# Petition for Writ of Certiorari — Coupe v. Federal Express Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1020

## Text

. te Supreme Court, U.S.
ft FILED

‘97 1012 DEC 18 1997

No. OFFICE OF THE CLERK

IN THE
Supreme Court of the United States

October Term, 1997

ROBERT J. COUPE,
Petitioner

v.
FEDERAL EXPRESS CORPORATION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

NICHOLAS H. COBBS

Counsel of Record
LAW OFFICES OF NICHOLAS H. COBBS
1815 H Street, N.W., Suite 600
Washington, D.C. 20006
(202) 452-8222

MICHAEL J. PANGIA

GILMAN & PANGIA

1815 H Street, N.W., Suite 600
Washington, D.C. 20006

202 5100

QUESTION PRESENTED

The “Age 60 Rule,” 14 CFR. §121.383(c),
promulgated by the Federal Aviation Administration before the
passage of the Age Discrimination in Employment Act,
(ADEA), prohibits all pilots in scheduled passenger and cargo
operations from working after they reach age 60. The ADEA
prohibits age-based discharge by an employer unless the
employer can prove that age is a bona fide occupational
qualification (BFOQ) that is reasonably necessary to the
employer’s “particular business.” 29 U.S.C. § 623(f). The
Equal Employment Opportunity Commission (EEOC), which
enforces the ADEA, has repeatedly asserted that the Age 60
Rule is not a BFOQ. The question presented is:

Whether the FAA has the power, in its capacity as
regulator of air commerce, to require age-based discharge and
to establish a bona fide occupational qualification under the Age
Discrimination in Employment Act for all pilots subject to the
Age 60 Rule, contrary to the regulations and the interpretation
of the EEOC, the agency that administers the ADEA?

TABLE OF CONTENTS

Page(s)
GQuaetien Pens <... 55.4 ee... i
ee ge Vee Ae ii
Feber OE ae 5 2 a Ee iv
Gore oe. C2 SE i ]
Statement of Jurisdiction ............... i re l
Statutes and Regulations Involved ................... 2
RF i ee ee ene 2
Reasons for Granting the Writ ...................... 8

L The Decision Below Conflicts

with the Plain Language of the

ADEA, EEOC Regulations that

Execute the ADEA, and this

Court’s Decisions Interpreting
Gi Ss ce es s...... 8

Il. The Sixth Circuit’s Decision
Sustains a Longstanding
Controversy in the Circuits
Concerning the Validity of the
Age 60 Rule and Its Proper
A ES a ee 15

Il This Case Involves Important Questions of Federal

Agency Power and Statutory Interpretation .... . 20
ee TR Aven GA Vesut ee bSi AN. 24
Appendix A — Sixth Circuit Opinion................ a-1
Appendix B — District Court Opinion.............. a-11

Appendix C — Statutes and Rules Involved.......... a-19

iv
TABLE OF AUTHORITIES
Page(s)
Cases

Air Line Pilots Ass'n Int’l v. Quesada, 2:76 F.2d 892

Re Eee 16
Aman v. FAA, 856 F.2d 946 (7 Cir. 1988) ....... 3,16,17
Baker v. FAA, 917 F.2d 318 (7® Cir. 1991) ......... 15,17
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

I 6 fats ed Ghavcic ku 6d 0 s’ew b «' 11
Dothard v. Rawlinson, 433 U.S. 321 (1977) ........ 12,14
E.E.O.C. v. American Airlines, Inc., 48 F.3d 164

I a oa Sawa 5 11

E.E.0.C. v. Boeing Co., 843 F.2d 1213 (9 Cir. 1988) 11,17
E.E.O.C. v. Pan American World Airways, Inc., 52 Fair

Empl. Prac. Cas. 940 (N.D. Cal. 1988)......... 1]
Gray v. FAA, 594 F.2d 793 (10® Cir. 1979)........... 16
Johnson v. Mayor and City Council of Baltimore, 472 U.S.

We I oo Nis oe eek as oes we 13,14
Manning v. UAW, 466 F.2d 812 (6* Cir. 1972) ........ 22
Monroe v. United Air Lines, Inc., 736 F.2d 394

‘ig, EE ee 16
Donnell v. Shaffer, 491 F.2d 59 (D.C. Cir. 1974) .... 16

Ohio Empl. Ret. System v. Betts, 492 U.S. 158 (1989) .... 9
Patterson v. McLean Credit Union, 491 U.S. 164

SR GL ha ak als WEEN Ts 0 se ee 21
Professional Pilots Fed’n v. FAA, 118 F.3d 758

SENG I EE oo ee Sekt eeen 4,18,19,21,22,23
Rosenfeld v. Southern Pac. Co., 444 F.2d 1219

ge EES ee 22
Starr v. FAA, 589 F.2d 307 (7 Cir. 1988)............ 16
Torres v. Wisconsin Dep't of Health, 859 F.2d 1523

re I i sink sans segs Pye cca ss-.. 14
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111

Cs ay 55 oes oi 2 13,20,21
Udall v. Tallman, 380 U.S. 1 (1965) ................ 1]

v

TABLE OF AUTHORITIES (cont’d)

Page(s)

Watt v. Alaska, 451 U.S. 259 (1981) ................ 21
Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228

Cr se oe h STIRD LTA ads os 11

Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980) 22
Western Airlines, Inc. v. Criswell, 472 U.S. 400

CRONE kgebvacacccesed 5,6,7,8,12,13,14,15,20,21
Statutes, Rules, and Regulations

SRC BA. See oa ee SERRE EA ee l
SPREE | voc ce oe Seer CSC A ek Al, 9
es ss ow id wa be acess eo ke Sle 2
I hr Co aL yok ca ha aoe ew ae 9
RE iis 5 ova wists 6S SW 2 Me EWES Bie i,5,9
ee NED igo Bis SW kee Ss Wa ees 6,8
er ik os 6-0 wis boo de wee 2 sans oe 19
ER Se | C ) a crc carne 21
I SI et, UU sa 6.5 od 0 oviw «ag oe 5,14
PE sks va eva dna we ede eee ees 7
PE: Os i KA erin. i. Soloed 2
Ree Ee eds eS Owl ended wings 2
RD nc cv eh nccnsesusevnss i,2, passim
as oi a pee a ee 7
ok ne a hgh 5 a bm de 7
Pe on ccc ume c seep eameus uae ea ain 7
i ob a 5 wes beusine ele ons 2,10,15
os a ne we ou bake oe 14
PEED 65g nce cc csencdscuccadesaws 6
ID oo. bones Se ka evan buweneuee 7

ere We. co ei AON 7,8

vi

TABLE OF AUTHORITIES (cont'd)
Page(s)
Federal Register
46 Pod. Rag: 4770S CU9OT) .« es ok. 11,16'
SS PA ee ss oe ON eee. RR 3
60 Fed. Ras MGSTGIINS). oo... oo 3
60 Ped: Rag, 65032.(1995)................. 0000000. 3
60 Fed. Reg. 65,977 (1995) ...... 0.00... c ccc eeee. 4,6
60 Fed. Reg. 65978 (1095)... . 00... cece cee cece 3
60 Fed. Reg. 65,980 (1995) ............0..0 cece ee 4,15
60 Fed. Reg. 65,985 (1995) ............ec cee eeeeee 4
Other Authorities
Age Discrimination Against Airline Pilots: Hearing before
the House Select Comm. on Aging, 96*
Com en cds COS. 3

Age Discrimination and the FAA Age 60 Rule: Hearing
before the House Select Comm. On Aging, 99" Cong.

fy er er, eee ss Dy a eee ae 3
Age 60 Project, Hilton Systems Technical Report 8025-
PR aa i eV aN GAC ERA ek 3

K. Ruppenthal, Compulsory Retirement of Airline Pilots, 14
Indus. & Labor Rel’ns Rev. 528 (1961) ......... 3

IN THE

Supreme Court of the United States
October Term, 1997

ROBERT J. COUPE,
Petitioner

v.
FEDERAL EXPRESS CORPORATION,
Respondent.

Robert J. Coupé respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra.,
a-1 - a-10) is reported at 121 F.3d 1022. The opinion of the
district court (App. B, infra., a-11 - a-18) is unreported.

JURISDICTION

The court of appeals entered its judgment on August 4,
1997. An application for an extension of time within which to
file a petition for a writ of certiorari was presented to Justice
Stevens who, on October 20, 1997, extended the time for filing
the writ to and including December 18, 1997. (Application No.
A-286.) The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).

2
STATUTES AND REGULATIONS INVOLVED

This case involves the interpretation and interrelationship
tn ee
§ 623, the “Age 60 Rule,” promulgated by the Federal
Aviation_Administration, 14 C.F.R. § 121.383(c), and
regulations of the Equal Employment Opportunity
Commission that prescribe the requirements for bona fide
occupational qualifications, 29 C.F.R. § 1625.6. These
statutes and regulations are set forth in the appendix. (App. C
at a-19 - a-21.)

