Petition for Writ of Certiorari — Boeing Co. v. Equal Employment Opportunity Commission

Supreme Court brief1988

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IN THE

Supreme Court of the United States

October Term, 1987

THE BOEING COMPANY.

Petitioner,

VU.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Michael C. Hallerud John F. Aslin*

THE BOEING COMPANY Jeffrey A. Hollingsworth

7755 E. Marginal Way So. Nancy Williams

Seattle, Washington 98108 PERKINS COIE

(206) 655-0810 1201 Third Avenue

in Seattle, Washington 98101

Attorney for Petitioner (206) 328-4000

Attorneys for Petitioner

and Counsel of Record (*)

July 5, 1988

QUESTION PRESENTED

Whether an age limitation, applied to Boeing pilots

engaged in flight operations ‘almost perfectly congruent” with

those directly regulated by the Federal Aviation Administra-

tion's “age-60” rule, is a “bona fide occupational qualification”

(“BFOQ”) under the Age Discrimination in Employment Act

of 1967 (“ADEA”) as a matter of law.

PARTIES TO THE PROCEEDING

The petitioner in this matter is The Boeing Company. a

elaware corporation, which was the defendant in the district

yurt. The respondent is the Equal Employment Opportunity

ommission (“EEOC”), which was the plaintiff below.

iil

TABLE OF CONTENTS

Question Presented. .

Parties to the Proceeding.

Opinions Below................

Jurisdiction of This Court . .

Pertinent Statutes and Regulations

Federal Jurisdiction . .

Statement of the Case. .

A. Nature of Proceedings and Disposition Below

B. Material Facts. .

1. The Nature of Boeing Flight Operations .

2. The Purpose, Logic, and Basis of the FAA

Age-60 Rule | |

S. Comelugion............

Reasons for Granting The Writ

A. A Federal Safety Regulation Prescribing

Occupational Qualifications May Establish a

BFOQ as a Matter of Law for Congruent.

Nonregulated. Employment.

1. ADEA Liability Standard and BFOQ

Exception. .

2. Federal Safety Standards May Support a

BFOQ Under ADEA

TABLE OF CONTENTS. (continued)

3. The District Court Decision...........

4. Assuming Congruity, the FAA Age-60 Rule Is

Conclusively a BFOQ for Boeing Pilots |

Where the Undisputed Record Establishes

Employment Congruity in All Material Respects

Between Boeing Pilots and Pilots Directly and

Continuously Subject to the FAA Age-60 Rule.

This Court's Celotex and Liberty Lobby

Decisions Require Summary Judgment On

Boeing's BFOQ Defense

Conclusion

A ppendices:

Opinion of Ninth Circuit (April 6, 1988)

B. Trial Court Order (April 18, 1986)

D. Excerpts from Public Record Regarding Adop-

Affidavits in the Trial Court

tion and Reaffirmation of FAA Age-60 Rule

FAA Denial of Exemption No. 4848

(September 1986)

Page

.13

.15

47a

80a

145a

l6la

TABLE OF AUTHORITIES

Page

Cases

Airline Pilots Association International v. Quesada,

276 F.2d 892, 898 (2d Cir. 1960).................. 14

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986),

ae Es crae lice roe Ae 3,9,17-19,21,passim

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

a ree ne 3,17-19,21, passim

EEOC v. El Paso Natural Gas Co., 626 F. Supp. 182

II MUIR: fest ly oi cect ye oc pt ee 21

EEOC v. Boeing Co., 843 F.2d 1213

Re ate eee ee | 1,10,19

EEOC v. Boeing Co. 40 FEP Cas. [BNA] 292, 294,

297-98 (W.D. Wash. 1986)................. 8,11,14-15

Gathercole v. Global Associates, Inc., 727 F.2d 1485

reenter a 16,21

Harriss v. Pan American World Airways, 649 F.2d 670

ee II 6 oi eke sk wo eet ba ee, 10

Hodgson v. Greyhound Lines, Inc.,499 F.2d 1122

8 Pree re ae Sn eek 10

Johnson v. Mayor & City Council of Baltimore, 472

U.S. 353 (1985) ............... 3,9,10,12,13,20,passim

Rasberg v. Nationwide Life Ins. Co., 671 F. Supp. 494

Wt GT ED «oes eee .. 3

TABLE OF AUTHORITIES, (continued)

Page

Cases, (continued)

Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224

(5th Cir. 1976) 11.13

Western Airlines, Inc. v. Criswell, 472 US.

400 (1985) 3,9,10,11.12,.20.passim

Statutes and Regulations

14 C.F.R. $121.383ic) 2.5

Age Discrimination in Employment Act of 1967. 29

U.S. § 623ia). (f) 2.10

Federal Rules of Civil Procedure

Civil Rule 56 9,17-18,21

Miscellaneous

24 Fed. Reg. 5247 (1959) 18

24 Fed. Reg. 9767-68 (1959) 6.18

33 Fed. Reg. 9172 (1968) 16

46 Fed. Reg. 14695 (1984) is

46 Fed. Reg. 47724 (1981) 16

vii

TABLE OF AUTHORITIES. (continued)

Page

Miscellaneous, (continued)

49 Fed. Reg. 14695 (1984) 6.18

Age Discrimination Against Airline Pilots: Hearings

before the Subcommittee on Health and Long-Term

Care of the House Select Committee on Aging, 96th

Cong.. lst Sess. (March 21. 1979)

Denial of Exemption No. 4848. FAA Reg. Docket

No. 25008 . |

“Disposition of Petition.” FAA Reg. Docket

No. 10358 (1972) 6

Hearings Before the Subcommittee on Aviation of the

Committee on Public Works and Transportation.

House of Representatives. 96th Cong.. lst Sess.

(July 18, 1979) +

“Report of the National Institute on Aging Panel

on the Experienced Pilot Study.’ August 1981 6

Statements Before House Select Committee on Aging

on Age-60 Rule for Pilots. 99th Cong.. Ist Sess..

October 17. 1985, Comm. Pub. No. 99-533

IN THE

Supreme Court of the United States

October Term, 1987

THE BOEING COMPANY.

Petitioner.

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINIONS BELOW

The United States District Court for the Western District

of Washington (Rothstein, J.) entered an order granting

Boeing's motion for summary judgment on February 24, 1986

(Appendix B). The district court opinion is reported at 40 FEP

Cas. [BNA] 292. Respondent EEOC filed a notice of appeal

on April 18, 1986. The Ninth Circuit reversed the district court

on April 6, 1988, in an opinion reported at 843 F.2d 1213, 46

FEP Cas. [BNA] 922 (Appendix A).

JURISDICTION OF THIS COURT

Jurisdiction of this Court is based on 28 U.S.C. § 1254/1).

The timing of this petition is governed by 28 U.S.C. § 2101ici,

providing 90 days from the April 6, 1986 filing of the Ninth

Circuit decision.

PERTINENT STATUTES AND REGULATIONS

1. Age Discrimination in Employment Act of 1967, 29

U.S.C. § 623(a), (f).

2. 14 CFR. § 121.383(c).

FEDERAL JURISDICTION

Original federal jurisdiction in this case rests on federal

question jurisdiction under 28 U.S.C. $$ 1331 and 1343(a)(4).

STATEMENT OF THE CASE

A. Nature of Proceedings and Disposition Below.

EEOC filed suit against Boeing on February 15, 1984, in

the United States District Court for the Western District of

Washington at Seattle. EEOC alleged that Boeing's policy of

removing its pilots from active flight status at age 60 violated

the ADEA. Boeing has maintained that its pilot age limita-

tion is a lawful BFOQ because it is based on an identical

regulation promulgated by the Federal Aviation Administra-

tion and because Boeing flight operations are sufficiently

congruent with those direct!v subject to the FAA “age-60”

rule.

1 14C.ER. § 121.383(c) (1987) provides that no commercial air carrier

may use the services of any person asapilot. if that person

has reached his 60th birthday. No person may serve as a pilot

[in commercial airline] operations __ if that person has reached

his 60th birthday.

Boeing is not a commercial air carrier because its flights do not

carry paying passengers. As detailed in the courts below and in

this petition, however. Boeing conducts extensive flight operations

using the same jet airliners as commercial airlines, in the same

airspace. air traffic control systems, and airports.

The district court, applying substantive principles estab-

lished in Johnson v. Mayor & City Council of Baltimore. 472

U.S. 353 (1985) (‘Johnson’), and Western Airlines, Inc. v.

Criswell. 472 U.S. 400 (1985) (“Crisweil’), held that the nature.

purpose, and basis of the FAA age-60 rule established a BFOQ

for occupations congruent with those directly subject to the

rule. Applying procedural principles now validated by this

Court's decisions in Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 106 S. Ct. 2505 (1986) (“Liberty Lobby"), and Celo-

tex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986)

(Celotex"'), the district court held that there was almost

perfect congruity between the occupations of Boeing and

commercial airline pilots. Accordingly, the district court

concluded that the FAA age-60 rule established Boeing's

identical age limitation as a BFOQ as a matter of law and

granted summary judgment for Boeing. The Ninth Circuit

reversed. occasioning the present petition.

B. Material Facts.

The material facts of this case comprise two principal

categories: 1) the nature of Boeing's flight operations and

2) the purpose, logic, and basis of the FAA's age-60 rule.

There is no genuine issue as to any material fact.

I. The Nature of Boeing Flight Operations’

The Boeing Company is the largest manufacturer in the

western world of large, high-performance, multi-engine com-

mercial jet airliners, specifically the Boeing 707. 727. 737. 747.

* Boeing's flight operations are detailed in the affidavits filed in the

district court by Boeing affiants and the charging party pilots.

These affidavits are collected in Appendix C.

757, and 767 aircraft. Boeing conducts extensive flight opera-

tions to support its design research and the testing, manu-

facture, sale, delivery, and service of its aircraft.

Boeing's corporate flight operations from 1980 to 1985

included more than 10,000 experimental and production test,

flight crew training, sales, demonstration, delivery, and ferry

flights, carrying more than 160,000 passengers. In addition

to these corporate flight operations, Boeing pilots have flown

thousands of scheduled passenger flights for commercial

airline customers in the United States (such as Continental

and New York Air) and throughout the world (such as Qantas

and China Airlines). These customer revenue operations are

directly subject to the FAA regulations for commercial air

carriers, including the age-60 rule, or to comparable regulations

prescribed by foreign civil aviation authorities or the Conven-

tion on International Civil Aviation and its Annexes. In per-

forming both corporate and customer flight operations, Boeing

pilots frequently fly in the same airspace and air traffic control

sectors and take off and land at the same airports as com-

mercial airlines, using identical jet airliners.’

The nature — and the risks — of the regular commercial

airline operations in which Boeing pilots participate are com-

monly known. Boeing's corporate flight operations, however,

3 Many of Boeing's flights, for example, originate and end at Boeing

Field International. Boeing Field ranks among the ten busiest

airports in the United States in terms of total flights. Further-

more, it shares the airspace and air traffic control systems with

nearby Seattle-Tacoma International, another major metropolitan

airport which accommodates many thousands of flights and

millions of passengers annually. See Seattle Post-Intelligencer.

December 31, 1986, at 1, 4 (“More than 11 Million Passengers Use

Sea-Tac in 1985: Over 13 million are Expected by the End of 1986’).

The safety of all flight operations. including commercial airline

operations, in this busy airspace depends in significant part on the

skill and fitness of Boeing pilots.

present far greater dangers and demands. Planes may often

be at or beyond design limits during experimental testing,

where, for instance, test protocols require radical maneuvers

(such as power dives, stalls. rolls), hazardous weather opera-

tions. or operations with key aircraft systems altered or

disabled. Production testing routinely involves such irregular

in-flight activity as purposely depressurizing the aircraft or

shutting down engines, hydraulic systems, or generators to

determine if they will restart in midair. Pilot training flight

operations simulate emergencies and practice “touch and go"

landings and takeoffs (the riskiest parts of normal flight), and

involve inexperienced pilots who frequently have limited

English fluency.

2. The Purpose. Logic, and Basis of the FAA Age-60 Rule.

The FAA age-60 rule. which was duly promulgated in 1959

and has since been continuously in effect, provides that no

commercial air carrier

may use the services of any person as a pilot. _ if that

person has reached his 60th birthday. No person may

serve as a pilot [in commercial airline] operations. __ if

that person has reached his 60th birthday.

14 CFR. § 121.383(c).

This rule proceeds from the FAA's determinations that

1) the likelihood of unpredictabie. sudden incapacity and more

subtle psychophysiological performance decrements increases

with age, becoming significantly more frequent after age 60.

and 2) medical science cannot accurately predict the onset of

such disabilities in any individual pilot at a critical time.

‘ Excerpts from the official public record reflecting FAA's historical

and current findings and determinations regarding the age-60 rule

are attached in chronological order in Appendix D.

such as during the piloting of an airplane. 24 Fed. Reg.

9767 (1959) (Appendix D, at pp. 150a-54a).

The FAA determined that the reduced margin of safety

presented by the age-related risks of incapacity in older pilots

was unacceptable when combined with operation of

the largest. highest-performance aircraft, carrying the

greatest number of passengers over the longest non-stop

distances, operating into and out of the most congested

airports near the largest cities, and traveling in flight in

and through traffic lanes with the highest density of air

traffic.

Id.

During the 30 years since its promulgation. the FAA, the

National Institutes of Health, and Congress have periodically

reexamined and always then reaffirmed the age-60 rule. See.

e.g., “Disposition of Petition.’ FAA Reg. Docket No. 10358

(1972) (“[T]here continues to be a sound medical basis for

retaining the age-60 rule. When the rule was adopted. a

chronological determinant was selected in the absence of our

ability to determine the physiological and psychological age

of individual pilots. and that ability remains lacking today.’)

(Appendix D, at p. 155a); “Report of the National Institute

on Aging Panel on the Experienced Pilots Study,’ August 1981

(“NIH Report”) (older pilots endanger safety because of age-

related declines in health and performance that no existing

medical or performance appraisal system can evaluate on an

individual basis) (Appendix D, at p. 156a); 49 Fed. Reg. 14.695

(1984) (withdrawal of Advance Notice of Proposed Rulemaking

proposing experimental adoption of an “age-62” rule on

grounds that “with advancing age, the risks of suffering

incapacitating medical events and of adverse psychological.

emotional. and physical changes rise.’ and that the NIH

Report confirms “a present inability to distinguish those pilots

who, as a consequence of aging, present a threat to air safety

from those who do not’) (Appendix D. at pp. 157a-58a).°

In October 1985 the FAA again reaffirmed its age-60 rule

in hearings before the House Select Committee on Aging,

stating that despite scientific advances, “there is still no way

to predict, with reliable accuracy, the presence or onset of a

number of medical problems in an individual aging pilot or

to detect and measure all of the possible declining physical

and mental functions.’ See Statements Before House Select

Committee on Aging on Age-60 Rule for Pilots, 99th Cong.,

lst Sess., October 17, 1985, Comm. Pub. No. 99-533 (Appendix

D, at pp. 159a-60a).

Finally, in September 1986, more than six months after

the decision of the district court in this action, the FAA denied

a petition from 39 airline pilots and former pilots seeking

individual exemptions from the age-60 rule, stating:

Regardless of individual exceptions that may be cited, all

available data indicate that the population as a whole is

subject to both phenomena: an increasing rate of

disability or death due to physical changes or disorders

and deterioration in skill performance with increasing

age.... Additionally, population variability with respect

to disability, death and deterioration in performance

increases with increasing age. This means that predictive

indices suffer from progressive decrease in discriminatory

power with advancing age. While our medical diagnostic

and performance assessment skills have improved in the

past 25 years, diagnostic tests which could be used for

> See also Age Discrimination Against Airline Pilots: Hearings

before the Subcommittee on Health and Long-Term Care of the

House Select Committee on Aging, 96th Cong. 1st Sess. (March

21, 1979); Hearings Before the Subcommittee on Aviation of the

Committee on Public Works and Transportation, House of Rep-

resentatives, 96th Cong., 1st Sess. (July 18, 1979).

screening of airline pilots have not improved to the point

where they can be depended upon to detect reliably either

the person who will manifest such a deterioration during

the several months following examination nor the person

who may be unable tc perform his crew duties safely,

particularly in a novel or critical situation.

Denial of Exemption No. 4848, Reg. Docket No. 25008

(Appendix E, at pp. 186a-87a).

3. Conclusion.

The district court, after an exhaustive review of all the

evidence of record, held that for purposes of establishing a

BFOQ, the job performed by Boeing pilots is almost perfectly

congruent with that performed by airline pilots. The FAA age

limitation is based on safety concerns, and the flying done by

Boeing pilots raises the same safety concerns as that done by

airline pilots. Specifically, Boeing pilots fly large, fast aircraft

in crowded airspace. The significant peculiarities of Boeing

flights entail even greater demands on a pilot's cognitive and

psychomotor abilities than would be experienced in commercial

flights. EEOC v. Boeing Co. 40 FEP Cas. [BNA] at 292.

297-98 (W.D. Wash. 1986).

In addition. the district court concluded that the FAA

age-60 rule:

bears important indices of relevance and reliability in that

it is based on safety considerations that would support

a BFOQ; it is based on extensive evidence; it was promul-

gated by an expert agency, the FAA, and supported by

another. NIA: the FAA weighed the evidence according

to standards consistent with ADEA: [and.] the regulation

has been reaffirmed on current evidence in the recent

past....

Id. at 298.

Accordingly, the district court found that the FAA age-60

rule, when “coupled with the background of the regulation and

the congruity of the relevant pilot positions, establishes a

BFOQ defense for Boeing as a matter of law.’ Jd.

