however,

that the class in which

this plaintiff would have

been hired was the January

=9}-

k= siamese

Page 99

(con't)

Page 100

9 class. The January 3

class, the evidence

convinces me, was made up

of those persons who were

hired and had to be hired

pursuant to a consent

decree in another court

proceeding and those

navigators who were

included in that class.

This plaintiff would not

have been included in the

class of January 3. He

would have been, had he

been hired, included in

the class

of January 9, 1978, I

find.

I Know there is

a difference in the

computation of the damages

-94-

Page 100

(con't)

as between the plaintiff,

which he submitted this

morning, and the

defendant's, and I have

not had an opportunity to

compare those. I will

before I enter my final

decree.

Insofar as liqui-

dated damages are con-

cerned, under the

Spagnuolo-Whirlpool case,

the test of willfulness is

no more than that’ the

defendant was aware that

its conduct was governed

by the Age Discrimination

and [sic] Employment Act.

There is no - suggestion

here that the defendant

was not sO aware, and I

~-95-

Page 100

(con't)

find that it was. There-

fore, those damages will

be doubled under the Fair

Labor Standards Act, of

which the Age Discrimi-

nation Act is a part.

It will, in

addition to that award,

double. There will be an

injunction directing that

the defendant process the

plaintiff as it would any

other person accepted for

hire on January 9, 1978,

that he should be sub-

jected to the same train-

ing, physical, mental,

psychological examination

that any such person would

have undergone. While

it's a little hard to make

Page 100

(con't)

Page 101

any distinction between

any present physical ail-

ment he has and any that

he may have had then, if

he has a present ailment,

which would prevent his

flying, I am not going to

be the one that directs

him to be allowed to fly.

But insofar as the train-

ing is concerned, I will

allow them to take into

account whether he should

be retained prospectively

from now in his present

physical and mental

state. But insofar as

whether he would have been

processed to hire as of

January 1978, his condi-

tion would be as of then,

o FJ =

Page 101

(con't)

and he will be, = should

that show that he would

have passed his physical

and mental tests as of

then, he will be treated,

as far as damages are con-

cerned, as though he had

been, subject of course to

the other training that he

will have to now undergo.

I will make the

determination on attor-

ney's fees. I think the

plaintiff is entitled to

them. The plaintiff has

submitted in some detail

its request for attorney's

fees. The defendant has

not addressed that yet.

-98-

cer hd sna oan ta band dA SMES AAG el cab AMADA BBN Nese OTE i Pat

Page 101

(con't)

How long do you

want before you do address

that?

MR. STUCKI: You

mean here today, Your

Honor?

THE COURT: No.

I don't require that it be

done here today.

MR. STUCKI: I

suppose in ten days is

reasonable.

THE COURT: Yes,

indeed. I would be

interested in some

language on the injunctive

relief, which has not been

written in granite here,

being submitted to the

Court by both Mr. Durrette

and a response to that. I

af} ~

Page 101

(con't)

will hold up on entering

the injunctive relief

until counsel have had an

opportunity to do _ that,

and at the same time I

will make a final award on

counsel fees. The sooner

you can do that and....

-100-

IN THE UNITED STATES COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

GERALD E. SMALLWOOD,

Flaintiff,

CIVIL ACTION

)

Vv. )

NO.79-466-A

)

UNITED AIR LINES, INC.,

Defendant.

ORDER

Upon consideration of the

motion of the parties for clarification

as to the scope of the hearing now set

for September 20, 1982, it is hereby

ORDERED that the court exercise

its discretion to allow the reopening of

the record and receipt of evidence on the

question whether plaintiff would have

been hired by the defendant regardless of

his age.

/s/

United States District Judge

Alexandria, Virginia

September 10th, 1982

-101-

ee Sere

U.S. SUPREME COURT REPORTS 73 L Ed 2d

No. 81-1883. United Air Lines, Inc.,

Petitioner v. Gerald E. Smallwood

456 US 1007, 73 L Ed 2d 1302, 102 S Ct

2299.

June ll, 1982. Petition for writ of

certiorari to the United States Court of

Appeals for the Fourth Circuit denied.

Same case below, 661 F2d 303, 26 BNA

FEP Cas 1655, 27 CCH EPD @ 32130.

1302

-102-

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 80-111

Gerald E. Smallwood, Appellant,

versus

United Air Lines, Inc., Appellee.

No. 80-1153

Gerald E. Smallwood, Appellee,

versus

United Air Lines, Inc., Appellant.

ORDER

The petition for rehearing

filed by United Air Lines, Inc. and

suggestion for rehearing en banc has been

submitted to the court. A poll of the

court was requested, and in the poll a

majority of the judges eligible to vote,

voted to deny rehearing en banc.

The pane. considered the

petition for rehearing and is of the

Opinion that it should be denied.

-103-

RP Poet

1 naaaebadNines®

It is ADJUDGED and ORDERED that

the petition for rehearing and suggestion

for rehearing en banc are denied.

