# Petition for Writ of Certiorari — Boeing Co. v. Equal Employment Opportunity Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2006%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 488 U.S. 889 ## Text ~“ Se eu @ Sunid§ Cyst, Uae Pilkp JUL BB fygy No. 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. il 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 vr 10 12 iv 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: A. Opinion of Ninth Circuit (April 6, 1988) B. Trial Court Order (April 18, 1986) C. 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 17 la 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 vi 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 ~1 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 ~2 ~I 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 10 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). 11 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. 12 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 13 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 l4 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 15 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 16 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. i 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. 18 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. 19 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 20 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). 21 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.” 9 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. 22 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 2a 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 * 3a 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 4a 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) ——— 5a 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 6a 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. 7a 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 8a 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. I 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- a 9a 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 ne 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. II [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). a 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 A. {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 . 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 em [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 «1 ] t ’ \ “ 4 > ? ’ r [ + 44 . ‘ , ’ 7 , " ‘ 5 f 1 ] od ) i | ‘ ‘ j ‘ > ‘ " c 5 «1 . >» 0 + ry | >| ‘ 4 a ‘ ‘ ry . 4 . > © i r 4 . ; . 4) f ‘ « i 4 ba 4 i 4 } — i ‘ rn , . - . cr ° ‘ ‘ ‘ ‘ Tt) l . + { 4 . . 4 ° > Tr . bh . 4+ " oa . 1 . 4 - > s . al | — ’ re . ° ry ‘) } 4 7 : ’ 4 -— C 4 4 ‘ ry , ‘ 4 ’ . ‘ - ry . = 4 . . f r4 4 4 _ 4 ’ 7 4 wv f C «1 4 - u 7 r mm i - , 4 ‘ l *) c Lal , 4 » . 5 a | ] + . > ° : . , v 4 ‘ . . «1 4 4 4 4 ' , ‘ ¥ ~ - ‘ . “ +, , H - _ ~ . ‘ r » 4’ - 4 ‘ J “ r4 f > +. al > = > -~ } ° = : - at 4 " , A) ‘ 4 . ‘ ry i fn ‘ n 4 A c 4 ha » i “ a v , - + a] ; A c 4 ~ ) : ‘ { a | : 1 O . ‘ - 4 i } ‘ t ‘ ¢ ‘ v w = 4 ’ ce . : > a0 0 ° ommd ° -_ * ‘ ~ . f A) P 4 A ) ~ : ’ { ad 4 } er i , : z ’ cc 4 3 . J , 4 ) 2 4 { - p yv) “4 or _ t . ’ . z f . ; ) ) 4] 4 x l o Vv y) = W) @ >— . r ot 4 \ ) a Y v c T 4 . 4 bas) OO) cc v x = ‘wo ‘ , { v ~~ | - Tv) he - } ‘ ‘ LJ " ¢ ) iJ) C P ¢ c 4 e / . © ‘ +4 )] t. oe , 3) ; ae 1 i) r) 4 wm a of ; > c ‘ 2 4 c = 4 Vv) | Las] > ) , ‘ bi. 4 VY) = . 4 : P . - ‘ ) © = | | J a z mM A v Ls rr ot } I vy) ge. 1 F 7 Hy rt O el | ‘ = + he ex . w") ar oe - rh . ‘ - ‘ 4 ‘ ry iJ X ¥ r » _ ‘ > l 4 > F 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 EE 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 q 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, ) 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 flying for and observing i oa enisnnileniaiiaeeaeeeimeaaieiiil 140a flight operations for both foreign and Part 121 commercial air carriers. r Boeing's flight crew training program is certified by the Federal Aviation Administration for training of Part Zi 2 pi lots. This certification necessarily contemplates that Boeing’s training pilots thoroughly understand the duties and challenges faced by pilots engaged in flight operations controlled by Part 121. 