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sTATEMENT OF JURISDICTION

This is an enforcement action brought by the EEOC pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. The district court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 626(b). In April 2008, the district court granted summary judgment in favor of Exxon Mobil Corporation. RE-T.9, ROA 784, EEOC v. Exxon Mobil Corp., 2008 WL 1958992 (N.D. Tex. Apr. 28, 2008).[1] Final judgment was entered on May 2, 2008. ROA 797. The EEOC timely appealed. ROA 798. This Court vacated the judgment and remanded the case. RE-T.8, 2:1, ROA 26.[2] On remand, the district court again granted summary judgment in favor of Exxon Mobil Corporation, 2:3 ROA 5849 & 5873, and later amended those rulings. RE-T.6, 2:3 ROA 5920; RE-T.5, 2:3 ROA 5944. The Commission sought reconsideration, ROA 5874, and the district court denied that motion. RE-T.4, 2:3 ROA 5945. The EEOC filed a timely notice of appeal on February 14, 2013. RE-T.3, 2:3 ROA 5946. This Court has jurisdiction under 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

1. Whether the district court erred in deciding that the Federal Aviation Administration’s (FAA) regulations, safety objectives, and Age 60 Rule governing commercial pilots compel the conclusion that Exxon’s age-based retirement policy for its corporate pilots is justified by the bona fide occupational qualification (BFOQ) defense under the ADEA.

2. Whether the district court erred in concluding that the work of commercial pilots and operations of commercial airlines are sufficiently similar to those of Exxon’s pilots and air transport operations to establish congruity.

3. Whether the district court improperly weighed evidence and assessed the credibility of the experts in deciding that Exxon met its burden of proving that individualized testing of its older company pilots was impossible or impracticable.

STATEMENT OF THE CASE

A. Course of Proceedings

The district court has twice dismissed the EEOC’s ADEA suit, and this is the Commission’s second appeal from a final judgment of dismissal. The EEOC initially filed suit in September 2006, alleging that, because Exxon’s pilots were not subject to the mandatory retirement age established by the FAA for commercial pilots, Exxon violated the ADEA when it terminated its corporate jet pilots who had turned age 60. ROA 11. The district court granted Exxon’s motion for summary judgment, RE-T.9, ROA 784, and entered final judgment on May 2, 2008, ROA 797. The EEOC filed a notice of appeal on June 27, 2008. ROA 798. This Court vacated the summary judgment and remanded the case for further proceedings. RE-T.8, 2:1 ROA 26. On remand, the EEOC moved for partial summary judgment or in the alternative to strike affirmative defenses. 2:1 ROA 1258. Exxon filed its second motion for summary judgment. 2:1 ROA 1387. The district court entered summary judgment for Exxon on September 13, 2013. 2:3 ROA 5849 & 5873. The EEOC moved for reconsideration, 2:3 ROA 5874, but the court denied that motion, RE-T.4, 2:3 ROA 5945, and on December 19, 2012, amended its opinion and judgment. RE-T.6, 2:3 ROA 5920; RE-T.5, 2:3 ROA 5944. The Commission filed a timely notice of appeal on February 14, 2013. RE-T.3, 2:3 ROA 5946.

B. Statement of the Facts

From 1959 to 2007, the FAA had a mandatory retirement age of 60 for commercial pilots who flew aircraft carriers covered by part 121 of the FAA’s regulations, which applies to aircraft operated for hire and offered to the public. 14 C.F.R. § 121.383(c).[3] In defending the Age 60 Rule in 1960, “the FAA cited concerns about sudden incapacitation due to strokes and heart attacks and about the ability of the most senior pilots to operate the largest and fastest planes. The agency, however, held out the hope that ‘medical science may at some future time develop accurate, validly selective tests which would safely allow selected pilots to fly in air carrier operations after age 60.’ Certification and Operation Rules: Maximum Age Limitations for Pilots, 24 Fed. Reg. 9772, 9772 (1959).” Aman v. FAA, 856 F.2d 946, 948 (7th Cir. 1988) (internal citations omitted).

The FAA never applied the Age 60 Rule to company or corporate pilots, whose activities are regulated under Part 91 of the FAA regulations, which applies to “private or non-commercial” carriers and to operation by a company of its own aircraft without compensation or solicitation of the public. 14 C.F.R. § 91.501(b) (5); RE-T.10, 2:1 ROA 100. In response to this litigation, the FAA explained its differing treatment of Part 121 and Part 91 aircraft. As the agency

charged by statute with prescribing the regulations necessary to “promote safe flight in civil aircraft,” . . . [t]he FAA regulations broadly divide aircraft operations into two categories – those pursuant to a “certificate,” under Parts 121 and 135, and all others, under Part 91. *** Each of these types of operations has unique characteristics which warrant escalating levels of safety and regulatory requirements from Part 91 to Part 135 to Part 121. *** [T]he primary regulatory distinction which is the basis for imposing a higher level of safety is how the aircraft is used. The scope of risks to persons and property are fundamentally different for an aircraft operated by its owner without either compensation or public solicitation (Part 91), and for an aircraft operated for hire and offered to the public (Parts 121 and 134). The FAA recognizes these distinctions and promulgates regulations that apply to some types of flight operations, but not to others.

RE-T.10, 2:1 ROA 100-01 (emphasis in original). The FAA also noted that it “never evaluated the Age 60 Rule to assess whether it would be an appropriate employment qualification.” Id. at 101. For these reasons, the FAA asserted “(a) that the Age 60 Rule is no longer relevant to the FAA’s oversight of aviation safety and (b) that the FAA’s assessment of aviation safety as a governmental regulator is not relevant to ExxonMobil’s determination of job qualifications for its pilots operating under Part 91.” Id. In short, the FAA stressed, “the Age 60 Rule was expressly limited to the operations of Part 121 certificate holders and did not apply to ExxonMobil’s operations under Part 91.” Id. at 100.

On December 13, 2007, the Fair Treatment for Experienced Pilots Act (FTEPA) repealed the FAA’s Age 60 Rule. 49 U.S.C. § 44729. As a consequence, commercial pilots now are permitted to fly domestically and internationally until age 65. Id. The FAA noted that “FTEPA, like the Age 60 Rule, applies only to pilots providing services to Part 121 certificate holders and does not apply to operations, like ExxonMobil’s, under Part 91.” RE-T.10, 2:1 ROA 101.

Exxon owns an aviation department with a fleet of nine jets. RE-T.9, ROA 784. The jets are used to transport employees and business associates and can carry a maximum of 8-11 passengers to domestic and international destinations. Id. Exxon pilots are considered “company pilots” as opposed to “commercial pilots.” Id. at 785. Exxon has operated under general aviation rules set forth in Part 91 of the FAA’s regulations, ROA 742, applicable to non-commercial carriers. Thibodeaux v. Executive Jet Intern., Inc., 328 F.3d 742, 745 (5^th Cir. 2003). Exxon, however, has voluntarily imposed on its pilots an age 60 mandatory retirement policy that mirrors the FAA’s Age 60 Rule. RE-T.4 at 6, ROA 789; 2:3 ROA 4271. Exxon has asserted that its rule was necessary because of the congruence of duties between its company pilots and those commercial pilots covered by the FAA. ROA 528. After FTEPA’s passage in December 2007, Exxon, like the FAA, abandoned its age 60 retirement policy and now requires its pilots to retire at age 65. RE-T.9, ROA 785.

C. Court Proceedings

The Commission brought this suit after two Exxon pilots filed charges in 2006 with the EEOC alleging that their forced retirements at age 60 violated the ADEA. RE-T.9, ROA 785. The Commission, inter alia, sought a preliminary injunction prohibiting Exxon from retiring pilot Michael Moreschauser and other age 60 pilots while the lawsuit was pending. Id. at 786; see also ROA 17-25; 1 ROA 11-98. The injunction was denied. 2:1 ROA 474.

In the first round of litigation, the district court limited discovery and the summary judgment pleadings to the issue of congruence, ROA 523, but then granted summary judgment for Exxon and dismissed the EEOC’s case without having allowed discovery or briefing on other elements of the BFOQ defense. RE-T.9, ROA 784-96. EEOC appealed, challenging the district court’s congruence determination and failure to apply the proper BFOQ standard as it relates to Exxon’s burden of proving that individualized testing is not possible or practical. RE-T.9, ROA 784.

This Court vacated the judgment and remanded the entire case with specific directions to permit the EEOC to conduct discovery and to have the parties address “the weight of the evidence supporting the FAA regulation.” RE-T.8, 2:1 ROA 33 n.5. This Court also left it to the district court’s discretion whether it would reopen consideration of the congruence issue. Id. On remand, the parties filed cross-motions for summary judgment, 2:1 ROA 1258 & 1387, and the district court granted Exxon’s motion and denied the Commission’s motion. 2:3 ROA 5849.