Entered at the direction of

Judge Sprouse.

For the Court

FILED

Jan - 8 1982

U.S. Court of Appeals /s/

Fourth Circuit CLERK

-104-

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 80-1111

Gerald E. Smallwood,

Appellant,

Vv.

United Air Lines, Inc.

Appellee.

Equal Employment Opportunity Commission,

Amicus Curiae.

No. 80-1153

Gerald E. Smallwood

Appellee,

Vv.

United Air Lines, Inc.

Appellant.

Equal Employment Opportunity Commission,

Amicus Curiae.

Appeals from the United States District

Court for the Eastern District of

Virginia, at Alexandria. Albert V.

Bryan, Jr., District Judge.

Argued: February 3, 1981

Decided: October 8, 1981

Before HAYNSWORTH, Chief Circuit Judge,

SPROUSE and ERVIN, Circuit Judges.

-105-

FE EAE ON Rar, § 08S Ok

cpa Seay atl mh wate ap 0S

Melissa Langa, Equal Employment

Opportunity Commission (Leroy D. Clark,

General Counsel, Constance L. Dupre,

Acting Associate General Counsel, Vella

M. Fink, Acting Assistant General Counsel

on brief) for Amicus Curiae; Wyatt B.

Durrette, Jr. (Michael C. Montavon,

Chess, Durrette & Roeder, P.C. on brief)

for Appellant; Hans U. Stucki, United Air

Lines, Inc. (Gregory L. Murphy, Murphy,

McGettigan, McNally and West on brief)

for Appellee.

CORRECTED OPINION

(Pages 13 & 14)

-106-

SPROUSE, Circuit Judge:

Gerald E. Smallwood, plaintiff

below, appeals the judgment of the

district court in favor of the defendant

United Airlines, Inc. in his age

discrimination action. After a bench

trial, the district court found that

United's rule denying employment to pilot

applicants cver the age of 35 was a bona

fide occupational qualification (BFOQ)

and that the airline did not violate the

Age Discrimination in Employment Act! by

refusing to employ Smallwood because of

129 U.S.C. §§ 621-34. The Act's

statement of findings and purpose is

found at 29 U.S.C. §$ 621:

(a) The Congress hereby finds

and declares that-

(1) in the face of

rising productivity and

affluence, older workers

-107-

his age. The major issue on appeal is

whether the trial court's decision was

clearly erroneous in finding factually

Footnote 1 continued:

find themselves disadvant-

aged in their efforts to

retain employment, and

especially to regain

employment when displaced

from jobs;

(2) the setting of

arbitrary age limits

regardless of potential

for job performance has

become a common practice,

and certain otherwise

desirable practices may

work to the disadvantage

of older persons;

(3) the incidence of

unemployment, especially

long-term unemployment

with resultant deteriora-

tion of skill, morale, and

employer acceptability is,

relative to the younger

ages, high among older

workers; their numbers are

great and growing; and

their employment problems

grave;

(4) the existence in

industries affecting com-

merce, of arbitrary dis-

crimination in employment

-108

that United had sustained its burden of

showing that this age requirement is a

BFOQ. We reverse.

Footnote 1 continued:

because of age, burdens

commerce and the free flow

of goods in commerce.

(b) It is therefore the pur-

pose of this chapter to promote

employment of older persons

based on their ability rather

than age; to prohibit arbitrary

age discrimination in employ-

ment; to help employers and

workers find ways of meeting

problems arising from the

impact of age on employment.

The operative section of the Act provides

that

(a) It shall be unlawful for

an employer

(1) 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;

(2) to limit, segregate,

or classify his employees

-109-

Smallwood applied to United for

a position as a Flight Officer? in

August, 1977. At that time he was 48

years old and had flown 10 years for

Footnote 1 continued:

in any way which would

deprive or tend to deprive

any individual of

employment opportunities

or otherwise adversely

affect his status as an

employee, because of such

individual's age; or

(3) to reduce the wage

rate of any employee in

order to comply with this

chapter.

29 U.S.C. § 623(a). The Bona Fide

Occupational Qualification exception

provides that

It shall not be unlawful for an

employer, employment agency, or

labor organization-

(1) to take any action

otherwise prohibited under

subsection (a), (b), (c),

or (e) of this section

where age is a bona fide

occupational qualification

reasonably necessary to

-110-

————

Footnote 1 continued:

the normal operation of

the particular business,

or where the differentia-

tion is based on reasona-

ble factors other than

age;

29 U.S.C. § 623(£)(1).

At trial, it was conceded by all

parties that United's policy differenti-

ated on the basis of age, and that

Smallwood was within the class of persons

protected by the Act. Therefore, the

only issue at trial was whether United's

policy constituted a BFOQ.

2united's operational scheme classi-

fies members of aircraft crews as Flight

Officers. Within this classification are

| three positions of seniority and respon-

| sibility. All new hires begin as Second

Officers, or flight engineers, and then

may advance to First Officer, or Co-pi-

lot, and finally to Captain, the command

officer on each aircraft. The record

discloses that United operates a variety

of aircraft ranging from the B-737 jet to

the larger and more sophisticated B-747.

| A normal line of progression has a Flight

| Officer beginning as a Second Officer on

a B-737 and moving up in equipment until

they are a Second Officer on a B-747.