REASONS FOR GRANTING THE WRIT

This Court should issue a writ of certiorari on the grounds

specified in Rule 17.1(a) and (c). The Ninth Circuit's decision

conflicts with significant recent decisions of this Court, ser-

iously departing from the accepted and usual course of judicial

proceedings.

First, the Ninth Circuit misapplied this Court’s Johnson

and Crisweil decisions. By requiring a jury redetermination

of underlying issues which had already been resolved by an

expert federal agency and merged into federal law, the Ninth

Circuit effectively refused to accept the FAA age-60 rule as

evidence of a BFOQ. Second, the Ninth Circuit misapplied this

Court's Celotex and Liberty Lobby decisions in determining

when summary judgment is to be granted under Civil Rule 56.

Because this case presents the first integrated application

of these important principles, this Court's review is necessary

to harmonize them. Otherwise, the development of BFOQ and

Rule 56 law in the district and circuit courts will be incon-

sistent and will ultimately produce a greater volume of litiga-

tion than is either necessary or desirable.

More significantly, the Ninth Circuit decision creates a

direct conflict between two federal regulatory agencies where

their authority and agendas intersect. The Ninth Circuit held

that the

critical issue of fact in this case was the detectability on

an individual basis of deterioration in a Boeing pilot aged

60 or over that might diminish that pilot's capacity to

discharge safely his or her duties. This was an issue for

the jury to decide if the facts were disputed, or for the

court to decide if they were not.

EEOC v. Boeing Co, 843 F.2d 1213, 1211 (9th Cir. 1988).

The FAA, however, has concluded that such individualized

medical assessments of pilots are not possible with sufficient

reliability, and has embodied that expert determination in

federal law which removes airline pilots from their positions

at age 60. The Ninth Circuit, at EEOC’s urging, has issued

a ruling stating that there “is serious doubt that the FAA Rule

reflects a determination by FAA that age 60 is a BFOQ as

defined by ADEA for the commercial pilots to whom it

applies... .” Id. at 1220. Boeing, and, most likely, the airlines

themselves are caught between two federal agencies, one of

which concludes that accurate individual testing of pilots over

60 cannot be done, and another which says it must be. This

dispute between federal agencies is insoluble without extensive

litigation, unless the Ninth Circuit’s misapplication of Johnson

and Crisweill is corrected by this Court.

A. A Federal Safety Regulation Prescribing Occupational

Qualifications May Establish a BFOQ as a Matter of

Law for Congruent, Nonregulated, Employment.

1. ADEA Liability Standard and BFOQ Exception.

While ADEA generally prohibits age discrimination in

employment, such discrimination is not unlawful

where age is a bona fide occupational qualification reason-

ably necessary to the normal operation of the particular

business.

29 U.SC. § 623(f). The BFOQ exception has historically found

strong supp“it in the federal courts where safety is a factor.

See, e.g., Hoagson v. Greyhound Lines, Inc., 499 F.2d 1122

(7th Cir. 1974}, cert. denied, 419 U.S. 1122 (1975); Harriss v.

Pan American World Airways, 649 F.2d 670 (9th Cir. 1980).

The settled formula for a safety BFOQ was first articu-

lated in Usery v. Tamiami Trail Tours, Inc.. 531 F.2d 224 (5th

Cir. 1976) (“*Tamiami") (bus line's lawful refusal to hire drivers

over age 40). Customized to the present case. this test can be

summarized as follows:

1) The Boeing age-60 rule must be reasonably neces-

sary to Boeing's flight operations — the greater the safety

factor, measured by the likelihood of harm and the prob-

able severity of that harm in case of an accident, the more

stringent may be the job qualifications and the more

deference must be accorded Boeing's rule; and,

2) Boeing may rely upon age as a legitimate proxy

for safety-related job qualifications if it can show either

(a) that it has reasonable cause to believe that all or sub-

stantially all pilots over age 60 would be unable to perform

the job safely or (b) that it is impossible or highly im-

practical to assess pilots over age 60 on an individualized

basis.

See Tamiami, 531 F.2d at 235-36. This Court approved the

Tamiami formula in Crisweil. 472 U.S. at 416-17.

The first stage of the Tamiami test is indisputably satis-

fied. Safety is plainly the essence of Boeing's business and

it is reasonably necessary for Boeing to employ pilots posing

the lowest possible safety risk. EEOC v. Boeing Co., 40 FEP

Cas. [BNA] at 294, 297-98. Thus, only the second stage of the

Tamiami test is at issue here and turns, as the Ninth Circuit

noted, on the critical question of whether it is impossible or

highly impractical to assess pilots individually to determine

their safety risk. The FAA has, of course. authoritatively

determined that airline pilots over age 60 are more likely to

suffer a sudden physical or psychophysiological incapacity

during flight. and that it is impossible to assess those pilots

medically on an individual basis.

Whether the FAA age-60 rule may be relied upon by

Boeing depends on whether that regulation is based on

considerations that would support a BFOQ under ADEA and

whether there is congruity between the regulated and

unregulated employments. Where the evidence is materially

undisputed, as here, there is no reason in law or logic why

Boeing's voluntary adoption of the FAA age-60 rule should

not be a BFOQ as a matter of law.

2. Federal Safety Standards May Support a BFOQ

Under ADEA.

This Court in Johnson and Criswell established a logical.

efficient protocol for reliance upon a federal safety determina-

tion to establish a BFOQ where the federal rule is logically.

but not formally, applicable.

In Johnson the City of Baltimore relied upon a federal

firefighter age-55 retirement rule to support a BFOQ for a city

firefighter age limitation. This Court examined the mandatory

federal retirement rule and concluded that, because it had been

adopted for economic and not safety reasons, it did not embody

any federal determination that age is a BFOQ for firefighters.

This Court went on to state, however:

Were there evidence that Congress in fact determined that

a class of federal employees must retire early based on the

same considerations that support a finding of a BFOQ

under [ADEA], the situation might differ... . The evidence

Congress has considered. and the conclusions it has drawn

therefrom. might be admissible as evidence in judicial

proceedings to determine the existence of a BFOQ for

nonfederal employees.

472 US. at 370-71.

Similarly, in Criswell, Western Airlines attempted to estab-

lish an age-60 BFOQ for flight engineers. based on the FAA

age-60 rule for pilots. This Court. citing Johnson. held that

while the FAA rule was relevant evidence of a BFOQ, it was

not conclusive because there was insufficient congruity in the

duties and safety impact between the occupations of flight

engineer and pilot. 472 U.S. at 418.

Johnson and Crisweil thus establish that if the federal

determination is ‘based on the same considerations which

support a BFOQ” under ADEA, it is relevant evidence of a

BFOQ for nonregulated employees. Neither Johnson nor

Crisweil involved facts permitting a complete development of

this concept. But the present case, as the district court's

analysis demonstrates. provides that vehicle and dramatizes

the need for the full development of the Johnson and Criswell

congruity analysis.

3. The District Court Decision.

The district court, following Johnson and Criswell. held

that the FAA age-60 rule would be relevant evidence of a

BFOQ for the Boeing age limitation if the FAA rule were

“based on the same considerations that support a determina-

tion of a BFOQ under ADEA.” 40 FEP Cas. [BNA] at 294.

The district court found from the public record, which is

summarized and excerpted in this petition and its appendices.

that the FAA had reasonably concluded an age-60 rule was

necessary to assure public safety. That is, the likelihood of

sudden pilot incapacity due to physical or psychological con-

ditions increased with advancing age and became significant

after age 60. When these risks combine with the air commerce

environment dominated by large, swift jet airliners operating

in dense traffic and into and out of congested metropolitan

airports, the risks become unacceptably high. Thus. FAA's

analysis satisfied the first stage of the Tamiami BFOQ test.

nena

The district further found that the FAA's analysis satisfied

stage two of the Tamiami BFOQ test. The FAA concluded in

1959. and currently maintains, that individualized medical

assessments are not sufficiently predictive after age 60 to

discard reliance upon age. Not only, therefore, are substantially

all pilots over 60 unable to perform safely in a commercial

airline environment. it is also impossible or highly impractical

to assess individual pilots medically after age 60.

While the foregoing satisfied the Johnson and Crisweil

criteria for admitting a federal safety standard as relevant

evidence of a BFOQ, the district court further examined the

rule's history and rationale to determine whether, or to what

extent, it could be conclusive in this litigation. This further

development of the Johnson and Crisweill formulation con-

sidered (1) the extent of the FAA age-60 rule and the amount

of evidence on which it was and is based. (2) the expertise of

the FAA, (3) whether the FAA's analytical standards were

consistent with the ADEA’s BFOQ criteria, and (4) how

recently the FAA age-60 rule was promulgated or reaffirmed.

The district court concluded (1) that there was a sub-

stantial body of evidence reviewed by the FAA in its decisions

to adopt and maintain the age-60 rule. The evidence was taken

from Airline Pilots Association International v. Quesada, 276

F.2d 892, 898 (2d Cir. 1960), cert. denied, 366 U.S. 962 (1961),

later submissions taken by the FAA in 1972 and 1979, and

the 1981 NIH Report. produced at the instance of Congress.

which recommended retention of the age-60 rule. Viewing all

this evidence together. the district court held that it “would

be more than sufficient to establish prima facie evidence of

a factual basis for a BFOQ.” 40 FEP Cas. [BNA| at 296.

The district court then took notice (2) of the FAA's “con-

siderable expertise in matters related to commercial aviation. |

concluding that the “specialized knowledge and resources ~

brought to bear on the FAA's age-60 rule would render “efforts

by a court to reexamine the identical issues an unwarranted

duplication of expert tessiseay.” The court further noted

(3) that the FAA “express! /«:nd that an age limitation was

necessary for safety” any! 4 “applied standards — reason-

ableness and necessity — that are consistent with ADEA

standards for establishment of a BFOQ.” Jd. at 296-97.

Finally, the court found that (4) the FAA age-60 rule had

been “reaffirmed on current evidence on April 12. 1984 — less

than two years ago. This reaffirmation rendered the rule

“sufficiently recent to provide reliable evidence of a BFOQ.”

Id. at 297.

Summarizing this analysis, the district court concluded

that the FAA age-60 rule bore

important indices of relevance and reliability in that it is

based on safety considerations that would support a

BFOQ; it is based on extensive evidence: it was promul-

gated by an expert agency, the FAA. and supported by

another, NIA: the FAA weighed the evidence according

to standards consistent with ADEA; the regulation has

been reaffirmed on current evidence in the recent past.

Because of these indices of relevance and reliability, Boeing

is entitled to rely on the conclusions of the FAA. Boeing

need not reprove these same conclusions. Moreover. these

indices persuade the court that any inquiry by a court

into the issues already addressed by the FAA would be

redundant and wasteful.

Id. at 298.

4. Assuming Congruity, the FAA Age-60 Rule Is Con-

clusively a BFOQ for Boeing Pilots.

The FAA age-60 rule represents an historical and current

determination by an expert and authoritative federal agency

that forecloses in this litigation any factual issue (specifically.

a ee

the feasibility of individualized medical assessments of pilots)

that has been resolved by (and therefore merged into) the

regulation. The district court's examination and analysis of

the public record ascertained (1) the extent to which the rule

furnishes an unquestionable basis for a BFOQ determination

and (2) the issues of material fact that are foreclosed from

dispute by EEOC in this litigation.

In other words, because the BFOQ determination is a

question of law, EEOC may dispute the point of law whether

the FAA age-60 rule is relevant or conclusive evidence of a

BFOQ for Boeing pilots.’ and did so in the district court. But

EEOC, lacking the authority, capacity, or expertise of the FAA,

may not in this litigation contest an underlying factual

determination (the feasibility of individual pilot medical

assessments) conclusively and currently resolved by FAA and

embodied in federal law. See Gathercole v. Global Associates.

Inc., 727 F.2d 1485. 1488 (9th Cir. 1984) (the Department of

the Army does not sit as a court of review for FAA). EEOC

does not and cannot logically suggest that Boeing can perform

medical assessments that FAA has concluded are impossible.

The Ninth Circuit's decision, however, authorizes EEOC

to submit to a jury the very expert issues already authorita-

* The original interpretive regulations of the Department of Labor,

promulgated contemporaneously with the effective date of ADEA.

in fact cited the FAA age-60 rule as an illustration of a BFOQ under

ADEA. 33 Fed. Reg. 9172 (1968). The Labor Department

interpretation, which was in effect in 1980 when Boeing formally

adopted its age-60 rule. was changed by EEOC in 1981. more

than 13 years after its promulgation. 46 Fed. Reg. 47.724 (1981)

EEOC'’s rescission of the Labor Department endorsement of the

FAA age-60 rule as a BFOQ was not explained in the regulatory

record as based on any change in ADEA. any principled considera-

tion of medical or scientific developments. or any consultation or

coordination with FAA. In fact, EEOC’s action was taken con-

temporaneously with the issuance of the NIH Report recom-

mending retention of the age-60 rule.

tively settled by FAA, regardless of the level of congruity

between the occupations of Boeing and commercial airline

pilots. Moreover, the Ninth Circuit's decision absolutely

forecloses summary judgment in every case involving reliance

on an analogous federal rule to establish a BFOQ. This is

contrary to the logic and purpose of Johnson and Criswell. as

well as the rules governing summary judgment as interpreted

by this Court in Celotex and Liberty Lobby.’ Nothing in

Johnson or Criswell indicates that the evidence embodied by

a federal rule is somehow peculiarly disabled so that it can

never become dispositive. Where, as here, the record

compellingly demonstrates the BFOQ basis of the federal

safety standard and the almost perfect congruity of the

nonregulated and directly regulated employment, the Ninth

Circuit's mandate to resubmit those issues at trial wastes

judicial and party resources and promotes inconsistency and

uncertainty in federal law.

B. Where the Undisputed Record Establishes Employ-

ment Congruity in All Material Respects Between

Boeing Pilots and Pilots Directly and Continuously

Subject to the FAA Age-60 Rule, This Court’s Celotex

and Liberty Lobby Decisions Require Summary Judg-

ment On Boeing’s BFOQ Defense.

This Court's decisions in Celotex and Liberty Lobby were

expressly intended to revitalize summary judgment practice

under Civil Rule 56:

" Even if the underlying factual issues which precede a judicial deter-

mination that a federal safety standard is relevant evidence of a

BFOQ were not legally foreclosed by the FAA regulation. summary

judgment for Boeing on those factual issues would still have been

required by this Court's interpretation of Civil Rule 56 in Celotex

and Liberty Lobby. Where FAA has made a determination based

on 30 years of research that individualized medical assessments

are not sufficiently reliable. no reasonable juror could return a

verdict to the contrary. See Liberty Lobby. 106 S.Ct. at 2512.

Rule 56 must be construed with due regard not only for

the rights of persons asserting claims and defenses...

but also for the rights of persons opposing such claims

and defenses to demonstrate in the manner provided by

the rule. prior to trial, that the claims and defenses have

no factual basis.

Celotex, 106 S. Ct. at 2555. These decisions make clear that

to avoid summary judgment, a nonmoving party must produce

evidence of a genuine dispute of material fact — one which

affects the outcome. Liberty Lobby, 106 S. Ct. at 2510.

Evidence creates a genuine dispute only where it is sufficient

to permit “a reasonable jury [to} return a verdict for the

nonmoving party.” Jd. Thus, a judge considering a summary

judgment motion must ask “whether reasonable jurors could

find by a preponderance of the evidence that the plaintiff is

entitled to a verdict.’ Id. at 2512.

In the present case. the only material factual issue is the

congruity, with respect to flight duties and safety risks,

between Boeing's flight operations and those of commercial

air carriers formally subject to the FAA age-60 rule. The

undisputed facts in the record below demonstrate that this

congruity is simply overwhelming. The FAA rule for airline

pilots is based on a safety concern about the decreased margin

for error in the operation of large, fast powerful jets in in-

creasingly crowded air space, airports, and air traffic control

systems. See 24 Fed. Reg. 5247 (June 27, 1959); 24 Fed. Reg.

9767 (December 5, 1959); 49 Fed. Reg. 14695 (April 12, 1984)

(Appendix D at 145a-54a, 157a-58a). Boeing pilots fly exactly

the same aircraft as airline pilots. in the same airspace and

flight environments, in literally thousands of flights every year.

As the district court properly concluded, Boeing flight opera-

tions are “almost perfectly congruent’ with commercial air

carrier operations for BFOQ purposes. 40 FEP Cas. [BNA]

at 297.

Contrary to this Court's direction in Celotex and Liberty

Lobby, however, the Ninth Circuit failed to identify the material

facts and further failed to recognize the absence of any genuine

dispute as to those facts. While conceding the existence of

substantial congruity, the Ninth Circuit concluded erroneously

that legally sufficient congruity was lacking in three respects.

First, the court suggested that Boeing pilots flying in

flight crew training operations perform ‘‘a task that on its

face does not appear to present as much stress or as grave a

safety risk as that associated with carrying the primary .

responsibility for operating the aircraft as commercial pilots

do.” 843 F.2d at 1221 (emphasis supplied). This determination

is a deduction by the court that is flatly contrary to the

undisputed record. Uncontroverted affidavits established that

Boeing flight crew training operations pose significant stresses

and risks at least equivalent to and arguably greater than

those of commercial flight. Boeing's training flights often

involve repeated “touch and go” landings and takeoffs. con-

centrating on the riskiest aspects of normal flight. Boeing

affiants presented additional uncontradicted evidence that

safety concerns in training flights are compounded by the

inexperience and, frequently, the limited English fluency of

students. Additionally, in a case of overseas training flights.

all these concerns are further magnified by the Boeing pilots’

lack of familiarity with the air space and airports used for

training. (Appendix C, at pp. 88a-90a).