The district court incorporated by reference its earlier determination regarding congruity and decided that “the work performed by Exxon’s pilots is congruent with the work performed by commercial airline pilots in all material ways.” RE-T.6, 2:3 ROA 5933. The Court then turned to whether the weight of the evidence supporting the FAA’s Age 60 Rule’s safety rationale had continuing validity. Based on its review of the record, the district court decided “that conclusive evidence has been presented by Exxon that risk of sudden incapacitation and health deterioration increases with age. The EEOC does not contest this fact.” Id. at 5941. In the court’s view, “[w]hether the risk is rare is not the point. Whether the medical field has advanced significantly in the last few years is not enough to raise a fact issue about the BFOQ in this case. Sudden incapacitation is a risk that jeopardizes the safety of Exxon’s passengers. Because Exxon cannot test for this risk on an individual basis, they have established a BFOQ as a matter of law.” Id. EEOC moved for reconsideration but the district court denied the motion. Id. at 5945.

STANDARD OF REVIEW

This Court reviews a district court’s award of summary judgment de novo. Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5^th Cir. 2012). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. In assessing a motion for summary judgment, the Court views the evidence, as well as all reasonable inferences therefrom, in the light most favorable to the non-moving party. Minter v. Great Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. 2005). “A fact-issue is material only if its resolution could affect the action's outcome.” Id. Additionally, this Court must disregard evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 151 (2000); Arismendez vs. Nightingale Home, 493 F.3d 602, 606 (5^thCir. 2007). In short, the burden is on the movant to prove that there are no controverted facts and that no reasonable jury could return a verdict for the non-moving party. Accordingly, “[j]udgment as a matter of law on an issue as to which the movant bears the burden of proof is ‘rare.’” Broadnax v. City of New Haven, 415 F.3d 265, 270 (2d Cir. 2005).

Summary of argument

The district court erred in granting summary judgment to Exxon because it improperly resolved disputed issues of material fact about whether Exxon engaged in unlawful age discrimination in violation of the ADEA. Specifically, the district court improperly disregarded the FAA’s regulations, which expressly excluded company pilots from an age-based mandatory retirement because company-owned airlines do not present the same safety concerns as commercial airlines, and which support the EEOC’s position that Exxon’s age-60 rule is not valid. Next, the court failed to apply properly summary judgment standards in assessing the congruency evidence when it resolved conflicting evidence on whether Exxon’s pilots’ duties and company operations were similar to commercial airlines in favor of Exxon. Finally, the court improperly resolved disputed testimony concerning the efficacy of testing of individual pilots for sudden incapacity – the safety concern undergirding the FAA’s rationale for its Age 60 Rule and purportedly motivating Exxon’s policy. Thus, this Court should reverse the district court’s summary judgment ruling that Exxon’s retirement policy is excused by the BFOQ affirmative defense.

ARGUMENT

It is undisputed that Exxon engaged in age discrimination when it removed age 60 pilots from flight duty solely because of their age. ROA 533; Kimel v. Florida Bd. of Regents, 528 U.S. 62, 87 (2000) (“Under the ADEA, even with its BFOQ defense, . . . use of age is prima facie unlawful.”); Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422 (1985) (“Under the Act, employers are to evaluate employees . . . on their merits and not their age”). The central question in this case is whether Exxon’s discriminatory action is prohibited because it violated the ADEA or whether it is permitted because age as a proxy can be justified as a BFOQ. The Commission presented sufficient evidence to cast doubt on Exxon’s claims that it had no choice but to rely on the FAA rule, and to require a jury determination of whether age is a proxy necessary to ensure safety in Exxon’s aviation operations.

In 1985, the Supreme Court examined the legal standards for a BFOQ defense, and embraced this Court’s two-prong test set out in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5^th Cir. 1976), a case challenging a bus company’s age qualification for hiring drivers. Criswell, 472 U.S. at 409, 415-16. Under the Tamiami Court’s two-prong inquiry, an employer first is required to prove that “the job qualifications which [it] invokes to justify [its] discrimination [are] reasonably necessary to the essence of [its] business.” Tamiami, 531 F.2d at 236. As the Supreme Court observed about Tamiami, “no one had seriously challenged the bus company’s safety justification for hiring drivers with a low risk of having accidents.” Criswell, 472 U.S. at 413-14. Similarly, no one disputes that flight safety is an important concern in aviation.

The ADEA, however, requires that age qualifications must be reasonably necessary to the essence of the employer’s business. Criswell, 472 U.S. at 414. Specifically, the second prong of the BFOQ defense requires the employer to show it “is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry.” Id. In this case Exxon has attempted to prove this by demonstrating that “it is impossible or impractical to deal with persons over 40 on an individualized basis.” Tamiami, 531 F.2d at 236; see also Criswell, 472 U.S. at 414 (employer could establish a factual basis for believing older workers were unsafe to do job or that age was “a legitimate proxy for the safety-related job qualifications” by demonstrating that “it is ‘impossible or highly impractical’ to deal with older employees on an individualized basis”).[4] The Criswell Court held that the FAA’s Age 60 Rule, “adopted for safety reasons, is relevant evidence in the airline’s BFOQ defense” but “is not to be accorded conclusive weight.” Criswell, 472 U.S. at 418. Instead, “[t]he extent to which the rule is probative varies with the weight of the evidence supporting its safety rationale and ‘the congruity between the . . . occupations at issue.’” Id. (citation omitted).

At bottom, the BFOQ defense is a narrow exception to the general prohibition against age discrimination. Johnson v. American Airlines, Inc., 745 F.2d 988, 991 (5th Cir. 1984) (emphasis added). It exempts “otherwise illegal conduct by reference to a further item of proof, thereby creating a defense for which the burden of persuasion falls on the ‘one who claims its benefits,’… the ‘party seeking relief,’” in this instance, Exxon. Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 93 (2008) (citations omitted).

Exxon bears the burden of proving the affirmative defense that its age-restricted retirement policy qualifies as a BFOQ exception to the ADEA. Criswell, 472 U.S. at 414-15. Further, as the movant, Exxon has the burden of proving that there are no interpretations of the evidence that a reasonable jury could resolve in favor of the EEOC. National Union Fire Ins. Co. v. Puget Plastics Corp., 532 F.3d 398, 401 (5^th Cir. 2008) (“The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case.”) (internal citation omitted). Exxon did not satisfy either burden. Viewing the evidence in the light most favorable to the EEOC and resolving any ambiguities and conflicts in evidence against the movant Exxon, as the district court was required to do, Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 477 n.1 (5^th Cir. 2008), there are genuine issues of material fact as to whether the FAA’s and Exxon’s safety concerns are the same, whether there is congruence between commercial and Exxon operations and pilot duties, and whether individualized assessment of pilot risk for sudden incapacitation would adequately address the safety risks that concern Exxon. The conflicting evidence undermines the probative value of the FAA’s Age 60 Rule and rationale as supporting Exxon’s own mandatory retirement policy. Criswell, 472 U.S. at 418. Given the myriad factual disputes in the record, it was error for the court to take the question of Exxon’s BFOQ defense away from a jury.

i. THE FAA'S REGULATIONS, SAFETY OBJECTIVES, AND AGE 60 RULE DO NOT SUPPORT THE DISTRICT COURT'S FINDING THAT EXXON'S AGE 60 RULE IS JUSTIFIED BY THE ADEA'S BFOQ EXCEPTION AS A MATTER OF LAW.

The FAA is the federal airline regulator charged with promoting “the safety of flight of civil aircraft in air commerce.” 49 U.S.C. § 1421(a)(6). Accordingly, courts are to give significant deference to the FAA’s enforcement and interpretations of its regulations. West Houston Air Committee v. FAA, 784 F.2d 702, 705 (5^th Cir. 1986). Despite this standard, the district court in this case improperly failed to defer to the FAA’s expertise and regulations in deciding that the FAA’s Age 60 Rule is relevant to Exxon’s BFOQ defense.

A. The FAA's Explicit Exemption of Company Pilots from the Age 60 Rule Precludes the Finding that Age is a BFOQ for Exxon’s Pilots

In the district court, Exxon asserted, and the court agreed, that it “is entitled to rely on the FAA’s policies and expertise under the congruence standard” to establish that its age 60 rule is a BFOQ. ROA 535 (citing EEOC v. El Paso Natural Gas, 626 F. Supp. 182, 184 (W.D. Tex. 1985)); RE-T.9, ROA 796. However, in accepting this argument, the court ignored the fact that the FAA never intended to restrict the employment of non-commercial pilots based on age. In 1959, the agency enacted the Age 60 Rule primarily to address sudden pilot incapacitation following an airplane crash by a 59-year-old pilot and adverse psychological, emotional, and physical changes associated with aging. See ROA 592 (49 Fed. Reg. 14692 (Apr. 12, 1984)); Criswell, 472 U.S. at 404. Additionally, its main focus was on 60-year-old pilots “in the carriage of a substantial number of passengers.” ROA 588 (quoting 49 Fed. Reg. Part 40 at 9767 (Dec. 5, 1959)). In 1981, the agency reaffirmed the rule, stating that “to maintain the highest standards of safety for Part 121 operations, as airlines are required to do, airline pilots should not be permitted to serve past age 60”; it based this conclusion on findings by the National Institute on Aging and other commenters that “age does indeed adversely affect the level of safety for Part 121 operations.” 49 Fed. Reg. 14693 (ROA 593), quoted in El Paso, 626 F. Supp. at 185-86 (emphasis added). Specifically, the rule explicitly applied only to pilots who engaged “in the carriage of persons or property in air commerce for compensation or hire.” FAA v. Landy, 705 F.2d 624, 628 (2d Cir. 1983) (quoting 14 C.F.R. § 121.1(a)(5)). Hence, the FAA’s Age 60 Rule properly had a narrow application. Criswell, 472 U.S. at 412; compare 29 C.F.R. § 1625.6(b) (BFOQ defense will have “limited scope and application” and “must be narrowly construed”). On remand in this case, the FAA reiterated in its brief that it “adopted the regulation because of concerns about the danger posed to the public if the pilot of a large commercial aircraft became incapacitated.” FAA Br. at 2, ROA 103.