They would then return to the B-737 as a

First Officer, or Co-pilot, and again

move up through United's aircratt fleet.

A like system is used for advancement as

a Captain.

-111-

Lier ieee

Bees: Swe. Se. «

Overseas National Airways (NA) in a

variety of positions.3 United replied to

Smallwood's employment application with a

form letter which listed United's “basic

qualifications." Next to "Age 21 through

29" appeared a light pencil checkmark.

The letter stated that United could not

offer “immediate encouragement," but that

Smallwood's application would be retained

on file should future reconsideration be

warranted. Smallwood replied, requesting

reconsideration in light of “our national

policy against age discrimination in

3The record indicates that Smallwood

joined the ONA in 1967 and served as a

first officer and captain on DC-8, DC-9

and DC10O aircraft. It should be noted

that United's aircraft fleet includes

both DC-8 and DC-10 aircraft and that

Smallwood received flight training while

at ONA at United's flight training

facilities. ONA ceased operations

shortly after Smallwood was furloughed in

1977. United contended at trial and on

appeal that Smallwood was terminated from

employment with ONA for misconduct, which

Smallwood denied. This issue was not

resolved at trial.

-112-

employment." United replied in December,

1977 that, while Smallwood possessed

"fine qualifications," the airline was

only processing applications from

applicants %1 through 35 years of age.

In March, 1978 Smallwood notified the

Wage and Hour Division of the Department

of Labor that he was charging United with

age discrimination and would resort to

private litigation if necessary. A

conciliation hearing was held between

Smallwood, representatives of the

Department of Labor and United in April,

1978. On May 5, 1978, United notified

Smallwood that while its pilot

progression system was designed in the

interest of the flying public, there were

significant costs involved in the

training of pilots, and when coupled with

federally-mandated retirement at age 60,

a maximum age of 35 at hire was necessary

-113-

to achieve peak productivity. On May 19,

1978 the Department of Labor notified

Smallwood that attempts at conciliation

were not fruitful and he was free to

proceed as he deemed appropriate. This

suit resulted.

United, in initially answering

Smallwood's complaint, did not raise the

BFOQ defense. In an amended answer filed

50 days later, United alleged the BFOQ

exception as an affirmative defense. We

find no merit to Smallwood's objection to

the trial court's action allowing the

amendment pursuant to Fed.R.Civ.P.

15(a). Therefore, the factual issue of

whether the age limitation was a BFOQ

because it was necessary for the safety

of United flights was properly before the

trial court.

II.

United's main evidentiary

thrust at trial was that airline safety

-114-

would be adversely affected if it were

forced to hire pilots over the age of

35.4 Its contentions at trial and on

appeal are two-fold: that hiring older

pilots would impede its “crew concept" -

the safe and effective operation of its

3-man crews in a coordinated manner- and

that hiring pilots over the age of 35,

significantly raising the average age of

pilot personnel, would disproportionately

increase the chance of medical emergen-

cies in flight.

United's evidence was that

Older pilots whose experiences were with

other airlines might not safely integrate

with United's crews. Their expert

witnesses testified that the basis of the

41t should be noted, however, that

United's opening statement and initial

witness focused on the economic

justifications for the age-35-at-hire

rule.

-115-

“crew concept” was that their pilots

interacted effectively because throughout

their career they learned one, and only

one, method of aircraft operation--

United's. Their testimony focused on the

fact that there was an “untraining"”

Sactor to be considered when evaluating

the desirability of employing pilots with

significant prior experience. It was

further noted that difficulties might

arise when someone moved from a command

positicr elsewhere to a subordinate

position with United. Smallwood, on the

other hand, presented uncontradicted

evidence that major air carriers find

applicants with prior Navy or Air Force

experience especially desirable.

Medical evidence profferred by

United focused on tne greater incidence

of the conditions which require grounding

in pilots ages 50-59. United theorized

-116-

that such groundings demonstrated a

greater potential for in-flight incidents

involving older pilots. Dr. Kidera,

United's only medical witness, testified

that United's company medical

examinations were effective in the

screening of those individuals whose

medical condition posed a threat to air

safety, but that medical technology

cannot detect all latent health

problems. He particularly stressed that

it was impossible to pre-determine

incidents of minor “strokes” which would

probably strike older persons more

frequently chan younger ones. Testimony

of Smallwood's expert witness, on the

other hand, was centered on the high

degree of certainty with which current

medical techniques can predict potential

cardiovascular problems. The district

court expressly did not adhere to the

-117-

views of either medical expert in

reaching its decision. The trial courc

made no written findings, but in a ruling

announced from the bench adopting most of

United's proposed findings of fact, found

that the 35 year-old maximum age for new

hires was a BFOQ, as United had borne its

burden of showing that there was a

factual basis for its belief that "all

people over 35 would be unable to perform

safely and efficiently the duties of a

flight officer" and that it would be

impracticable to deal with each applicant

on a case-by-case basis. Viewing them,

as we must, in the context of the test

adopted by this court in Arritt v.