Second, while the Ninth Circuit stated that airline pilots

formally subject to the FAA rule fly planes carrying pas-

sengers or property for hire, “most’’ Boeing pilots carry no

passengers. 843 F.2d at 1221. This assertion is both contrary

to the record and immaterial. It is undisputed that Boeing

pilots in Boeing corporate flight operations carried more than

160,000 passengers on 10,000 flights from 1980 to 1985. not

including the thousands of passengers transported in actual

commercial flights operated by Boeing pilots for customers.

Furthermore, the Johnson and Criswell congruity analysis

does not require that the federal rule be directly applicable,

but in fact assumes that it is not. Thus, the number of pas-

sengers transported by Boeing pilots and whether they paid

for the ride, while relevant to whether the FAA age-60 rule is

technically applicable on that flight, is immaterial in every

other respect.

Third and finally, the Ninth Circuit states that the

“workload” of Boeing's pilots was somehow affected by the

percentage of their working hours spent in flight. 843 F.2d at

1221. The Ninth Circuit has not only misunderstood “work-

load,” but also considered an issue outside the litigation. The

record discloses that pilot “workload” refers only to the number

of tasks the pilot must perform in the cockpit.* That Boeing

pilots may perform duties in addition to actual flying is

immaterial, since EEOC’s lawsuit challenges Boeing's policy

of removing pilots from flight status at age 60. The nonflight

“desk” duties of pilots are not material facts and any disputes

or comparisons regarding these duties are not germane.

The in-flight tasks of Boeing pilots are described in detail

by Boeing affiants, who provided entirely uncontroverted

8 Pilot “workload” is defined as the number of in-flight tasks a pilot

must perform within a given time frame. In a commercial airline

flight. workload during takeoffs and landings is high, because

many critical tasks must be coordinated during a short time period.

Cruising at altitude is, however, a low workload operation because

little need be done to keep the plane on course. Boeing's corporate

flight operations, in contrast, produce very high workload. Many

of these flights are not designed simply to move aircraft from one

point to another. Rather, their purpose is to put the aircraft in

flight, execute a large number of tasks in a relatively short period

of time, and then return the plane to the ground. (Appendix C,

at pp. 88a-9la, 97a-98a, 119a-33a).

testimony as to the safety risks and considerations raised by

Boeing flights, pilot workload. aircraft types flown, routes, air

space and airports occupied. and any other aspects of Boeing

flight operations relevant to the congruity issue. | Appendix

C, at 82a-98a. 119a-33a, 140a-42a).

In short, the safety risk posed by the operation of Boeing's

airplanes is, as the district court found, “almost perfectly

congruent’ with that arising from commercial air carrier

operations. No reasonable jury could have concluded other-

wise.’ As directed by this Court in Liberty Lobby and Celotex,

the district court properly separated the material undisputed

facts necessary to rule on Boeing's motion from the immaterial

controversies raised by EEOC. The Ninth Circuit's refusal to

recognize this same separation violates the logic and spirit of

this Court's decisions and should be corrected.”

This is evidenced. for example, by the Ninth Circuit's own decision

in Gathercole v. Global Assoc., 727 F.2d 1485 (9th Cir. 1984). In

Gathercole, the Ninth Circuit reversed a jury determination and

held as a matter of law that the FAA age-60 rule created a BFOQ

for unregulated pilots. The employer in Gathercole was operating

an air taxi service in the Marshall Islands. flying small prop air-

craft in virtually empty airspace with small numbers of passen-

gers. In contrast, Boeing flies large commercial jetliners in busy

commercial airspace, under circumstances vastly more congruent

with the commercial flight operations to which the FAA rule

formally applies. See also Rasberg v. Nationwide Life Ins. Co..

671 F. Supp. 494 (S.D. Ohio 1987) (granting summary judgment

recognizing FAA rule as a BFOQ as a matter of law for corporate

pilots); EEOC v. El Paso Natural Gas Co., 626 F. Supp. 182

(W.D. Texas 1985) (FAA rule establishes BFOQ as a matter of law

based on congruity of regulated and nonregulated occupations).

“ The Ninth Circuit's incantation of ADEA’s preference for a jury

determination exalts ADEA over the fundamental principles

articulated in Civil Rule 56 and in this Court's Celotex and

Liberty Lobby decisions. Nothing in ADEA forbids summary

judgment in an appropriate case. The Congressional preference

for a jury determination in ADEA cases is, of course. intended

only to provide jury review of disputed material facts. No such

disputes are present in this case.

CONCLUSION

It is unlikely if not inconceivable that the congruity

between regulated and unregulated occupations could be

greater than in the present case. Boeing flight operations raise

safety concerns — operation of large commercial jets in

congested airspace — virtually identical to those giving rise

to the FAA age-60 rule. The state of the art for medical testing

has been determined and redetermined by the FAA, which has

concluded that medical science cannot accurately predict

sudden incapacity of an airline pilot age 60 or over. Based on

these undisputed facts, this Court’s decisions in Johnson and

Criswell, as well as in Celotex and Liberty Lobby, entitle

Boeing to summary judgment. If these decisions are to have

force, the Ninth Circuit’s decision must be overturned.

Furthermore, the Ninth Circuit's decision injects into federal

decisional law a ruling improperly questioning the BFOQ basis

of FAA's rule even for airline pilots, the area of the rule's direct

application. The decision thus creates and aggravates a

dispute between the FAA and EEOC over the purportedly

“controversial” age-60 rule. For all these reasons, Boeing's

petition for certiorari should be granted and the Ninth Circuit's

decision overturned.

Respectfully submitted.

Michael C. Hallerud John F. Aslin*

THE BOEING COMPANY Jeffrey A. Hollingsworth

Nancy Williams

Attorney for Petitioner PERKINS COIE

Attorneys for Petitioner

and Counsel of Record (*)

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EQUAL EMPLOYMENT

OPPORTUNITY

COMMISSION, No. 86-3754

D.C. No.

CV-84-187-R

Plaintiff-Appellant,

THE BOEING COMPANY,

OPINION

Defendant-Appellee.

eo oe oe ae

Appeal from the

United States District Court

for the Western District of Washington

Barbara J. Rothstein,

District Judge, Presiding

Argued and Submitted

April 6, 1987--Seattle, Washington

Filed April 6, 1988

Before: James R. Browning,

Chief Judge, Eugene A. Wright

and Cynthia Holcomb Hall,

Circuit Judges.

Opinion by Judge Browning

SUMMARY

Employment Discrimination

Appeal from judgment that FAA regu-

lation provided a BFOQ for Boe.ng pilots

as a matter of law. Reversed and re-

manded. The court held that the respon-

Sibility for determining the validity of

a BFOQ lies with the court.

Appellant EEOC sued under the Age

Discrimination in Employment Act (ADEA)

challenging appellee Boeing Company's

practice of removing pilots from active

flight duty at age 60. Boeing admitted

discriminating on the basis of age but

defended on the ground that being less

than 60 is a bona fide occupational

qualification (BFOQ) for Boeing pilots.

Boeing moved for summary judgment, rely-

ing entirely upon the argument that a

Federal Aviation Administration (FAA)

regulation prohibiting commercial air-

line pilots from flying after reaching

age 60 provided a BFOQ for Boeing pilots

Oe ee ee *

as a matter of law. The district court

agreed. In granting summary judgment,

the court focused on the relevance and

the probativeness of FAA's Age-60 Rule.

The district court did not consider an

extensive evidentiary showing that dis-

quali®© ing impairments in persons over

60 can be determined on an individual

basis by scientific testing.

[1] The validity of a BFOQ turns

upon factual findings. Congress ex-

pressly decided that problems involving

age discrimination in employment should

be resolved on a case-by-case basis.

{2] The critical issue of fact here was

the detectability on an individual basis

of deterioration in a Boeing pilot aged

60 or over that might diminish that

pilot's capacity to discharge safely his

Or her duties. [3] Boeing did not offer

independent proof that it was highly

impractical to determine by testing

whether particular individuals aged 60

or over possessed traits precluding safe

and efficient performance as pilots. [4

The court treated FAA's Rule as if it

were an administrative determination of

a BFOQ for Boeing pilots entitled to

deferential review. [5S] Responsibility

for determining the validity of a BFOQ

lies in the courts. [6] There is seri-

ous doubt that the FAA Rule reflects 4

determination by FAA that age 60 is 84

BFOQ as defined by ADEA for the commer-

cial pilots to whom it applies, much

less a BFOQ for Boeing pilots. FAA'S

Rule has never been tested against

ADEA‘s requirements for 2 a even for

commercial pilots. [7] The FAA‘s Rule

is inapplicable to pilots who operate

large jet aircraft which may carry pas-

sengers. The FAA has rejected recommen-

dations that the Rule be extended to

other commercial flight operations. (8)

———

ADEA requires that a BFOQ be reasonably

necessary to the essence of the busi-

ness. In contrast, the standard under-

lying FAA's Rule requires the highest

possible degree of safety in the public

interest and may be more hospitable to

discrimination in the interests of safe-

ty than ADEA‘s standard for a BFOQ. [9}

The record also falls short of estab-

iishing that the tasks performed by the

various categories of Boeing pilots have

the same characteristics for BFOQ pur-

poses aS those performed by the Pilots

to whom FAA's Rule applies. (10] Boe-

ing’s level of proof and analysis is too

general to satisfy the purposes of ADEA.

(11) The EEOC moved to amend its

complaint to add an allegation that Boe-

ing*s age-60 rule results in Boeing's

Pilots’ forced lay-off or retirement,

loss of work, compensation and bene-

fits. (12) To the extent the proposed

amendment was intended to clarify the

complaint, it is now the law of this

case that the EEOC will be permitted to

discover and present evidence of the

alleged consequences of Boeing’s retire-

ment policy as an element of damages

under the present pleadings. [13] To

the extent the motion alleged the con-

sequences of Boeing's age-60 rule aS an

independent violation of ADEA, it was

not an abuse of discretion to deny it.

COUNSEL

Susan Elizabeth Rees, Attorney, Equal

Employment Opportunity Commission, Wash-

ington, D.Ce-s for the plaintiff-

appellant.

John F. Aslin, Perkins Coie, Seattle,

Washington, Michael C. Hallercud,

Seattle, Washington, for the defendant-

appellee.

OPINION

BROWNING, Chief Judge:

The Equal Emp loyment Opportunity

Commission brought suit under the Age

Discrimination in Employment Act of 1976

(ADEA), 29 U.S.C. §§ 621-634, challeng-

ing the Boeing Company‘s practice of

removing pilots from active flight duty

at age 60. Boeing admitted discriminat-

ing on the basis of age but defended on

the ground that being less than 60 is a

bona fide occupational qualification

(BFOQ) for Boeing pilots. Boeing moved

for summary judgment, relying entirely

upon the argument that a Federal Avia-

tion Administration (FAA) regulation

prohibiting commercial @irline pilots

from flying after reaching age 60 pro-

vided a BFOQ for Boeing pilots as a

matter of law. The district court a-

greed. EEOC v. Boeing Co., 40 Fair

Empl. Prac. Cas. (BNA) 292 (W.D. Wash.

1986).

We delieve the evidence otfered by

EEOC raised genuine issues of fact that

required trial, particularly in light of

Congress's expressed preference for jury

determination of factual issues arising

under ADEA. We therefore reverse.

The district court correctly con-

cluded (id. at 293) that to establish a

BFOQ for Boeing pilots, the burden

rested upon Boeing to prove by a prepon-

derance of the evidence:

1) that the job qualification

justifying the discrimination is

reasonably necessary to the es-

sence of its business; and

2) that age is a legitimate

proxy for the qualification be-

cause (a) it has a “substantial

basis for believing that all or

nearly all employees over an age

lack the qualification," or (the

alternative chosen by Boeing)

(b) it is impossible or “highly

impractical for [it] to insure by

individual testing that its em-

ployees will have the necessary

qualifications for the job."

See Western Air Lines v. Criswell, 472

U.S. 400, 416-17, 422-23 (1985);

Williams v. Hughes Helicopters, oe

806 F.26 1387, i391 (2966); 29 C.F.

§ 1625.6(b) (1987).

The district court noted that FAA's

Age-60 Rule may be relevant evidence of

a BFOQ for Boeing pilots if the regula-

tion is based on the same considerations

that would support determination of a

BFOQ under ADEA. The court observed

that the probative weight of the FAA

rule depends upon “the degree to which

the job performed by Boeing pilots is

congruent to that performed by commer-

Cial airline pilots." Id. at 294 (cit-

ing Johnson v. Mayor and City Council of

Baltimore, 472 U.S. 353, 371 (1985), and

Western Air Lines, 472 U.S. at 418).

10a

In granting summary judgment, the

court focused on (1) the relevance and

(2) the probativeness of FAA's Age-60

Rule. To determine tne relevancy of

FAA's Age-60 Rule, the court examined

the findings by FAA upon which the rule

was based: namely, that progressive

deterioration occurs with age; that

sudden incapacity becomes significantly

more frequent after age 60; that the

risk of such incapacity could not be

gauged adequately except by reference to

age; and therefore that the Age-60 Rule

was necessary for safety of air car-

riers. Id. at 294. The district court

noted that FAA had reexamined and reaf-

firmed the Age-60 Rule in 1972 and 1984

on the basis of renewed findings that

advanced age may adversely affect pilot

safety, and that tests were not yet

available that would reliably predict

such adverse effects in individual

Cee

lla

cases. Id. at 295. The court concluded

that “because the FAA regulation is

based on considerations that would sup-

port a BFOQ, the regulation may estab-

lish a BFOQ for jobs similar to that of

an airline pilot.” Id. Whether the

regulation does establish a BFOQ for

such jobs, the court said, would depend

on the probativeness of the regulation.

Id.

In assessing the probativeness of

FAA's Age-60 Rule in determining a BFOQ

for Boeing pilots, the district court

considered the strength of the evidence

upon which the Rule was based, the ex-

pertise of FAA, the standards applied by

FAA in adopting the Age-60 Rule, and how

Current the FAA regulation was. Id. at

295. The court found that the evidence

FAA considered was “more than sufficient

to establish prima facie evidence of a

factual basis for a BFOQ”" (id. at 296);

l2a

that the “specialized knowledge and

resources” Of FAA and the National In-

stitute on Aging (which concurred in

FAA's Age-60 Rule) “render([ed] efforts

by a court to reexamine the identical

issues an unwarranted duplication of

expert testimony” (id.); that the stan-

dard applied by FAA--that the age limi-

tation be reasonable and necessary for

safety--was consistent with the standard

required to establish a BFOQ for pilots

(46g. at 296-97); and that FAA had reaf-

firmed the rule less than two years

earlier. a. 6C 23%. Finally, the

court compared the functions of commer-

cial airline and Boeing pilots and con-

cluded:

that for purposes of establishing

a BFOQ the job performed by Boeing

pilots is almost perfectly con-

gruent with that performed by

airline pilots. The FAA age limi-

tation is based on safety con-

cerns, and the flying done by

Boeing pilots raises the same

safety concerns 45 that done by

l3a

airline pilots. Specifically,

Boeing pilots fly large, fast

aircraft in crowded air _ space.

The significant peculiarities of

Boeing flights entail even greater

demands on a pilot's cognitive and

psychomotor abilities than he

would experience on commercial

flights.

Id. at 297-98.

The court concluded that the FAA

Rule “is essentially conclusive’ evi-

dence” that being less than 60 is a BFOQ

for Boeing pilots. re. @¢. 284, The

court explained: "(T]he FAA regulation,

14 CFR § 121.383(c), coupled with the

background of the regulation and the

congruity of the relevant pilot posi-

tions, establishes a BFOQ defense for

Boeing as a matter of law. .. . Boeing

is entitled to rely on the conclusions

of the FAA. .. . Boeing need not re-

prove these same conclusions.

[A]ny inquiry by a court into the issues

already addressed by the FAA would be

redundant and wasteful." Id. at 298.

l4a

In sum, the district court read

Johnson and Western Air Lines to mean

that if the considerations upon which

FAA based the Age-60 Rule for commercial

airline pilots would also support an

age-60 limitation as a BFOQ for Boeing

pilots, if the evidence before FAA sup-

porting the Age-60 Rule for commercial

airline pilots was substantial, and if

the occupations of commercial airline

pilots and Boeing pilots were suffi-

ciently alike, the court could treat

FAA's Age-60 Rule as conclusive as 4

matter of law of the existence of an

age-60 BFOQ for Boeing pilots. Having

found the underlying considerations the

same, the evidence before FAA substan-

tial, and the occupations congruent, the

district court did not consider the

Commission's extensive evidentiary show-

ing that disqualifying impairments in

persons over 60 can be determined on an

ee ee Pe ee ee ae ee

ntth t sede.

A A MA i wy

iii iit iis. TOT lin BAe | 0

——oEooeoeoeeEeEeEeEOEOEeEeEeEeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eee eee ee

15a

individual basis by scientific testing.

Instead, because FAA's Age 60-Rule met

the court's tests for relevancy and

probativeness, the court held that Boe-

ing was entitled to summary judgment and

“(aJny issues of facts raised by [the

Commission] are not material.” 40 FEP

at 298. On the same ground, the court

denied the Commission's motion for fur-

ther discovery on several subjects

Clearly relevant to the merits of Boe-

ing's age-60 Rule as a BFOQ for its

pilots.

[1] The validity of a BFOQ turns

upon factual findings, preferably ones

by a jury. It was “Congress’ indisput-

able intent to permit deviations from

the mandate of the ADEA only in light of

a particularized, factual showing

Johnson, S72 U.S. at 362 (citations

l6a

omitted). Congress coupled its prefer-

ence for individualized examination of

proffered justifications for age discrim-

ination with a preference for resolution

of such issues by a jury: “Congress ex-

pressly decided that problems involving

age discrimination in employment should

be resolved on a ‘case-by-case basis’ by

proof to a jury.” Western Air Lines,

472 U.S. et 422 (eitiag 8.8. Sep. oe.

805, 90th Cong., lst Sess. 7 (1967), re-

Printed in EEOC, Legislative History of

the Age Discrimination in Employment Act

80 (1981)).