Since Exxon does not operate a commercial airline, has declined to subject its pilots to the stringent safety standards set forth in Part 121 Operations, and does not require its passengers to pay to fly, ROA 745; ROA 775 (Andrews Dep. at 59), it is clear that Exxon cannot establish the BFOQ defense merely by relying on the FAA’s Age 60 Rule and its safety rationale. See Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir.1982) (existence of FAA “Age 60 Rule” for commercial airline pilots does not establish, as valid BFOQ, same retirement age for non-commercial pilots); Gathercole v. Global Associates, 560 F. Supp. 642 (N.D. Cal. 1983) (FAA rule does not justify forced retirement of pilot of noncommercial aircraft).

Indeed, to rest on the FAA’s Rule in support of its BFOQ defense, Exxon needed to demonstrate that “the age-based discrimination . . . relate[d] to a ‘particular business,’” and that “particular business” must “refer[] to the job from which the protected individual is excluded.” TWA v. Thurston, 469 U.S. 111, 122 (1985). This it cannot do. The FAA’s Age 60 Rule targeted commercial pilots for mandatory retirement and the studies and expertise undergirding the Rule focused solely on safety concerns regarding Part 121 operators. The claimants at issue in this case operated under Part 91 standards and were retired from company pilot positions. Hence, Exxon’s retirement policy is not permissible under §4(f) of the ADEA based solely on the FAA’s Age 60 Rule because neither the FAA’s expertise nor its regulations support a finding that age is a BFOQ for the “particular” position of company pilot.

Further, the district court’s ruling is infirm because the court should have deferred to FAA’s deliberate exclusion of corporate pilots such as Exxon’s from the scope of the Age 60 Rule, which at least suggests that it does not consider 60-year old non-commercial pilots unsafe. See RE-T.9, ROA 792-95. Specifically, the FAA stated that its Age 60 Rule is “inapplicable to pilots who operate large jet aircraft which may carry passengers in non-Part 121 operations, such as corporate pilots, flight instructors or pilots who ferry planes, or FAA's own pilots, or to commercial airline pilots who operate smaller aircraft regulated under other parts of FAA’s regulations.” EEOC v. Boeing Co., 843 F.2d 1213, 1220 (9^th Cir. 1988) (emphasis added). The FAA’s deliberate exclusion of non-commercial pilots is entitled to substantial deference and makes any decision sustaining Exxon’s policy an improper extension of the FAA’s Age 60 Rule. West Houston Air Committee, 784 F.2d at 705 (“[c]ourts ‘should defer to the agency’s interpretation of its own [categorical exclusion] regulations’”).

Moreover, given the changes in the Age 60 Rule’s coverage since 1959, if the FAA had seen any need to require companies such as Exxon to force their age 60 pilots to retire, it could have issued a mandate that encompassed company pilots. See, e.g., Yetman v. Garvey, 261 F.3d 664, 670 (7^th Cir. 2001) (noting expansion of federal Age 60 Rule to include regional and commuter airlines in 1995 in response to high-profile commuter airplane accidents). But it did not. In fact, in July 2005, an FAA flight surgeon testifying before Congress noted that, even though the FAA Rule retired pilots from Part 121 operations, “[m]any pilots [over age 60] continue to . . . fly in non-part 121 operations . . . .” ROA 597 (testimony of Dr. Jordan). Similarly, FAA Administrator Blakey noted that, even in 1995, when the FAA extended the Age 60 Rule to small commuter operators, it “allowed about 200 pilots over the age of 60 to continue to fly” for four more years and they experienced “no medical events, no safety events, nothing to show that the group above 60 couldn’t fly and fly well.” ROA 374 (Blakey Statement).

Finally, Exxon’s reliance on the FAA’s Age 60 Rule and its safety rationale to justify the forced retirement of its age 60 company pilots makes no sense in the face of the FAA’s representations in this litigation. In this case the FAA re-asserted its position that its Age 60 Rule cannot serve as a justification for Exxon’s forced retirement of its age 60 company pilots because its concerns with safety risks that supported the mandatory retirement rule only applied to Part 121 operations. See supra at 4-5. The FAA also noted that it “never evaluated the Age 60 Rule to assess whether it would be an appropriate employment qualification.” RE-T.10, ROA 101.[5] For these reasons, the FAA asserted (a) “that the Age 60 Rule is no longer relevant to the FAA’s oversight of aviation safety and (b) that the FAA’s assessment of aviation safety as a governmental regulator is not relevant to ExxonMobil’s determination of job qualifications for its pilots operating under Part 91.” Id. In short, the FAA stressed, “the Age 60 Rule was expressly limited to the operations of Part 121 certificate holders and did not apply to ExxonMobil’s operations under Part 91.” Id. at 100. Therefore, in light of the FAA’s continued express exclusion of Exxon’s pilots from its mandatory retirement rule and its knowledge that age 60 pilots are operating corporate aircraft, there is no sound basis for the district court’s conclusion that the FAA’s Age 60 Rule is “highly probative” of Exxon’s BFOQ defense and that Exxon’s reliance on the federal rule entitled Exxon to summary judgment. RE-T.9, ROA 795-96. In fact, the FAA’s justifications for its Age 60 Rule should be given little weight since its rationale was never intended to apply to company pilots.

B. The FAA’s and Exxon’s Safety Concerns Are Different

In evaluating Exxon’s BFOQ defense, the district court focused, as it did previously, RE-T.9, ROA 788, on the congruity between the occupations at issue and the weight of the evidence supporting the rule’s rationale. RE-T.6, 2:3 ROA 5933. The court also observed that the FAA’s “age-related rule for commercial pilots is based on safety.” RE-T.9, ROA 789.

On remand, however, as explained above, the FAA made clear that its safety rationale for regulating commercial pilots under Part 121 “is not relevant to ExxonMobil’s determination of job qualifications for its pilots operating under Part 91.” RE-T.10, 2:1 ROA 101. The district court’s contrary conclusion improperly disregarded the expertise of the FAA. Cf. Arlington v. FCC, No. 11–1547, 2013 WL 2149789, at *9 (U.S. May 20, 2013) (“We have cautioned that ‘judges ought to refrain from substituting their own interstitial lawmaking’ for that of an agency.”) (quoting Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 568 (1980)).

The district court’s conclusion about the probative weight of the FAA’s rationale also rests on improper resolutions of disputed facts because a jury hearing all the evidence could have concluded that Exxon’s safety concerns are different from those that motivated the FAA’s rule for commercial pilots. There is no question that safety is essential in the aviation business, Murnane v. American Airlines, Inc., 667 F.2d 98, 101 (D.C. Cir. 1981), or that the primary function of an airline operation that transports passengers is to do so safely. Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 388 (5^th Cir. 1971). However, as the Court explained in Criswell, the extent to which the FAA Rule is probative of an employer’s BFOQ defense “varies with the weight of the evidence supporting its safety rationale.” 472 U.S. at 418.

Criswell requires that a court consider the evidence of the FAA’s rationale for adopting its rule rather than summarily concluding, as the district court did here, that an employer whose pilots are not subject to the rule has identical safety concerns. As explained above, the FAA regulates the safe operation of corporate pilots like Exxon’s through the regulations in Part 91, so a generalized argument that the same safety concerns motivate Exxon as those that motivated the FAA in developing the Part 121 age rule should be subjected to searching scrutiny. See Boeing, 843 F.2d at 1220 (“it cannot be assumed that the concerns that led FAA to adopt the Age-60 Rule for the particular group of commercial pilots flying aircraft regulated under Part 121 are equally applicable to determining a BFOQ based on age 60 for [non-commercial] pilots”). In light of the conflicting evidence below, it is clear that the court should have allowed a jury to decide whether the safety concerns of Exxon and the FAA are the same.

Evidence reveals that, in 1959, the FAA stated that its safety concerns not only rested on the possibility of pilot incapacitation but also on the number of persons who would be affected if pilot incapacitation occurred. Specifically, the FAA noted that “older pilots as a group fly 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.” ROA 588 (49 Fed. Reg. Part 40 at 9767) (emphasis added).

To establish similarity with commercial airlines, Exxon presented evidence that in 2005, “Exxon pilots carried nearly 4,000 passengers over 2,000,000 nautical miles.” ROA 532; see also RE-T.9, ROA 784. However, this data is meaningless in the absence of comparative data for commercial pilots in the same timeframe. Further, it is also deceptive. According to Exxon’s former General Manager of Aviation, “those 4,000 passengers are not 4,000 different passengers. * * * [It] could be somebody flying on Monday, and if the same person flies on Friday, that’s counted as two people.” ROA 775 (Andrews Dep. at 30). Hence, a reasonable jury could have decided to accord these numbers little weight.