Grisell, 567 F.2d 1267 (4th Cir. 1977),

these findings are clearly erroneous.

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

IIil.

There can be no doubt that

United's crew concept is designed to

-118-

ats

foster safer flight techniques. Pilots,

as a group, must, of course, endure the

same aging process as the general

population. These unassailable

observations, however, are of no help to

United claiming a BFOQ exception for its

hiring practices. The legal principle

guiding the application of this statutory

exception was settled by this court in

Arritt, supra. To justify a refusal to

hire under the BFOQ exception contained

in the Age Discrimination in [sic]

Employment Act, the burden is on the

employer to meet a two-prong test:

(1) that the bfoq which it

invokes is reasonably

necessary to the essence

of its business .. . and

(2) that the employer has

reasonable cause, i.e., a

factual basis for

believing that all or

substantially all persons

within the class .. .

would be unable to perform

safely and efficiently the

duties of the job

-119-

involved, or that it is

impossible or impractical

to deal with persons over

the age limit on an

individualized basis.

Id. at 1271. This exception is to be

narrowly applied. Burwell v. Eastern

Airlines Inc., 633 F.2d 361, 370 n. 15

(4th Cir. 1980) (en banc), cert. denied,

101 S.Ct. 1480 (1981).

In reviewing the trial court's

resolution of this issue we are impressed

with United's overriding theme that

hiring older pilots threatens it with

burdensome economic effects. United,

during pre-trial discovery, reiterated

the position taken in its second letter

to Smallwood, that is, that there are

substantial costs involved in maintaining

its pilot progression system, including a

significant investment in training as an

officer moves between positions and

aircraft type. Therefore, by insisting

that new pilots be under 35 years of age,

-120-

ne:

Po PY

the “period of peak productivity" would

be extended. Economic considerations,

however, cannot be the basis for a

BFOQ--precisely those considerations were

among the targets of the Aci. See 29

C.F.R. § 860.103(h)(1980); ct. City of

Los Angeles v. Manhart, 435 U.S. 702, 716

(1978) (cost-justification defense not

available in Title VII action). Taking

United's defense cf a safety-based BFOQ

at face value, however, it still does not

satisfy the Arritt burden.

United contends that it must

“untrain" pilots with experience gained

flying for other airlines, yet the record

indicates that most new pilvuts are hired

from a pool of ex-military pilots with

many years flying experience.> There was

“The record indicates that United .

requires a minimum of 350 hours of prior

flight experience, and that from October,

1977 until July, 1978 would accept

applications from applicants age 30-35

-121-

evidence of only one incident involving a

newly hired pilot integrating into an

Older United crew, and no evidence,

statistical or otherwise, concerning the

relative ease of integration into the

system of ex-military pilots, those

joining United by merger, or other newly

hired pilots.6 In short, there is no

Footnote 5 continued:

only if accompanied by advanced flight

credentials. Additionally, the

uncontradicted testimony of Dr. Mohler,

Smallwood's expert witness at trial and

former Director of the FAA's’ Civil

Aeronautical Medical Research Institute,

indicated that most of today's younger

airline pilots are taken directly from

the Navy or Air Force, whenever tkese

pilots are available.

6In the early 1960's United merged

with Capital Airlines to become, at that

time, the largest passenger airline in

the free world. At that point, Capital

personnel were dovetailed into the United

flight crew system, with a significant

number of Capital command personnel,

pilots and co-pilots, moving laterally

into equivalent positions with United.

Testimony at trial was to the effect that

an incident occured due to a former

Capital Captain's failure to follow a

-122-

SE POST AA PPE TER, SES a ee en ee ee

reliable evidence that United's “crew

concept" would be impaired by the sole

factor of hiring Flight Officers,

starting as Second Officers, over the age

of 35. This alleged harm to the "crew

concept" is a function of prior

experience, not age at hire.

Likewise, United's medical

eviderce cannot establish that its age

requirements are a BFOQ under the Arritt

standards. Under United's pilot

progression policy, Smallwood, if

employed, would probably remain a Second

Officer until his mandatory retirement at

age 60.7 It is undisputed that a

Footnote 6 continued:

United procedure. The record does not

indicate whether he merely deviated from

United's procedure or reverted to that of

Capital.

7PAA regulations mandate retirement

of pilots and co-pilots at age 60. 14

CoPsRs 4%. A211 -S03(e) (1960). United

mandates retirement at age 60 of all

-123-

a eA i

significant number of United's pilots

maintain Second Officer status from hire

to mandatory retirement to age 60. Not

only is there no signficant evidence to

prove “that all or substantially all

persons within the class would be unable

to perform safely and efficiently,"

Arritt, supra, but the employment of

Smallwood would not create a new class or

group of pilots in this respect-- he

Footnote 7 continued

flight officers, including Second

Officers. Advancement of flight cfficers

is governed by United's collective

bargaining agreement with the Airline

Pilots Association, and is on the basis

of seniority. Actual experience at

United reveals that 8 to 10 years is

required for advancement from Second to

First Officer, and an additional 6 to 8

years from First Officer to Captain.