STATEMENT OF THE CASE

Under the “Age 60 Rule,” promulgated in 1959, before
the passage of the Age Discrimination in Employment Act
(ADEA), the Federal Aviation Administration (FAA) prohibits
pilots from operating commercial aircraft subject to Part 121 of
the Federal Aviation Regulations after they reach their 60th
birthday. 14C.F.R. § 121.383(c). The rule applies to air cargo
operations as well as to most scheduled passenger operations.’

Although justified as a safety measure, the rule’s
promulgation was promoted by airlines that had been stymied in

‘Part 121 of the Federal Aviation Regulations, 14 C.F.R. Part 121,
regulates scheduled passenger flights in aircraft of ten seats or more and
any “all-cargo” operations. 14 CFR. § 121.1. See also 14 C.F. R. § 119.3
(defining “supplemental operation” to include all-cargo operations.) The
rule does not apply to commuter aircraft of less than nine seats, which
operate under 14 C.F.R. Part 135, or to non-scheduled passenger carriage,
be operated by pilots of any age irrespective of the number of passengers
that are carried.

3

efforts to negotiate a mandatory retirement age with the pilots’
unions. See, Karl Ruppenthal, Compulsory Retirement of Air
Line Pilots, 14 Indus. & Labor Re!’ns Rev. 528 (1961). As the
Seventh Circuit Court of Appeals observed, “Since its
enactment, the age sixty rule has been the subject of continuous
controversy and intermittent reconsideration by the FAA”
Aman v. FAA, 856 F.2d 946, 948 (7th Cir. 1988) (detailing a
history of studies and rulemaking proceedings involving the
rule).

In 1990, in response to criticism of the rule expressed in
the Aman case and in hearings before the House Select
Committee on Aging’, the FAA commissioned a study “to
consolidate accident data and correlate it with flying experience
and age of pilots.” See 60 Fed. Reg. 65,978 (1995). The
ensuing “Hilton Report” concluded that there was “no hint of an
increase in accident rate for pilots of scheduled air carriers as
they neared their 60th birthday.” Jd, quoting Age 60 Project,
Hilton Systems Technical Report 8025-3C(R2) at 6-2. In light
of this conclusion, the FAA instituted docket proceedings to
reexamine the Age 60 Rule. 58 Fed. Reg. 21,336 (1993).
These proceedings were later combined with rulemaking
proceedings that proposed to extend the scope of Part 121 of
the Federal Aviation Regulations to regulate commuter
operations in aircraft with more than ten seats. 60 Fed. Reg.
16,237 (1995).

On December 15, 1995, following the commencement
of suit in the court below, the FAA issued final rules for
commuter air operations, 60 Fed. Reg. 65,832 (1995), and a

See Age Discrimination Against Airline Pilots: Hearing before
the House Select Comm. on Aging, 96* Cong. (1979); Age Discrimination
and the FAA Age 60 Rule: Hearing before the House Select Comm. On
Aging, 99* Cong. (1985).

P

4

“Disposition of comments and notice of agency decisions”
conceming the Age 60 Rule, id. at 65,977. After discussing the
scientific evidence and arguments for relaxation or repeal of the
rule, the FAA determined that “although there is no one
obviously ‘right answer’ discovered through scientific or
medical studies,” id. at 65,985, “concerns regarding aging pilots
and underlying the original rule have not been shown to be
invalid or misplaced,” id at 65,980. The rule was left
unchanged and was extended to commuter operations to which
it had not previously applied. An administrative appeal of the
FAA’s determination was sustained by a sharply divided panel
of the D.C. Circuit. Professional Pilots Fed'n v. FAA, 118
F.3d 758 (D.C. Cir. 1997), reh’g denied, Nov. 5, 1997.

Petitioner was a pilot employed as a captain in air cargo
operations by Federal Express Corporation. Six months before
his 60th birthday he gave notice to his employer that he wanted
to continue working as a captain after he turned 60. The
company refused on the grounds that the Age 60 Rule
prohibited his continued employment in that position. He was
instead offered employment as a flight engineer at lower pay.
(App. A at a-3.)

Petitioner filed an age discrimination charge with the
Equal Employment Opportunity Commission under the ADEA.
The EEOC dismissed the charge with a special notation that the
employer’s actions were “taken pursuant to Federal Air
Regulations.” A box stating that the facts “fail to state a claim
under any of the statutes enforced by the Commission” was left
blank. (R-41.)°

5Refers to the record in the joint appendix on appeal before the
court below.

5

Petitioner then filed suit against Federal Express seeking
a declaration that the Age 60 Rule was in violation of the ADEA
and an injunction restoring the pilot to his former position. The
complaint did not ask for monetary damages. The employer
moved to dismiss under Fed. R. Civ. P. 12(6)(6), arguing that
the Age 60 Rule was “a lawful exercise of rulemaking
authority,” (R-11), and therefore constituted an exception to the
ADEA as “a bona fide occupational qualification [BFOQ]
reasonably necessary to the normal operation of the particular
business.” 29 U.S.C. § 623(f). The district court granted the
dismissal without hearing argument on the motion or providing
petitioner an opportunity to present evidence as to whether the
rule was reasonable as it applied to pilots who did not carry
passengers. The district court reasoned that

[I]f the FAA requires a rule in the interest of
public safety, regardless of its continued
viability, the rule’s implementation is “reasonably
necessary” to the perpetuation of a logical
business objective.

(App. B at a-18.)

Petitioner appealed to the Sixth Circuit on two grounds.
First, he argued that the conclusion that the Age 60 Rule was
per se a BFOQ violated the EEOC requirement, approved by
this Court in Western Air Lines, Inc. v. Criswell, 472 U.S. 400,
411 (1985), that the existence of a BFOQ “should be resolved
on a ‘case-by-case’ basis.” (Br. for Appellant at 13-21.)
Second, the Petitioner urged that the fact that Federal Express
was required to comply with the Age 60 Rule by the FAA did
not relieve the employer from its obligation under the ADEA to
avoid age discrimination because the FAA could not legally
exempt private parties from complying with a statute over which
it had no regulatory authority. (Br. for Appellant at 21-25.)

6

the district court. It concluded that it could not declare the Age
60 Rule an invalid exercise of agency rulemaking power because
“the FAA not being a party to this litigation, we are at a loss to
understand how we could do so.” (App. A at a-8.) Then, after
acknowledging that “the FAA has never expressly purported to
establish a bona fide occupational qualification for ADEA
purposes,” (App. A at a-5), the court below determined that the
Age 60 Rule constitutes a BFOQ as a matter of law because
“the rule has been adopted on grounds that could support a
BFOQ defense had the age limit been adopted by the employer
voluntarily.” (App. A at a-8).

The court’s analysis was not based on evidence that had
been submitted by the parties or considered by the district court.
Instead, the Sixth Circuit relied on the FAA’s December, 1995
explanation of its decision to maintain the Age 60 Rule and
extend it to new types of aircraft operations. 60 Fed. Reg.
65,977 (1995). The court analyzed the FAA’s disposition in
light of EEOC regulations that prescribe the standards that an
employer must satisfy to establish that age is a BFOQ. First,
the court found that the FAA had determined that “safety
concerns made the age 60 rule ‘reasonably necessary’ for pilots
in Part 121 operations,” satisfying the EEOC requirement that
“the age limit is reasonably necessary to the essence of the
business.” 29 CFR. § 1625.6(b)(1); see also 29 U.S.C. §
623(f){1) (identical ADEA requirement). (App. A at a-6.)
Second, the court held that

The FAA’s age 60 rule is premised on the
sbility or odieianatialtintiaitinian ies

7

an individualized basis, whether a particular
pilot’s age renders him unable to perform safely
and effectively.

(App. A at a-7 .) This finding, in the court’s view, satisfied the
EEOC requirement that an employer prove that “some of the
individuals so excluded possess a disqualifying trait that cannot
be ascertained except by reference to age.” 29 CFR. §
1625.6(b)(3).

In support of the second finding the court below quoted
excerpts from the FAA’s disposition and concluded that “The
FAA rejected the notion that current medical technology can
distinguish between those pilots over 59 years old who present
safety risks and those who do not.” (App. A at a-7). Although
EEOC regulations required that an employer who offers a safety
justification for age-based discharge prove that there is “no
acceptable alternative which would better advance it or equally
advance it with less discriminatory impact,” 29 C.F.R.
§ 1625.6(c), the court found that this requirement had been
satisfied even though no evidence had been presented to the
district court. The court reasoned that “The FAA has
considered alternatives to the age 60 rule, such as performance
testing and medical certification, and has rejected each
alternative as less safe than the age 60 rule.” (App. A at a-7)*.

