# Appendix — Smallwood v. United Air Lines, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 832

## Text

‘7 P Office - Supreme Court, U.S
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MAY 25 tsa
No.
7 a VAS
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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

66

70

84

87

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

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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, League Etc. v. City of
Salinas Fire Dept., 654 F.2d 557, 558-59
(9th Cir. 1981), expressing some question
whether the burden of proof shifted to
the defendant under Texas Department of
Community Affairs v. Burdine, 450 U.S.
248 (1981).

afje

the defendant would have done had it
known what it knows now." It followed
with a criticism of defendant's action,
saying that, if there had been no age
discrimination, the defendant would at
the time of the application have made
“suitable inquiry ... whether or not
[plaintiff's] activity with his former
employer was such that it [the defendant]
would [have been] warrant[ed] ... [in]
rejecting him as an applicant" and
whether the defendant would have
“interviewed [the plaintiff] ... so that
he could have at least ... given his side
of the story." Though he recognized, as
the foregoing comments demonstrated, that
the critical issue on remand was the
plaintiff's “activity with his former
[airline] employer" which caused _ such

employer to fire the plaintiff, the

district judge gave no explicit reasons

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for his basic decision save this sentence
at the end of his decision:

"I find that the
defendant has not borne
its burden of proof by a
preponderance of the
evidence that he would
not have been hired
anyway after viewing this
evidence, bolstered as it
has been in the interim
between the November,
1979 hearing [at the
first trial] and now."

Later, in his judgment ' order, the
district judge added a "clarification" of
his decision, "lest there be any
uncertainty in the matter." This
clarification consisted of but a single
sentence:

"The court's
feelings at the time it
ruled, as well as now,
are that the after-the-
fact rationale and testi-
mony 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."

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The judgment entered by the district
court in conformity with this ruling was
in two parts: First, it granted
injunctive relief by requiring United to
“process” plaintiff's application in the
same manner as it processed all other
applications received at the time
plaintiff filed his application, and, if
his application were successfully
processed, to include him in the first
available class of applicants to be
provided flight training, which class the
court then found in advance of any
processing to be that of January 9, 1978,
and to be given all rights and benefits
“normally afforded United Air Lines pilot
employees, including seniority and
longevity rights," and certain pension
benefits. Second, it granted backpay,
holding that, if the plaintiff's
application had been processed free of
any violation of ADEA, he would be

=)

entitled to backpay from January 9, 1978,
the date it was found he would have been
hired absent discrimination, to date of
trial of the case, computed to be

$92,501.31, which it doubled as

liquidated damages, increasing the
pecuniary award to the plaintiff
$185,002.62. To this it added an

attorney's fee of $125,000, together with
costs of $2,160.30.

From that part of the judgment
granting the plaintiff backpay and
attorney's fees, the defendant has
appealed, asserting that the court's
finding that the defendant had not proved
by the preponderance of the evidence that
its defense against such award was
Clearly erroneous, arrived at by the use
of improper standards of proof and in
complete disregard of the undisputed

evidence. It raised, also, alternatively

the contention that, even if the court
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had been correct in its dismissal of
defendant's defense, it erred in the
relief granted. The plaintiff
cross-appeals, contending that the denial
of his motion for clarification was
Clearly erroneous. Finding no merit in
the plaintiff's cross-appeal, we dismiss
such cross-appeal, but reverse the
judgment awarding the plaintiff backpay
relief, finding that the district court's
decision and findings in favor of such an
award were clearly erroneous.

Before reviewing the evidence
connected with the defendant's appeal
herein, it is necessary, particularly in
view of certain arguments of the
plaintiff later noted and of the language
of the district court in its oral
decision, to identify specifically the
issue with which the present appeal is
concerned and to distinguish it from the

issue decided by us on the first appeal.
~~?

ACES Sythe “Se.

We begin such explication by observing
that there are generally two issues in
disparate treatment cases whether’ the
action be under either the ADEA, Title
VII, or Section 1981: One has to do with
the substantive issue of violation of the
applicable statute or constitutional
provision; the other (which, it must be
emphasized, only becomes relevant if a
violation is proved) involves the remedy
which generally presents the question of
compelled hiring, reinstatement, or
promotion accompanied with backpay.
Thess; two issues are separate and
distinct and their resolution depends on
different, or at least additional,
evidence and findings.© Thus, in this
case, the admitted refusal of the

defendant to process the plaintiff's

6smith v Secretary of Navy, 659 F.2d
at 1119-20; Day v. Mathews, 530 F.2d at
1084-85.

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application because of its rule prohi-
biting the processing of job applications
by flight officers over 35 years of age
constituted, as we held in the first
appeal, a violation of ADEA and entitled
the plaintiff to injunctive relief
against the present and future use of
such rule. That specific issue- one of
violation- was decided by our decision in
the first appeal in this case and is the

law of the case. But that determination

did not trigger anything more than a mere
} presumption of a right in the plaintiff
to the remedy of employment and backpay,
a presumption which was subject to being

defeated by proof by the preponderance of

a ee

the evidence on the part of the defendant
that the plaintiff would not have been

; hired anyway if there had been no

Said it

discrimination.

This distinction between the two

issues, involving as they do separate and
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distinct findings based upon separate and
distinct facts, was initially explicated
in connection with a constitutional claim

was later specifically applied in the
employment discrimination context in the

companion cases of Teamsters v. United

States, 431 U.S. 324, 326 (1977), and

East Texas Motor Freight v. Rodriguez,

the latter case, the Court said:

“Even assuming,
arguendo, that the
company's failure even to
consider the applications
was discriminatory, the
company was entitled to
prove at trial that the
respondents had not been
injured because they were
not qualified and would
not have been hired in
any event."

We have consistently recognized and
followed this rule as stated in

Rodriguez, the most recent illustration

of which being Patterson v. Greenwood

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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 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

ys
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-

:
:
:
:

I.
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-

ee

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% 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-

o-
s

sy ie
i,
a |
a

Sry
>»

r

he

ao

Siyouid oe

“I
® we €
ad
i
¥ im)
x
‘
q ‘
E {
.

Re

(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-

ee

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....

(c) (1) Any person
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....

-156-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2983%3A2. Public record. Not legal advice.