[2] The critical issue of fact in

this case was the detectability on an

individual basis of deterioration in a

Boeing pilot aged 60 or over that might

diminish that pilot's capacity to dis-

charge safely his or her duties. This

was an issue for the jury to decide if

a iia he: au

ree ae rita ban

17a

the facts were disputed. or for the

court to decide if they were not.

Since the matter was before’ the

district court on Boeing's motion for

summary judgment, the court was required

to deny the motion unless in view of the

whole record--including FAA's Age-60

Rule, the evidence considered by FAA,

and the expert opinions and other evi-

dence offered by the Commission--no

reasonable jury could have decided that

it was practical to test pilots age 60

and over for disabling conditions.

Anderson v. Liberty Lobby, Inc., 106 S.

Ct. 2505, 2510 (1986).

[3] As we have noted, Boeing did not

offer independent proof that it was

“highly impractical” to determine by

testing whether particular individuals

aged 60 or over possessed traits pre-

Cluding sate and efficient performance

as pilots. Instead Boeing relied upon

18a

FAA's Age-60 Rule and the evidence upon

which FAA based that rule. This evi-

dence included expert opinions on both

sides of the issue of the adequacy of

modern testing techniques; the district

court made no effort to resolve the

conflict. Moreover, the Commission

submitted an additional showing of re-

cent expert opinion indicating newly

developed scientific techniques permit-

ted accurate prognosis on an individual

basis of actual or potential loss of

function; the district court did not

consider this evidence.

In addition to the opinions of ex-

perts, the Commission offered evidence

that Boeing did not adept its age-40

policy until 1980, and prior to that

time employed pilots beyond age-60 with-

out incident; that there was no evidence

that any Boeing pilot had suffered an

incapacitating condition during flight;

a —te

19a

that FAA had not chosen to require early

retirement of its own pilots or of the

many pilots not covered by Part 121 of

FAA regulations; that the Navy had

adopted but thereafter rescinded = an

age-60 rule for Navy pilots; that FAA

and Boeing and other airlines have de-

veloped elaborate testing procedures to

detect health problems among pilots on

an individualized basis and have relied

upon these procedures to recertify pi-

lots grounded for potentially dangerous

conditions such as alcoholism or cardio-

vascular disease. '

‘Evidence of this kind has been

considered relevant to the BFOQO issue in a number

of cases. See. e.g.. Western Air Lines, 472 U.S.

at 404, 407, 423; Iervolino v. Delta Air Lines,

Inc., 796 F.2d 1408, 1412, 1417 (llth Cir. 1986):

Criswell v. Western Air Lines, 709 F.2d 544,

551-52 (9th Cir. 1983). aff'd 472 U.S. 400

(1985); EEOC v. County of Los Angeles. 706 F.2d

1039, 1043 (9th Cir. 1983); Tuohy v. Ford Motor

Co.. 675 F.2d 842, 843 (6th Cir. 1982); Case

Note, 36 Drake L. Rev. 213, 234 (1986-87).

20a

{4]) The district court regarded this

evidence as irrelevant because it found

the evidence considered by FAA in adopt-

ing the Age-60 Rule for commercial pi-

lots “more than sufficient to establish

prima facie evidence of a factual basis

for a BFOQ,“ and accordingly granted

summary judgment for Boeing. 40 FEP at

296. The Court treated FAA's Age-60

Rule as if it were an administrative

determination of a BFOQ for Boeing pi-

lots entitled to deferential review.

There are two problems with this ap-

proach. First, it vests in FAA control

and basic responsibility for resolving

factual issues in determining a BFOQ.

Secondiy, it treats the problem of de-

termining a BFOQ for Boeing pilots as if

it were the same as determining a BFOQ

for the pilots to whom FAA's Age-60 Rule

applies.

2la

{S] The statute vests responsibility

for determining the validity of a BFOQ

in the courts. In the exercise of that

responsibility a court may consider

relevant factfinding by Congress or by an

executive agency, but the court may not

abdicate its factfinding function to

either of the other branches. No

authority called to our attention justi-

fies deference to an agency determina-

tion in the administration of ADEA.°

"Individualized case-by-case evaluation of

each employee is the underlying principle of

administration under ADEA. Western Air Lines.

472 U.S. at 411. Because the BFOQ defense

substitutes a blanket rule for individual

evaluation, it is “"an extremely narrow

exception'” to the statute's general principle.

Id. at 412 (quoting Dothard v. Rawlinson, 433

U.S. 321, 334 (1977)). “Under the Act, employers

are to evaluate employees between the ages of 40

and 70 on their merits and not their age. In

the BFOQ defense, Congress provided a limited

exception to this general principle. ... "

id. at 422. To accord FAA's Age-60 Rule

conclusive or presumptive status might lead to

the validation of age discrimination beyond the

22a

It is clear from both Johnson-= and

Western Air Lines that FAA'S conclusions

and the record from which they were

drawn are no more than evidence for the

court to consider in arriving at 4a ju-

dicial decision as to the merits of Boe-

ing's BFOQ defense.”

In view of the disputed questions of

material facts relating to the detect-

ability of disqualifying impairments by

individual testing, trial was required.

As the Eleventh Circuit recently stated,

narrow confines of the BFOQ exception,

particularly in view of the difference in the

standards applied under ADEA and the Federal

Aviation Act. See infra pp. 16- 17.

"In Johnson the Court looked first to

whether a statutory provision establishing an age

limitation for federal firefighters reflected "a

congressional determination that age 55 is a BFOQ

within the meaning of the ADEA, .. . or whether

Congress established the mandatory retirement age

based on an analysis different from that manded

by the BFOQ standard." 472 U.S. at 363. It

concluded that the provision did not "articulate

a BFOQO. ... " Id. at 370. The Court then

discussed the effect a congressional

determination that age was a BFOQ for certain

23a

“(clases which rely heavily on expert

testimony, as is the case here, do not

federal occupations would have had in use of age

as a BFOQ in nonfederal occupations. The Court

said, "({i]t might be that congressional findings

leading to the conclusion that age is a BFOQ for

a certain federal occupation would be of

relevance to a judicial inquiry. ..." Id. at

366 n.10 (emphasis added). This relevance, the

Court explained, "derives from a recognition

that Congress might already have engaged in the

same inquiry that a_ district court must make,

and a district court might find congressionally

gathered evidence useful and congressional

factfinding persuasive." Id. (emphasis

added). The Court continued:

[I]£ Congress expressly extended the BFOQ to

nonfederal occupations, that determination

would be dispositive. But if it did not,

the federal exemption nevertheless might be

relevant ... to a district court engaged

in reviewing an employer's BFOQ defense.

The evidence Congress has considered, and

the conclusions it has drawn therefrom,

might be admissible as evidence in judicial

proceedings to determine the existence of a

BFOO for nonfederal employees. The extent

to which these factors are probative would,

of course, vary depending at least on the

congruity between the federal and nonfederal

occupations at issue. . . . Because in this

case the evidence supports no such finding

of congressional intent to establish a BFOQ,

however, we decline to speculate on the

manner in which a different federal rule

might affect nonfederal employment.

Id. at 370-71 (emphasis added).

24a

easily lend themselves to summary judg-

ment. Indeed most of the public safety

age discrimination cases seem to have

been resolved at trial." Childers v.

Morgan County Bd. of Educ., 817 F.2d

3556, 423595 iin Cie. ise7}teet <Ccur-

iam). * In Childers, summary judgment

The opening comment that a Congressionally

adopted BFOQ would be "dispositive" refers to a

legislative determination reflected in a

statute--such a statutory directive would. be

controlling, of course. But the Court clearly

stated that when an age limitation which is not

legislatively mandated is offered in support of a

BFOQ defense, the evidence received by Congress

and the conclusions Congress has drawn are not

conclusive in the judicial proceeding, but onlv

admissible as evidence.

In Western Air Lines, the Supreme Court

applied the redsoning of Johnson to the questions

of the proper use of FAA's Age-60 Rule in

resolving a BFOQ defense in an ADEA suit:

Although the FAA's rule for pilots, adopted for

safety reasons, is relevant evidence in the

airline's BFOQ defense, it is not to be accorded

conclusive weight." 472 U.S. at 418 (emphasis

added).

*The Eleventh Circuit cited Iervolino v.

Delta Air Lines, Inc., 796 F.2d 1408 (llth Cir.

1986); Usery v. Tamiami Trail Tours, Inc., 531

F.2d 224 (5th Cir. 1976); Maki v. Commissioner of

Educ. of State of N.Y., 568 F.Supp. 252 (N.D.N.Y.

tiie ee, 2

ad tae Oe esi Meld deere ee ne ee ae eee]

25a

was reversed and the issue of feasibil-

ity of individualized testing remanded

for trial largely because of conflicts

in medical opinion testimony. See also

Tuohy v. Ford Motor Co., 675 F.2d 842

(6th Cir. 1982); EEOC v. County of Santa

Barbara, 666 F.2d 373 (9th Cir. 1982).

Western Air Lines is compelling

authority that a trial is necessary. In

Western Air Lines, as in this case, the

employer relied upon FAA's Age-60 Rule

to establish a BFOQ for an occupation

other than piloting commercial flights--

flight engineers. Western requested an

instruction that the jury might rely on

1983) aff'd mem., 742 F.2d 1437 (2d Cir. 1984).

To this list may be added Western Air Lines, 472

U.S. 400; Hahn v. City of Buffalo, 770 F.2d 12

(2d Cir. 1985); Hoefelman v. Conservation Comm'n

of Mo., 718 F.2d 281 (8th Cir. 1983); EEOC v.

University of Tex. Health Science Center, 710

F.2d 1091 (5th Cir. 1983); EEOC v. County of Los

Angeles, 706 F.2d 1039 (9th Cir. 1983); Orzel v.

City of Wauwatosa Fire Dept... 697 F.2d 743 (7th

Cir. 1983); Tuohy v. Ford Motor Co., 675 F.2d 842

(6th Cir. 1982) (remanded for trial).

26a

FAA's Age-60 Rule for commercial carrier

pilots to establish a BFOQ for flight

engineers “without considering any other

evidence." 472° Usa. OE. S1F2 The Su-

preme Court held that FAA's rule was

relevant evidence, but “is not to be

accorded conclusive weight.” id, at

418. The Court approved submission to

the jury of the evidence of the adequacy

of individualized testing, including

expert opinion on that subject. Id. at

424.

As the opinion of this circuit in

the Western Air Lines’ case reveals,

Western objected to instructions which

imposed upon Western the burden of show-

ing it was highly impractical to deter-

mine on an individualized basis the

ability of a particular flight engineer

over 60 to perform the job safely, and

that some flight engineers possess

traits precluding safe job performance

27a

which cannot be detected other than by

age. Criswell v. Western Air _ Lines,

Inc., 709 F.2d 544, 549-50 (9th Cir.

1983). Western argued that “it should

not have been required to reconstruct

what it calls ‘the medical rationale

underlying the FAA'S Age-60 Rule.'" cy

at. 390. We held that the issue was

properly submitted to the jury, and that

the jury's verdict rejecting the BFOQ

defense had substantial evidentiary

Support, including expert testimony

"that present-day diagnostic techniques

and the current level of medical knowl-

edge make possible individual determina-

tions" of the capacity of second of-

ficers over 60 to perform safely. Id.

at 551-52.

The Supreme Court in Western Air

Lines forcefully rejected the argument,

made again by Boeing in this case, that

juries are ill-equipped to resolve

28a

disputes between experts over highly

technical medical questions:

Western argues that .. . medical

disputes can never be proved “to a

certainty" and... . juries should

not be permitted “to resolve bona

fide conflicts among medical ex-

perts respecting the adequacy of

individualized testing.” .. . The

jury, however, need not be con-

vinced beyond all doubt that medi-

cal testing is impossible, but

only that the proposition is true

“on a preponderance of the evi-

dence.” Moreover, Western's at-

tack on the wisdom of assigning

the resolution of complex ques-

tions to 12 iay-persons is incon-

sistent with the structure of the

ADEA. Congress expressly decided

that problems involving age dis-

Crimination in employment’ should

be resolved on a “case-by-case

basis" by proof to a jury.

472 U.S. at 422 (citations and footnote

omitted).°

*The Second Circuit responded in similar

terms to the argument that case-by-case

determinations will lead to inconsistent results:

It seems somewhat anomalous for the

lawfulness of maximum age limits on police

hiring to depend on the particular evidence

presented at various court trials throughout

29a

We have considered the cases relied

upon by Boeing and find them unper-

Ssuasive.

Cases sustaining FAA's Age-60 Rule

and FAA's refusal to grant exceptions to

it decided no more than that the liti-

Gants opposing these actions of the

agency had failed to carry their burden

of showing FAA acted beyond its rule-

making and regulatory authority, without

the country. . . . Nevertheless, the ADEA

accords each person between 40 and 70 the

right to challenge an adverse employment

decision based on age and thereby obligates

each employer to defend such challenges in

separate actions, despite the application of

the same age limit to similar or even

identical occupations in different

communities. Moreover, Congress has not

provided for agency determination of whether

a particular age is a BFOQ for a particular

occupation. The District Court was

therefore obliged to undertake the extensive

inquiry it made, and our task is limited to

determine whether its findings are clearly

erroneous and whether relevant legal

standards were correctly applied.

Hahn v. City of Buffalo, 770 F.2d 12, 15-16 (24

Cir. 1985)(citations omitted).

30a

substantial evidence, or in abuse of its

discretion.” Obviously, rulings

favorable to FAA on those issues have

little relevance here.’

Boeing argues that our decisions in

Williams v. Hughes Helicopters, Inc.,

806 F.2d 1387 (9th Cir. 1986) and

Gathercole v. Global Associates, 727

F.2d 1485 (9th Cir. 1984), “compel af-

firmance” in this case. Boeing argues

that Hughes confirms the district

court's position that if substantial

evidence supports the safety rationale

®keating v. Fed. Aviation Admin., 610 F.2d

611, 613 (9th Cir. 1979); Rombaugh v. Fed.

Aviation Admin., 594 F.2d 893, 899-900 (2d Cir.

1979); Gray v. Fed. Aviation Admin., 594 F.2d

793. 795 (10th sac. 1979): Starr v. Fed.

Aviation Admin., 589 F.2d 307, 311-14 (7th Cir.

1978): O'Donnell v. Shaffer, 491 F.2d 59, 62-63

(D.C. Cir. 1974); Air Line Pilots Ass'n Int'l v.

Quesada, 276 F.2d 892, 898 (2d Cir. 1960).

"These cases are distinguished from age

discrimination suits under ADEA in Keating, 610

F.2d at 613; Rombaugh, 594 F.2d at 898-99; and

Starr, 589 F.2d at 313-14.

a ele Se nl Wena’ oe

ee tte

3la

of FAA's Age-60 Rule, and there is suf-

ficient congruity between the occupa-

tions of commercial airline pilots and

Boeing pilots, then the FAA rule estab-

lishes a BFOQ for Boeing pilots as a

matter of law. This is not the holding

of Hughes. In that case a jury found an

age limitation imposed by Hughes to be a

BFOQ for Hughes helicopter pilots. The

pilots’ appeal asserted error in the

denial of motions for summary judgment

by which the pilots had sought to pre-

vent Hughes from relying on FAA's Age-60

Rule and expert testimony developed at

trial. The Hughes pilots argued that

pilots who were terminated by Hughes

were performing safely when they were

terminated, that Hughes had no age pol-

icy prior to initiating the limitation

at issue, that Hughes had not imposed

the policy on all of its pilots, and

that Hughes had subsequently reszinded

32a

the policy and offered to reinstate

pilots terminated under the policy. We

sustained the district court's rulings

that both FAA's Age-60 Rule and expert

testimony were admissible in support of

Hughes’ BFOQ defense. See Hughes, 806

F.2d at 1389-91. We did not hold FAA's

regulations to be conclusive. Id. at

1392. Indeed, we did not hold it to be

substantial evidence sufficient to sup-

port the jury's verdict that the age

limitation was necessary to the essence

of Hughes‘ business--review of that

issue was precluded by failure of the

Hughes pilots to move for a directed

verdict, and we held only that’ the

jury's verdict sustaining the BFOQ de-

fense was not “plain error.” Id.

Nor is Gathercole controlling. We

held im Gathercole that FAA's Age-60

Rule constituted a BFOQ for pilots em-

ployed by an Army contractor to fly

—

33a

Passengers between points in the Mar-

Shall Islands on behalf of the Army.

The employer in Gathercole was required

by its contract with the United States

Army to comply with FAA‘s Age-60 Rule.

Boeing is under no such. contractual

Obligation in this case. The two other

assumptions relied upon in Gathercole

are no long available: (1) we said the

Army was entitled to rely on the FAA

Rule, Global by its contract was re-

quired to do so, and the FAA Rule there-

fore afforded Global BFOQ protection

(Gathercole, 727 F.2d at 1488), but

treatment of the FAA Rule as conclusive

evidence of a BFOQ defense was subse-

quently rejected in Western Air Lines,

472 U.S. at 418; (2) we relied on the

fact that the regulations interpreting

section 4(€)(1) of ADEA listed FAA‘s

Age-60 Rule as illustrative of an ap-

propriate BFOQ, but the Commission sub-

34a

sequently amended its regulations to

delete this reference to the FAA Rule to

avoid the appearance that it approved

the FAA Rule as a BFOQ.