Having concluded that the FAA’s explanation for the
Age 60 Rule conformed to the EEOC requirements for proof of

“All captains operating under Part 121 are required to have a
first-class medical certificate, which involves a comprehensive medical
examination every six months. 14 C.F.R § 67.13. In addition, the
Federal Aviation Regulations prescribe frequent training and proficiency
checks for pilots in Part 121 operations. See, e.g., 14 C.F.R. §§ 121.433,
121.440, 121.441.

a BFOQ, the Sixth Circuit then addressed the issue of whether
the rule could operate as a BFOQ for all Part 121 employers,
irrespective of the specific nature of their operations. The court
acknowledged that “The BFOQ defense requires a
particularized, factual showing that the employer’s practice is
reasonably necessary for the particular job in question.” (App.
A at a-8, citations omitted.) But it declined to require a
particularized showing in the case of Federal Express because it
would require the employer “to second-guess the very agency
established by Congress to regulate it.” (App. A at a-9).

REASONS FOR GRANTING THE WRIT
L

THE DECISION BELOW CONFLICTS WITH THE
PLAIN LANGUAGE OF THE ADEA, EEOC
REGULATIONS THAT EXECUTE THE ADEA,
AND THIS COURT’S DECISIONS
INTERPRETING THE ADEA.

The Age Discrimination in Employment Act requires that
any bona fide occupational qualification be necessary to the
normal operation of a “particular business.” 29 U.S.C.
§ 623(f(1). The EEOC prescribes that any BFOQ be
established “on the basis of all the pertinent facts surrounding
each particular situation.” 29 C.F.R. § 1625.6(c). In Western
Air Lines, Inc. v. Criswell, 472 U.S. 400, 412 (1985) this
Court explained that the language meant that “Congress
expressly decided that problems involving age discrimination in
employment should be resolved on a ‘case-by-case basis’ by
proof to a jury.” The court below, in holding that the Age 60
Rule establishes a BFOQ as a matter of law, ignored both the
plain language of the statute and the regulation and the
unequivocal direction of this Court.

9

The starting point for analysis is the language of the
statute itself. See Ohio Empl. Ret. System v. Betts, 492 U.S.
158 (1989) (holding that the plain language of the ADEA
controlled over contrary EEOC regulations and legislative
history). The ADEA makes it unlawful for an employer “to
respect to his compensation, terms, conditions, or privileges of
employment because of such individual’s age.” 29 U.S.C.
§ 623(a). The exception for a bona fide occupational
qualification is limited to circumstances in which the BFOQ is
“reasonably necessary to the normal operation of the particular
business or where the differentiation is based on reasonable
factors other than age.” 29 U.S.C. § 623(f). This exception is
to be construed in light of the purpose expressed in the preamble
to the ADEA “to promote employment of older persons based
on their ability rather than age.” 29 U.S.C. § 621(b). In this
case, in which the pilot was discharged solely because of his age,
the statute requires that the age barrier be confined to the
operation of the employer’s “particular business.” The decision
of the court below, which held that the employer’s burden of
proof is satisfied by demonstrating the existence of an age-based
federal agency rule by which the employer is bound, (App. A at
a-8), radically departs from the standard required by the statute
as well as from the statute’s purpose.

The plain language of the statute has been buttressed by
regulations of ADEA’s administering agency, the EEOC. These
regulations not only demonstrate that the BFOQ exception is
linked to specific employment situations; they also confirm that
they employer has an exacting burden of establishing that age-
based discrimination is the only reasonable alternative available.

10

(a) Whether occupational qualifications will be
deemed to be “bona fide" to a specific job and
“reasonably necessary to the normal operation
of the particular business," will be determined
on the basis of all the pertinent facts
surrounding each particular situation. It is
anticipated that this concept of a bona fide
occupational qualification will have limited
scope and application. Further, as this is an
exception to the Act, it must be narrowly
construed.

(b) An employer asserting a BFOQ defense has
the burden of proving that (1) the age limit is
reasonably necessary to the essence of the
business, and either (2) that all or substantially
all individuals excluded from the job are in fact
disqualified, or (3) that some of the individuals
so excluded possess a disqualifying trait that
cannot be ascertained except by reference to
age. If the employer's objective in asserting a
BFOQ is the goal of public safety, the
employer must prove that the challenged
practice does indeed effectuate that goal and
that there is no acceptable alternative which
would better advance it or equally advance it
with less discriminatory impact.

29 C.F.R. § 1625.6 (emphasis added).

The EEOC has repeatedly asserted that the Age 60 Rule
is not a BFOQ and therefore is in violation of the ADEA.
When administration of the ADEA was transferred to the
EEOC, in 1979, the EEOC withdrew previous interpretations

11

issued by the Department of Labor which included the Age 60
Rule as an example of a BFOQ “to avoid the appearance that
those examples had received the imprimatur of the
Commission,” and singled out the Age 60 Rule as the “[mJost
notable in this regard.” 46 Fed. Reg. 47,725 (1981). In its
opposition to Federal Express’s motion to dismiss in the court
below, Petitioner submitted a June 12, 1995 letter to the FAA
from Elizabeth Thornton, EEOC Deputy Legal Counsel, in the
FAA docket proceedings on the Age 60 Rule. The letter set
forth the EEOC’s official position that it “does not believe that
a chronological age limitation is a BFOQ for any pilot because
“Pilot skills and health can be assessed accurately on an
individual basis, regardless of age.” (R-24; R-38.) It cites six
previous occasions in which EEOC officials gave testimony or
issued statements opposing the Age 60 Rule and urging its
change or repeal. (R-37.) °

As the agency charged with responsibility for
implementing the ADEA, the EEOC’s regulations should be
given “controlling weight.” Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), accord,
Weeks v. Southern Beil Tel. & Tel. Co., 408 F.2d 228, 235
(Sth Cir. 1969) (deferring to EEOC regulations, citing Udall v.
Tallman, 380 U.S. 1, 85 (1965). The court below acknowledged
that the EEOC has repeatedly urged that the rule violates the

statutory prohibition against age discrimination,” (App. A at a-

and flight engineers who were not subject to the rule. See, e.g., EEOC v.
American Airlines, Inc., 48 F.3d 164 (Sth Cir. 1995); EEOC v. Boeing
Co., 843 F.2d 1213 (9th Cir. 1988), cert. denied, 488 U.S. 889 (1988);
EEOC v. Pan American World Airways, Inc., 52 Fair Empl. Prac. Cas.
940 (NLD. Cal. 1988).

12

3) and quoted the EEOC regulations at length (App. A at a-5).
Yet it refused to endorse the EEOC’s position because: (1) the
court concluded, without giving the employee a chance to
establish a factual record, that “the rule has been adopted on the
grounds that could support a BFOQ defense had the age limit
been adopted by the employer voluntarily,” (App. A at a-8 ),
and (2) allowing the pilot to contest the rule would require the
employer to “second-guess the very agency established by
Congress to regulate it” (App. A at a-9). In so holding, the
Sixth Circuit ignored the clear language of the ADEA and
flaunted the regulations and conclusions of the agency that
administers the ADEA to avoid a perceived conflict with an
agency that has no authority under that statute.

In departing from the plain language of the ADEA and
the regulations that govern that statute, the court below also
placed itself squarely in conflict with decisions of this Court that
explicitly approve the EEOC regulations and the requirement
that the BFOQ exception should be narrowly applied to specific
employment situations. In Criswell the Court considered
whether an employer could use the Age 60 Rule as a
justification for mandatory retirement of flight engineers who,
though not directly subject to the rule, are part of the cockpit
crew and have responsibilities that directly affect the safety of
the flight. The Court observed that “the BFOQ exception ‘was
in fact meant to be an extremely narrow exception to the general
prohibition’ of age discrimination of the ADEA.” 472 U.S. at
412, quoting Dothard v. Rawlinson, 433 U.S. 321, 334 (1977).
It further noted that “Congress expressly decided that problems
involving age discrimination in employment should be resolved
on a ‘case-by-case basis’ by proof to a jury.” 472 U.S. at 422.

‘The flight engineer’s duties include management of cabin
of the electrical and hydraulic systems.

13

A case decided the same day as Criswell, Johnson v. Mayor
and City Council of Baltimore, 472 U.S. 353 (1984) confirmed
“Congress’ indisputable intent to permit deviations from the
mandate of the ADEA only in light of a particularized factual

showing,”

Early the following year, in Zrans World Airlines, Inc.
v. Thurston, 469 U.S. 111, 121 (1985) the Court extended the
scope of Criswell to apply to the seniority rights of pilots who
bid for flight engineer positions because they had reached 60
years of age. It observed that “Every court to consider the issue
has assumed that the ‘particular business’ to which the statute
refers is the job from which the protected individual is
excluded.” At the same time, it declined to address the issue
here—whether the Age 60 Rule itself is a BFOQ. In a footnote
the Court related that:

In this litigation the respondents have not
challenged TWA’s claim that the FAA regulation
establishes a BFOQ for the position of captain.
The EEOC guidelines, however, do not list the
FAA’s age-60 “2 as an example of a BFOQ
because the ‘» )C wishes to avoid any
appearance *®,. ~ . ndorses this rule.

Id. at 122, n. 17. The clear implication of this observation is
that the status of the Age 60 Rule as a BFOQ for pilots remains
to be resolved.