Moreover, to rebut Exxon’s passenger numbers, EEOC presented testimony by Exxon pilots that they never carried more than 20 passengers at one time and ordinarily no more than 2-3 passengers. ROA 775 (Andrews Dep. at 60; Johnson Dep. at 37-38). In fact, occasionally, they flew with no passengers at all. ROA 775 (Andrews Dep. at 67). In stark contrast, evidence revealed that commercial airlines usually carry at least 100-300 passengers on a regular basis. ROA 775 (G. Schaffer Aff. at 4; M. Schaffer Aff. at 3 (90 passengers); Burnett Aff. at 3 (100-300 people); Wismer Aff. at 3 (120-280 passengers)). A jury considering this evidence could have rejected Exxon’s claim that it has the same safety concerns that the FAA had about commercial airlines.

The FAA’s safety concern is also different from Exxon’s interests because, unlike commercial pilots, Exxon pilots generally do not fly into the “most congested airports near the largest cities” or “travel[] in flight in and through traffic lanes with the highest density of air traffic.” ROA 588 (citing 49 Fed. Reg. Part 40 at 9767). Instead, “[w]hen Exxon planned flights into large cities, [they] typically elected to operate into the less congested airports. For example, in the New York area, [they] generally operated into White Plains instead of LaGuardia. In Chicago, [they] would operate into Romeoville or Midway instead of O’Hare.” ROA 775 (G. Schaffer Aff. at 6). Given the reduced number of passengers flown by the Exxon pilot on short-distance trips to uncongested domestic locations, the district court clearly erred in concluding that “this distinction does not demonstrate a material difference in the underlying safety concern applicable both to flights conducted by commercial pilots and Exxon pilots.” RE-T.9, ROA 794. Hence, a jury should have been allowed to consider this contrasting evidence.

Moreover, contrary to the court’s view, RE-T.9, ROA 794, it is material that Exxon passengers have substantial control over their itineraries and departures and can cancel their flights due to unsafe weather conditions. ROA 745, 752; ROA 775 (Andrews Dep. at 59; Killian Dep. at 74). In creating the Age 60 Rule, the FAA took into consideration that commercial passengers have no input or control over their flights and thus must rely on the airline to comply with the highest level of safety measures. Thus, the FAA’s ruling that “the appropriate level of oversight is provided by regulations in part 91” for operations such as Exxon’s should have precluded summary judgment because a reasonable jury could have decided that with substantial passenger control, Exxon’s public safety exposure is significantly diminished. See Regulation of Fractional Aircraft Ownership Programs and On-Demand Operations, 68 Fed. Reg. 54,529 (Sept. 17, 2003), quoted in ROA 769.

Another significant distinction undercutting a finding of similar safety concerns is that Exxon’s operations are measurably smaller than commercial airlines. Specifically, Exxon maintains three principal bases of operations and they are located in Dallas and Houston, Texas and in Dulles, Virginia. Exxon employs approximately 27 pilots and two chief pilots. ROA 775 (Andrews Aff. at 2). Major commercial airlines, such as United, Delta, and US Airways, employ as many as 1,200-7,000 pilots and several chief pilots. ROA 754; ROA 775 (Monahan Aff. at 4; Bildstein Aff. at 3). This distinction is material because a reasonable jury could believe that the small size of Exxon’s operations in contrast to commercial airlines means that Exxon’s operations pose substantially less threat to public safety. Accordingly, a jury could conclude that Exxon did not meet its BFOQ burden simply by relying on the FAA rationale for its rule.

Additionally, Exxon claims that its pilots must have “broad international experience” because its pilots fly all over the world like commercial pilots, to such places as Tokyo, Melbourne, Cameroon, Venezuela, Moscow, and London. RE-T.9, ROA 792-93. However, EEOC’s evidence in the record revealed that international destinations are not common. The most frequent, recurring destinations from the Dallas base are Houston (TX), Dulles (VA), White Plains (NY), London, and Qatar, ROA 775 (Johnson Aff. at 30), while pilots assigned to the Houston and Dulles hangars never fly to Europe. ROA 775 (Andrews Dep. at 40). Given the infrequency of Exxon’s international trips, a jury could believe short distance trips do not present the same safety risks as frequent international ones. A jury also could decide that this evidence further undermines Exxon’s reliance on the FAA rule as the sole evidentiary basis for its defense.

Next, although Exxon contends “[t]he nature—and the risks—of the Exxon and airline flight operations are substantially congruent,” ROA 533, and that all Exxon pilots are required to have an FAA First Class Medical Certificate, ROA 547 (Andrews Aff. at 6), not all of the Exxon pilots are required to maintain a First Class Medical Certificate to fly an aircraft. ROA 745. In contrast, commercial pilots are always required to have a valid First Class Medical Certificate and if they do not, they are removed from flying status. ROA 775 (M. Schaffer Aff. at 4). This is a critical distinction undermining Exxon’s reliance on the FAA rule as support for its BFOQ defense because Exxon again is employing a less stringent safety standard for its pilots, a flexibility that is entirely impermissible for commercial pilots. Hence, a jury could believe that if Exxon pilots do not need to adhere to stringent certification requirements to effectuate the goal of flight safety, an age restriction is also unnecessary.

Similarly, even though Exxon contends that it “values the lives of its crew and passengers as highly as the FAA values airline crews and passengers” and that the “Exxon pilots face even more onerous responsibilities and greater risks” than airline pilots, ROA 533, Exxon notably has never obtained a Part 121 Operating Certificate, which imposes the most stringent safety standards, and, more importantly, does not voluntarily impose any other Part 121 standards on its pilots other than the Age 60 rule. ROA 775 (Andrews Dep. at 28). Instead, it follows Part 91, the basic aviation standards. ROA 775 (Andrews Dep. at 32). For example, Exxon does not require its pilots to attend annual aircraft recurrent training or take annual evacuation ditching training. ROA 747, 750; ROA 775 (Capt. Passannante Aff. at 4) (under Part 91, there is no annual recurrent training requirement). Commercial pilots, who are subject to the FAA’s Age 60 Rule, are required to take such training. ROA 775 (Capt. Passannante Aff. at 3). Likewise, while airline pilots receive regular proficiency evaluations to maintain their flying status and are subjected to ramp inspections and in-flight check rides by FAA inspectors, Exxon pilots only attend simulator training and after they receive “type rating,” they are never reevaluated again. ROA 775 (G. Schaffer Aff. at 5; Burnett Aff. at 3). Moreover, Exxon pilots are not subjected to FAA inspections. ROA 775 (G. Schaffer Aff. at 5). In light of this evidence, Exxon’s acceptance of general training for its pilots creates a genuine issue as to whether its “safety” concerns “mirror” the FAA’s concerns sufficiently to qualify its age rule as a BFOQ. In light of this evidence, a jury should have been permitted to make a factual determination on this safety concern.

Finally, although the district court rejected the aircraft distinctions as immaterial, it is undisputed that there are significant differences in the planes used by Exxon and those used by commercial airlines and that these differences militate against Exxon’s BFOQ defense. RE-T.9, ROA 792. According to EEOC’s evidence, none of the Exxon planes (e.g., Gulfstream, Global Express, or Challenger) are used in Part 121 operations or by commercial airlines covered by the FAA Age 60 Rule. Id.; Boeing, 843 F.2d at 1220 (the FAA’s Age 60 Rule is “inapplicable to pilots who operate large jet aircraft which may carry passengers in non-Part 121 operations, such as corporate pilots”) (citing 14 C.F.R. §135.243) (emphasis added). Further, one Exxon pilot testified that any similarity between Exxon’s planes and the regional planes used by the airlines “ends with the dimensions of the fuselage.” ROA 775 (Skaggs Aff. at 5). On remand, Dr. Stanley Mohler, a former FAA aviation medical examiner, added that “[m]aneuvering a large commercial airplane on the ground is more difficult than maneuvering a Global Express 4 or similar corporate jet because commercial airplanes have a wide turning arc.” 2:1 ROA 341 (Mohler Aff. at 12). He also noted that “[c]ommercial airlines have more potential for mechanical and maintenance problems than do corporate jets, which are known to be economical on maintenance.” Id. Captain Passannante also asserted that “[t]here is almost no similarity between the operations of a Part 91 corporate flight department and the operations of Part 121 scheduled airlines.” 2:1 ROA 362 (Passannante Aff. at 5). He added that “[i]t is only partly true that ‘flying a jet’ is ‘flying a jet,” explaining that “jets differ model to model” and that “systems operation and switch placement can differ greatly among different aircraft, even different model aircraft from the same builder.” 2:1 ROA 361-62 (Passannante Aff. at 4-5).