United does not have an “up and out"

policy, so it is conceivable that a

flight crew member could remain a second

officer indefinitely. If no officer bids

on a vacancy, the position is mandatorily

awarded to the most junior officer, using

an inverse seniority system.

~124-

OMNES (1% < OLENA I SOMONE LEED AIE ESE I LO AT | I”, ET COE

would simply become part of a group of

second officers 35 years of age or over,

whose continued status as pilots strongly

tends to disprove United's contention

that the employment of pilots in this age

group violates their safety standards.

Even were this not so, United's attempt

to establish a BFOQ is further frustrated

by the second prong of the Arritt test.

United has provisions in place for the

medical testing of its pilots of all

ages. United's expert medical witness

Dr. Kidera testified at trial that while

the FAA mandates periodic physical

examinations of all Flight Officers,

United's company physical far exceeds the

FAA's minimum requirements. Aimed at a

preventive medicine approach, United

includes extensive laboratory tests,

blood screening, electrocariograms,

urinalysis, chest x-rays and diabetes

-125-

screening. Examinations are given to

Captains every 6 months and to First and

Second Officers annually. The scope and

depth of each examination is identical

across each flight crew position. It was

conclusively shown at trial that United's

physical examination program was

effective in detecting potentially

disabling medical conditions, and that

future cardiovascular problems could be

detected with a high degree of

predictability. These preventive medical

examinations must have the same degree of

predictability as to future medical

disabilities for newly-hired 48- year-old

pilots from other airlines as they would

for career United pilots. In short,

United's evidence at trial, while

probative of the incidence of medical

problems in pilots of advanced age and of

the effectiveness of its own examination

-126-

system, failed to show a relationship

between a maximum age-at-hire limitation

and airline safety. It has failed to

show the impossibility or impracticality

of dealing with applicants individually.

United, on cross-appeal,

contends that Smallwood's claim is

time-barred by 29 U.S.C. § 626(da)(1),8

8 (d) No civil action may be com-

menced by an individual under this

section until 60 days after a charge

alleging unlawful discrimination has

been filed with the Secretary. Such

charge shall be filed-

(1) within one hundred and

eighty days after the

alleged unlawful practice

occurred, .. «

29 U.S.C. § 626(d)(1). This section was

amended in 1978 to its current language.

Previously, the section focused on

“notice of intent to sue." The 1978

amendment is applicable to all civil

actions brought after April 6, 1978.

Smallwood's complaint was filed May 18,

1979. Smallwood's letter to the Depart-

ment of Labor was captioned "Notice of

Intent to Sue--Charge of Discrimination."

See H. Conf. Rep. No. 95-950, 95th

Cong., 2d Sess. 12, reprinted in [1978]

U.S. Code Cong. & Ad. News 528, 533.

-127-

which requires that a charge alleging

discrimination be filed with the

Department of Labor within 180 days of

the alleged discriminatory act. United's

first reply to Smallwood's application

was dated August 24, 1977 and was

received by Smallwood shortly

thereafter. The charge of discrimination

was filed by Smallwood on March 24, 1978,

212 days later. United's second letter

to Smallwood was dated December 12,

1977. He argues that United's refusal to

employ him, communicated by the second

letter, was a discrete act comprising age

discrimination. (His charge was filed

within 180-days from that date.) The

trial court held that the discrimination

was committed by United's first letter of

August 24, 1977, but that Smallwood's

claim was not barred because equitable

considerations tolled the running of the

80-day period.

-128-

We agree the claim is not time

barred, but do not reach the _ issue

concerning equitable tolling of the

statute of limitations. United's first

response was a form letter on which was

printed a list of United's “basic

qualifications." One of the listings

simply stated “age 21 through 29" and

next to this, when Smallwood received it,

was a light pencil check mark.

Significantly, Smallwood's application

was not rejected by this letter. Rather,

he was informed that United could aot

offer “immediate encouragement” and that

his application would be retained on file

for possible future consideration. It

was United's second letter to Smallwood

that clearly rejected his request for

employment. We agree with Smallwood this

letter of December 12, 1977, comprised

the discrete act of discrimination and

-129-

ee ae

that this act occurred less than 180 days

prior to the filing of Smallwood's charge

with the Department of Labor.

The judgment of the trial court

is, therefore, reversed and remanded for

action consistent with this opinion.

REVERSED AND REMANDED.