4. Numerous commercial airlines, both foreign and domestic, have asked Boeing to “audit” their flight opera- tions and make suggestions for improve- ment of these operations. Such audits include both observation and evaluation by Boeing pilots of commercial airline pilots in the performance of their jobs. These requests by commercial airlines Obviously recognize the knowledge and expertise of Boeing with respect’ to l4la airline flight operations, including the responsibilities of airline pilots. a In support of Boeing's Motion for Summary Judgment, the Affidavit of Carol Knutson summarized Boeing's air- plane insurance record log. I am ad- vised that EEOC has suggested the sum- marized records may have included flights on which Boeing pilots were mere observers. This is not the case. Vir- tually all insurance logs in question reflect only flights of aircraft prior to customer delivery. Boeing pilots are in command of such flights. These in- Surance logs do not reflect any of the line flying activity performed by Boeing Pilots after delivery of aircraft to a Customer. Boeing pilots have also flown as pilots in command or first officer on numerous revenue flights of commercial airlines after delivery of aircraft to a customer. Such flights have carried 142a literally tens of thousands of pas- ~ \- sengers. However, the insurance summary provided in the Knutson affidavit did not include any passengers carried on customer's revenue flights. /s/ BRIEN S. WYGLE SUBSCRIBED AND SWORN to before me this 19th day of December, 1985. /s/ NOTARY PUBLIC in and for the State of Washington, residing at Seattle cited 143a UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE EQUAL EMPLOYMENT ) OPPORTUNITY ) COMMISSION, ) ) Plaintiff, ) NO. C84-187R ) Vv. ) AFFIDAVIT OF ) CAROL L. KNUTSON ) THE BOEING COMPANY, ) ) Defendant. ) ) STATE OF WASHINGTON ) >} BS. COUNTY OF KING ) CAROL L. KNUTSON, being first duly sworn on oath, deposes and says: OR I am currently employed by Boeing as _ Business Manager, Customer Training and Flight Operations Support. iP I have prepared and directed the preparation of a summary from Boeing's airplane insurance record logs 144a reflecting passengers and crew aboard Boeing-insured flights from 1980 to 1985. 3. These records reflect that Boeing pilots carried over 160,000 passengers on more than 10,000 flights during this’ period. More than 600 of these flights involved carriage of 30 or more people aboard. /s/ CAROL L. KNUTSON SUBSCRIBED 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 ‘ 145a APPENDIX D DRAFT RELEASE NOS. 59-4, 59-5, 59-6, 24 FED. REG. 5247-50 (JUNE 27, 1959) For the present purposes, the process of aging can be considered as a progressive deterioration of certain important physiological and psychological functions. The process begins at some time after the attainment of maturity and continues unrelentingly until death. Many measurements have been made of the extent to which deterioration occurs with age in specific physiological and psycho- logical functions. Studies have also been made to demonstrate the Significance of these determina- tions in the performance of cer- tain tasks. However, when knowl- edge developed by such observa- tions and studies is applied to a specific occupation it suffers from lack of completeness, as is generally the case in considering human capabilities. Scientific advances are expected to add con- tinually to this knowledge. 24 Fed. Reg. at 5247. 146a APPENDIX D DRAFT RELEASE NOS. 59-4, 59-5, 59-6, 24 FED. REG. 5247-50 (JUNE 27, 1959) Physical deterioration with age can, for the most part, be attributed to a progressive degen- erative process termed arterio- sclerosis, a condition affecting blood vessels in a manner quite comparable to the progressive accumulation of scale and rust in water pipes. The resultant inter- ference with transportation of blood containing the vital mater- ials needed by the tissues and organs, reduces the efficiency of function of bodily systems. This is an insidious’ process. There are no effective means of revers- ing it. It may affect the func- tion of certain vital organs, such as the heart and brain, more rap- idly than other organs and sys- tems. The extent to which indi- vidual parts, or the body in gen- eral, are affected by these chan- ges cannot be determined accurate- ly by available methods of exam- ination. Consequently, the point at which a function or a combina- tion of functions first become critically affected cannot be determined in a given individual. Specific medical conditions attributable to the degenerative processes of aging OccUr, of course, at an increasing rate 4s the processes continue. The death rate from heart disease, for ex- ample, has been found to be ten 147a times greater for persons aged 45 to 64 than for those aged 25 to 44. By age 65, cardiovascular disease (including heart disease) causes more deaths than all other medical conditions combined. Nonfatal episodes occur at a com- parably increased rate with age. Most of these medical conditions are those which produce’ sudden incapacity. They very frequently advance to the point where incapa- city occurs without prior symptoms and in the presence of normal medical findings. 