Exxon did not dispute the EEOC’s evidence, but simply argued these differences are “not material.” RE-T.9, ROA 792. That response does not support the court’s finding that Exxon has met its summary judgment burden. To the contrary, these identifiable differences between Exxon’s planes and the aircraft used by commercial airlines are relevant to the weight of the FAA’s Age 60 Rule as evidence that a BFOQ is necessary for Exxon’s operations. Since the type and size of the commercial planes, as well as their passenger capacity, factored strongly in the FAA’s imposition of the Age 60 rule on commercial pilots, this information could cause a jury to decide that the exemption of Exxon’s pilots from the FAA Age 60 Rule was evidence that the threat of safety was minimal and the age restriction was not warranted to ensure safety in its flight operations. Cf. Tamiami, 531 F.2d at 240 (in resolving questions of safety, it is important that the court “take the fullest advantage of presently available reliable sources of guidance” and “[t]hat help is readily available through primary jurisdiction” of the agency having statutory responsibilities for driver-related safety in the operation of interstate buses).

On the whole, the district court failed to evaluate the evidence supporting the FAA’s retirement rule, and improperly focused solely on the generalities of the occupations at issue. Criswell, 472 U.S. at 423 (“Even in cases involving public safety, the ADEA plainly does not permit the trier of fact to give complete deference to the employer’s decision.”). Accordingly, even if there is continuing validity to the FAA’s rationale for its Age 60 Rule, the district court erred in deciding that the safety goals and concerns of the FAA and Exxon are the same, and in taking this fact-intensive determination away from the jury. See RE-T.9, ROA 795.

II. summary judgment in favor of Exxon’s BFOQ Defense was inappropriate Because There Are Triable Issues of Fact Regarding Congruence

Summary judgment also cannot be sustained in this case because there are genuine issues of material fact regarding congruence. Congruence of duties and operations affects the weight to be accorded the FAA’s Age 60 Rule as evidence of a BFOQ for Exxon pilots. Criswell, 472 U.S. at 418. As the record evidence demonstrates, the district court erred in failing to leave these fact-intensive questions for a jury to resolve. See Boeing, 843 F.2d at 1216 (“[t]he validity of a BFOQ turns upon factual findings, preferably ones by a jury.”).

A. There Is Credible Evidence that Exxon’s Operations Differ From Commercial Airlines.

In pressing its BFOQ defense that age is a proxy for safety, Exxon asserted that it has established congruency because its pilots and commercial pilots “fly in the same airspace and air traffic control sectors, under identical weather conditions, and take off and land at the same congested domestic and international airports.” RE-T.9, ROA 793. It further asserted that “[t]hey use the same air traffic controllers and the same approach and departure routes.” Id. Not only are these broad descriptions “too general to satisfy the purposes of the ADEA,” Boeing, 843 F.2d at 1221, but they are refuted by substantial evidence in the record.

First, as addressed above, Exxon’s contention that its pilots land and depart from the same “congested domestic and international airports” as commercial pilots is unsupported. See supra at 22-23. Similarly, Exxon’s contention that its pilots use the “same air traffic controllers” is misleading. RE-T.9, ROA 793. While Exxon pilots have talked to the same air traffic controllers as the airline carriers, ROA 775 (Skaggs Aff. at 6), Exxon’s Dallas Aviation General Manager testified that Exxon pilots fly routes and use airports not used by commercial airlines or monitored by air traffic controllers. ROA 579 (Johnson Aff. at 3-4). And Exxon’s Houston Aviation General Manager testified that Exxon pilots regularly took passengers to Alice, Texas, an uncontrolled airport that is never used by commercial airlines. ROA 775 (Killian Dep. at 98-99). In fact, the only time a commercial airline would use an airport that had no air traffic tower or controller is in an emergency situation. ROA 775 (Andrews Aff. at 8). Therefore, the district court erred in ruling that this evidence supported congruity. See RE-T.9, ROA 794.

Second, contrary to Exxon’s contention, Exxon pilots do not fly under the same weather conditions as commercial pilots. RE-T.9, ROA 793; 2:1 ROA 341 (Mohler Aff. at 12). According to Exxon’s Dallas Aviation Manager, Exxon’s flight department is not qualified to land in Category 2 or 3 weather. ROA 775 (Johnson Dep. at 43). Category 2 and 3 weather conditions have limited visibility. Air Line Pilots Ass'n v. NLRB, 525 F.3d 862, 865 (9th Cir. 2008). Rather, Exxon pilots are certified to fly only in Category 1 weather, and if the weather is worse, they select another landing airport or do not fly. ROA 775 (G. Schaffer Aff. at 5). Commercial pilots, in contrast, fly more frequently in bad weather conditions, mainly because they are pressured to stay on schedule and complete flights in bad weather. 2:1 ROA 341(Mohler Aff. at 12).

Third, unlike commercial pilots, Exxon pilots do not operate on a fixed flight schedule. ROA 775 (Killian Dep. at 74; Andrews Aff. at 4); 2:1 ROA 341 (Mohler Aff. at 12). They fly when the passengers are boarded or when weather permits. ROA 775 (Andrews Dep. at 59; Morschauser Aff. at 4; Skaggs Aff. at 1). Further, while Exxon pilots may fly with little advance notice, their layovers are correlated to the length of the passenger’s trip. ROA 775 (Andrews Dep. at 57; G. Schaffer Aff. at 4). For example, if a passenger takes an international trip that lasts a week or two, the pilot and crew are required to stay in that location for the duration of the trip. ROA 775 (Andrews Dep. at 57; Killian Dep. at 74; Skaggs Aff. at 4). Commercial pilots, in contrast, adhere to published flight schedules and their turnaround time is more immediate and not tied to the length of any passenger’s visit. ROA 775 (Skaggs Aff. at 1); ROA 572 (Cone Aff. at 2); 2:1ROA 341 (Mohler Aff. at 12). In fact, one commercial pilot testified that she flew “three different aircraft in a single day” which required “dashing through a major hub terminal with not a minute to spare before the next departure time.” ROA 775 (M. Schaffer Aff. at 2). Moreover, she confirmed that commercial flight departures “are based on scheduled time and completed tasks. * * * If a passenger fails to board my flight, we conform to FAA and TSA security requirements and depart without the passenger.” ROA 775 (M. Schaffer Aff. at 3-4).

Fourth, Exxon pilots fly substantially fewer hours than commercial pilots and are not subject to flight hour restrictions imposed by the FAA. ROA 745, 747, 759. If an Exxon pilot’s duty day exceeds 16 hours, he is permitted to fly only if the crew has a rest opportunity of at least five hours during the trip stopover period. ROA 775, ExxonMobil Aircraft Operations Man. at 10627; Skaggs Aff. at 1-2. Put differently, corporate pilots fly fewer days, hours, and legs than do commercial pilots and they are away from their home base fewer nights. 2:1 ROA 341 (Mohler Aff. at 12). In contrast, because of the “economic competitiveness of the airline industry, as a for-profit air transportation company,” the industry requires their pilots to fly the maximum flight hours with minimal rest periods. ROA 775 (M. Schaffer Aff. at 2). Hence, as one pilot testified, during his seven years at Exxon, he flew 225 total hours each year but when he flew commercially, he logged an average of 750 to 1,000 hours per year. ROA 775 (G. Schaffer Aff. at 2). Viewed favorably to the EEOC, this evidence establishes that Exxon pilots have less physically demanding jobs than commercial pilots and thus the FAA’s Age 60 Rule does not help to determine whether age would be a BFOQ for Exxon’s pilots.

Finally, unlike commercial pilots, Exxon pilots do not carry passengers for hire or compensation. ROA 775 (Andrews Dep. at 59). Their passengers are generally a company executive, a spouse, or a guest; none of whom has to pay for the flight. ROA 745-46, 751; ROA 775 (Killian Dep. at 74-75); EEOC OSJ App. at 144-172 (Exxon flight logs). Because the passengers of the corporate pilots are known to them, they can discuss safety topics such as whether to fly in certain weather conditions. 2:1 ROA 341 (Mohler Aff. at 12). Commercial pilots, in contrast, fly with many passengers who are unknown to them and must pay to fly. Id. As paying passengers were the focus of the FAA’s Age 60 Rule, and not companies who flew executives on their own planes, the distinctions in Exxon’s operations and those of commercial airlines weigh against the relevancy of the FAA’s Age 60 Rule to Exxon’s BFOQ defense.

All of these distinctions between the pilots employed by Exxon and the commercial airlines are relevant to the congruency question and the district court erred in weighing the conflicting evidence and substituting its views for those of a jury. Because congruence is unmistakably a question of fact, it should have been left for resolution by a jury.

B. There are Material Dissimilarities in the Duties of Exxon Pilots and Commercial Pilots

With respect to whether there is congruency in duties, the record establishes that the tasks performed by the Exxon pilots do not have the same characteristics for BFOQ purposes as those performed by the pilots to whom FAA's Age-60 Rule applies. To begin with, a major distinction between Exxon pilots and commercial pilots is that the latter have no tasks beyond flying the plane. ROA 775, M. Schaffer Aff. at 2; Skaggs Aff. at 3 (“[c]ommercial pilots are not baggage handlers”). Unlike commercial pilots, Exxon pilots are required to provide stellar passenger care and comfort before, during, and after the flight. Exxon pilots are expected to stock the plane with food, movies, newspapers, and periodicals favored by the passenger, adjust the interior temperature to the passenger’s liking, assist with loading and unloading of baggage, escort passengers through customs, and even deliver passengers or luggage to their homes. ROA 775 (Capt. Morschauser Aff. at 4-5). Contrary to Exxon’s assertion, these tasks are not “onerous” and do not present “great risks” to flight or public safety. ROA 533. More importantly, these tasks are an integral part of the Exxon pilot’s flight responsibilities, and there is no basis in the record for determining that being under age 60 is “reasonably necessary” to perform these job requirements.