The court below assumed that the “particular business”
in question was the broad one of “flying aircraft engaged in Part
121 operations.” (App. A at a-5). It therefore perceived no
need to examine the specific circumstances of Mr. Coupé’s
position which, unlike most pilot positions that are subject to the
Age 60 Rule, did not implicate the safety of passengers. In

14

lumping the petitioner together with tens of thousands of other
pilots who worked for different airlines in different kinds of
operations, the court below ignored the requirement that a
BFOQ be established in the context of “the individual
employer’s need for an age limit.” and in light of “the need to
consider the actual tasks of the ...employees and the
circumstances of employment.” Johnson v. Mayor, 472 U.S.
at 362, n. 8,371. Cf Dothard v. Rawlinson, 433 U.S. at 335-
336 & n.23 (1977) (BFOQ defense in a Title VII sex
discrimination case analyzed in light of the specific conditions in
Alabama prisons, noting that these conditions were “not
typical”); Torres v. Wisconsin Dep't of Health, 859 F.2d 1523,
1528 (7* Cir. 1988) (holding that the focus on the “particular
business” of the employer often “requires that a court recognize
factors that make a particular operation of an employer unique
or at least substantially different from other operations in the
same general business or profession”).

The court below, although it acknowledged Criswell’s
requirement that “The validity of a BFOQ defense turns upon
factual findings,” denied petitioner the opportunity to challenge
findings made by the FAA which were not briefed or considered
in the 12(b)(6) motion before the district court. In accepting
these findings as a matter of law, the Sixth Circuit expressly
declined to make findings on the necessity for the rule: “We do
not hold that the conclusions the FAA has drawn from the
scientific evidence are necessarily correct... .” (App. A at a-
8). But the court nevertheless deprived petitioner of the
opportunity to demonstrate that the rule was unnecessary to the
cargo operations in which he was exclusively engaged. Thus,
although both the EEOC regulations, 29 C.F.R. § 1625.6(b),
and this Court’s decision in Criswell, 472 U.S. at 422, require
that the employer sustain the burden of proving a BFOQ, the

15
court below removed this burden entirely’.
IL.

THE SIXTH CIRCUIT’S DECISION SUSTAINS A
LONGSTANDING CONTROVERSY IN THE
CIRCUITS CONCERNING THE VALIDITY OF THE
AGE 60 RULE AND ITS PROPER APPLICATION.

The administrative struggle that is reflected in the
EEOC’s seven public statements opposing the Age 60 Rule has
been paralleled in judicial proceedings in which the rule has been
challenged either by pilots to whom it applies, or pilots and
flight engineers who contested employers’ attempts to impose
the rule in circumstances where the FAA did not require it. The
disparate outcomes of these decisions, the variance in the

The court below found it significant that “Mr. Coupé is not
without a remedy for the perceived discrimination,” noting that he had not
pursued an appeal from the FAA’s denial of his petition for an exemption
from the Age 60 Rule. (App. A at a-9.) The suggestion that an appeal
from a denial of an exemption is somehow equivalent to the remedies
under the ADEA is mistaken. As the Seventh Circuit noted in Baker v.
FAA, 917 F.2d 318, 319, cert. denied, 499 U.S. 936 (1991), the pilot’s
burden of proof in an exemption proceeding is a “heavy burden” requiring
“compelling evidence.” By contrast, under the ADEA, the burden is on the
employer to demonstrate that “no acceptable alternative. . .would better
advance [safety] or equally advance it with less discriminatory impact.” 29
C.F.R. § 1625.6.

Moreover, the FAA announced, in its December, 1995 disposition,
that it will “deny any petition for exemption from the Age 60 Rule without
first publishing it for comment unless it contains a proposed technique, not
discussed in this Disposition, to assess an individual pilot’s abilities and -
risks of subtle and sudden incapacitation.” 60 Fed. Reg. 65,980 (1995).
Thus, in the face of a summary denial, the pilot in an exemption
proceeding now has little or no opportunity to establish a factual record
that could form the basis for a valid appeal.

16

courts’ rationales, and the stridency with which the rule has been
criticized, all evidence a manifest the need for guidance from this
Court.

Because the Age 60 Rule was promulgated before the
ADEA was enacted, the initial challenges to the rule were
reviewed without consideration of the ADEA’s policy or the
EEOC’s regulations. The rule was therefore held to be a
reasonable exercise of agency discretion without the need to
consider age discrimination policy. See .4ir Line Pilots Ass'n
Int’l v. Quesada, 276 F.2d 892 (2d Cir. 1960) cert. denied,
366 U.S. 962 (1961); O'Donnell v. Shaffer, 491 F.2d 59 (D.C.
Cir. 1974). Even after the passage of the ADEA the rule was
initially assumed to be a BFOQ because the Department of
Labor issued interpretations of the ADEA that included the Age
60 Rule as an illustration of a bona fide occupational
qualifications. See Starr v. FAA, 589 F.2d 307, 313 (7 Cir.
1978). Then, in 1981, the EEOC expressly withdrew the
earlier interpretations to make clear that it did not consider the
rule to qualify as a BFOQ. 46 Fed. Reg. 47,725 (1981).

Following the passage of the ADEA, a series of appeals
in the Seventh Circuit reflected that court’s increasing
skepticism about the scientific underpinnings of the Age 60 Rule
and its viability as a BFOQ. In Monroe v. United Air Lines,
Inc., 736 F.2d 394, 405 (1984), a case involving flight
engineers, the court noted that “a once-valid BFOQ may lose its
justification with advances in medical science. That the age 60
rule may have been a BFOQ in 1978 does not place it beyond
challenge now. The Tenth Circuit, in Gray v. FAA, 594 F.2d
793, 795 (10th Cir. 1979), expressed the same view. In 1988,
in Aman v. FAA, the Seventh Circuit reviewed the FAA’s
denials of petitions for exemptions from the Age 60 Rule
submitted by a group of pilots. The court remarked that the

FAA’s “progress in developing an understanding of the

17

relationship between aging and flight performance has been
disappointing,” 856 F.2d at 949, and remanded the case for
further proceedings because “the FAA failed to set forth a
sufficient factual or legal basis for its rejection of the petitioners’
claim that older pilots’ edge in experience offsets any undetected
physical losses.” Id at 957. On review a second time, the
court upheld the FAA’s refusal to grant exemptions, explaining
that “we are not prepared to overrule the agency in a matter of
such immense sensitivity as this one,” but warned that:
“Obviously there is a great body of opinion that the time has
come to move on. The agency must give serious attention to
this opinion.” Baker v. FAA, 917 F.2d 319, 322 (7th Cir.
1990), cert. denied, 499 U.S. 936 (1991). The dissenting judge
explicitly termed the agency’s refusal to grant exemptions “a
fraud.” Id. at 327.

Aman and Baker did not address the issue of whether the
Age 60 Rule could be a BFOQ. The rulings were limited to a
review of the soundness of the rule’s scientific basis in the
context of an exemption proceeding in which the FAA had
enormous discretion. By contrast, the Ninth Circuit addressed
the BFOQ issue bluntly when a manufacturer attempted to apply
the rule to test pilots who were not required to adhere to the
rule. In EEOC v. Boeing Co., 843 F.2d 1213, 1217 (9th Cir.),
cert. denied, 488 U.S. 889 (1988), the Ninth Circuit reversed
the lower court’s determination that the rule was a BFOQ as a
matter of law. The court curtly observed that: “No authority
called to our attention justifies deference to an [FAA]
determination in the administration of the ADEA.” It further
cautioned 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, much less a BFOQ for Boeing

18

pilots. Although FAA’s Age-60 Rule has been
sustained as a proper exercise by FAA’s rule-
making and regulatory power, it has never been
tested against ADEA’s requirements for BFOQ
even for the commercial pilots.

Id. at 1220.

The FAA’s decision in December, 1995, to maintain the
Age 60 Rule and extend it to commuter airline operations
prompted an appeal in the D.C. Circuit in which the rule was
challenged both as a violation of the ADEA and as an abuse of
discretion under the Administrative Procedure Act. The panel’s
opinion, issued less than three weeks before the decision here
under appeal, unanimously agreed that Age 60 Rule did not
violate the ADEA directly because it found that the ADEA was
addressed to employers, not to federal agencies, and “should not
be read by mere implication to override the specific grants of
authority to the FAA in 49 U.S.C. § 44701." Professional
Pilots Fed'n. v. FAA, 118 F.3d 758, 763 (D.C. Cir. 1997).
But the panel was sharply divided as to whether the FAA had a
reasonable basis for its decision to maintain and extend the rule.
The panel majority concluded that “the FAA was not arbitrary
and capricious in violation of the APA.” Jd at 770. Judge
Wald, in a lengthy and stinging dissent, characterized the FAA’s
refusal to obtain performance data on older pilots as “the
epitome of arbitrary action,” Jd at 771, and admonished that

The congressional condemnation of age
discrimination embodied in the ADEA imposes
a duty on the FAA to try to obtain data that
might allow it to do away with its current

19

reliance on an arbitrary across-the-board age
cutoff as a method of ensuring aviation safety.