{6] Even accepting the district

court's premise that exclusive reliance

on FAA's Age-60 Rule in determining 4a

BFOQ might be appropriate if the under-

lying considerations were the same and

the occupations sufficiently similar,

the record in this case did not demon-

strate the existence of either condi-

tion. There is serious doubt that the

FAA Rule reflects a determination by FAA

that age 60 is a BFOQ as defined by ADEA

for the commercial pilots to whom it

applies, much less a BFOQ for Boeing

pilots. Although FAA‘s Age-60 Rule has

been sustained as a proper exercise by

FAA's rule-making and regulatory power,

it has never been tested against ADEA's

35a

requirements for a BFOQ even for the

commercial pilots. EEOC has referred to

FAA's Age-60 Rule as “controversiai” and

declined to include it as an example of

an appropriate BFOQ under ADEA. See 46

Fed. Reg. 47725 (1981); Trans World

Airlines, Inc. v. Thurston, 469 U.S.

lll, 123 n.17 (1985).

[7] FAA's Age-60 Rule applies only

to pilots who fly for air carriers op-

erating under Part 121 (generally air-

lines operating large passenger-carrying

aircraft). 44. CCF OR. |= «121.1, .38

(1987). It is inapplicable to pilots

who operate large jet aircraft which may

Carry passengers in non-Part 121 opera-

tions, such as corporate pilots, flight

instructors or pilots who ferry planes,

Or FAA's own pilots, or to commercial

airline pilots who operate smaller air-

craft regulated under other parts of

FAA's regulations. See 14 CFR § 135.-

36a

243. If FAA's Age-60 Rule were a BFOQ,

presumably the safety justification for

the Rule would compel its application at

least to all commercial airline pilots,

and to all pilots operating the types of

aircraft covered by Part 121, regardless

of which regulation governs the opera-

tion. Yet, FAA has er recommenda-

tions from the National Transportation

Safety Board and the National Institute

of Health that the Rule be extended to

other commercial flight operations. See

Report of the National Institute on

Aging Panel on Experienced Pilots Study

2 (August 1981).

{8] ADEA requires that a BFOQ be

“reasonably necessary to the essence of

the business." 29 C.F.R. § 1625.6(b).

In contrast, the standard underlying

FAA's Age-60 Rule requires “the highest

possible degree of safety in the public

interest. ... * 49 U.S.C. § 1428(0)-

37a

(1982), and may be more hospitable to

discrimination in the interests of safe-

ty than ADEA's standard for a BFOQ. It

may be that the Age-60 Rule reflects an

FAA decision to resolve any doubts about

the necessity for an age qualification

in favor of the substantial number of

seaseubere Carried by Part 121 car-

riers. Whatever the reason, it cannot

be assumed that the concerns that led

FAA to adopt the Age-60 Rule for the

particular group of commercial pilots

flying aircraft regulated under Part 121

are equally applicable to determining a

BFOQ based on age 60 for Boeing hare.

[9] The record also falls short of

establishing that the tasks performed by

the various categories of Boeing pilots

have the same characteristics for BFOQ

purposes as those performed by the pi-

lots to whom FAA's Age-60 Rule applies.

38a

The district court recognized ‘that

on “many fine points” there was a con-

flict in the evidence relating to the

Similarities and differences, and found

only that “the undisputed portions of

the evidence [were] sufficient to indi-

cate that in many important’ respects

Boeing pilots perform a job that is

Similar to the job performed by airline

pilots.” 40 FEP at 297 (emphasis in

Original). The evidence was that Boe-

ing's pilots are assigned to a Flight

Crew Training Unit (41 pilots), an En-

gineering Test Flight Unit (10 pilots),

Or a Production Test Flight Group (14

pilots). Boeing furnished descriptions

of the general characteristics of the

flying tasks of pilots in each of these

units. On the basis of this evidence,

the court concluded the jobs of pilots

39a

in®'aii**ttre2”" groups wer “almost _per>.

fectly congruent” with the job of com-

mercial airline pilots, because both

Boeing pilots and commercial pilots fly

the same kind of aircraft, fly in the

same air space, fly in and out of the

same airports, and execute similar ma-

neuvers under conditions that are equal-

ly demanding. Id.

[10] This level of proof and analy-

Sis is too general to satisfy the pur-

poses of ADEA. It is evident from the

broad description of the three job clas-

Sifications that the tasks performed by

Boeing pilots encompass a wide range of

physical and psychological demands, and

a wide range of risks of harm to the

Pilots and to others if an accident

occurs. Some may perform jobs similar

to those of commercial pilots; others

rather clearly do not. For example, a

40a

Significant portion of the time of pi-

lots in the largest Boeing Unit (the

Flight Crew Training Unit) was devoted

to training other pilots--a task that on

its face does not appear to present as

much stress or as grave a safety risk as

that associated with carrying the pri-

mary responsibility for operating the

aircraft as commercial pilots do. Some

Boeing pilots perform especially demand-

ing and dangerous experimental and en-

gineering flights; commercial pilots do

not. All pilots subject to FAA's Age-60

Rule fly planes carrying passengers or

property for hire; some Boeing pilots

Carry passengers, but most do not.

Boeing contended all of its pilots car-

ried heavy workloads; EEOC offered evi-

dence that only a small percentage of

the working hours of some Boeing pilots

was spent in flying; no evidence was

4la

offered as to the flying hours of com-

mercial airline pilots.

The district court found these dif-

ferences unimpressive, commenting, for

example, that some Boeing pilots few no

passengers was of “no great signifi-

cance.” 40 FEP at 298. However, this

and other differences between the tasks

of commercial pilots and different clas-

sifications of Boeing pilots were rele-

vant to the weight of FAA's Age-60 Rule

as evidence of a BFOQ for different

classifications of Boeing pilots. Among

other things, “the greater the safety

factor, measured by the likelihood of

harm and the probable severity of that

harm in case of an accident, the more

stringent may be the job qualifications

designed to insure safe driving.” Usery

vv. Toemtems Teeil Fours, inc., 331 .2¢6

224, 236 (5th Cir. 1976) (quoted with

approval in Western Air Lines, 472 U.S.

| sii ai iemiiiiiaill

“Ura

at 413); see also Tuohy, 675 F.2G at

844-45. The level of safety required in

a particular job category is also rele-

vant to the degree of reliability re-

quired of testing procedures to detect

individual deterioration due to aging.”

*Similarly, the district court dismissed

the statements of two Boeing pilots that they

spent as little as 6.25% and 12.6% of their

working hours actually flying an airplane.

remarking that flying still "remains the essence

of a Boeing pilot's job," as it is of the job of

a commercial pilot, because all Boeing pilots

are required to fly and qualify for their other

- tasks largely because of their flying

experience. 40 FEP at 298. The court added

that Boeing's age-60 rule only required a pilot

to leave active flight status at 60, but “not

necessarily[] to leave Boeing altogether." Id.

Since "this case concerns pilots only as flyers

of airplanes[,]" the court said, "the additional

tasks Boeing pilots may be required to perform

are irrelevant." Id. However, the extent to

which Boeing pilots in a particular job category

are engaged in flying, both relative to the

Boeing pilots in other job categories and

relative to commercial pilots, bore upon the

stress, risk, and degree of assurance against

age deterioration necessary to the essence of

Boeing's business, and was significant to the

probative value of FAA's regulation.

43a

[ll] Approximately two months after

Boeing filed its motion for summary judg-

ment, the Commission moved to amend its

complaint to add an allegation that Boe-

ing's age-60 rule “results in [Boeing's

pilots'] forced lay-off or retirement,

loss of work, loss of compensation and

benefits, and forced participation in

defendant's Pilot Terminal Leave or

Pilot Early Leave programs." The Com-

mission argued the amendment was neces-

Sary to “clarify that the consequences

of Boeing's age-60 flight removal policy

had always been part of the law suit.”

The Commission also argued it was neces-

Sary to “amplify” its allegations be-

cause "“fa]s the suit progressed, the

commission learned that not only were

few Boeing pilots at age 60 offered al-

ternative employment, but that what was

offered was temporary.”

“44a

The district court denied the motion

stating that insofar as the amendment

was only clarifying, it was unnecessary,

and to the extent it “would append to

this law suit an entirely new inquiry

into layoff and retirement practices at

Boeing, the amendment is unduly late.”

[12] To the extent the proposed

amendment was intended to clarify the

complaint, it is now the law of this

case that the Commission will be permit-

ted to discover and present evidence of

the alleged consequences of Boeing's

retirement policy as an element of dam-

ages under the present pleadings. To

this extent, therefore, denial of the

motion did not prejudice the Commission.

[13] To the extent the motion al-

leged the consequences of Boeing's age-

60 rule as an independent violation of

ADEA, it was not an abuse of discretion

to deny it. “Where the party seeking

amendment knows or sriould know of the |

facts upon which the Proposed amendment

is based but fails to include them in

the original complaint, the motion to

amend may be denied.” Jordan v. County

of Los Angeles, 669 F.24d 1311, 1324 (9th

Cir. 1982), vacated On other grounds,

459 U.S. 810 (1982).

The Commission's Claim that it

learned of the consequences of the age-

60 rule as actually applied by Boeing

Only during the pendency of the litiga-

tion is not convincing. Before filing

Suit, the Commission interviewed many

Boeing pilots over the course of several

years regarding Boeing's retirement

practices. Indeed, the complaint as

filed included an allegation that Boeing

unlawfully forced Pilots to retire from

all work solely because of age. The

Commission amended its complaint at the

commencement of discovery to omit this

allegation and confine the complaint to

46a

removal of pilots from flight duties.

As a result discovery was similarly con-

fined. The district court did not abuse

its discretion in finding that Boeing

would be prejudiced by the restoration

of the new cause of action in these cir-

cumstances. See Acri v. International

Ass'n of Machinists & Aerospace Workers,

781 F.2d 1393, 1398-99 (9th Cir. 1986)

("late amendments to assert new theories

are not reviewed favorably when the

facts and the theory have been known to

the party seeking amendment since the

inception of ~the cause of action.")’

The denial of leave to amend is af-

firmed. The summary judgment is

reversed and the cause remanded for fur-

ther proceedings. REVERSED and REMANDED.

*The district court is free, of course. to

reconsider the motion to amend in light of the

changed circumstances resulting from this appeal.

47a

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EQUAL EMPLOYMENT )

OPPORTUNITY )

COMMISSION, )

)

Plaintif€, ) NO. C84-187R

)

Vv. ) ORDER GRANTING

) DEFENDANT'S

) MOTION FOR

THE BOEING COMPANY, ) SUMMARY

) JUDGMENT

Defendant. )

)

THIS MATTER comes before the court

on the summary judgment motion of defen-

dant Boeing Company. The court has

carefully considered the memoranda and

other materials submitted in support of

and in opposition to this motion.

The Boeing Company is 3 large

airplane manufacturer that currently

employs 65 jet transport pilots on active

flight status. a Boeing policy

48a

(hereinafter the “age-60" rule) requires

that these pilots leave active flight

status upon reaching age 60. A pilot who

leaves active flight status must either

obtain a non-pilot position at Boeing or

leave Boeing altogether.

A Federal Aviation Administration

("FAA") regulation, 14 C.F.R.

§ 121.383(c) (1985), provides in part:

No person may serve as a pilot on

an airplane engaged in operations

under [Part 121] if that person

has reached his 60th birthday.

In general, Part 121 regulates commercial

airlines. See 14 C.F.R. § 121.1

(1985). Hence, 14 C.F.R. § 121.383(c)

applies to commercial airline pilots.

Neither this regulation nor any ocher FAA

regulation sets a maximum age for Boeing

pilots.

In the present action, the Equal

Employment Opportunity Commission

("EEOC” ) and certain privately

49a

represented pilots challenge Boeing's

“age-60" rule as a violation of the Age

Discrimination in Employment Act, 29

U.S.C. §§ 621-634 (1982) ("ADEA").

Boeing concedes that the “age-60" rule

discriminates on the basis of age.

However, Boeing asserts that the rule

does not violate ADEA because, under 29

U.S.C. § 623(£)(1), age is a “Bona Fide

Occupational Qualification” (“BFOQ") for

Boeing pilots. Boeing moves for summary

judgment based on the asserted BFOQ.

In order to establish for ADEA

purposes that age is a BFOQ for a parti-

cular job, an employer must demonstrate

that the age limitation he imposes

satisfies certain standards feicst set

forth in Usery v. Tamiami Trail Tours,

Inc., 531 F.2d 224 <2Gm Cif. 1976).

Stated briefly, these standards are:

50a

that (1) the age limit is reason-

ably necessary to the essence of

the business, and either (2) that

all or substantially all individ-

uals excluded from the job

involved are in fact disquali-

fied, or (3) that some of the

individuals so excluded possess a

disqualifying trait that cannot

be ascertained except by refer-

ence to age. If the employer's

objective in asserting a BFOQ is

the goal of public safety, the

employer must prove that the

challenged practice does indeed

effectuate that goal and that

there is no acceptable alterna-

tive which would better advance

it or equally advance it with

less discriminatory impact.

29 C.¥.R. § 1625.60). See Western Air

Lines, Inc. v. Criswell, U8, ,

1605 §.Ct. 2743 (1985) (adopting Tamiami

standards). To obtain summary judgment,

Boeing must demonstrate that there exist

no genuine issues of material fact and

that, as a matter of law ‘under the

Tamiami standards, age is a. BFOQ for

Boeing pilots.

Boeing cannot establish a BFOQ by

mere reliance on the FAA regulation that

5la

limits the age of airline pilots because

this regulation does not apply to Boeing

pilots. See Johnson v. Mayor & City

Council of Baltimore, U.S. . ae

S.GG. #447. C3985). However, the FAA

regulation may be relevant evidence if

the regulation is based on the~- same

considerations that would support deter-

Mination of a BFOQ under ADEA. See

Johnson, U.S. at , 203 8. .Cti a€

2726-273: Crisweil, o-3. &€ , ees

S.Ct. at 2754. The extent to which such

evidence is probative depends in part on

the degree to which the job performed by

Boeing pilots is congruent to that

performed by airline pilots. Id. Boeing

asserts that — the FAA regulation is

conclusive. In light of the safety

rationale for the FAA regulation and the

Similarity of the jobs performed by any

jet pilot flying into and out of maior

alrports, the court finds that the FAA

328

regulation is essentially conclusive

evidence that age is BFOQ for Boeing

pilots.

I. LEGAL REASONING

A. Relevance: Basis of the FAA

Regulation

The court concludes that the FAA

regulation, 14 Beete. § 121.383(c)

(1985), is based on considerations that

would support determination of a BFOQ

under ADEA and that the regulation is

therefore relevant evidence in the

present case. Under ADEA, a BFOQ for a

particular job may be established by

evidence that an age limitation is

~ reasonably necessary to assure public

safety and that some people excluded by

the limitation possess a disqualifying

trait that cannot be ascertained except

by reference to age. The FAA regulation

is based on precisely such evidence.

ial

53a

The regulation now codified at 14

C.F.R. § 121.383(c) was promulgated by

the FAA in 1959. This regulation was 4a

response to safety concerns raised by the

proliferation of large, fast jet air-

craft. The FAA Administrator had ap-

pointed a committee to study the possibie

need for an age limitation for airline

pilots. and this committee had _ recom-

mended that the FAA should promulgate an

age limitation of 60 years. A proposed

regulation imposing such a limitation was

published with an invitation for public

comment, and the period for comment was

extended beyond the usual 30 days. 24

Fed. Reg. 5247-50 (June 27, 1959). Upon

promulgation of the limitation, the FAA

Stated findings in accordance with those

of the committee. 24 Fed. Reg. 9767

(Dec. 5, 1959). Specifically, the FAA

found that utilization of airline pilots

Over age 60 creates a safety hazard.

54a

i The asserted reasons for this hazard

include:

that there iS a progres-

sive deterioration of certain

important psysiological [sic] and

psychological functions with age,

that significant medical defects

attributable to the degenerative

process occur at an increasing

rate as age increases, and that

sudden incapacity due to such

medical defects becomes signifi-

cantly more frequent in any group

reaching age 60.

Id. The FAA also found that the risk of

sudden incapacity could not be gauged

adequately except by reference to 5

person's age and that other forms of

deterioration become more significant in

combination with the hidden defects that

give rise to the risk of sudden

incapacity.

Such incapacity, due primar-

ily to heart attacks and strokes,

Cannot be predicted accurately as

to any specific individual on the

basis of presently available

scientific tests and criteria.

On the contrary, the evidences of

the aging process are so varied

in different individuals that it

SL ee

55a

is not possible to determine

accurately with respect to any

individual whether the presence

Or absence of any specific defect

in itself either led to or

precluded a sudden incapacitating

attack. Any attempt to be

selective in predicting which

individuals are likely to suffer

an incapacitating attack would be

futile under the circumstances

and would not be medically

sound

Other factors, even less

susceptible to precise measure-

ment as to their effect but which

must be considered in connection

with safety in flight, result

Simply from aging alone and are,

with some variations, applicable

to all individuals. These relate

to loss of ability to perform

highly skilled tasks rapidly, to

resist fatigue, to maintain

physical stamina, to perform

effectively in a complex and

stressful environment, to apply

experience, judgment and reason-

ing rapidly to new, changing and

emergency Situations, and to

learn new techniques, skills and

procedures. The progressive loss

of these abilities generally

Starts well prior to age 60; and,

even though they may’ be signifi-

cant in themselves prior to age

60, they assume greater signifi-

cance at the »lder ages when

coupled with medical defects

56a

leading to increased risk of

sudden incapacitation.

Id. Based on these findings, the FAA

concluded that a restriction against

airline pilots over 60 years old "is

necessary for safety in air commerce and

is in the public interest." 24 Fed. Reg.

at 9768. The validity of the regulation

was sustained in Air Line Pilots Ass‘n,

Internat'l v. Quesada, 276 F.2d 892 (2d

Cir. 1960), cert. denied, 366 U.S. 962

(1961).