Similarly, Exxon’s contention that an age restriction is necessary because Exxon pilots have even more onerous responsibilities than those of commercial pilots is indefensible. It is true that unlike commercial pilots who “receive[] a weather and flight plan prepared by a licensed dispatcher, Exxon pilots perform their own route planning, weather checking and fuel computations.” ROA 532; RE-T.9, ROA 793. However, Exxon’s current Managers of Aviation Services stated that to retrieve weather information, the pilot simply contacted the contract weather or flight planning service. ROA 775 (Johnson Dep. at 18; Killian Dep. at 49-50). Again, this is not a task that appears to be “onerous” or a “great risk” to safety and thus provides no basis for a reasonable jury to find for Exxon on the BFOQ issue and even less for the court to rule on in Exxon’s favor as a matter of law.

Lastly, there is sufficient evidence that the daily responsibilities of Exxon’s pilots and commercial pilots are substantially different. Exxon pilots are required to perform administrative and office duties from 10 a.m. to 2 p.m. when they are not flying on a trip. ROA 744, 753; ROA 775 (Skaggs Aff. at 5). They must update navigation publications, maintain the standardization and operations manuals, and advise schedulers on possible trip itineraries. ROA 775 (Andrews Dep. at 41). Also, they are responsible for training and safety duties, such as providing input for safety meetings and scheduling simulator training for other pilots. ROA 775 (Johnson Dep. at 27-28). Commercial pilots are never required to perform administrative or office tasks. ROA 744, 753.

Exxon pilots who were not assigned to office duty, administrative tasks, or flights were assigned to a standby crew and were on-call from 6 a.m. to 6 a.m. ROA 775 (Skaggs Aff. at 5). Some pilots received this 24-hour assignment consecutively for several days. ROA 775 (G. Schaffer Aff. at 2). However, one pilot testified that in seven years with Exxon, he was activated while on-call duty only three times. Id. In that this evidence established that Exxon pilots were “forced” to do tasks other than flying for at least 4 hours to 24 hours per day, see ROA 775 (Johnson Dep. at 30), a jury could infer that Exxon pilots do not fly as often as commercial pilots, and thus their daily administrative and office responsibilities, as well as their attention to passenger care and comfort, actually are a significant part of their regular and normal duties in contrast to commercial pilots. Further, a jury could also believe that these duties are less critical to the safety of the flight than a commercial pilot’s duties and thus find that Exxon pilots raise fewer concerns about “stress, risk, and degree of assurance against age deterioration necessary to the essence of [Exxon’s] business.” Boeing, 843 F.2d at 1221 n.10. For this reason, a reasonable jury could believe that the duties of the Exxon and commercial pilots were not sufficiently similar to establish congruence.

The differences between Exxon pilots and commercial pilots are “adequate to warrant the distinction that the FAA has drawn” – namely that company pilots, such as Exxon’s, do not present the same safety risks as commercial pilots. Yetman, 261 F.3d at 672. In other words, the day-to-day flight and operational activities of the Exxon pilots do not justify using age as a proxy to insure safety. Therefore, since Exxon bore the burden of proof with respect to summary judgment on its BFOQ defense, record evidence raises triable issues of material fact, and the “validity of a BFOQ turns upon factual findings, preferably ones by a jury,” Boeing, 843 F.2d at 1216, summary judgment for Exxon must be reversed.

III. summary judgment for exxon was improper because the district court erred in resolving conflicting evidence regarding the efficacy of individualized pilot testing

Even if Exxon had the same safety concerns as the FAA, and even if its air transport operations and pilot jobs were congruent with those of commercial operations and pilots, the ultimate question remains: whether Exxon met its burden of proving “that it is impossible or highly impractical to determine job fitness on an individualized basis. Criswell, 472 U.S. at 414. Criswell noted that “[o]ne method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant's membership in the class.” Id. at 415. The FAA’s rule and rationale may have some weight in establishing this fact, but it is clearly not dispositive. Id. at 418. This Court remanded this case for the express purpose of allowing the parties to present proof on whether the FAA’s rationale for using age as a proxy for safety remains valid, i.e., whether individualized testing is possible now. RE-T.8, 2:1 ROA 33 n.5.

On remand, the district court decided that “[d]espite its best efforts, the EEOC has simply not presented any evidence that medical testing exists that

could identify those individuals over a specified age that are at risk of sudden

incapacitation.” RE-T.6, 2:3 ROA 5936. In its view, this “lack of evidence by the EEOC reflects the limits of what scientific evidence is available.” Id. However, the court erred in its assessment of the Commission’s evidence because EEOC and Exxon presented conflicting evidence in the form of expert testimony and aviation and medical studies as to whether individualized testing of the pilots was possible or practical to determine job fitness.[6]

Exxon, which has the burden of proof on this issue, relied on FAA studies and the testimony of four experts in an attempt to establish that individual testing was impossible. To put this evidence in context, it is necessary to recall that the FAA’s Age 60 Rule was motivated by concern that an older pilot would succumb to sudden incapacitation, resulting in an aviation crash injuring a significant number of paying passengers. 2:1 ROA 445 (Dr. Rayman Statement at 31).[7] Sudden incapacitation is caused by a variety of factors. The FAA noted that those factors included “loss of consciousness, cardiac, neurological, and gastrointestinal.” 2:3 ROA 5664 (In-Flight Medical Incapacitation and Impairment of U.S. Airline Pilots: 1993 to 1998, FAA Final Report at i (Oct. 2004)).

The evidence Exxon submitted failed to meet its burden of proving that individualized determinations of pilot fitness are impossible or that reliance on age solely is a justifiable occupational screen. Instead, Exxon’s evidence confirmed that age is not the best predictor of fitness or safety, and that individualized assessment of health status, a pervasive concern of the entire airline industry, is a far better measure of the potential risk of sudden incapacitation. For example, the Airline Pilot Study Exxon submitted stressed that “[w]hen considering pilot characteristics of pilot performance, it is critical to consider health status as well as age to disentangle as much as possible the effects of primary and secondary aging.” 2:3 ROA 5391 (Age 60 Study, Part II: Airline Pilot Age and Performance – A Review of the Scientific Literature at 17) (emphasis added). The Study noted that past studies “found that age was not a significant predictor of performance, but cardio-pulmonary status was.” Id. The same report also noted that of the studies that focused on the age of the pilot and his medical variables, the studies evaluated the pilots for cardiovascular fitness and determined that “older pilots could be screened for cardiovascular risk” and that in a five year span, pilots who were “55-59 year olds with a high risk profile had a mortality rate six times that of 60-64 year olds with a low-risk profile (34.2% versus 5.8%).” Id. at 5413.

Additionally, while Exxon’s experts opined that “older” age is a risk factor in predicting the occurrence of events such as heart or brain attacks that could result in sudden incapacitation, all conceded that other factors such as elevated cholesterol or blood pressure, coronary disease, excessive body weight, and inactivity are also significant to the assessment of risk. See, e.g., 2:1 ROA 704-05 (Dr. Roberts indicating that numerous risk factors such as calcium in arteries, older age, and elevated cholesterol levels can predict the occurrence of a heart or brain attack, while recognizing that persons with multiple risk factors may not have a heart or brain attack and that persons without any risk factors may experience such attacks); id. at 1606 (Dr. Romero explaining that the risk of stroke, which rises with age, is modified by factors such as smoking, hypertension, diabetes, high cholesterol). Two other experts merely expressed their views that the FAA had properly adopted an age restriction for commercial pilots. 2:1 ROA 620-21 (Dr. Jordan opining that “[n]o absolute, scientific formula may readily be applied to predict progressive, anatomic, physiological, and cognitive decline associated with aging”); id. at 648 (Dr. Jeanneret noting that Age 60 Rule is viable “since FAA’s safety rationale [for commercial pilots] has not changed”). And one of them conceded that, even if an age 60 pilot could not fly in commercial operations, it does not mean that he “can no longer play an important role in aviation . . . [since] [m]any pilots . . . fly in non-Part 121 operations . . . .” Id. at 894 (Dr. Jordan Statement at 8).

In evaluating the opinions of Exxon’s experts and its FAA studies, a jury could decide that it would be unreasonable to conclude that age is the only way to determine a pilot’s risk since these sources confirmed that age is not a determining factor in who poses a safety risk. A reasonable jury also could attach little weight to the view that age is an appropriate job qualification, where the FAA noted that it never evaluated whether age was an appropriate employment criterion, RE-T.10, 2:1 ROA 101, particularly in this case, where the three pilots Exxon terminated were in good health and passed all relevant tests that would have identified whether they possessed any of the numerous risk factors that would compromise flight safety. See, e.g., ROA 49-50. Moreover, the jury could conclude that while the FAA’s rationale for its retirement policy has continuing validity for commercial pilots, three to four company pilots approaching the age where health declines might be statistically probable do not present the same safety risk since it is entirely feasible to monitor each of them individually for all health risks that contribute to the likelihood of sudden incapacitation. A jury might consider Exxon’s evidence to be insufficient to prove that age is a “reasonable necessity” to Exxon’s operations, Criswell, 472 U.S. at 491, especially when one Exxon expert conceded that the pilots who present safety risks may be younger than age 60. 2:1 ROA 1476. Thus, the jury could decide that age is not a necessary qualification for flight safety in this case.