Id. at 776.*

Although the outcome of the Professional Pilots case,
upholding the validity of the Age 60 Rule, is consistent with the
outcome of the Sixth Circuit’s decision here, the sharply
different reasoning of the two cases has whipsawed petitioner
and other similarly situated pilots. The D.C. Circuit, because it
believed that the FAA in its regulatory capacity was not required
to adhere to the ADEA, determined that “we need not reach the
question of whether the Age 60 Rule constitutes a bona fide
occupational qualification.” 118 F.3d at 763. Therefore the
D.C. Circuit made no effort to determine whether the scientific
evidence before it was sufficient to establish a BFOQ under the
ADEA standards.

The Sixth Circuit, by contrast, declined to invalidate the
Age 60 Rule because the FAA was not a party to the litigation
and the court was loathe to “strike down the age 60 rule without
giving the agency that promulgated it a chance to defend the
tule’s legitim:<) ” (App. A at a-4.)The court then proceeded to
hold that the _/e constituted a BFOQ without reviewing any
evidentiary record except the FAA’s own self-serving decision.
Thus the court that had an evidentiary record before it declined
to analyze that record in light of the ADEA requirements for a
BFOQ while the court below, without an evidentiary record,
purported to determine that the FAA’s rulemaking proceeding
satisfied the ADEA’s requirements.

*4 petition for rehearing and suggestion for rehearing en banc in
the Professional Pilots case was denied on November 5, 1997. Judge Wald
submitted a detailed dissent to the court’s refusal to hear the case en banc.

20

It is clear that continued review of the merits of the Age
60 Rule and its proper application by diverse circuit courts of
appeals has not settled or clarified the law. Successive opinions
have only cast more fuel on a controversy that has burned for
nearly forty years producing much smoke and little light The
intervention of this Court is needed to resolve the differences
among the courts of appeals and put this longstanding
controversy to rest.

Ii.

THIS CASE INVOLVES IMPORTANT QUESTIONS
OF FEDERAL AGENCY POWER AND STATUTORY
INTERPRETATION.

In the Criswell and Thurston cases this Court considered
whether the Age 60 Rule was a BFOQ for flight engineers not
directly subject to the rule. In both cases the Court avoided
confronting the legitimacy of the rule itself. Here, the Court not
only can resolve the issue left unsettled in Crisweill and
Thurston; it can also provide critical guidance concerning the
proper sphere of federal agency regulation. The circuit courts
that have struggled with the issues since Criswell and Thurston
have failed to produce a convincing explanation for why the
dubious policy of an agency that has no power under the ADEA
should deprive employees of the rights and process that the
ADEA guaranties them. It is again time for the Court to
intervene.

In this case, the confused state of the law caused the
court below to ignore basic principles of statutory interpretation
in its analysis of the FAA’s authority under the Federal Aviation
Act and the pilot’s rights under the ADEA. The court did not
even reference the source of the FAA’s authority for the Age 60
Rule, which derives from the agency’s authority to “prescribe

21

regulations in the interest of safety for the maximum hours or
period of service of airmen.” 49 U.S.C. § 44701(a)(4). See
Professional Pilots, 118 F.3d at 763. The FAA’s vague
mandate, which makes no reference to any authority to prescribe
age limits, stands in sharp contrast to the ADEA’s clear
prohibition of age-based discharge and the requirement that any
BFOQ exception be justified with reference to a “particular
business.” Yet the court made no attempt to harmonize the two
statutes or to apply principles of statutory interpretation to
determine how the conflict should be resolved.

Settled principles of statutory interpretation require that,
when two statutes are in conflict, they should be harmonized,
whenever possible, “to give effect to each if we can do so while
preserving their sense and purpose.” Watt v. Alaska, 451 U.S.
259, 267 (1981) (citations omitted). “We should be
reluctant...to read an earlier statute broadly where the result is
to circumvent the detailed remedial scheme constructed in a
later statute.” Patterson v. McLean Creait Union, 491 U.S.
164, 181 (1988). The court below ignored these principles.
Without examining the authority or the scientific basis of the
Age 60 Rule it denied petitioner the cardinal remedies afforded
by the ADEA—the opportunity for an evaluation of the BFOQ
defense as it applied to his particular job and a burden of proof
that demanded that the employer exclude other less
discriminatory remedies before a BFOQ could be established.
Such an extreme departure from accepted statutory
interpretation merits prompt and clear correction by this Court.

Because the court below did not attempt to compare the
policies underlying the ADEA and the Federal Aviation Act, it
recoiled at the prospect of striking down the Age 60 Rule
“without giving the agency that promulgated it a chance to
defend the rule’s legitimacy,” (App. A at a-4). It is not clear
why this reluctance was necessary. Although there seems to be

22

no clear precedent involving federal agencies, federal courts
have not hesitated to strike down state regulations that violated
federal civil rights laws in proceedings against private parties in
which the state regulator was absent. E.g., Wengler v.
Druggists Mut. Ins. Co., 446 U.S. 142 (1980) (suit against
insurance company challenging a provision of the state worker’s
compensation law on equal protection grounds); Manning v.
UAW, 466 F.2d 812 (6th Cir. 1972) (suit against employer
involving Title VII challenge to Ohio “female protective
statutes”); Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9%
Cir. 1971) (suit against employer challenging state law
regulating hours of work and weightlifting restrictions for
women).

Two other considerations commend this case to this
Court’s attention. First, the petitioner’s predicament is not
exceptional but is one that is shared with tens of thousands of
other pilots in operations that range from propeller flights
carrying ten passengers to transoceanic ones in wide body
aircraft.

Second, this case raises the issue of whether a federal
agency can use lofty administrative goals such as “safety,”
“welfare,” or the “common good” to circumvent civil rights
policy and the authority of the agency that implements that
policy. As we have seen, the Seventh Circuit and the Ninth
Circuit expressed extreme skepticism about the safety
justification for the Age 60 Rule even before the Hilton Report
failed to find any correlation between aging and accidents.
Judge Wald, in her dissent in Professional Pilots, also sharply
questioned the rationale of the FAA’s “determination that
aviation safety requires all common carrier pilots, even those
carrying cargo only, to be subject to the age limit but not
corporate or air-taxi pilots.” 118 F.3d at 770. As Judge Wald
points out, European and Asian pilots over the age of 60

23

regularly fly large passenger aircraft without incident and, due
to treaty obligations, they routinely fly into U.S. air space. The
FAA has made no effort to collect data on these or other groups
of pilots over the age of 60 to see whether the agency’s safety
fears are justified. 118 F.3d at 775. Yet the court below used
a greatly reduced standard of review because it believed the
FAA was motivated by “safety concerns.”

The underlying issue here is not just a question of
whether pilots over the age of 60 are safe to fly. In fact, there
is a question of whether the younger and less experienced pilots
who remain after the forced retirement of older pilots may pose
a greater danger to the public. As the EEOC pointed out in its
letter to the FAA, the series of commuter aircraft accidents that
prompted the FAA to extend the Age 60 Rule to commuter
aircraft operations all involved young and inexperienced pilots,
the oldest of whom as 42, and the two youngest 25. Letter from
Elizabeth Thornton, EEOC Deputy Legal Counsel to the FAA
2 ( June 12, 1995) (R-38).

Judge Wald noted in her dissent that the available
accident data on air carrier pilots as they approach the age of 60
fails to demonstrate any increase in accidents, reflecting, instead,
“a slight downward trend.” 118 F.3d at 773. Yet, while
excluding its most experienced pilots from commercial air
carrier operations, the FAA routinely grants waivers to younger
pilots with serious medical and psychological problems,
including alcoholism. Jd at 772. Petitioner, whose job did not
involve carriage of passengers, was denied a chance to
demonstrate that he, and others his age, were as safe or more
safe than younger pilots who lacked his experience.

Finally, this case involves broader issues of federal
agency power which are not limited to the FAA’s activity.
No current legal standard exists to determine the appropriate

24

course of action when two different agencies issue directly
conflicting regulations. This case — in which the FAA has
used the apparently unassailable excuse of “safety” in order to
deny the statutory civil rights protected by another agency’s
regulations — demonstrates the compelling need for the
Court’s guidance on this issue.

CONCLUSION

This case presents an important issue of civil rights that
has long been subject to conflict and controversy in the courts
of appeal. Certiorari should be granted to clarify the statutory
policy towards age discrimination, define the limits of federal
agency power, and correct a serious and widespread injustice.

Respectfully submitted,

Nicholas H. Cobbs*

Law Office of Nicholas H. Cobbs
1815 H Street, NW, Suite 600
Washington, D.C. 20006
202-452-8222

MICHAEL J. PANGIA
GILMAN & PANGIA

1815 H Street, NW, Suite 600
Washington, DC 20006
202-466-5100

*Counsel of Record

a-1
APPENDIX A:

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT J. COUPE,
Plaintiff-Appellant,

v. ; No. 96-5978

FEDERAL EXPRESS CORPORATION,
Defendant- ee.

Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 95-0285 1--Bernice B. Donald, District Judge.