In 1972, the Air Line Pilots Associ-

ation International ("“ALPA") petitioned

the FAA Administrator for a hearing to

establish grounds for revocation of the

age limitation. "Disposition of Peti-

tion," FAA Regulatory Docket No. 10358

(Mar. 23, 1972) at 1 (Boeing Source

Materials, Tab 10). The FAA held infor-

mal hearings and treated the petition as

a petition for rule making to revoke the

57a

age limitation. et. Upon consideration

of the evidence submitted by ALPA and

others, the Administrator declined to

initiate rule making to revoke the age

limitation because the likelihood of

certain disqualifying traits still could

not be ascertained except by reference £0

a pilot’s age.

In the opinion of the FAA, there

continues to be a sound medical

basis for retaining the age 60

rule. When the rule was adopted,

a chronological determinant was

selected in the absence of our

ability to determine the physio-

logical and psychological age of

individual pilots, and that

ability remains lacking

today.

[ac Be S The refusal to revoke the

regulation was upheld in O'Donnell

Sueeeer, 66) F.26 $9 (D.C. Cir. 1974).

In 1979, Congress directed the

National Institutes of Health, in consul-

tation with the Secretary of Transporta-

tion, to conduct a special study to

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62a

materials have been “lost” by the FAA and

are thus unavailable. According to Air

Line Pilots Ass'n Internat’l v. Quesada,

276 F.2d 892, 898 (2d Cir. 1960), cert.

denied, 366 U.S. 962 (1961), however, the

evidence before the FAA provided “con-

siderable support” for the regulation.

In 1958, the FAA Administrator and his

medical staff began 4 study on the aging

process. Id. at 895. They took counsel

with various experts in aviation medicine

and safety and observed the practices of

five foreign air lines with respect to

mandatory retirement. Id. In response

to he proposed regulation to limit the

age of pilots, the FAA received about 100

comments and the large majority of these

favored the regulation. Id-

Interested parties have had an

opportunity to submit relevant evidence

at least twice since the regulation was

63a

promulgated: once in 1972, in connection

with the hearing obtained by ALPA, and

once in 1982, subsequent to release of

the NIA report. In addition, the FAA in

1979 commissioned a study on the current

medical soundness of the age limitation

for airline pilots. Appendix A to

Boeing’s Memorandum in Support of Motion

for Summary Judgment at A-10-11; Pilots’

Opposition to Motion for Summary Judgment

at 9n.10. The study was conducted by a

committee of experts organized by Dr.

James Goddard, former Civil Air Surgeon.

Id. It appears that the committee took

evidence from representatives of ALPA,

NIA, the Air Line Medical Directors

Association, the National Transportation

Safety Board, and other organizations.

The committee concluded that, while

sudden pilot incapacitation from heart

attack or stroke was probably 4 less

severe problem than originally perceived

64a

in 1959 and the risk of such incapacita-

tion might be subject to faicly accurate

determination, age related deterioration

in other areas could not be determined on

an individual basis with current medical

techniques. Id. The committee therefore

concluded that the current age limitation

should be retained. Id.

The record does contain the basic

text of the 1981 NIA report produced in

response to Pub. L. Mo. 96-171, 93 Stat.

1285 (1979). “Report of the National

Institute on Aging Panel on the Experi-

enced Pilots Study” (Aug. 1981) (Boeing

Source Materials, Tab 11). This report

reflects the conclusions of a panel of

NIA experts who reviewed a study con-

ducted by the Institute of Medicine of

the National Academy of Sciences’7 and

received comments’ from interested par-

ties, including ALPA, EEOC, the Pilots

niin

OD SS ee TO EEE SS Sew St aaa ese Se ee a SUS SS Ss owwowYT™

—e ‘ we 2 ‘

- 4 e .

* =:

65a

Rights Association, the Civil Aviation

Medical Association, the Aerospace

Medical Association, and the Air Trans-

port Association of America. Id. at

lii-iv. The Institute of Medicine study

provided an objective examination,

summary and assessment of existing

scientific knowledge relevant to the

current age limitation for airline

pilots. Id. Upon consideration of the

study and the comments thereon, the NIA

panel concluded that, while no special

-medical significance could be attributed

to age 60, the current age limitation

should be retained. Id. at ) In

support of this conclusion, the _ panel

cited substantial evidence, including the

established premise that cognitive and

psychomotor performance deteriorate with

age; general population statistics

indicating that disease, death and

disability rates rise increasingly

66a

steeply after age 50; general aviation

statistics indicating that pilots'

accident rates decline until age 60 and

rise thereafter; and the absence of

proven methods to test for subtle impair-

ment in the cognitive or psychomotor

ability necessary to perform in a complex

flight environment. Id. at 2-7, 19-21.

The court believes that the efforts

of the FAA and NIA would be more than

sufficient to establish prima facie

evidence of a factual basis for a BFOQ.

Cf. Usery v. Tamiami Trails Tours, Inc.,

$3) F.2¢6 224, 237-386 (Sth Cit. i976)

(BFOQ based on controverted expert

testimony); Hodgson v. Greyhounds Lines,

Inc., 499 F.2d 859, 863 (7th Cir. 1974),

cert. denied, 419 U.S. 1122 (1975)

(defendant must show “rational basis in

fact" to believe elimination of maximum

67a

age will increase likelihood of acci-

dents).

2. Expertise

Clearly, the FAA has_ considerable

expertise in matters related to commer-

cial aviation, including operation of

aircraft. Moreover, NIA has special

medical expertise in matters related to

the ag process. The specialized

knowledge and resources utilized by the

experts in these organizations renders

efforts by a court to reexamine the

identical issues an unwarranted duplica-

tion of expert testimony. * - Keating

v. Federal Aviation Admin., 610 F.2d 61ll,

613 (9th Cir. 1979) (deference to FAA

expertise).

3. Standards

The FAA Administrator promulgated

the age limitation for airline pilots by

his Statutory authority to prescribe

reasonable regulations to govern pilots'

68a

periods of service and to provide for

safety in air commerce. See 49 U.S.C.

§ 1421(a)(5)&(5) (1982). He expressly

found that an age limitation was neces-

sary for safety. Thus he applied stan-

dards--reasonableness and necessity--that

are consistent with ADEA standacds for

establishment of a BFOQ.

4. Current Validity

The age limitation for airline

pilots was last reaffirmed on current

evidence on April 12, 1984--less than two

years ago. 49 Fed. Reg. 14692 (April 12,

1984). The court considers this reaf-

firmance sufficiently recent to provide

reliable evidence of a BFOQ.

5. Congruity

Plaintiff disputes many fine points

about the nature of the job pertormed by

Boeing pilots. After careful examination

of the arfidavits and other materials

submitted by the parties, the court finds

69a

the undisputed portions of the evidence

sufficient to indicate that in many

important respects Boeing pilots perform

a job that is similar to the job per-

formed by airline pilots. Boeing pilots

fly the same kinds of aircraft that

airline pilots fly. They frequently fly

in the same air space and fly into ard

out of many of the same busy airports.

According to FAA figures, Boeing Field is

one of the ten busiest airports in the

United States. Affidavit of F. Paul

Bennett ("ALE Bennett") at 8. The

maneuvers Boeing pilots must execute are

at least as difficult as those executed

by airline pilots, and the conditions

under which Boeing pilots fly are at

least as demanding as those experienced

by airline pilots.

Boeing flight operations are divided

into two functional groups: flight test

and flight crew training. Affidavit of

70a

Samuel Lewis Wallick, Jr. ("Aff. Wal-

£icK*)})- .ot~ as The flight test group is

subdivided into an engineering group and

a production group. Id.

Boeing pilots assigned to the flight

crew training group train commercial

pilot crews to fly Boeing jets purchased

by customer air lines. Aff. Bennett at

ms Boeing's customer training school is

the only FAA-certified training facility

for airline pilots that is not itself

connected to an airline. Id. at 3. The

final phase of training is conducted in

flight. Id. #t &. In order to develop

and test trainee skills, training flights

include hazardous maneuvers not routinely

performed on commercial flights. id. at

6-7. On such flights, the Boeing pilot

may not be in control of the aircraft,

but he rides in the co-pilot seat and

monitors the performance of the trainee.

Affidavit of Zane A. Griffin at : 2

7la

Boeing pilots assigned to flight crew

training may also deliver aircraft to a

purchaser and then remain with the

purchaser for thirty days or more to

assist newly trained pilots or, in some

cases, to perform as crew members on

scheduled flights carrying passengers.

Aff. Bennett at 8-9. In some instances,

a customer airline has contracted for

Boeing to provide pilots for scheduled

flights for a year or more until enough

of the airline's own pilots can 0be

trained. Id. at 10.

The engineering test fight group is

primarily responsible for conducting

experimental flights oof Boeing's air-

planes. Aff. Wallick at 4. To assure

adequate safety margins for normal

flight, Boeing must determine the maximum

performance characteristics of its

airplanes. Id. Engineering test pilots

must perform many hazardous maneuvers

72a

that test an airplane's structural

limitations. ié. at 4-6. Moreover,

these maneuvers must be performed in a

variety of inclement weather conditions.

Id. at 6-7. The number of tasks

performed by a pilot on an experimental

test flight--including radical maneuvers,

observance of aircraft performance, and

frequent communication with testing

personnel and air traffic control--is

much larger than on a normal commercial

flight. is, - @& Fs, Engineering test

pilots may also conduct demonstration

flights with numerous passengers aboard.

Id. at 8.

Production test pilots are primarily

responsible for initial quality control

flights of new aircraft. Aff. Wallick at

9. In order to test operation of all

aircraft systems, a pilot on a production

test flight must perform extraordinary

action such as taking the aircraft to

734

maximum operating speed and altitude,

shutting down engines to determine if

they will restart properly, turning off

hydraulic systems and generators to

determine if they will conie back online

properly, and depressurizing the cabin to

determine if oxygen masks will be re-

leased properly. Id. at 10. The number

of tasks performed by a pilot on a

production test flight is much larger

than on a normal commercial flight. Id.

Production test pilots may also deliver

aircraft to customers. ié. Often,

passengers ride aboard delivery flights.

Id.

Construing all evidence in the light

most favorable to plaintiff, the court

concludes that for purposes of establish-

ing a BFOQ the job performed by Boeing

pilots is almost perfectly congruent with

that performed by airline pilots. The

FAA age limitation is based on safety

74a

concerns, and the flying done by Boeing

pilots raises the same safety concerns as

that done by airline pilots. Specifi-

cally, Boeing pilots fly large, fast

aircraft in crowded air space. The

Significant peculiarities of Boeing

flights entail even greater demands on a

pilot’s cognitive and psychomotor abil-

ities than he would experience on com-

mercial flights.

The court attaches no great signifi-

cance to the absence of passengers on

most Boeing flights. In any event, the

evidence indicates that between 1980 and

1985 Boeing pilots carried over 160,000

Passengers on more than 10,000 flights

and carried 30 or more passengers on each

of more than 600 flights. Affidavit of

Carol L. Knutson.

EEOC points out that Boeing pilots

may perform many functions other than

flying. One former flight crew training

75a

pilot says that over 15 years he spent

only 25% of his time actually training

pilots and only 25% of that time in

flight. Affidavit of Zane A. Griffin at

3. He spent much of his time developing

training programs, maintaining and

developing flight manuals, and maintain-

ing and developing instruction proce-

dures. 14, at 2. He also provided

flight and simulator proficiency checks

On Boeing pilots. i Fae oe Another

former Boeing pilot says that flying

accounts for only 12.6% of his working

hours over 22 years. Affidavit or

Robert T. Johnson at 1. He says that he

spent a good deal of time working with

engineering projects, writing operational

procedures, providing technical help to

Customers and conducting talks for sales

Or public relations purposes. Id. at 2.

Even though Boeing pilots are

required to perform various functions in

76a

addition to flying,~ the court believes

that flying remains the essence of a

Boeing pilot's job. All Boeing pilots

are required to fly airplanes and may be

qualified for other tasks based largely

on their flying experience. Moreover,

the “age-60" rule merely requires a pilot

to leave active flight status and does

not necessarily require a pilot to leave

Boeing altogether. In other words, this

case concerns pilots only as flyers of

airplanes. The court therefore concluces

that the additional tasks Boeing pilots

may be required to perform are irrelevant.

II. CONCLUSION

A motion cor summary judgment may be

granted only where there exist: no

genuine issue of material fact and the

moving party is entitled to judgment 4s a

matter of law. Feo. R. Civ. BP. S6CE?.

In the present case, the court concludes

thet Boeing is entitled to summary

77a

judgment based on the undisputed evidence

of a BFOQ for Boeing pilots. Any issues

of fact raised by plaintiff are not

material.

The court believes that the FAA

regulation, 14 ee a - Seheneaee.

coupled with the background of hie

regulation and the congruity of the

relevant pilot positions, establishes a

BFOQ defense for Boeing as a matter of

law. The regulation bears important

indices of relevance and reliability in

that it is based on safety considerations

that would support a BFOQ; it is based on

extensive evidence; it was promulgated by

an expert agency, the FAA, and supported

by amother, NIA; the FAA weighed the

evidence according to standards consis-

tent with ADEA; the regulation has been

reaffirmed on current evidence in the

recent past; and the job performed by

Boeing pilots is congruent to that

78a

performed by pilots subject to the

regulation in that the jobs raise the

same safety concerns. Because of these

indices of relevance and reliability,

Boeing is entitled to rely on the con-

clusions of the FAA. Cf. Gathercole v.

Global Assoc., 727 F.2d 1485, 1488 (9th

Cir. 1984) (Army may rely on FAA con-

clusions). Boeing need not re-prove

these same conclusions. Moreover, these

indices persuade the court that any

inquiry by a court into the issues

already addressed by the FAA would be

redundant and wasteful.

IT IS NOW, THEREFORE, ORDERED aS

follows:

ks Boeing's motion for summary

judgment is GRANTED. This action iS

dismissed.

i All other motions pending in

this matter are STRICKEN.

79a

The Clerk of the Court is directed

to forward copies’ of this Order to

counsel of record.

DATED at Seattle, Washington this

24th day of February, 1986.

/s/

BARBARA J. ROTHSTEIN

UNITED STATES DISTRICT JUDGE

ee ea ee ug eae

a) Ye,

80a

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EQUAL EMPLOYMENT )

OPPORTUNITY )

COMMISSION, )

)

Plaintif€, ) NO. C84-187R

)

Vv. ) AFFIDAVIT OF

) F. PAUL

) BENNETT

THE BOEING COMPANY, )

Defendant. )

)

STATE OF WASHINGTON )

; £8.

COUNTY OF KING )

F. PAUL BENNETT, being first duly

Sworn upon cath, deposes and says:

he I am chief pilot, training

crews, for The Boeing Company and have

held that position since 198l. Prior to

assuming my present job, I worked for

Boeing as an experimental test pilot and

co-pilot, a senior project pilot on the

8la

747 and a flight crew training pilot.

Altogether, I have worked as a pilot for

Boeing in one capacity or another since

1964. Regardless of my formal organiza-

tional assignment at any given time, I

have performed both training and experi-

mental flight duties as needed.

zs I was born October 16, 1931.

I attended college from 1949 to 1952,

when I joined the Air Force. I served

in the Air Force as a fighter pilot from

1952 to 1956, flying F-86 jet inter-

ceptors over Korea during the war.

After my release from active duty, I

continued to fly in the Air National

Guard while pursuing a degree in aero-

nautical engineering at the University

of Colorado. I received that degree in

1960 and joined Boeing's engineering

staff the same year. Four years later,

I was able to transfer into Boeing's

flight operations as an experimental

}

82a

co-pilot. In 1966, I attended and grad-

uated from U.S. Navy Test Pilot School.

: 3 As chief pilot, training crews

I am in charge of all training that

Boeing pilots provide for customers

whose crews must learn to fly Boeing

aircraft. There are currently 41 Boeing

pilots on flight status who are employed

primarily in flight crew training, a

subgroup of the company's Flight Test

Organization. Three others not on

flight status (two of whom are over 60)

are also employed at present in phases

of flight crew training not involving

actual flight. Pilots from the produc-

tion test and engineering test subgroups

also work in flight crew training as

needed. By the same token, pilots from

flight crew training engage in a variety

of flight assignments other than cus-

tomer training. They are responsible

for a substantial portion (about 10%) or

83a

Boeing's demonstration’ flights, where

Boeing ai craft are taken through their

paces for prospective customers on board

the flights. Flight crew training

pilots also co-pilot production and

experimental test flights. They perform

aircraft delivery (often with passengers

aboard) and “engine inoperable” ferry

work, discussed below.

4. Boeing's customer training

school is in a unique position. re is

the sole FAA-certified training facility

for Part 121 pilots which is not itself

a Part 121 commercial aic carcier.

Boeing is the only aircraft manufacturer

so certified. Boeing's unique status is

a result of the company's pioneer role

in the development of large commercial

passenger jet aircraft.

When the first Boeing commercial

jets were introduced, there simply were

no pilots qualified to train purchasers

. -

84a

to fly them other than Boeing Pilots who

had flown the craft in experimental and

developmental flight Operations. As

more jets were delivered and more dis-

tinct models introduced, the training

Program became increasingly formalized,

and a particular group of Boeing pilots

had flight crew training as their pri-

mary responsibility. Today Boeing's

training program continues to be one of

the larger commercial training dies

for commercial jet pilots in the world.

ee Some of the flight crew train-

ing offered to Boeing customers is part

of an overall “customer Support" package

which is included on a fairly standard

basis as part of the sale of aircraft.

However, the needs of many Boeing cus-

tomers frequently require far more

training and support than is part of the

Standard package. Separate contracts or

85a

Side agreements are developed to accom-

modate those needs. Boeing also con-

tracts to provide flight crew training

not associated with the sale of aircraft.