In contrast, EEOC offered rebuttal evidence demonstrating that individualized assessments are entirely feasible, making Exxon’s reliance on age unlawful. See, e.g., 2:1 ROA 265 (Dr. Koonce Declaration at 14). First, EEOC’s experts stated that there are diagnostic tests better calibrated to determining risk of sudden incapacitation than using age as a proxy. See 2:1 ROA 284-85 (Dr. LaRue Aff. at 3-4) (opining that “it is possible and practical to individually test pilots for their fitness to fly irrespective of age” because “[n]europsychological testing measures can identify individuals with clinically significant cognitive impairments with a high degree of accuracy”); id. at 339 (Dr. Mohler Aff. at 10) (“[a]ny widely-accepted diagnostic and assessment tool would be more predictive than age alone to identify which pilots are likely to have such medical events”).

Second, EEOC’s evidence established that there is no consensus view that age alone is a medically significant factor. See 2:1 ROA 192 (Capt. Gibson referencing a 1981 study by four major health institutes that concluded “there is no convincing medical evidence to support age 60, or any other specific age, for mandatory pilot retirement"); id. at 194 (Gibson noting that president of the flight physicians association testified that “mandatory retirement for an airline pilot who has reached the age of 60 is without medical basis”); id. at 357 (Capt. Pasannante opining that nominal deterioration in cognitive and motor skills because of age “has little, if any, practical impact on a professional group such as pilots who are required to continually train and proactively practice and prove their skills, both physical and mental, on a frequent and regular basis”); id. at 446 (Dr. Rayman noting that “on review of existing evidence, the Aerospace Medical Association concludes there is insufficient medical evidence to suggest restriction of pilot certification based on age alone”).

Instead, EEOC’s evidence established that current medical testing of pilots is the best method of assessing risk, and is just as efficacious for pilots over 60 as for those under 60. See, e.g., 2:1 ROA 478 (Dr. Rayman observing “the current physical examination mandated by the FAA is adequate . . . for individuals below age 60 and I think it would be adequate for individuals above age 60”); id. at 481-82 (Labor Secretary Dole noting that “[t]here is no hard evidence that individuals, after their 60th birthday, become universally incapable of handling the same important tasks they did at age 59 and 364 days” since “pilots aged 40 and older are required to undergo an EKG every other flight physical,” “must . . . pass semiannual simulator training and flight checks” and their “aptitude, no matter what their age, is closely monitored.”); id. at 450 (Capt. Eichelkraut opining that “FAA already has the ideal mechanisms in place for ensuring safe pilots at any age” such as semi-annual flight physicals and checkrides as well as multi-tasking in advance simulators).

Indeed, while the Commission’s experts acknowledged that “today’s diagnostic and assessment testing measures are not 100 percent infallible,” they all agreed that “using these tests is far more effective and far more accurate in reducing the risk of a medical event adversely impacting aviation safety than using date of birth alone.” See, e.g., 2:1 ROA 342 (Mohler Aff. at 13); ROA 285 (LaRue Aff. at 4). In fact, Dr. Mohler asserted that “[m]odern medical diagnostic and assessment techniques readily, reliably and accurately to a high degree identify pilots who have or may have health or medical problems that might adversely affect fitness and performance. These existing medical testing measures can and do assess pilots on an individual basis regardless of age.” 2:1 ROA 338. Specifically, Dr. Mohler noted that pilots holding a Class I medical certificate are examined every six months and must meet the FAA’s most stringent standards in vision, hearing, neurologic functioning, cardiovascular functioning, and overall health condition. Id. at 336. He further noted that such pilots are required to undergo a resting electrocardiogram (ECG) once at age 35 and yearly at age 40, and they must maintain blood pressure readings that satisfy FAA standards. Id. Dr. Mohler also remarked that advanced simulators, such as the digital computer flight simulator periodic “check rides,” “have detected early onset of certain illnesses, especially neurological and cognitive conditions, in pilots of all age groups.” Id. at 342. He stated that the FAA uses these systems to successfully return to the cockpit pilots of all ages who have suffered significant medical or psychological conditions including myocardial infarctions (heart attacks), coronary heart disease, coronary valve replacements, alcoholism, and brain traumas. Id. at 335. Consequently, in his opinion, “[a]ll of the medical conditions that adversely could impact aviation safety, from heart attacks to strokes, can be diagnosed and assessed to a high degree on an individual basis without reference to chronological age or to date of birth.” Id. at 336. Concomitantly, “[b]ecause of the continual medical and pilot performance assessment processes, pilots with poor health and performance abilities are weeded out, which leaves the industry and the public with a very healthy and safe pilot group.” Id. at 339.

Further, medical research reveals that many experts on aging and aviation safety believe that pilots older than 60 can fly safely so long as they are above average in health, education, and experience. Dr. Jagadeesh Gokhale, Cato Institute Senior Fellow, noted that “health issues are less relevant for retirement decisions across the population because of better technology making the conduct of jobs less stressful and less physically taxing, as well as better health care and medical technology, which has enabled us to deal with and treat chronic conditions better so that people can continue in these jobs despite having high blood pressure and being able to deal with high stress situations because of better medication.” See, e.g., 2:1 ROA 476. Dr. Koonce observed that the “Hilton Study's analysis of the accident rates of pilots who hold FAA Class II medical certificates --typically, but not always, professional pilots who do not fly in commercial airline operations --found that the age 60-64 cohort had the lowest accident rate of any age group.” Id. at 264.

Of specific relevance to this case, the EEOC’s evidence established that Michael Moreschauser, a pilot Exxon terminated because of his age, had been flying domestically and internationally since 1989; that he is in excellent health; his qualifications and proficiency to fly state-of-the-art business jets are unquestioned; and that he holds an Airline Transport Pilot license and First Class Medical Certificate. ROA 49-50. Proffered to rebut any contention that there is a factual basis to believe that Exxon’s age 60 pilots are unsafe, this evidence also demonstrated that in 2005-2006, Exxon could have tested Moreschauser and the two other age-terminated pilots to determine whether they were a flight risk. 2:3 ROA 4282; 5922. Furthermore, this evidence, in combination with a report indicating that of 19 flights involving a medical incapacitation all involved pilots under age 60, 2:3 ROA 5674, would allow a jury to conclude that Exxon’s sole reliance on age is unreasonable.

In addition to establishing that the presence or absence of disease or fitness, and not age, is a better predictor of whether a pilot will succumb to sudden incapacitation, thereby making individualized testing not only possible, but preferable, the Commission offered other evidence undermining Exxon’s reliance on age as a proxy for safety. As the Criswell Court observed, “When an employee covered by the Act is able to point to reputable businesses in the same industry that choose to eschew reliance on mandatory retirement” based on age “the employer's attempt to justify its decision on the basis of the contrary opinion of experts-solicited for the purposes of litigation-is hardly convincing[.]” 472 U.S. at 423.

The Commission’s experts noted that other countries, aviation industries, and airline companies permit pilots age 60 and beyond to fly and have done so without mishap. In fact, Dr. Koonce noted that “[i]n the last fifteen years, there has been a significant international movement away from age 60 as the age at which commercial pilots are required to stop flying.” 2:1 ROA 257. He explained that “[c]ountries that have changed or eliminated their commercial airline pilot age limits include, but are not limited to: Australia, Belgium, Canada, France, Germany, Great Britain, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, New Zealand, Norway, Peru, Sweden, Turkey, and Switzerland.” Id. He also observed that the Hilton Study found that the accident rates of pilots in the age range of 60-64 and who hold FAA Class II medical certificates, which most Exxon pilots possess, “had the lowest accident rate of any age group.” Id. at 261. He added, “today’s flight training and checking processes accurately and reliably ascertain a pilot’s flying ability and are far better than an arbitrary age in reducing the risk of a pilot’s poor flight performance causing an accident. Id. at 263.

Dr. Mohler observed that NASA does not have an upper age limit for its astronauts or test pilots, as demonstrated by John Glenn’s return to space at age 77. 2:1 ROA 337. He also observed that an increasing number of foreign countries and commercial airlines either have eliminated age as a criterion for continued flying or significantly have increased their pilot age limits. Id. at 338. Captain Gibson also stated “a great volume of evidence exists of pilots who continued to fly at ages of, and well beyond 60 years” and identified a variety of pilots and astronauts who have flown aircraft safely even after they passed the age of 60. 2:1 ROA 194-96.