Argued: June 12, 1997
Decided and Filed: August 4, 1997

Before: KRUPANSKY, NELSON, and BOGGS, Circuit
Judges.

COUNSEL

ARGUED: Nicholas H. Cobbs, LAW OFFICES OF
NICHOLAS H. COBBS, Washington, D.C., for Appellant.
James R. Mulroy, Il, FEDERAL EXPRESS
CORPORATION, Memphis, Tennessee, for Appellee. ON
BRIEF: Nicholas H. Cobbs, LAW OFFICES OF

a-2

NICHOLAS H. COBBS, Washington, D.C., for Appellant.
James R. Mulroy, Il, FEDERAL EXPRESS
CORPORATION, Memphis, Tennessee, for Appellee.

OPINION

DAVID A. NELSON, Circuit Judge. Except where age is
a bona fide occupational qualification reasonably necessary to
the normal operation of an employer’s business, the 7
Discrimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. §§621 et seg., prohibits the employer from
discharging an individual because of his age. See 29 U.S.C.
§623(a)(1) and (f)(1). Federal law also prohibits any air
cargo operator regulated by the Federal Aviation
Administration under Part 121 of the Code of Federal
Regulations from using the services of a pilot who has
reached his 60* birthday. See 14 C.F.R. §121.383(c).

Where an employer is subject to the FAA rule, does the
ADEA prohibit the employer from discharging a pilot because
he has turned 60? Concluding that as a matter of law the
obligation to comply with the FAA’s age 60 rule gives rise to
a bona fide occupational qualification reasonably necessary to
the normal operation of such an employer’s business, the
district court answered this question “no.” The court gave the
correct answer, in our view.

I

The defendant in this case, Federal Express Corporation,
operates aircraft used to carry cargo for hire. The company’s
operations are regulated by the FAA under 14 C.F.R. Part

121.

The plaintiff, Robert J. Coupé, was employed by Federal
Express as a professional pilot. Six months before his 60*
birthday he told Federal Express that he wanted to continue
working in his current job (he was a captain at the time) after
he turned 60. Federal Express told him that he could not do
so. The company gave him a choice between retiring at 60 or
training for a lower-paying position as a flight engineer. (The
FAA has not established a mandatory retirement age for flight
engineers. See Western Air Lines, Inc. v. Criswell, 472 U.S.
400, 404 (1985).)

Mr. Coupé promptly filed an age discrimination charge with
the Equal Employment Opportunity Commission. The EEOC
dismissed the charge a few weeks later, noting that Federal
Express was acting “pursuant to Federal Air Regulations.”

Two months before he turned 60 Mr. Coupé brought the
present lawsuit against Federal Express in the United States
District Court for the Western District of Tennessee. In
addition to setting forth the facts outlined above, the
complaint averred, among other things, that the FAA had
promulgated the age 60 rule prior to enactment of the ADEA;
that the EEOC has repeatedly taken the position that the rule
violates the statutory prohibition against age discrimination;
that the position from which the plaintiff was to be discharged
“is not one for which age is a bona fide occupational
qualification;” and that other than age, Federal Express had
no reasonable basis for discharging the plaintiff.

Pursuant to Rule 12(b)(6), Fed. R. Civ. P., Federal Express
moved to dismiss the complaint for failure to state a claim
upon which relief could be granted. The district court granted

,
'
\}

a-4
the motion, and Mr. Coupé has perfected a timely appeal.
Il

Mr. Coupé asks us to declare the age 60 rule an invalid
exercise of agency rulemaking power. The FAA not being a
party to this litigation, we are at a loss to understand how we
could do so. Federal Express, unlike the FAA, has no strong
incentive to defend the rule; as its arguments to us attest, its
interest lies in avoiding an injunction that compels it to violate
a federal regulation. Mr. Coupé would have us strike down
the age 60 rule without giving the agency that promulgated it
a chance to defend the rule’s legitimacy; this we decline to
do.

Til

Mr. Coupé also submits that he is entitled to an injunction
requiring Federal Express to reinstate him as a pilot with no
loss of rank or seniority. Because we agree with the district
court that the age 60 rule provides Federal Express a good
defense to the ADEA claim as a matter of law, we do not
believe that Mr. Coupé has any right to such an injunction.

A

As we have indicated, it is not unlawful for an employer “to
take any action otherwise prohibited [by the ADEA]...
where age is a bona fide occupational qualification reasonably
necessary to the normal operation of the particular busi-
ness... .” 29 U.S.C. §623(f)(1). The Equal Employment
Opportunity Commission has elaborated on this statutory
“BFOQ defense” as follows:

LI MIS

FMA LP IE RM GIR Re ee CR OPAL RIE HAE OE oes

ELISA ON

| MOSEL OT ee bee pom er ret ons

——

a-5

“An employer asserting a BFOQ defense has the
burden of proving that (1) the age limit is reasonably
necessary to the essence of the business, and either (2)
that all or substantially all individuals excluded from
the job involved are in fact disqualified, or (3) that
some of the individuals so excluded possess a
disqualifying trait that cannot be ascertained except by
reference to age. If the employer’s objective in
asserting a BFOQ is the goal of public safety, the
employer must prove that the challenged practice does
indeed effectuate that goal and that there is no
acceptable alternative which would better advance it
or equally advance it with less discriminatory impact.”
29 C.F.R. §1625.6(b).

In maintaining the age 60 rule subsequent to enactment of
the ADEA, the FAA has never expressly purported to
establish a bona fide occupational qualification for ADEA
purposes. See Equal Employment Opportunity Comm’n v.
Boeing Co., 843 F.2d 1213, 1220 (%* Cir.), cert. denied, 488
U.S. 889 (1988). That is not the FAA’s function; “Congress
has not provided for agency determination of whether a
particular age is a BFOQ for a particular occupation.” Hahn
v. City of Buffalo, 770 F.2d 12, 15-16 (2d Cir. 1985).
Nonetheless, as we shall explain, the FAA performed the
same sort of analysis that a court would undertake in
determining the legitimacy of a BFOQ defense under the
framework established by the EEOC regulation.

As to the first element, the FAA determined — though not
in so many words, of course — that its age 60 requirement “is
reasonably necessary to the essence of the business . . . .” 29
C.F.R. §1625.6(b)(1). The business in this case is that of
flying aircraft engaged in Part 121 operations. The rule was

_e——c ea ii,

a-6

first promulgated in 1959 “because of concerns that a hazard
to safety was presented by utilization of aging pilots in air
carrier operations.” See 60 Fed. Reg. 65977 (1995). The
FAA has reaffirmed the rule several times, most recently in
1995, noting that “[cJlearly . . . there is progressive anatomic,
physiological, and cognitive decline associated with
aging... .” Id. at 65981.

The FAA has thus decided that safety concerns made the age
60 rule “reasonably necessary” for pilots in Part 121
operations. Safety concerns may be factored into the BFOQ
calculus if safety goes “to the core of the employee’s job
performance” — that is, when the safeguarding of human lives
is an inherent part of the job. United Auto. Workers v.
Johnson Controls, Inc., 499 U.S. 187, 203 (1991). Safety,
in our view, goes “to the core” of an aircraft pilot’s
performance.’

As to the second element of the EEOC regulation, the
employer has the burden of showing (a) that all or
substantially all individuals excluded from the job involved
are in fact disqualified, or (b) that some of the individuals so

‘The Ninth Circuit has questioned whether the FAA’s age 60 rule
establishes a BFOQ defense even for those employers covered by the rule.
Boeing Co., 843 F.2d at 1220. The employer in Boeing was not covered
by the rule, however, so the court’s observations were dicta. We know,
moreover, that the “highest degree of safety in the public interest” is
“reasonably necessary” to Federal Express’s aircraft operations — for
Congress has said so. See 49 U.S.C. §44701(d)(1)(A) (when
promulgating regulations, the FAA Administrator must consider “the duty
of an air carrier to provide service with the highest possible degree of
safety in the public interest”) (emphasis added); see also Murnane v.
American Airlines, Inc., 667 F.2d 98, 101 (D.C. Cir. 1981) (“we find the
maximization of safety to be ‘reasonably necessary to the normal
operation’ of [the defendant airline]”), cert. denied, 456 U.S. 915 (1982).

a-7

excluded possess a disqualifying trait that cannot be
ascertained except by reference to age. The FAA’s age 60
rule is premised on the impossibility or impracticality of
determining, on an individualized basis, whether a particular
pilot’s age renders him unable to perform safely and
effectively.

In 1959 the FAA justified the rule on the ground that pilot
“incapacity . . . cannot be predicted accurately as to any
specific individual on the basis of presently available scientific
tests and criteria.” See 60 Fed. Reg. 65977, 65978 (1995).
While acknowledging advances in medical science, the FAA
continues to believe that the risk of an aged pilot becoming
incapacitated in flight cannot be accurately assessed. “[A]t
some age,” the FAA stated in 1995, “everyone reaches a level
of infirmity or unreliability that is unacceptable in a pilot in
air transportation. That age will vary from person to person
but cannot yet be predicted in a specific individual.” Jd. at
65981. The FAA rejected the notion that current medical
technology can distinguish between those pilots over 59 years
old who present safety risks and those who do not. Id. at
65985. The FAA thus concluded, in effect, that “some of the
individuals so excluded [by the age limit] possess a
disqualifying trait that cannot be ascertained except by
reference to age.” See 29 C.F.R. §1625.6(b)(3).