24 Fed. Reg. at 5247. 148a DRAFT RELEASE NOS. 59-4, 59-5, 59-6, 24 FED. REG. 5247-50 (JUNE 27, 1959) In general those human cap- abilities chiefly dependent upon experience, judgment and reasoning are retained for relatively long periods of time, and, in = some respects, improve with age. These factors are operative at least from the attainment of maturity until- some ill-defined state of deterioration is reached or until death, if this intervenes. In general, abilities to perform highly skilled tasks rapidly, to adapt to new and changing environ- mental situations, to resist fa- tigue, to maintain physical stamina, and to perform effectively in 4 complex and stressful environment begin to decline in early middle life and continue to decline at a fairly steady rate thereafter. In addition, although experience, judgment, and reasoning may. be well preserved, the ability to apply them rapidly, especially in new, changing, and emergency sit- uations, is progressively lost with age at a rate comparable to the loss of rapid performance of highly skilled tasks. 24 Fed. Reg. at 5247-48. 149a DRAFT RELEASE NOS. 59-4, 59-5, 59-6, 24 FED. REG. 5247-50 (JUNE 27, 1959) With regard to the age at which a pilot may serve in any pilot capacity in air carrier Operations, on an aircraft powered by either turbine or reciprocating engines, it is reasonable under the present state of knowledge in order to assure the highest degree of safety required in air trans- portation to establish such maxi- mum age at not more than 60. 24 Fed. Reg. at 5248. 150a FEDERAL REGISTER AMENDMENTS (DECEMBER 5, 1959) The draft release points out the reasons indicating that a hazard to safety is presented by utiliza- tion of pilots of these ages [over 60] in air carrier operations. These include the fact that there is a progressive deterioration of certain important psysiological [sic] and psychological functions with age, that significant medical defects attributable to the de- generative process occur at 4n increasing rate as age increases, and that sudden incapacity due to such medical defects becomes sig- nificantly more frequent in any group reaching age 60. 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 is not possible to determine accu- rately with respect to any indiv- idual 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. Such a proce- dure, in light of the knowledge 15la that a substantial percentage of any group of persons will suffer from such attacks after reaching age 60, would therefore be inef- fective in eliminating the hazards to safety involved. This conclusion is emphasized by the fact that, in the case of one large group under medical Supervision over an extended per- iod, some 85% of the persons who had a heart attack for the first time had the attack within six months to a year after a thorough medical examination had found the individual in a»+condition normal to his age and without adding any evidence to suggest the imminence to such an attack. In addition, the general good health of an individual, or the appearance of good health, are not determinative as to whether he will suffer a heart attack from the conditions that are normal as a result of age. 24 Fed. Reg. at 9767. 152a . FEDERAL REGISTER AMENDMENTS . (DECEMBER 5, 1959) Other factors, even less sus- ceptible to precise measurement 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 environ- ment, to apply experience, judg- ment and reasoning rapidly in new, Changing and emergency situations, and to learn new techniques, skills and procedures. The pro- gressive loss of these abilities generally starts well prior to age 60; and, even though they may be Significant in themselves prior to age 60, they assume greater signi- ficance at the older ages when coupled with the medical defects leading to increased risk of sud- den incapacitation. 24 Fed. Reg. at 9767. 153a FEDERAL REGISTER AMENDMENTS (DECEMBER 5, 1959) The older pilots as a group fly the largest, highest per- formance aircraft, Carrying the greatest number of passengers over the longest non-stop’ distances, Operating into and out of the most congested airports near the larg- est cities, and travelling in flight in and through traffic lanes with the highest density of aic traffic. A great many of these flights involve the newest, largest, fastest and most highly powered jet aircraft. The pos- sible hazards inherent in the Older pilot's medical condition are entir2ly too sericus to de- termine the question of safety by an attempt to balance the in- creased chances of an incapacita- ting attack against the possibil- ity that the pilot might not be engaged