Lastly, expert and statistical evidence proffered by EEOC (and Exxon) demonstrated that in-flight incapacitations were rare and, when they did occur, did not vary greatly between age groups. See, e.g., 2:1 ROA 194 (Capt. Gibson noting study on pilot incapacitation that indicated “between 1972 and 1988 the World's airlines flew more than 190 million jet hours without realizing a single accident involving pilot incapacitation”); id. at 446 (Dr. Rayman observing that although “medical sudden incapacitation is always possibility, . . . at any age, we believe it is a vanishingly small risk, even for air transport pilots who would be over age 60”); 2:3 ROA 5414 (Age 60 Study reporting that “[s]udden incapacitation . . . has been shown to be a relatively unimportant factor in aviation accidents[;] [t]hus, studies of the relationship between age and cardiovascular fitness in pilots are somewhat tangential to the question of whether the probability of an accident increases with age.”); id. at 5678 (Exxon exhibit indicating “[i]n-flight medical events in U.S. airline pilots were very rare; resulting aircrew deaths were even more rare, and resulting aircraft accidents were extremely rare”).

Moreover, to further offset the possibility of an adverse impact on safety, Dr. Rayman noted that, “[e]ven if there were such an occurrence [of sudden incapacitation], there is always a second pilot in the cockpit who could rapidly take control should the need arise.” 2:1 ROA 449. See also 2:3 ROA 5679 (“most important factor . . . responsible for the exceptionally good U.S. airline safety record associated with in-flight incapacitations is the presence of a second pilot”). Although the district court improperly rejected this evidence as immaterial, RE-T.6, 2:3 ROA at 5941, a jury could find this evidence significant because, if a pilot succumbed to sudden incapacitation, the co-pilot could take over and fly the plane because Exxon always flies with two pilots, 2:1 ROA 1893 (Exxon pilot Cone Aff. at 4), thereby making the age of company pilots, a group the FAA did not consider a safety risk, a factor of even greater insignificance.

The district court committed legal error when it disregarded the expert evidence and relied on the EEOC’s acknowledgement that a pilot’s susceptibility to sudden incapacitation increases with age. RE-T.6, 2:3 ROA 5941. The mere fact that the possibility of health decline occurs with age does not vitiate Congress’ demand “that problems involving age discrimination in employment should be resolved on a ‘case-by-case basis’ by proof to a jury.” Criswell, 472 U.S. at 422. As the Third Circuit has observed, “‘the truism that the ability to perform strenuous physical tasks declines with age’ is insufficient to satisfy the second prong of the Tamiami test.” EEOC v. Commonwealth of Pa., 768 F.2d 514, 518 n.3 (3d Cir. 1985) (citation omitted). Such concession, or truism, does not negate the medical and expert evidence that health decline does not occur in every older person but varies based on the person’s physical, neurological and psychological fitness. That concession has nothing to do with the real question of whether such risks can be detected through individualized assessment. As the Criswell Court made clear: “Throughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. ‘The basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age.’ As a result, many older American workers perform at levels equal or superior to their younger colleagues.” 472 U.S. at 409 (internal footnote omitted) (emphasis added). Hence, EEOC’s purported concession does not relieve Exxon of its obligation of showing that its corporate pilots, rather than a general population of pilots, cannot fly safely after they reach age 60.

Finally, contrary to the district court’s ruling, it is not EEOC’s burden to produce evidence that “pilots have zero risk of incapacitation as they get older or that their risk of incapacitation could be tested for or predicted” with absolute certainty – clearly insurmountable hurdles. RE-T.6, 2:3 ROA 5937. Rather, it is Exxon’s burden to prove that “there is no acceptable alternative which would better advance [its safety goal] or equally advance it with less discriminatory impact.” Criswell, 472 U.S. at 417 n.24 (quoting 29 C.F.R. §1625.6(b)). The EEOC’s burden at summary judgment “is one of production, not persuasion.” Reeves, 530 U.S. at 142 (internal quotations omitted)). EEOC and Exxon’s experts agree that a combination of factors, regardless of age, must be present to make a pilot at risk of sudden incapacitation. See supra at 40-47. And while they may disagree regarding the sufficiency of medical and practical tests as adequate measures of safety on the record before the district court, the fact that pilots under age 60 are tested for these same safety risks and that Exxon, as does the FAA, relies on these measures to determine who can safely fly an aircraft strongly suggests that there are acceptable alternatives to advancing the safety goal without relying on age alone.

The practicality of the testing is also undisputed. Exxon has fewer than 30 pilots who are regularly subjected to a barrage of tests to determine whether they can operate an aircraft safely and to determine whether they are physically and mentally fit. Of this number, fewer than four pilots approach age 60 at any given time. Testing such a small number of pilots for medical issues that could lead to sudden incapacitation would not be onerous, and certainly is not impossible or impractical. The airline industry, commercial and corporate, relies on such tests and simulations to determine pilot fitness regardless of age. Hence, it defies logic to argue these tests become unreliable predictors simply because the pilot is age 60, and Exxon has not produced any evidence that establishes such unreliability. If as Exxon contends, medical factors that contribute to sudden incapacitation increase with age, it still has not refuted evidence that these tests will identify these factors and the pilots who possess them.

Thus, a jury may choose to disbelieve or attach little weight to the judgment of any expert witness testifying for Exxon that no medical test could possibly predict which pilots are safety risks. Criswell, 472 U.S. at 423. Indeed, viewing the evidence in the light most favorable to the EEOC, a reasonable jury could conclude that individualized testing is possible and that Exxon’s reliance on age is not necessary to ensure safe flights in light of its pilots’ fitness, training, experience, and absence of medical or physiological factors that would contribute to sudden incapacitation. Accordingly, the record evidence defies judgment as a matter of law for Exxon on this issue. Broadnax, 415 F.3d at 270 (“[j]udgment as a matter of law on an issue as to which the movant bears the burden of proof is ‘rare’”). In that the district court overstepped its bounds in this case by categorically rejecting the Commission’s medical evidence and wholly accepting Exxon’s evidence, summary judgment was improper. See Tuohy, 675 F.2d at 845 (holding that the existence in the record of conflicting evidence regarding “the ability of medical science to make determinations concerning a particular pilot's state of health independent of age,” created a material issue of fact bearing upon the “reasonable necessity” of Ford's mandatory retirement policy).

Exxon has not proved, by objective and credible evidence, that its compulsory retirement rule qualifies as a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business” in question. 29 U.S.C. § 623(f)(1) (1976). Summary judgment should therefore be reversed.

CONCLUSION

In crafting the ADEA’s prohibition against age discrimination, Congress made clear that “chronological age alone is a poor indicator of ability to perform a job.” Criswell, 472 U.S. at 409 n.11 (quoting S. Rep. No. 95-493, p. 2 (1977), U.S.Code Cong. & Admin. News 1978, pp. 504, 505, Legislative History 435). Here, the record, viewed in the light most favorable to the EEOC, contains evidence that the FAA excludes corporate pilots from its safety rule, there is no congruity between Exxon and commercial operations, pilots age 60 and older are flying safely in comparable aviation industries domestically and internationally, and individual pilot testing is possible. As a result, a reasonable jury would not be compelled to conclude that Exxon met its burden of proving that the application of an age 60 mandatory retirement rule to its company pilots is necessary to the safe operations of Exxon’s aviation department. Therefore, this Court should reverse the judgment of the district court and remand the case for trial.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

CAROLYN L. WHEELER

Assistant General Counsel

__________________________

PAULA R. BRUNER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, N.E., Fifth Floor

Washington, D.C. 20507

(202) 663-4731 paula.bruner@eeoc.gov

[1] “RE-T.[#]” refers to tabbed material in the EEOC’s Record Excerpts. “ROA-[#]” refers to the paginated, certified Record on Appeal. The remand record in this case has supplemented the original record which covers ROA1-799. The supplements are numbered and divided into volumes; for example, Supplement 2, Volume 1 will be referred to 2:1 where the page numbers duplicate the original record.

[2] This Court’s decision also is available at EEOC v. Exxon Mobil Corp., 344 Fed. Appx. 868 (5^th Cir. Aug. 27, 2009).

[3] Specifically, the FAA regulation prohibits any person from serving as a pilot or co-pilot on “an airplane engaged in operations under Part 121 if that person has reached his 60^th birthday.” 14 C.F.R. § 121.383(c).

[4] The EEOC regulation on the BFOQ defense, 29 C.F.R. § 1625.6(b), states:

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.

(cited with approval in Criswell, 472 U.S. at 417 n.24).

[5] Captain Robert Gibson testified that the FAA’s Age 60 Rule was adopted without “any fair consideration of the medical or scientific issues” undergirding the rule. He observed that “[n]umerous studies have been conducted over the years to attempt to quantify the medical issue and see if there was any basis for an age related rule” and noted that “[a]ll of them have concluded that there was not.” ROA 191.

[6] The district court denied both parties’ motions to strike each other’s experts. RE-T.6, 2:3 ROA 5923-29.

[7] Dr. Russell Rayman, executive director of the Aerospace Medical Association, did not participate as an expert in this litigation. Rather, references to his comments are derived from a statement he presented to the U.S. Senate Special Committee on Aging, which was proffered as an exhibit by EEOC in its designation of expert witnesses. 2:1 ROA 445-49 (R.78-8).