When a safety justification is offered by an employer, the
EEOC regulation also requires that there be “no acceptable
alternative [to an age limit] which would better advance [the
safety rationale] or equally advance it with less discriminatory
impact.” 29 C.F.R. §1625.6(b). The FAA has considered
alternatives to the age 60 rule, such as performance testing
and medical certification, and has rejected each alternative as
less safe than the age 60 rule. In the agency’s opinion, none

of these options can adequately detect certain risks associated
with aging. 60 Fed. Reg. 65977, 65983-84 (1995).

The FAA adopted the age 60 rule for reasons that might
well support a BFOQ defense if the FAA were the employer.
But the fact that the FAA’s rationale might support such a
defense in that situation does not mean that an age 60 rule
would necessarily establish a BFOQ defense if a private
employer adopted such an age limit voluntarily. The BFOQ
defense requires a particularized, factual showing that the
employer’s practice is reasonably necessary for the particular
job in question. See Johnson v. Mayor and City Council of
Baltimore, 472 U.S. 353, 362 (1985); 29 C.F.R. §1625.6(a);
Tuohy v. Ford Motor Co., 675 F.2d 842, 844 (6* Cir. 1982).
The validity of a BFOQ defense turns upon factual findings.
See Criswell, 472 U.S. at 422; Boeing Co., 843 F.2d at
1216. Must Federal Express therefore adduce evidence in
support of the rule and convince a judicial factfinder that an
age limitation for its pilots is a BFOQ on its own merits? We
think not.

The employer’s burden to make a particularized factual
showing in support of its BFOQ defense is satisfied by
demonstrating the existence of an age-based federal agency
rule by which the employer is bound — at least where, as
here, the rule has been adopted on grounds that could support
a BFOQ defense had the age limit been adopted by the
employer voluntarily. We do not hold that the conclusions
the FAA has drawn from the scientific evidence are

necessarily correct, although we have no reason to question

a-9

their correctness. We hold only that Federal Express need
not independently judge the soundness of the age 60 rule.
Were it otherwise, Federal Express would be required to
second-guess the very agency established by Congress to
regulate it. We do not believe that the ADEA mandates such
a peculiar result, and we are aware of no judicial decision
holding that it does.

IV

Mr. Coupé was not without a remedy for the perceived
discrimination. The FAA is authorized to grant exemptions
from the safety regulations it has promulgated, see 49 U.S.C.
$44701(e), and it has prescribed detailed procedures for
handling requests for exemptions. See 14 C.F.R. §11.25.
Mr. Coupé knew of the FAA’s exemption procedure, as is
evidenced by the fact that he requested such an exemption in
1994. See 59 Fed. Reg. 33035 (1994):

“Docket No. 27751
Petitioner: Robert J. Coupe

Sections of the [federal air regulations] affected: 14
C.F.R. 121.383(c)

After oral argument in this case, the United States Court of
Appeals for the District of Columbia Circuit upheld the FAA’s 1995
decision to retain the age 60 rule. Professional Pilots Federation v.
Federal Aviation Admin., 118 F.3d 758 (D.C. Cir. 1997). The court
concluded that the ADEA, which speaks only to employers, “places no
substantive limitation upon the agency’s authority to act as a regulator of
the airline industry.” Jd. at 763. The court also concluded that the FAA
did not act arbitrarily or capriciously in retaining the rule. Jd. at 766.

a-10

Description of Relief Sought: To permit Mr. Coupe to
continue to exercise his airman’s privileges as a DC-
10 captain after age 60, and until such time as he can
no longer pass the. required physical, skill, and
competency testing and training.”

The FAA denied the exemption. See 61 Fed. Reg. 1984
(1996).2 Mr. Coupé could have obtained judicial review of
the denial, see 49 U.S.C. §46110(a), but apparently he chose
not to do so. Mr. Coupé not having challenged the FAA’s
action, neither the district court nor this court is empowered
to grant an exemption in the first instance.

AFFIRMED.

The request for and denial of an exemption are not part of the
record before this court, and the parties have not alluded to the exemption
proceedings in their briefs. Because the information is contained in the
Federal Register, however, we can and do take judicial notice of it.

se

a-11
APPENDIX B:

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ROBERT J. COUPE,
Plaintiffs,
CASE NO. 95-2851-D/V
vs.

FEDERAL EXPRESS CORPORATION,

Defendants.

ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS COMPLAINT

Presently before this court is a motion by defendant,
Federal Express Corporation, for dismissal pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Fed. R.
Civ. P. 12(6)(6). Plaintiff, pilot Robert J. Coupe, originally
filed this action on October 30, 1995, alleging that defendant
violated the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq., by requiring that he retire from his
position on his sixtieth birthday. For the following reasons,
the court finds that plaintiff has failed to state a claim upon
which relief can be granted.

a-12

Federal Express Corporation (hereinafter FedEx),
which operates aircraft to carry cargo for remuneration, hired
Robert J. Coupe in February 1973, where he worked
continuously as a first officer and captain until 1995. On
June 25, 1995, Coupe advised FedEx that he wished to
continue in that position following his sixtieth birthday on
December 29, 1995; FedEx then informed plaintiff that they
could not honor his request, since Federal Aviation
Administration (hereinafter FAA) Regulations provide that
“No certificate holder may use the services of any person as
a pilot on an airplane engaged in operations under this part if
that person has reached his sixtieth birthday;” further, “No
person may serve as a pilot on an airplane” engaged in
covered operations, if that person has reached his sixtieth
birthday. 14 C.F.R. 121.383(c). The FAA’s stated
justification for these rules has been that incapacitating
medical events and adverse psychological and physical
changes, which can occur as a consequence of aging, may
endanger the public. Western Airlines v, Criswell, 472 U.S.
400 (1985). Thus, FedEx has utilized a policy in which pilots
who serve as captains or first officers are mandatorily retired,
or are required to accept positions as flight engineers or
second officers exempt from such restrictions.

Notably, plaintiff concedes that defendant was subject
to the “Age 60 Rule,” and pleads that as an aircraft carrier
engaged in operations under Part 121 of the regulations,
FedEx was in fact subject to the FAA rules as originally
promulgated. Essentially, plaintiff alleges that the
subsequently enacted Age Discrimination in Employment Act
(hereinafter ADEA) now renders any actions unlawful, in
which an employer “discharges any individual or otherwise
discriminates . . . with respect to his compensation, terms,
conditions, or priveleges [sic] of employment, because of

a-13

such individual’s age.” 29 U.S.C. § 623(a)(1). Therefore,
plaintiff argues that in following the “Age 60 Rule,” defendant
FedEx has violated the ADEA’s provisions by discharging or
demoting Captain Coupe solely because of his age. In other
words, the broad issue before this court is whether defendant,
in attempting to adhere to federal regulations via the policies
it implemented, may have committed violations of the ADEA
for which this court may provide a remedy.

Though the ADEA clearly proscribes discrimination
based on an individual’s age, its drafters apparently also
recognized the need to carve limited exemptions, to
accomodate [sic] the laws applicable in foreign countries, and
to exempt employers from liability domestically in
appropriate situations. Consequently, the ADEA provides,

(f) It shall not be unlawful for an employer . . . to
take any action otherwise prohibited . . . where age
is a bona fide occupational qualification reasonably
' necessary to the normal operation of the particular
business, or where the differentiation is based on
reasonable factors other than age, or where such
practices involve an employee in a workplace in a
foreign country, and compliance with such subsections
would cause such employer . . . to violate the laws of
the country in which such workplace is located. 29
U.S.C.
§ 623(f) (emphasis added).

Logically, employers’ actions do not therefore violate the
provisions of the ADEA, where age as a criteria is a 1) bona
fide occupational qualification (hereinafter BFOQ), which is
2) reasonably necessary to the normal operation of their
particular business. Id,. Thus, the more narrow issue

a-14

becomes whether defendant’s actions in retiring captains
solely because of their age should fall within the BFOQ
exemption as a matter of law.

Though no court has specifically addressed this
question in the context of an employer who is directly bound
by the FAA regulation, other acts which have been taken
pursuant to concerns for public safety have qualified as
BFOQs in similar situations. For example, in Usery v.
Tamiami Trail Tours, Inc., the fifth circuit upheld an
employer’s refusal to consider applications by those over forty
for positions as bus drivers, since stringent job qualifications
were related to the essence of the business. 531 F.2d 224 (5*
Cir. 1976). Most importantly, the court noted that “the
greater the safety factor, measured by the liklihood [sic] 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 operation. Id. at 236.