6. The typical sequence for 4a

trainee flight crew includes training at

Boeing's flight training centers in

Seattle or at a remote location, fol-

lowed by varying amounts of continued

support and monitoring during the cus-

tomer’'s regular line flight operations,

wherever located.

a4 Boeing pilots are not involved

in the first phase of pilot training,

which consists of ground school and

initial fixed base cockpit training.

This first phase is taught entirely by

engineers and normally takes twelve

training days per crew. The length of

this training is often much greater if

the trainee pilots are not proficient in

English. Because Boeing's customers

86a

include numerous foreign airlines’ for

whose pilots the training must be trans-

lated, the material covered in this

initial phase may take as much as _ a

month.

8. Boeing's flight crew training

pilots are first involved in the train-

ing program at the advanced phase of

fixed-base cockpit training. Normally

the same Boeing pilot works with a

trainee crew from that point’ until

Boeing's training and support work with

that crew is completed. This continuity

is essential so that a trainee crew

member’s repeated deficiency or error,

however subtle, will not be overlooked.

Continuity also enhances clarity of

communication between instructors’ and

trainee pilots, which may take time to

build, particularly with non-English

Speaking trainees. Obviously, good

communication and detection of even

87a

minor performance problems are critical

to the eventual safety of passengers

whom the pilots will shortly be carrying

in revenue operations.

9. Following the advanced fixed-

based cockpit training (normally three

training days absent language or other

barriers), the Boeing instructor pilots

take their assigned crews through seven

training days of “full-flight” simulator

work. The fixed-base simulator does not

have motion or visual effects and is

used primarily to teach auto-flight

operation. This work also familiarizes

the trainee pilots with the instrumenta-

tion and layout of the appropriate

craft. The “full-flight” simulators

have sound, motion and visual effects

which closely dupl- cate actual flight

conditions. Here Boeing pilots provide

intense training while monitoring their

trainees for performance deficiencies.

ee ee ee ee er an

88a

At the end of the simulator phase, the

trainee pilots are ready for their air-

Craft training flights. (A small minor-

ity of Boeing's flight crew training,

called “Phase 2” simulator training,

involves a much more intensive program

in the “full-flight” simulator. After

successfully completing Phase 2 train-

ing, a trainee pilot can go directly to

the “initial operating experience” re-

quired for full certification in a

particular model.)

10. The training and check flights

are normally flown in the airplane(s)

the customer has purchased from Boeing.

These flights are not typical of revenue

flights which most crews will eventually

Pilot. Revenue flying ordinarily is a

smooth operation that does not usually

make extreme demands on pilot. skills.

By contrast, training and check flights

89a

are filled with simulated problem situa-

tions which exact maximum skills of both

the trainees and the Boeing pilots in

command of the flights. Emergencies

such as “engine failures“ are simulated

by putting one of the plane's engines in

idle rather than actually shutting down

the engine. However, the maneuvers

required and risk involved are nearly

the same as in a “real” emergency.

Exercises include “engine failure™ dur-

ing both takeoffs and landings, which

even under normal circumstances are the

most hazardous phase of a flight. Prac-

tice in this phase is augmented by nu-

merous “touch and go“ landings in which

the plane touches down and takes off

again without stopping. Because train-

ees must learn and demonstrate their

ability to perform a number of other

tasks as well, the training and check

flights are unusually busy flights for

ee os oe

;

90a

both trainees and instructors. In addi-

tion, s#t*". concerns are augmented by

the inexperience of the trainee crews

and, in many cases, by trainees' lack of

Fluency in English.

ll. Although most’ simulator. and

training work takes place in Seattle,

the demand for training has often ex-

ceeded the capacity of Boeing's facility

there. Presently and on a number of

past occasions, Boeing has arranged to

use “full-flight"” simulators at distant

Sites. For example, Boeing pilots are

presently training crews on simulators

in England and Australia. When training

is conducted at a remote site, frequent-

ly training and check flights are also

at a distant location depending upon

Customer convenience. Such flying could

take place nearly anywhere in the

world. In such instances, the normal

9la

challenges of these flights may be in-

creased by Boeing pilots having to fly

in unfamiliar airspace, and take off and

land at unfamiliar airports.

12. Training and test flights are

normally conducted out of Seattle area

airports--SeaTac, Paine Field or, most

often, Boeing Field. SeaTac and Boeing

Field share common traffic control and

traffic patterns. These flights mix

with the commercial air traffic over and

around the Seattle metropolitan area.

Boeing Field, to which commercial

flights are frequently diverted from

SeaTac in inclement weather, ie. ac-

cording to FAA figures, one of the ten

busiest airports in the United States.

Obviously, safe operation of Boeing

training flights are as important to the

safety of other aircraft in the traffic

pattern as is the safe operation of

commercial flights.

S2a

13. After the training and check

flights are complete for the pilots of a

particular customer, the flight crew

training pilot(s) travel to the location

of the customer's operations to complete

Boeing's support, training and check

activity. Often the training pilot will

actually “deliver” the aircraft in which

he has trained the customer's crew(s).

Flight crew training pilots have flown

airplanes to destinations worldwide,

often into unfamiliar airports. At

times the Boeing craft has been the

first jet of any kind to land at an

airport, thus testing the capability of

the airport to accommodate jet flight.

Delivery flights also at times carry

passengers in varying numbers. Passen-

gers have ranged from pilots and other

customer personnel who- are returning

home after training at Boeing to cCus-

tomer managers and officials, and even

93a

government dignitaries, who wish to be

part of the inaugural arrival of a new

airplane.

14. After the Boeing’ craft is

delivered, Boeing's flight crew training

pilots remain at the customer location

for a period of thirty days or more.

The exact role of the Boeing pilot(s) at

this point varies somewhat according to

Customer needs. The Boeing pilot nor-

mally accompanies his former trainees in

actual revenue (or line) flying. This

phase of Boeing's activity is referred

to as “line assist." The Boeing pilot

observes and advises the recently train-

eG pilots in their initial flights with

revenue passengers. With larger U.S.

Carriers, line assist is usually con-

ducted by the Boeing pilot from the

“jump seat" rather than in one of the

two "front seats” of the plane. How-

ever, with smaller U.S. Carriers and

;

a, ee ih tied Ketel

94a

virtually all foreign customers (which

comprise the greatest number of Boeing's

Customers), Boeing pilots occupy either

the command pilot's or first officer's

seat. (When in this role for a U.S.

Carrier, the Boeing pilot is, of course,

subject to all provisions of Part 121,

including the age-60 rule.) During the

last two years, Boeing pilots’ have

"flown the line” as crew members’ for

numerous airlines. Foreign airlines in

that category include Pakistan Inter-

national, LTS (West Germany), Europeair,

Brittania, China Airlines (Taiwan), CAAC

(People's Republic of China), Ansett

(Australia), Air New Zealand and

Qantas. Domestic Part ioe €ecriers

include Mark Air, New York Air, Sun

World, Continental and Continental West.

15. After their certification to

fly a particular Boeing aircraft model,

95a

customer pilots must complete a pre-

scribed period--normally 25 flight

hours--of “initial operating experience”

or “IOE” under the supervision of a

certified check airman. Historically,

most U.S. airlines have used their own

certified check airmen to complete the

IOE. However, some airlines have re-

cently found it more economical to use

Boeing's training pilots for this activ-

ity. Under section 121.434 of the Fed-

eral Aviation Regulations, the check

airman conducting IOE for an airline

command pilot is also considered to be

in command of the craft, regardless of

whether he is located in the first of-

ficer's seat or the jump seat. As such,

the check airman is subject to all the

requirements of Part 121, including the

age-60 rule.

16.-. 39 some instances, Boeing's

customers have contracted for actual

96a

line flying by Boeing pilots until

enough of their own pilots can be train-

ed and certified to pilot all scheduled

flights. For example, Boeing pilots

recently completed nearly a year of such

Support for Alaska-based Mark Air. To

meet Mark Air's needs, I assigned four

pilots at a time to the project on a

30-day rotation basis. At least a quar-

ter of Boeing's flight crew training

pilots were assigned to the project at

one time or another. In the past, Boe-

ing has provided similar support to

other customers, occasionally for even

longer periods. Boeing pilots flew the

line for Olympic Airlines (Greece) for

approximately two years and did the same

for Iran Air. During the 1970's, nearly

every flight crew training pilot served

a rotation of line flying for Syrian

Airlines, for which we provided line

97a

Captains for several years. Until ap-

proximately 1981, numerous training

pilots did rotations over several years

for Libya‘s airline. Briefer stints

were flown for Garuda, an Indonesian

airline. In such circumstances, Boeing

pilots command or act as first officer

for scheduled passenger and cargo

flights.

17. Several piiots in Boeing's

flight crew training organization also

do “engine inoperable” ferrying of air-

craft, a service Boeing provides by

contract. This "engine inoperable"

Situation is exacting and hazardous, and

presents risks which have not been cre-

ated artificially. Boeing is called on

to “ferry” a plane which has lost an

engine from the point where it was in-

Capacitated to a location where it can

be repaired. Regular airline pilots are

usually unwilling and/or insufficiently

—

98a

skilled to conduct such flights. Boeing

pilots who perform these flights must be

ready to undertake the task at a mo-

ment's notice, whenever a disabled air-

Craft situation occurs. They typically

fly the disabled planes out of and into

regular commercial airports. These are

not short, easy flights. They have been

On routes such as Mexico City to New

York, Denver to Los Angeles and New York

to London.

/s/

F. PAUL BENNETT

SUBSCRIBED AND SWORN to before me

this 25th day of November, 1985.

/s/

NOTARY PUBLIC in and

for the State of

Washington, residing

at Seattle

99a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

EQUAL EMPLOYMENT )

OPPORTUNITY )

COMMISSION, )

)

Plaintiff €, ) NO. C84-187R

)

Vv. ) AFFIDAVIT OF

} ZANE A.

) GRIFFIN

THE BOEING COMPANY, )

)

Defendant )

)

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

ZANE A. GRIFFIN, being duly sworn,

upon oath deposes and says:

ca I am one of the former Boeing

pilots listed on Schedule A of the First

Amended Complaint in the EEOC’s) suit

against The Boeing Company.

as I was hired by Boeing in June,

1966. After working approximately six

100a

months in the flight manual department,

I requested and received a transfer to

the newly developed flight crew training

department.

3. From that time, I worked as an

instructor pilot for Boeing until Octo-

ber 1, 1982 when I was placed on Pilots

Early Leave pursuant to Boeing's deci-

sion to remove all pilots from flight

Status at age 60.

4. During my 15-year tenure as an

instructor pilot, I had the following

responsibilities: developing training

programs, maintaining and developing

flight manuals, maintaining and develop-

ing instruction procedures, providing

flight and simulator proficiency checks

of Boeing pilots, and instruction of

customer flight crews.

De It was not necessary or re-

quired to do any flying in order to

——

l10la

develop or maintain training programs,

flight manuals or instruction procedures.

6. In performing flight profi-

ciency checks, I did not pilot the air-

plane, but merely observed the pilot,

evaluating his performance. My role was

identical to that of an FAA check pi-

lot. FAA pilots are not within the

scope of the FAA rule prohibiting com-

mercial airline pilots from flying past

age 60. |

7. Obviously, Simulator checks

did not require that I do any flying

Since the pilot was being evaluated in a

Simulator.

8. Most of my time as a Boeing

pilot was spent working on various

stages of the instruction program Boeing

offered to its customers’ flight crews.

De After an airplane was opur-

chased, as an instructor pilot, I would

L02a

visit the customer's facility, familiar-

ize myself with the routes flown by the

airline and determine the particular

training needs of that airline. This

stage usually took about two weeks.

10. The flight crew to be trained

would then attend for one month Boeing's

ground school taught by Boeing's en-

gineers. hicins this time I would pre-

pare a report on my two-week on-site

visitation and set up the particularized

training for the customer's flight crew.

ll. After the crew completes

ground school, I would train them for

approximately two weeks on the ground in

the simulator.

12. The remaining instruction,

about four to six hours per pilot and

co-pilot, was actual flying. The stu-

dent pilot flew the plane; I acted as an

103a

observer sitting in the co-pilot seat.

Only when the co-pilot was being in-

structed did I sit in the pilot seat.

No passengers were e**r on board during

an instruction flight.

13. Approximately 25 percent of my

time was spent actually’ instructing

flight crews. Seventy-five percent of

the total instruction time was spent in

a flight simulator; only about 25 per-

cent of the instruction was done in

flight.

14. In addition to these stages,

the customer had the option of obtaining

“line assistance,“ that is, visitation

by an instructor pilot for a period from

2 weeks to 3 months. During this stage,

while I would occasionally occupy a

seat, there was always a fully operating

crew on board and my duties were those

104a

of an observer and safety 5t tot.

Throughout my entire career at Boeing, I

only once was required to take over the

aircraft during a line assistance flight.

15. In addition to the duties

outlined above, instructor pilots could

be scheduled to pilot commercial pas-

senger flights. This flying, sometimes

called 121 flying,. was done to improve

customer relations and usually was done

for foreign customer airlines. This

program was voluntary for the pilots; we

were not required to participate. Dur-

ing my 15 years with Boeing I flew 121

about 200 hours or a total of about 25

working days. Aside from the single

line assist occurrence, these voluntary

assignments were the only times my work

as a pilot was within the FAA'S age 60

105a

rule or a foreign equivalent of that

rule.

/s/

ZANE A. GRIFFIN

SUBSCRIBED AND SWORN TO before me

this 13th day of December, 1986.

/S/

NOTARY PUBLIC in and for

the State of Washington,

residing at Seattle

106a

Honorable Barbara J. Rothstein

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

THE BOEING COMPANY,

Defendant.

AT SEATTLE

EQUAL EMPLOYMENT )

OPPORTUNITY )

COMMISSION, )

)

Paesecitt, ) NO. C84-187R

)

Vv ) DECLARATION OF

) ROBERT T.

) JOHNSON

)

I, ROBERT T. JOHNSON, depose and

state as follows:

he This Declaration is made in

Opposition to defendant's Motion for

Summary Judgment.

a I am one of the pilots listed

on Schedule A to the Amended Complaint.

107a

Be During my 22 years of service

as a pilot with Boeing until my sixtieth

birthday on March 8, 1980, I flew 5,263

hours, averaging 233 hours per year.

This was approximately 12.6% of my work-

ing hours (233 hours + 1840 £4hours/

year). In the remaining 87.4% of my

working hours, I performed technical

work.

4. During my employment with

Boeing, I flew a total of 59.2 hours of

“revenue” flying (flying in scheduled

air carrier operations), Or approxi-

mately 1.4% of my total work hours.

Whereas’ an airline pilot's principal

duty is to fly aircraft, most of the

working hours of Boeing's pilots are

spent performing various technical,

engineering, training and support func-

tions.

a. Unlike airline pilots, there

is much more than flying skills required

Petite tetas 4 lai nasi ala

108a

of a Boeing pilot. I was required to be

able to work with engineering projects

and staff, write operational procedures,

provide technical help to customers,

conduct talks with groups for sales and

public relations purposes, and coordin-

ate with the Federal Aviation Admini-

stration. On another occasion I served

as chairman of the committee that de-

veloped the B-747 training program. I

also supervised the study and develop-

ment of the Operations Department for

several customers, including establish-

ing their personnel requirements.

6. Not all Boeing pilots fly in

customer revenue operations. To my

knowledge, pilots James Gannett and

Edward Hartz, for example, have not

flown in customer revenue operations.

ss The more demanding experimen-

tal and engineering flights are required

to be performed in uncongested areas,

109a

generally in VFR (visual flight rules)

conditions. To my knowledge, Boeing

does not conduct complicated Flight

training maneuvers either at Boeing

Field or at Seattle-Tacoma Airport. In

fact, Boeing is prohibited from conduct-

ing experimental flights over populated

areas. Most training flights are con-

ducted out of Moses Lake, Washington.

Experimental flights are usually con-

ducted over mountain ranges or oceans.

8. Under Part 121 of the Federal

Aviation Regulations, Appendix H, all or

virtually all non-routine training and

checking maneuvers are performed in a

Simulator, not in an airplane. Airlines

with Appendix H approval assign trainees

to their first landings in an airplane

with revenue passengers’) aboard. Such

‘airlines do not require non-normal man-

euvers to be performed in the airplane.

“ ee ew eee

ne ah OER A CARA AD, Wel we eS

110a

9. Attached hereto and marked

Exhibit 1l is a true and correct copy of

page iii of “FAA Approved Part 121 Boe-

ing Jet Transport Flight Program,” dated

January 15, 1982.

10. To my knowledge, Boeing does

not comply with 14 C.F.R. §121.391 in

that it does not provide flight atten-

dants on its flights in which persons

are transported other than the operating

cockpit crew. During my employment,

Boeing did not comply with 14 C.F.R.

§121.440, requiring that all pilots in

command receive a line (enroute) check

at least annually. Boeing does not

always comply with 14 C.F.R. §§121.433

and 121.434, requiring that pilots sec-

ond in command be qualified and current

in the particular aircraft type. Boeing

does not comply with 14 C.F.R. §121.441,

requiring that each of its pilots in

command on engineering, experimental,

llla

production, demonstration, ferry, and

delivery flights receive at least one

proficiency check annually, and an ad-

ditional proficiency check oor profi-

ciency training six months thereafter.

ll. Experience, training, and

pilot technique, rather than age, are

the primary factors in conducting ex-

perimental, engineering, production, and

training flights. Boeing's training

incidents have usually involved younger,

less experienced instructor pilots.

Those instructor pilots removed from

flight status at age 60 and then forced

to retire represent the safest group of

Pilots Boeing has ever employed.

I declare under penalty of perjury

that the foregoing is true and correct.