-130-

IN THE UNITED STATES COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

GERALD E. SMA?.LWOOD, )

)

Plaintiff, )

)

V. ) CIVIL ACTION

) NO.79-466-A

UNITED AIR LINES, INC., )

)

Defendant. )

ORDER

For the reasons stated from the

bench, it is hereby

ORDERED that this action be

dismissed and judgment entered in favor

of the defendant. In further support of

the ruling the Court adopts Paragraphs l

through 32 and 34 of the defendant's

Proposed Findings of Fact as its own.

/s/

United States District Judge

Alexandria, Virginia

November 28, 1979

-131-

IN THE UNITED STATES COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

GERALD E. SMALLWOOD, )

)

Plaintiff, )

)

Vv. ) Civil Action

) No. 79-466-A

UNITED AIR LINES, INC., )

)

Defendant.)

PROPOSED FINDINGS OF FACT AND

CONCLUSIONS OF LAW

COMES NOW defendant United Air

Lines, Inc. (hereinafter referred to as

“United") and states as its findings of

fact and conclusions of law the

following:

FINDINGS OF FACT

l. This is an action brought

by the plaintiff, Gerald E. Smallwood,

against United in which plaintiff seeks

employment with United as a pilot,

compensatory and liquidated and/or

punitive damages pursuant to the Age

Discrimination Employment Act of 1967, 29

-132-

——

U.S.C. §621 et. seq., as amended

(hereinafter referred to as the "Act").

2. Plaintiff is a white male

born May 7, 1929, who made application to

United on or about August 22, 1977, at

the age of forty-eight (48) years for

enrollment in United's flight officers

training program.

3. Plaintiff's application

was rejected on or about August 24, 1977,

on the basis that he exceeded thirty-five

(35) years of age, a maximum age limit

established by United with respect to

such applications.

4. Plaintiff gave notice to

the Secretary of Labor of his intent to

sue United on or about March 24, 1978.

5. United's policy relating

to the hiring of pilots consists of three

(3) stages:

-133-

a. A determination

is made whether the

applicant meets United's

minimum basic requirements

deemed necessary to

provide a basis for

further training;

b. The applicant

meeting the minimum basic

requirements is

interviewed, administered

a series of tests relating

to pilot aptitude,

psychological profile and

general condition of

health and again

interviewed;

C. Applicants

successfully completing

stage two of the

application process’ are

-134-

placed upon a waiting list

and, to the extent

requirements dictate, is

subsequently enrolled in

new hire training at the

training center. The

priority of preference to

such new hired training is

based upon a quantitative

score achieved as a result

of the processing in stage

two.

6. The applicants are not

employees of United and are in no manner

compensated by United until enrollment in

the new hire school of the training

center.

7. Plaintiff Smallwood was

rejected by United at the initial stage

of the pilot hire program, i.e., for

failure to satisfy the minimum basic

requirements deemed necessary by United.

-135-

aN ae

8. Upon successful completion

of training in the training center and

assuming job positions are available, a

graduate is normally assigned to United's

fleet in the entry level capacity of

second officer on a 737 aircraft. Such

individual, however, remains on

probationary status for a period of one

(1) year.

9. As a second officer for

United, a pilot receives additional

training relating to his or her duties

upon each transition to a new type of

aircraft, and he or she further receives

annual training in the form of

proficiency checks and proficiency tests

or both.

10. The period of time served

by a United pilot in the position of

second officer averages eight (8) years.

-136-

Ee ee een ee ene

eR re,

ll. During a second officer's

tenure, a United pilot has _ numerous

specific duties which he or she learns to

perform according to United's operations

procedures manual.

12. A United pilot's tenure as

a second officer serves as a foundation

for his service as a first officer.

13. In becoming a first

officer for United, a pilot receives

additional training relating to his or

her duties and responsibilities as first

officer.

14. Additionally, a first

officer for United receives annual

training in the form of proficiency

checks and proficiency tests or both.

15. The period of time served

by a United pilot in the position of

first officer currently averages eight

(8) years.

-137-

16. During his or her tenure

as a first officer, a United pilot has

numerous specific duties which he or she

learns to perform according to United's

operational procedures manual.

17. A United pilot's tenure as

a first officer serves as a foundation

for his service as captain.

18. In becoming a captain for

United, a pilot receives additional

training relating to his or her duties

and responsibilities as captain.

19. Additionally, a captain

for United receives annual training in

the form of proficiency checks’~ and

proficiency tests.

20. During his or her tenure

as a captain, a United pilot undertakes

numerous and specific duties and

responsibilities as detailed in United's

Operational procedures manual, in the

-138-

interests of best insuring the. safe

transportation of his passengers’ and

crew.

21. A captain is required by

the Federal Aviation Agency's mandatory

retirement policy to retire at age sixty

(60) and he may not at United "“bid-down"

to any other cockpit position.

22. The line of progression

leading from initial assignment of a

second officer to a 737 aircraft to the

retirement of a United captain

constitutes a valuable apprenticeship

which, with its constant training and

retraining according to United

procedures, greatly enhances the safety

of the travelling public by providing

pilots who are highly trained and respond

to various exigencies in a skilled and

coordinated manner.