in the carriage of a large number of passengers at the time of such an attack. In exploring all the ramifi- Cations of the problems involved, the nature of air traffic and air Carrier operations in the future has been considered. Present indications are that the very large increases that have taken place in recent years are small in relation to the increases yet to Occur. Projection of the number of pilots who will be in the 60 to 70 age group, in an era of extreme density and frequency of jet and piston air Carrier’ operations 154a involving many millions of pas- senger miles, indicates a proba- bility of sudden incapacitation of some of these pilots in the course of flight. While medical science may at some future time develop accurate, validly selective tests which would safely allow selective pilots to fly in air carrier op- erations after age 60, safety Cannot be compromised in the mean- time for lack of such tests. 24 Fed. Reg. at 9767. ts 155a "DISPOSITION OF PETITION," FAA REGULATORY DOCKET NO. 10358 (MAR. 23, 1972) ([T]here continues to be a-— sound medical basis for retaining the age 60 rule. When the rule was adopted, 3 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. 156a "REPORT OF THE NATIONAL INSTITUTE ON AGING PANEL ON THE EXPERIENCED PILOTS STUDY," AT 1 (AUG. 1981) (The panel] finds, however, that age-related changes in health and performance influence adversely the ability of increasing numbers of individuals to perform as pi- lots with the highest level of safety and, consequently, endanger the safety of the aviation system as a whole. Moreover, the Panel could not identify the existence of a medical or performance ap- praisal system that can single out those pilots who would pose the greatest hazard because of early, Or impending, deterioration in health or performance. 157a REF. NOTICE 82-10, 49 FED. REG. 14692, 14695 (APRIL 12, 1984) There can be no real dispute that, with advancing age, the risks of suffering incapacitating medical events and of adverse psychological, emotional, and physical changes rise. Although risks of incapacitation are pre- sent in younger people, overall they are so low as to be accept- able. At some point in the aging process, the risk becomes’ unac- ceptably high. The NIA Panel attached no medical significance to age 60, or to any other speci- fic age, as a mandatory retirement age. The Panel concluded that age-related health changes en- danger aviation safety and further concluded that no medical or per- formance appraisal system can be identified that would single out pilots who would pose a hazard to safety. The Panel recommended retaining the age-60 rule. The FAA agrees. The conclusions reached by the NIA Panel and the supportive statements contained in the report point to a present inability to distinguish those pilots who, as a consequence of aging, present a threat to air safety from those who do not. Furthermore, public comments, especially those received from two experts from NASA and the Medical Director of a large aerospace firm, agree that there are cur- rently no methods to obtain medi- cal and performance data on older 158a pilots which would provide. sig- nificantly meaningful data to consider relaxing the age-60 rule. The inability to detect or predict with precision an in- dividual‘s risk of sudden or sub- tle incapacitation, in the face of known age-related risks, counsels against relaxation of the rule. Accordingly, as recommended by the NIA Panel, the present age limit for air carrier pilots in command and seconds in command is being retained. While science and tecanology may at some future time develop accurate, validly selec- tive tests which would allow a scientific study to be made to accurately determine whether the age 60 rule should be changed, safety cannot be compromised in the meantime for lack of such tests. 159a STATEMENTS BEFORE HOUSE SELECT COMMITTEE ON AGING ON AGE-60 RULE FOR PILOTS, Sotm Cone., ist Sess., Oct. 17, 1985 Comm. Pub. No. 99-533. (TESTIMONY OF FAA ASSOCIATE ADMINISTRATOR ANTHONY BRODERICK) It is important to recognize F that the safety reasons for the [age 60] rule are severalfold: first, there is a deterioration of many functions with age; second, aging is accompanied by an in- creased frequency of sudden or insidious incapacitation or death from various disease processes; and, third, despite scientific advances that have occurred, there is still no way to predict, with reliable accuracy, the presence or onset of a number of medical prob- lems in an individual aging pilot or to detect and measure all of the possible declining physical and mental functions. 