/s/

Executed on December 12, 1985.

ll2a

Judge Barbara J. Rothstein

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EQUAL EMPLOYMENT )

OPPORTUNITY )

COMMISSION, )

)

Plaintiff, ) NO. C 84-187R

)

Vv. ) ERRATA TO

) DECLARATION OF

) ROBERT T.

THE BOEING COMPANY, ) JOHNSON

)

Defendant. )

)

Robert’ T. Johnson, by his~ at-

torneys, states that a typographical

error has been discovered in his Declar-

ation “executed December 12, 1985 and

filed December 16, 1985 with Pilots'

Opposition to Motion for Summary Judg-

ment. The words "59.2 hours” on page 2,

line 2, should read "592 hours.”

ll3a

Date: December 26, 1985

/s/

Attorney for Robert T.

Johnson

HALEY, BADER & POTTS

ll South LaSalle Street,

#1600

Chicago, Illinois 60603

Mary Anne Vance

604 Interurban Building

157 Yesler Way

Seattle, Washington 98104

CERTIFICATE OF SERVICE

I, Alan M. Serwer, counsel for

pilots in the above action, certify that

I have served copies of the fore- going

Errata to Declaration of Robert T.

Johnson, by first class mail, postage

prepaid, this 26th day of December,

1985, upon the following:

John F. Aslin, Esq.

Nancy Williams, Esq.

PERKINS COIE

1900 Washington Building

Seattle, WA 98101

1l4a

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Seattle District Office

1321 Second Ave., 7th Floor

Seattle, WA 98101

I declare under penalty of perjury

that the foregoing is true and correct.

/s/

Alan M. Serwer

115a

Honorable Barbara J. Rothstein

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EQUAL EMPLOYMENT )

OPPORTUNITY )

COMMISSION, )

)

Plaintiff, ) NO. C84-187R

)

Vv. ) AFFIDAVIT OF

) SAMUEL LEWIS

) WALLICK, JR.

THE BOEING COMPANY, )

, )

Defendant. )

)

STATE OF WASHINGTON )

COUNTY OF KING ae

SAMUEL LEWIS WALLICK, JR. being

first duly sworn on oath, deposes and

says:

Le I am currently employed by The

Boeing Company (“Boeing”) as Director of

Flight Test. My job is to supervise the

operations of Boeing's flight crew

ll6a

training, experimental, and production

test flight groups.

Zs I was born in 1924 and began

my flying experience in 1943 at age 19.

My initial pilot training was provided

in the Navy, where I served as a pilot

of carrier-based fighter airplanes..

x After the war, I attended

Kansas State University in Manhattan,

Kansas. I received my Bachelor's Degree

in mechanical engineering in 1949 and in

that same year went to work for Beech

Aircraft Company in Wichita, Kansas. In

January 1951, I took a job with the

Boeing Airplane Company's Wichita opera-

tion. My first job for Boeing was writ-

ing field service manuals for various

Boeing aircraft. By June 1951, I had

moved into Boeing's flight test organi-

zation as a flight test engineer. In

September 1951 I became a Boeing test

pilot.

117a

.; During my first few years at a

Boeing pilot, my primary job was test

flying the Boeing B-47, the predecessor

of the Boeing B-52. In 1953, I attended

Air Force test pilot school at Edwards

Air Force Base in California. In May

1955, I was transferred to Seattle to

work in the B-52 program.

» After arriving in Seattle in

1955, I flew test flights of the B-52

and the Boeing Dash 80. The Dash 80 was

the prototype for the Boeing 707 and the

KC-135 military transport. In 1956 I

began test flying the KC-135; in 1958 I

began test flights of the Boeing 707.

6. By the early 1960's, I was

test flying only jets designed for the

commercial air transport market. I was

the project test pilot and lead test

pilot for the Boeing 727 during this

period. I was the pilot for the first

727 flight, which occurred in 1963.

118a

a In the mid to late 1960's, I

performed extensive test flying of the

Boeing 737, the stretch version of the

727 (the 727-200), and the Boeing 747.

I was the co-pilot on the 737's first

test flight in 1967. During the 1960's

I also flew demonstration flights for

customers of the 727, 707, and 737.

8. In 1970, I became Boeing's

Chief Test Pilot and was responsible for

Supervising all the experimental test

pilots. I held this position until

1974, when I assumed my current job as

Director of Flight Test.

9. In the late 1970's and early

1980's, I flew on the first test flights

of Boeing's newest jets, the 757 and

767. I also did extensive demonstration

flying of these airplanes. In 1984,

upon reaching my sixtieth birthday, I

left active flight status in accordance

with Boeing policy.

119a

10. In my current position, I

Oversee all of Boeing's flight opera-

tions. These operations are divided

into two basic functional groups--flight

test and flight crew training. Flight

test is further subdivided into an en-

Gineering group and a production group.

ll. The engineering test flight

group is primarily responsible for con-

ducting experimental flights of Boeing

airplanes. These flights are done to

determine airplane performance ' charac-

teristics both for purposes of FAA cer-

tification and simply to determine

whether the plane will fly and perform

properly. There are currently 10

experimental test pilots.

12. To make sure there are ade-

quate safety margins for normal airplane

flight, Boeing must determine the maxi-

mum performance characteristics of its

airplanes. This is done through flight

120a

testing by engineering pilots. FOr

example, to determine the minimum take-

off speed for an airplane, engineering

pilots perform takeoffs at reduced power

but with a maximum assent angle. This.

means taking off on the edge of a stall

with the tail dragging on the runway.

The risk of this procedure, aside from

the abnormal contact between part of the

plane and the ground, is that the air-

plane may stall close to the ground

after lift-off.

13. Airplane engines must also be

tested to determine whether they will

function with extreme or abnormal air

intake angles. To create these angles

in flight, planes must be put into radi-

cal side slip or accelerated stall

maneuvers.

14. Strength margins of aircraft

components are tested by flying air-

planes beyond their “red line" speed.

l2la

This speed, which airlines fiying the

plane are never supposed to exceed, is

usually approximately .9 of the speed of

sound. During “flutter” tests the

planes are taken to .95 the speed of

sound in steep power dives; sharp

control inputs are made to check the

damping of airplane controls at those

abnormal speeds. This is done to make

sure that the controls continue _ to

function beyond the design speeds of the

aircraft. Maneuvering and structural

capabilities are also tested during

these operations. Additionally, stress,

strain and loads on airplanes are tested

by placing various instruments on the

aircraft then observing their readings

during radical flight maneuvers.

15. Other flight maneuvers may

also be attempted to determined perfor-

mance characteristics of airplanes. For

122a

example, engineering pilots may put

Boeing jets into full stalls--taking the

plane beyond the point of maximum lift

so that it Simply falls into a dive.

These types of maneuvers are unique to

flight test--no commercial airline pilot

would ever purposely put a large jet

into a full stall. Most airline pilots

would never even experience such a stall

except in a small plane for instruction

purposes.

16. Experimental flight also in-

volves testing of various types of air-

craft systems and their effect on opera-

tion. For example, planes may be flown

with their hydraulics or control systems

partially disabled. Tests may also

include heavy gross’ weight takeoffs

during which an engine is shut down.

Similarly, approaches or landings with

an engine out may be attempted.

123a

17. Other similar tests involve

intentional disabling of aircraft sys-

tems near the ground. For example,

engineering pilots may make a landing

approach on autopilot, then purposely

introduce a radical maneuver such as a

"nose pitch down" or a full-over roll to

see whether the autopilot properly dis-

connects and returns the plane to manual

control in time to avoid a crash.

18. On “photo” flights, conducted

to take in-flight photographs of Boeing

jets, engineering pilots .fly Boeing

planes in tight formation. This is a

highly skilled demanding maneuver.

Commercial pilots would never fly large

jets this close together except by ac-

cident. Similar formation flying occurs

during in-flight refueling tests of

aircraft, such as the 747. Again, large

jets are flown very close together in

these maneuvers and their position in

124a

the air must be constantly monitored on

a second-to-second basis.

19. Other engineering flights

involve testing plane performance under

bad environmental conditions. For exam-

ple, to test aircraft performance under

heavy icing conditions, engineering

pilots fly Boeing jets in bad weather

with the anti-icing system turned off.

This allows ice to build up on the

wings. Aircraft performance under these

conditions can then be measured. Test

pilots can also determine whether the

anti-icing system will subsequently

remove ice from the wings by turning the

system back on. This often causes ice

to fa?” off the wings in chunks, some-

time damaging engines in flight if the

ice chunks are sucked into the air in-

take. Similar tests involve takeoffs

and landings in heavy crosswinds or on

wet or icy runways to determine airplane

125a

performance characteristics under ad-

verse conditions.

20. Because of the need to test in

a wide variety of environmental condi-

tions, Boeing engineering pilots fly in

places as diverse as Bogota, Colombia,

Nome, Alaska, La Paz, Bolivia, Puerto

Rico, Honolulu and many other loca-

tions. Most engineering flights, how-

ever, are conducted in Washington, with

takeoffs and landings typically in the

Seattle area. These flights occupy the

same airspace and air traffic control

systems as commercial airline flights.

21. Overall, engineering test

flight imposes a very high workload on

pilots. Many tasks are being performed

during the flight. Not only must the

pilots take off, maneuver, and land the

plane, they must also observe many per-

formance characteristics during flight,

communicate with testing personnel,

126a

perform whatever radical or unusual test

Operations that are required, and still

maintain normal ground communications to

airc traffic control systems. This re-

sults in a workload many times higher

than commercial flight.

22. In addition to experimental

test flight, Boeing's engineering pilots

also perform demonstration flying.

These flights are conducted to demon-

Strate aircraft to potential customers

are government agencies. Many demon-

stration flights occur in Seattle but

many also occur during worldwide sales

tours. During these tours, engineering

pilots carry hundreds, sometimes thou-

sands of passengers, including foreign

heads of state or other government of-

ficials. These flights occur all over

the world and often involve takeoffs or

landings from unimproved airports with

127a

minimal navigation aids. Airlines in-

terested in purchasing Boeing planes

often want to determine whether the

planes can operate out of particular

airports they must. serve. Therefore,

Boeing pilots must often land planes at

unfamiliar, short air strips with dif-

ficult approaches. On occasion, these

are airports where no jet has ever

landed before.

23. Recent demonstration Flights

include a 737-300 tour of Brazil in the

summer of 1985. During this tour, Boe-

ing engineering pilots performed re-

peated takeoffs and landings, sometimes

at airports not designed for jets, and

many times flying with the aircraft fuil

of passengers. During similar 757 and

767 demonstration tours, Boeing engine-

ering pilots carried thousands of pas-

sengers into and out of airports all

over the werld. Boeing engineering

128a

pilots also flew the first nonstop

flight from New York to Tokyo in a com-

mercial jet during the demonstration

tours of the Boeing 747.

24. Engineering pilots have also

flown unusual aircraft. For example,

they were the first to fly the space

shuttle carrier, a modified 747, and the

AWACS, a modified 707. Additionally,

they have flown airplanes with odd en-

Gine configurations, such as the test

707 with a 727 engine mounted on one

side of the rear fuselage, or the “mixed

engine” Dash 80, which had different

types of engines mounted under the wings

for a test flight.

25. Finally, engineering test

pilots perform flight duties shared with

the production and flight crew training

Organizations. For example, they per-

form ferry flying of aircraft, including

both delivery flights and “engine out”

129a

ferry flights where a plane with a dis-

abled engine is transported to a repair

facility for a customer. Similarly,

engineering pilots do flight crew train-

ing work, production test flying, and

“line” flying for customers.

26. Production test pilots (cur-

rently 14) are primarily responsible for

initial quality control flights of new

aircraft. Each aircraft coming off the

line has never been flown before. Pro-

duction pilots fly the plane for a

thorough and complete check of all

aircraft systems.

27. Production test flight in-

volves taking aircraft to their maximum

operating speed and altitude, shutting

down engines to determine if they will

restart properly, turning off hydraulic

systems and generators to determine

whether they will come back = online

130a

properly, operating all autopilot,

radio, control and other systems.

28. During production flights,

cabin pressure is also dropped to the

point where oxygen masks are supposed to

be released to determine whether these

systems function properly. This means

the crew routinely undergoes relatively

rapid depressurization of a type com-

mercial pilots would only experience

during an emergency.

29. Like engineering flight, pro-

duction test flight is a concentrated

high-workload operation. Pilots must

perform all their checklist operations

at the same time they are flying in the

aircraft, and maintaining communication

both with engineering personnel and

ground air traffic control. Further-

more, because production test flight

requires constantly changing speed,

altitude and heading, extensive ground

l3la

control communication must occur to

obtain flight clearances. During take-

offs and landings, where workload is

routinely high even in a commercial

flight, production test flight imposes a

workload roughly twice as high, because

of the need to observe performance char-

acteristics and communicate with test

personnel while also flying the plane.

During climb, cruise and descent, where

workload is typically low in a commer-

cial flight, production test flight

imposes a workload many times greater.

30. Production test flights are

also used to gather engineering data.

Engineering tests are a part of roughly

80% of all production test flights.

31. Production test flights, like

engineering flights, begin and end in

the Seattle area, and fly over Washing-

ton, Oregon and Idaho in the same air-

132a

space and air traffic control systems as

commercial airline flights.

32. Like engineering pilots, pro-

duction test pilots perform many other

types of flying. They typically fly one

of the planes during photo-flight ses-

sions which, as discussed previously,

require high-concentration tight-

inieacion flying of large aircraft.

Production pilots also fly in command of

roughly 20% of Boeing's demonstration

flights and many more as co-pilots.

33. Many of Boeing's ferry

flights, including delivery of aircraft,

are performed by production pilots.

These flights impose a workload very

Similar to that of a normal commercial

flight. It is not uncommon to have 10

to 15 passengers aboard a routine de-

livery flight. These people may include

customers, employees, or guests of cus-

tomers. “Engine out" ferry flights,

133a

involving a transportation of planes

with a disabled engine, are also done in

large part by production pilots, togeth-

er with pilots from the - engineering

group. These flights are performed

under contract with customers. "Engine

out" flights would never be conducted

during normal revenue operations because

of the drastically lower safety margin.

/s/

SAMUEL LEWIS WALLICK, JR.

SUBSCRIBED AND SWORN to before me

this 25th day of November 1°85.

/s/

: NOTARY PUBLIC in and for

the State of Washington,

residing at Seattle

; de . t aes

isa sine e diac Te... ‘ad

134a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EQUAL EMPLOYMENT )

OPPORTUNITY )

COMMISSION, )

)

Plaintiff, ) NO. C84-187R

)

Vv. ) AFFIDAVIT OF

) BRIEN S.

) WYGLE

THE BOEING COMPANY, )

: )

Defendant. )

)

STATE OF WASHINGTON )

> 2a.

COUNTY OF KING )

Brien S. Wygle, being first duly

Sworn upon oath, deposes and says:

A. I am currently employed by The

Boeing Company as Vice President, Flight

Operations. My responsibilities include

overall supervision of all the Company's

flight operations.

135a

as Boeing manufactures more com-

mercial jet airplanes than any other

company in the Western world. More than

220 airlines own and fly Boeing planes.

These airlines include many foreign

Carriers, together with all major U.S.

Carriers.

as Boeing spends billions of

doilars in the research,. development,

testing, manufacturing and sale of its

jets. These activities are supported by

roughly 73,000 employees.

4. To maintain its success as an

airplane manufacturer, it is imperative

for Boeing to build excellent airplanes,

with wide margins for safe operation and

performance. Public and customer know-

ledge and perception of this quality of

design, construction and safety is like-

wise crucial to Boeing's continued

success.

136a

as Boeing conducts extensive

flight operations in connection with its

business. These operations average

roughly 13,000 flight hours per year.

The number of pilots on active flight

status varies, but the current comp le-

ment of 65 pilots is typical.

6. Boeing pilots are assigned to

the Company's flight test organization,

where they work primarily in three sub-

groupings: flight crew training, exper-

imental, and production flight. The

Director of Flight Test, S. L. Wallick,

Jr., supervises these operations. Paul

Bennett, the Company's Chief Training

Pilot, supervises the flight crew train-

ing pilots and reports to Mr. Wallick.

/s/

Brien S. Wygle

137a

SUBSCRIBEL AND SWORN TO before me

this 2lst day of November 1985.

/s/

NOTARY PUBLIC in and for

the State of Washington,

residing at Mercer Island

138a

Honorable barbara J. Rothstein

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EQUAL EMPLOYMENT )

OPPORTUNITY )

COMMISSION, )

)

Plaintiff, ) NO. C84-187R

)

¥; ) SUPPLEMENTAL

) AFFIDAVIT OF

) BRIEN S. WYGLE

THE BOEING COMPANY, )

)

Defendant. )

)

STATE OF WASHINGTON )

»} 86.

COUNTY OF KING )

Brien S. Wygle, being first duly

sworn, upon oath deposes and says:

; I am currently employed by The

Boeing Company as Vice President, Flight

Operations. My responsibilities include

overall supervision of all the Company's

flight operations.

139a

Zs The products of the Boeing

Commercial Airplane Company are aircraft

designed and manufactured specifically

to meet the needs of commercial air

Carriers. The success of these products

is absolutely dependent upon a thorough

familiarity with and understanding of

the flight operations of commercial air

Carriers. I myself have piloted commer-

cial revenue flights for Boeing cus-

tomers in foreign countries and have

done cockpit observation of flight op-

erations of U.S. commercial carriers

governed by Federal Air Regulations Part

121. Pilots under my supervision rou-

tinely observe and/or act as a pilot

Crew member on airline flights, both in

the U.S. and abroad. Boeing's Director

of Flight Test Lew Wallick has had such

experience. Boeing's chief training

piiot Paul Bennett has even more exten-

Sive experience f

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