-139-

Sarit nla Nee EL AT AS. el COBRA REL

23. Any substantial alteration

of this period of progression, either in

the actual line of progression or in its

duration, will necessarily cause a

decrease in the high safety factor

created thereby.

24. Relating t> matters of

health, the Federal Aviation Agency

requires that all captains of commercial

aircraft undergo twice annual physical

examinations.

25. Over and above the Federal

Aviation regulations, United maintains a

separate health program which calls for

annual physical examinations conducted by

company physicians for all members of

cockpit crews.

26. The focus of United's

annual examination policy is to

supplement the examinations required by

the Federal Aviation regulations and,

-140-

further, to prescribe preventative

measures where necessary to prevent the

development of medically disqualifying

illnesses or afflictions in its pilots.

27. United's efforts in estab-

lishing such a company medical program

have reduced the incidents of medically

disqualifying illnesses or afflictions to

substantially below that of other groups

within the population, including groups

of pilots of at least one competing air

line which lacks such a medical treatment

program.

28. The great weight of

medical evidence indicates that the pro-

cess of aging causes a deprecation in

numerous body organs and systems, includ-

ing the digestive system, the lymphatic

system, skeletal and muscular changes,

vision and hearing losses and reductions,

and decline in psychophysiological func-

tioning.

-141-

iis iatereeemimaclinalalalldl

29. Deprecation in ability to

learn and/or retain information is

reflected in United's own studies

relating to training failures among its

pilots.

30. While the rate of depre-

cation is dependent upon numerous factors

and varies from person to person, such

deprecation occurs in all persons.

31. Decline in psychophysio-

logical functioning is pertinent and

related to safety in the operation of

commercial aircraft.

32. Such declines may be sub-

stantially overcome or compensated for by

virtue of the individual's having been

exposed for long periods of time to a

standard means of operation and function-

ing under emergency circumstances.

-142-

33. United has created and

maintained a comprehensive and _ very

costly training system to insure the con-

tinuing capabilities of its pilots.

34. United presently employs

approximately 6,000 pilots.

-143-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

GERALD E. SMALLWOOD

Plaintiff

Vv. CIVIL ACTION

NO. 79-446-A

UNITED AIR LINES, INC.

Defendant

~“

TRANSCRIPT OF TRIAL PROCEEDINGS

Alexandria, Virginia

November 28, 1979

Before: THE HONORABLE ALBERT V. BRYAN,

JR., United States District

Judge

Appearances: CHESS, DURRETTE & ROEDER

BY: MICHAEL C. MONTAVON,

Esquire, and WYATT B.

DURRETTE, JR., Esquire

Counsel for Plaintiff

MURPHY, MCGETTIGAN, MCNALLY

& WEST

BY: GREGORY L. MURPHY,

Esquire, and HANS U. STUCKI,

Esquire,

Counsel for Defendant.

-144-

Page 244

Lines 11-25

THE COURT: pA

conclude that the defend-

ant has borne its burden

of establishing that its

35 year old maximum age

for new hires is a bona

fide occupational qualifi-

cation. And in support of

that conclusion I have the

following factual and

mixed conclusions of law.

First of all,

it's not incumbent’ upon

the defendant to convince

me to a certainty that

Dr. Kidera is right as

opposed to Dr. Mohler. I

must say that I'm per-

suaded by Dr. Kidera but I

don't think they have to

go so far as to prove to a

-145-

Page 244

(con't)

Page 245

certainty that Dr. Kidera

was right or that

Dr. Mohler is wrong.

The defendant

need only show that it has

a reasonable cause to be-

lieve, and by which is

meant that there is a

factual basis for that be-

lief, that all or substan-

tially all people over 35

would be unable to perform

safely and efficiently the

duties of a flight

officer.

I think

Dr. Kidera furnishes that

factual basis medically

and I think Captain Smith

establishes that factual

basis in determining that

-146-

Page 245

(con't)

experience is a valid

basis upon which to

believe that persons hired

after they are 35 would be

unable to acquire the

necessary experience for

one reason or another to

efficiently perform the

duties of a flight

officer.

Trhe [sic]

defendant's correct, I

think, in stating that the

hiring of persons in an

Older age group, and by

"older," I mean in excess

of 35, increases those

persons in the hire

categories, and those

categories statistically

show a greater incidence

-147-

Page 245

of cardiovascular impair-

ments, which apparently

from the statistics make

up a greater portion of

the disabilities that are

encountered.

The job qualifi-

cation is stringent. But

the defendant's entitled

to impose a stringent job

qualification taking into

account the high degree of

care and high degree of

skill, the high degree of

care owed by the airline

in performing its busi-

ness, and its business is

the safe transportation of

passengers from one place

to another, and the high

degree of skill is re-

-148-

Page 245

(con't)

Page 246

quired in flight officers

who have to perform that

business.

I have no prob-

lem and do find that the

job-relatedness which is

necessary to establish the

BFOQ has

been established.

Certainly the job

qualification is related

to the safe transportation

of passengers and is

reasonably necessary to

that business.