Further, other courts have discussed BFOQs in relation
to employers to whom the “Age 60 Rule” does not directly
apply. In Rasberg v, Nationwide Life Insurance Company,
where an employee challenged a mandatory retirement age of
62 for corporate pilots, the court found that adherence to the
FAA rule was conclusive evidence which established an
exemption as a matter of law. 671 F.Supp. [sic] 494
(S.D.OH 1987). In other words, where defendant argued that
its retirement policy fell within the exemption provision of 29
U.S.C. § 623(f)(1), by relying on the “Age 60 Rule”
applicable only to commercial pilots, defendant escaped
liability. Most importantly, the Rasberg court noted that a
BFOQ existed because of the congruity between corporate and
commercial pilots; the extent to which an agency rule is
probative in an employer’s situation will vary “depending on

a-15

the congruity between the occupations at issue and the weight
of the evidence supporting its safety rationale.” Id.. Thus, it
follows that if the “Age 60 Rule” is directly applicable to a
position, a BFOQ should exist since congruity is complete.

Similarly, other courts have reiterated that actions
taken by employers which would otherwise be unlawful under
the ADEA result in no liability, if the employer establishes
that age is a BFOQ in light of the particular business. See
Touhy [sic] v. Ford Motor Company, 675 F.2d 842 (6° Cir.
1982); Gathercole v. Global Associates, 727 F.2d 1485 (9*
Cir. 1984); See also Usery v. Tamiami Trail Tours, Inc. , 531
F.2d 224 (5* Cir. 1976). For instance, even when an
employer discharged a sixty year-old pilot in order to comply
with the terms of its contract with the Army, which explicitly
adopted the age limitation, the reliance on the wisdom of the
FAA as expressed in formal regulations was sufficient for an
exemption. Id,. Thus, this district court would err in failing
to afford an employer the protection conferred by § (f) of the
ADEA, where it is clear that the questioned action meets the
standard for exculpation. See Gathercole, at 1485, 1488.

Concededly, the sixth circuit [sic] has held that
dismissal is inappropriate unless the court applies the proper
“reasonable necessity” standard to the adoption of any “Age 60
Rule.” Touhy, [sic] at 845. However, “the presence of an
overriding safety factor might well lead a court to conclude as
a matter of policy that the level of proof required to establish
the reasonable necessity of a BFOQ is relatively low,” Id.,
even in a situation where the age rule does not apply to the
employer.

Applying these standards, it strains reason to suggest
that defendant, who unlike others was in fact directly bound

a-16

by the FAA regulations, should have eschewed FAA rules in
order to follow the ADEA, particularly since the clearly
enunciated exemption could arguably not have been more
applicable. In other words, since FedEx was still bound by
FAA regulations, it seems logical that their retirement policy
was a BFOQ which was “reasonably necessary” to the
operation of their particular business. Were the court to hold
otherwise, defendant could be sued for having complied with
federal aviation regulations which have the force of federal
law.

Plaintiff insists that the applicability of a BFOQ
exemption, even under these circumstances, is a question of
fact to be determined by a jury. In support of this contention,
he cites Western Airlines v. Criswell, which expresses a
preference for jury resolution. 472 U.S. 400 (1985).
Westem provided that, to establish a BFOQ defense, an
employer must show that age is a legitimate proxy for safety-
related job qualifications. Further, the standard is one of
“reasonable necessity,” and a jury is not required to give
complete deference to the employer’s decision. Id..
However, Western dealt with flight engineers who had been
forced to retire at age 60, and pilots who had been denied
reassignment as flight engineers after having reached age 60.
In other words, its holding is directly apposite only for
positions in which the “Age 60 Rule” was not directly
applicable, with the employer having established an age limit
on its own initiative. The court specifically acknowledged the
distinction, in noting that “the FAA has justified retention of
mandatory retirement” for pilots and first officers who have
reached age 60 . . . At the same time, the FAA has refused
to establish a mandatory retirement age for flight engineers.”
Western Airlines, at 404.

a-17

Plaintiff also cites dicta suggesting that there is “doubt
that the FAA rule reflects a determination that age 60 is a
BFOQ as defined by the ADEA for commercial pilots to
whom it applies.” Equal Employment Opportunity
Commission v. Boeing Company, 843 F.2d 1213, 1220 (9®
Cir. 1988). However, the Boeing court also states that “it
may be that the Age-60 Rule reflects an FAA decision to
resolve any doubts about the necessity for an age qualification
in favor of the passengers . . . Whatever the reason, it cannot
be assumed that the concerns that led the FAA to adopt the
rule for . . . pilots under Part 121 are equally applicable to
determining a BFOQ based on age 60 for Boeing pilots.” Id..
Once again, even Boeing, which criticizes the FAA rule,
distinguishes itself from the situation where the rule is directly
applicable.

Concededly, the “Age 60 Rule” may not be “sacrosanct
and untouchable;” . . . “there is a great body of opinion that
the time has come to move on.” Baker v. Federal Aviation
Administration, 917 F.2d 318 (7* Cir. 1990). For example,
plaintiff cites numerous scholarly works, suggesting that the
Tule is outmoded. However, the rule has as of yet survived,
and is still a regulation to which FedEx is bound to adhere.
Should plaintiff seek to overturn the FAA’s rule, the present
action is not the proper forum in which to pursue such a
cause.

Finally, plaintiff notes that the Equal Employment
Opportunity Commission has long disapproved of the “Age 60
Rule.” However, in reviewing plaintiff’s initial claim with
the EEOC for the dispute now at issue, even their office
rejected plaintiffs claim because “Respondent’s actions were
taken pursuant to Federal Air Regulations.” (Pla. Exh. 2).

a-18

Therefore, if the FAA requires a rule in the interest of
public safety, regardless of its continued viability, the rule’s
implementation is “reasonably necessary” to the perpetuation
of a logical business objective. It is difficult for the court to
imagine a more apposite application for the defense
enunciated within the provisions of the ADEA. Based on the
foregoing, the court grants defendant’s motion, since
dismissal is warranted and proper in this cause.

IT IS SO ORDERED by the court on this 5* day of
June, 1996.

s/ Bernice B. Donald
BERNICE BOUIE DONALD
UNITED STATES DISTRICT COURT JUDGE

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a-19
APPENDIX C:

STATUTES AND RULES INVOLVED

Age Discrimination in Employment Act,

29 U.S.C. § 623

§ 623. Prohibition of age discrimination

(a)

(f)

Employer practices

It shall be unlawful for an employer--

(1) __ to fail or refuse to hire or to discharge
any individual or otherwise discriminate
against any individual with respect to his
compensation, terms, conditions, or privileges
of employment, because of such individual's
age;

(2) to limit, segregate, or classify his
employees in any way which would deprive or
tend to deprive any individual of employment
opportunities or otherwise adversely affect his
status as an employee, because of such
individual's age; or

(3) to reduce the wage rate of any
employee in order to comply with this chapter.

ei

Lawful practices; age an occupational
qualification; other reasonable factors; laws
of foreign workplace; seniority system;
employee benefit plans; discharge or
discipline for good cause

It shall not be unlawful for an employer,
employment agency, or labor organization--

a-20

(1) __ to take any action otherwise prohibited
under subsections (a), (b), (c), or (e) of this
section where age is a bona fide occupational
qualification reasonably necessary to the
normal operation of the particular business, or
where the differentiation is based on
reasonable factors other than age, or where
such practices involve an employee in a
workplace in a foreign country, and
compliance with such subsections would cause
such employer, or a corporation controlled by
such employer, to violate the laws of the
country in which such workplace is

located ....

woke

The Age 60 Rule, 14 C.F.R. § 121.383(c)

(c) No certificate holder may use the services
of any person as a pilot on an airplane engaged
in operations under this part if that person has
reached his 60th birthday. No person may
serve as a pilot on an airplane engaged in
operations under this part if that person has
reached his 60th birthday.

a-21
EEOC Regulations, 29 C.F.R. § 1625.6

(a) Whether occupational qualifications will be
deemed to be “bona fide" to a specific job and
"reasonably necessary to the normal operation of the
particular business," will be determined on the basis
of all the pertinent facts surrounding each particular
situation. It is anticipated that this concept of a bona
fide occupational qualification will have limited scope
and application. Further, as this is an exception to the
Act it must be narrowly construed.

(b) An employer asserting a BFOQ defense has the
burden of proving that (1) the age limit is reasonably
necessary to the essence of the business, and either (2)
that all or substantially all individuals excluded from
the job involved are in fact disqualified, or (3) that
some of the individuals so excluded possess a
disqualifying trait that cannot be ascertained except by
reference to age. If the employer's objective in
asserting a BFOQ is the goal of public safety, the
employer must prove that the challenged practice does
indeed effectuate that goal and that there is no
acceptable alternative which would better advance it
or equally advance it with less discriminatory impact.

(c) Many State and local governments have enacted
laws or administrative regulations which limit
employment opportunities based on age. Unless these
laws meet the standards for the establishment of a
valid bona fide occupational qualification under
section 4(f)(1) of the Act, they will be considered in
conflict with and effectively superseded by the
ADEA.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1922%3A1. Public record. Not legal advice.