160a STATEMENTS BEFORE HOUSE SELECT COMMITTEE ON AGING ON AGE-60 RULE FOR PILOTS, 99th Cong., lst Sess., Oct. 17, 1985 Comm. Pub. No. 99-533. (TESTIMONY OF FAA ASSOCIATE ADMINISTRATOR ANTHONY BRODERICK) Those were the kinds of con- cerns which led to the rule, and they remain concerns today, de- spite advances in science’ and despite the frequency or types of medical examinations which may be conducted. Clearly, there has been no change in the age-related mature of these declining skills Since the rule was promulgated. While we continue to monitor scientific and medical advance- ments with a view both’ toward improving OUL, overall medical evaluations of airline pilots and toward modifying the Age 60 Rule when that proves feasible, it is the FAA's view that current knowl- edge still does not permit us to identify those pilots who- can safely perform operations under Part 121 past age 60. l6la APPENDIX E Exemption No. 4848 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. 20591 2 8&= 2 8 F&F 2 2 8 8 In the matter of the petition of MELVIN M. AMAN, et al., Regulatory Docket No. 250608 for an exemption from § 121.383(c) of the Federal Aviation Regulations * 4&© &© &© & &@ Hh Hh HR Hh Hh Hh He OH OM zs 2 & 2 3 = @ 2 & DENIAL OF EXEMPTION By letter dated May 1986 and supple- ments dated August 1986 and October 1986, Mr. Raymond C. Fay, Haley, Bader & Potts, 2000 M Street, N.W., Suite 600, Washington, D.C. 20036, petitioned on behalf of Melvin M. Aman and 38 other Current and former airline pilots for an 162a exemption from § 121.383(c) of the Fed- eral Aviation Regulations (FAR), common- ly referred to as the Age 60 rule, to permit Mr. Aman and each of the 38 other Current and former pilots (petitioners) to continue to serve as a pilot in Part 121 air carrier operations after reach- ing their 60th birthday. Subsequent to the submission of the petition, four of the petitioners have requested that their names be with- drawn. Those four petitioners are Charles Raphael, Ralph Mischker, Charles Davenport, and James Donegan. Section of the FAR affected: Section 121.383(c) states, in pertinent part, that no certifi- cate holder may use any person, nor may any person serve, as 4 pilot in operations under Part 121 of the FAR if that person has reached his 60th birthday. The petitioners' supportive information is as follows: 163a Petitioners state that in 1985, an Age 60 Exemption Panel (the panel) was assembled to evaluate the medical and neuropsychologi- cal status of air carrier pilots seeking to continue to serve as Pilots in Part 121 air carrier Operations. after reaching 60 years of age. The panel is com- prised of experts in the fields of cardiology, aerospace medi- Cine, and neuropsychology. The panel developed and approved a medical/neuropsychological proto- col (exemption protocol) for use in evaluating the fitness of ap- plicants for exemption from the Age 60 rule. The exemption pro- tocol consists of the following battery of medical/neuropsycho- logical tests and procedures: - Medical History - Physical Examination ae Blood Pressure (resting) 4. Chem-Screen Profile, SMAC-24, or comparable Blood Chemistry Tests (including Blood Lipid Tests) ~ Hemoccult 6. Urinalysis 7% Chest X-Ray 8. Audiometry >. Vision Tests (distant and near) 164a 10. Tonometry ll. Resting Electrocardiogram 12. Exercise Screen Test (Bruce Or Balke Protocol) 13. Wechsler Adult Intelligence Scale (WAIS-R) 14. Trailmaking Test 15. Wechsler Memory Scale 16. Stroop Color Word Test 17. Perceptual Speed Cancella- tion Test The panel asserts that the abil- ity to make individual assess- ments of pilots’ physiological/ psychological status exists in the scientific community, that the methods available for those determinations are well known to the Federal Aviation Administra- tion (FAA), and that the methods have been routinely used by the FAA in the evaluation, recertifi- cation, and monitoring of pi- lots. The panel believes that the exemption protocol utilized here, together with additional testing as required on an in- Gividual basis, is sufficient to evaluate the fitness of any pilot who has reached his 60th birthday from a medical/neuropsychological standpoint. Each of the 39 petitioners was examined and tested using the iii aerial 165a exemption protocol. Results were then evaluatecd by the panel mem- bers in conference, and petition- ers were approved or deffered for repeat or supplemental testing. Some of the petitioners required additional tests of the cardio- vascular system, including thal- lium stress testing and _ gated blood pool scans. Other received additional neuropsychological tests to further evaluate their status. The data, including any followup reports of additional tests and procedures, plus sum- maries of the examining physi- cians, are included in the