Moreover, if not

impossible, it seems to me

it is impracticable to

deal with these items on a

case-by-case basis; that

is, determine whether each

-149-

Page 246

(con't)

person who might be over

35 might have such quali-

fications that he or she

could be accepted where I

think a broad across the

board rule is the practi-

cal and reasonable way to

proceed. And for that

conclusion I look to

Dr. Kidera's testimony

iota where he said that

certain of these impair-

ments have their onset in

such a subtle way that

really they cannot be

detected in the ordinary

physical examination.

These findings I

adopt as the Court's

findings of fact. I will

prepare an order in which

-150-

nc melt I Wan 5 te

Page 246

(con't)

I will adopt what I have

said from the bench and

borrow perhaps from the

parties’ proposed findings

of fact and conclusions

that they've submitted.

Needless to say

this renders it unneces-

sary to reach the question

of damages. Despite the

sincerity with which it's

advanced, I do not base my

holding on any economic

hardship or economic

considerations.

Court will stand

adjourned. Well, I‘ve got

another matter to take

up. Call the next case.

MR. STUCKI:

Thank you, Your Honor.

-151-

—o

§o2l.

Age Discrimination in Employment Act,

U.S.C.

Congressional statement

of find ings and purpose

(a)

The Congress hereby finds

and declares that --

(2) the setting of arbi-

trary age limits regardless of

potential for job performance

has become a common practice,

and certain otherwise desir-

able practices may work to the

disadvantage of olders

persons;

(ob) It is therefore the pur-

§623.

pose of this chapter to

promote employment of

oOlders persons based on

their ability rather than

age; to prohibit arbitrary

age discrimination in

employment; to help enm-

ployers and workers find

ways of meeting problems

arising from the impact of

age on employment.

Prohibition of age

discrimination

(a)

It shall be unlawful for

an employer --

-152-

sy ie

a |

Sry

>»

Siyouid oe

“I

® we €

¥ im)

‘

q ‘

E {

(1) to fail or refuse to

hire or to discharge any indi-

vidual or otherwise discrimin-

ate against any individual with

respect to his compensation,

terms, conditions, or privi-

leges of employment, because of

such individual's age;

(£) It shall not be

unlawful for an employer,

employent agency, or labor

organization --

(1) to take any

action otherwise prohibited

under subsections (a), (b),

(c), or (e) of this section

where age is a bona fide

occupational qualification

reasonably necessary to the

normal operation of the

particular business, or where

the differentiation is based on

reasonable factors other than

age;

§626. Recordkeeping, investi-

gation, and enforcement

(b) The provisions of

this chapter shall We enforced

in accordance with the powers,

remedies, and procedures

provided in sections 211(b),

216 (except for subsection (a)

thereof), and 217 of this

title, and subsection (c) of

-153-

this section. Any act

prohibited under section 623 of

this title shall be deemed to

be a prohibited act under

section 215 of this title.

Amounts owing to a person as a

result of violation of this

chapter shall be deemed to be

unpaid minimum wages or unpaid

overtime compensation for

purposes of sections 216 and

217 of this title: Provided,

That liquidated damages shall

be payable only in cases of

willful violations of this

chapter. In any action brought

to enforce this chapter the

court shall have jurisdiction

to grant such legal or

equitable relief as may be

appropriate to effectuate the

purposes of this chapter,

including without limitation

judgments compelling employ-

ment, reinstatement or

promotion, or enforcing the

liability for amounts deemed to

be unpaid minimum wages. or

unpaid overtime compensation

under this section....

aggrieved may bring a civil

action in any court of

competent jurisdiction for such

legal or equitable relief as

will effectuate the purposes of

: this chapter: ...

(1975)

-154-

— EEE EO

Fair Labor Standards Act, 29 U.S.C.

§216. Penalties; civil and criminal

liability; injunction

proceedings terminating right

of action; waiver of claims;

actions by Secretary of

Labor; limitation of actions;

savings provision

(b) Any employer who violates

the provisions of section 206 or

section 207 of this title shall be

liable to the employee or employees

affected in the amount of their

unpaid minimum wages, or their

unpaid overtime compensation, as the

case may be, and in an additional

equal amount as liquidated damages.

Any employer who violates the

provisions of section 215(a)(3) of

this title shall be liable for such

legal or equitable relief as may be

appropriate to effectuate the

purposes of section 215(a)(3) of

this title, including without

limitation employment,

reinstatement, promotion, and the

payment of wages lost and an

additional equal amount as

liquidated damages.... The court in

such action shall, in addition to

any judgment awarded to the

plaintiff or plaintiffs, allow a

reasonable attorney's fee to be paid

by the defendant, and costs of the

action....

(1965)

-155-

Federal Rules of Civil Procedure

Rule 52. Findings by the

Court. (a) Effect. oes

Findings of fact shall not be

set aside unless clearly

erroneous, and due regard shall

be given to the opportunity of

the trial court to judge of the

credibility of the

witnesses....

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