peti- tion. Each of the 39 petitioners has been recommended by the panel for exemption from the Age _ 60 rule. Petitioners state that the FAA has recognized and moved forward to apply in practice the near revolution in modern medical evaluation, monitoring, and treatment in recent years. Peti- tioners cite the history and examples of the FAA's application of modern medical knowledge for the discretionary issuance of medical certificates under Part 67 of the FAR to applicants who do not meet the eligibility requirements for the normal issuance of the appropriate (first-, second-, or third-class) medical certificates. Further, petitioners stte that the FAA’s experience with thousands of pri- vate, corporate, commuter, air taxi, and FAA pilots over 60 166a years of age, as well as the more than S00 flight engineers over 60 years of age currently serving in aic carrier operations, is com- pelling evidence that the FAA has the means to grant exemptions from the Age 60 rcule. Petitioners state that FAA's in- flexible adherence to the Age 60 rule is based largely on its oft-repeated statement that medi- cal science is currently unable to reliably and accurately pre- dict the future health status of a pilot who has reached his 60th birthday and wishes to continue to serve as a pilot in Part 121 air carrier operations. Peti- tioners state that any require- ment that a petitioner (for exemption from the Age 60 rule) be able to predict with absolute certainty his future health sta- tus imposes a standard which ex- ceeds that which is used by the FAA for the special issuance of medical certificates. The petitioners state that the tolerance of increased, but ac- ceptable, risks has been demon- Strated by the FAA in recent years in the great number of spe- cial issuances of medical certi- ficates to pilots (under age 60) with various medical problems, e.g., alcoholism, myocardial in- farction, bypass surgery, monoc- ular vision, personality dis- orders, strokes, and disrhyth- mias. The acceptance of screater risk in these special issuances 167a to pilots under age 60 with known pathology (in some instances pro- gressive pathology) is squarely at odds with the FAA‘s refusal to issue exemptions to the Age 60 rule. Petitioners state that the Age 60 rule was adopted based on medical evidence available in 1959. Since that time, there have been significant improvements in health, health awareness, longev- ity, vigor with advancing age, medical diagnosis, eariy detec- tion of disease, and prediction of future health status. These improvements, when combined with advancements in aircraft, simu- lator technology, and crew coor- dination and incapacitation training, all make it clear that whatever rationale may have ex- isted for an Age 60 rule in 1959 no longer exists in 1986. Peti- tioners cite excerpts from vari- ous letters, reports, publica- tions, etc., to illustrate the history associated with the aging process, changes in lifestyles, and the medical and health pro- gress made since 1959. Petitioners address, and include as an exhibit, an examination protocol proposed by Drs. Williams, Koonce, and Fox. This examination protocol was devel- oped following a request by the House Select Committee on Aging during a hearing conducted on 168a October 17, 1985, concerning air- line pilot retirement. The pur- pose of the examination protocol was to provide a substitute for the FAA’s Age 60 rule in order that any pilot affected by the present Age 60 rule, who wished to continue as a pilot beyond age 59, could elect to undergo a com- prehensive examination of health Status and performance ability which would establish his con- tinued qualification. Addition- ally, it was proposed that the examination protocol could pro- vide the additional benefit of creating data that could sub- sequently be used as a basis for further modification of rules regarding such pilots. This examination protocol is not the same as the exemption protocol which was developed by the panel. The Williams, Koonce, Fox examination protocol consists of the following battery of medical evaluations: Bs Medical and interim history including smoking history Y 2 Physical examination includ- ing funduscc?ic 3. Blood pressure 4. Chemical screen profile (SMAC-24 or comparable blood chemistry test including total and high-density lipo- protein, cholesterol, and triglycerides) 169a 5. Urinalysis 6. Chest X-ray 7. Resting electrocardiogram (standard 12-lead) 8. Exercise Tolerance Test (ETT) including thallium perfusion study In addition, this examination protocol includes comprehensive flight proficiency requirements which are to be co [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2006%3A1. Public record. Not legal advice.