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introduction

In its opening brief, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) argued that the district court erred in granting Exxon’s motion for summary judgment and in dismissing EEOC’s enforcement action brought pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. Specifically, the Commission asserted that in determining whether Exxon had violated the ADEA the district court (1) failed to defer to the Federal Aviation Administration’s expertise regarding the inappropriateness of extending the agency’s Age 60 Rule to Exxon’s corporate pilots; (2) disregarded differences in the safety concerns of FAA and Exxon, which made the FAA’s Age 60 Rule lack probative value; and (3) improperly weighed conflicting evidence concerning congruity and individualized testing where genuine issues of material fact existed and should have been sent to a jury. EEOC Br. at 13-54.

In response, Exxon contends that the district court properly granted summary judgment in its favor. Specifically, Exxon argues that the FAA’s Age 60 Rule is a bona fide occupational qualification (“BFOQ”) for non-Part 121 pilots. Exxon Br. at 19-22. Additionally, Exxon reiterates its previously asserted view in the first appeal and in the district court that its pilot operations are congruent with Part 121 operations. Id. at 23-38. Lastly, Exxon asserts that the rationale for FAA’s Age 60 Rule remains valid because there are no tests that can accurately predict whether an individual pilot will experience sudden incapacitation. Id. at 38-50.

Based on the evidence proffered by the parties, this case is ripe for trial. Exxon claims that it must have pilots with a low risk of sudden incapacitation to ensure safe operations of its corporate aircraft and therefore must produce compelling evidence that its retirement policy is a bona fide occupational qualification. Exxon Br. at 23. Exxon relies on the FAA’s Age Rule, but the FAA asserts that its Age 60 Rule has no relevance because it only applies to Part 121 operations, and not Part 91 pilots such as Exxon’s. Exxon maintains that there is congruency between the pilot occupations, but there is conflicting evidence on whether the commercial and corporate pilots have responsibilities sufficiently similar to justify an extension of the FAA’s safety rational for its commercial pilots to Exxon’s pilots. And there is significant medical and expert testimony that a pilot’s health and fitness is a better determinative of whether a pilot is a safety risk than age alone and that there are a variety of tests which can be used to screen out pilots of any age with high safety risks. Viewing the evidence in this case in the light most favorable to the EEOC, this Court should find that there are genuine issues of material fact with respect to the ultimate question of whether an age limit is a necessary criterion to ensure safe flight operations for Exxon.

For the reasons discussed below (and in its main brief), the Commission urges this Court to vacate the judgment of the district court and remand the case for trial.

ARGUMENT

1. The District Court Failed to Give Proper Deference to the FAA’s Position that its Age 60 Rule Does Not Apply to Corporate Pilots

As the Commission observed in its opening brief, EEOC Br. at 13-14, and Exxon agrees, Exxon Br. at 3, 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 indisputably required 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, Exxon persists in arguing that the FAA’s Age 60 Rule justifies Exxon’s age-based retirement policy even though the FAA has made clear that its rule is immaterial to Exxon’s retirement policy.

Exxon overreads the FAA’s rationale for its Age 60 Rule by misrepresenting that the agency’s concerns regarding sudden incapacitation involved older pilots generally. Exxon Br. at 4, 17-18. In this statement, and throughout its brief, Exxon ignores the context in which the FAA raised its concerns and its target audience – Part 121-regulated commercial airlines and pilots, not Part 91-regulated corporate operations and pilots.

In its letter to the EEOC and its brief, RE-T.10 & 2:1 ROA 102-106, the FAA made clear that “‘[t]he Age 60 Rule, like many other safety rules that apply to Part 121 operations and not others, provides an increased level of safety appropriate to the operations conducted under Part 121.’” 2:1 ROA 103, FAA Br. at 2. The FAA explained that its 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 . . . .” Id. Consequently, the FAA adopted the Age 60 Rule “because of concerns about the danger posed to the public if the pilot of a large commercial aircraft became incapacitated.” Id. (emphasis added). The FAA noted that it “has not imposed any maximum age limit on Exxon Mobil’s pilots,” 2:1 ROA 104, FAA Br. at 3, and that “Exxon Mobil was never subject to the [FAA’s] Age 60 Rule, as its flight operations fell within Part 91 of the FAA regulations, rather than Part 121.” 2:1 ROA 106, FAA Br. at 5. The FAA added that its new Age 65 Rule is equally inapplicable to Exxon pilots or non-Part 121 pilots. RE-T.10, FAA Letter at 2.[1]

The FAA even acknowledged that “[a]lthough it is possible, in some cases, for the same type of aircraft to be used in both certificated and non-certificated operations, the primary regulatory distinction which is the basis for imposing a higher level of safety is how the aircraft is used. The scope of the 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 135). The FAA recognized these distinctions” in promulgating the Age 60 Rule and hence intentionally limited its application to Part 121 operations. RE-T.10, FAA Letter at 2 (emphasis in original).

This statement directly undermines Exxon’s argument that its use of planes “as sophisticated” as those operated by commercial airlines elevates its operation to one covered by the safety rationale underlying FAA’s Age 60 Rule. Exxon Br. at 27-28. Under these circumstances, permitting Exxon to rely on the FAA’s Age 60 Rule based on some perceived congruity of operations to establish that its own retirement policy is a BFOQ is unreasonable, especially in light of the FAA’s explanation that it “never evaluated the Age 60 Rule to assess whether it would be an appropriate employment qualification.” Id. See also 2:1 ROA 105, FAA Br. at 4. Indeed, the FAA concluded that it “would not be in a position to provide relevant evidence concerning the appropriateness of ExxonMobil’s adoption of an age 60 limitation for pilots.” Id.

Next, Exxon asserts that “EEOC’s lead argument on appeal – that the FAA Age Rule is irrelevant to Exxon’s BFOQ defense because the rule does not directly cover Exxon’s pilots -- . . . is foreclosed by decades of decisional law and the law of this case.” Exxon Br. at 17. Exxon miscasts the Commission’s position.

In Western Airlines v. Criswell, 472 U.S. 400 (1985), the Supreme Court stated that when the federal rule does not directly apply to the targeted position, “[t]he extent to which the rule is probative varies with the weight of the evidence supporting its safety rationale and ‘the congruity between . . . occupations at issue.’” Id. at 418. See also Johnson v. Mayor & City Council of Balt., 472 U.S. 353, 371 (1985) (“the federal exemption . . . might be relevant to an appropriate employer when deciding whether to impose a mandatory retirement age, and to a district court engaged in reviewing an employer’s BFOQ defense”). Here, because the FAA did not extend its Age Rule to Part 91 corporate pilots and stated that it did not view Part 91 pilots as creating the same safety risk as Part 121 commercial pilots or Part 135 commuter pilots, EEOC RE-T.10, FAA Letter at 2; 2:1 ROA 102-03, the EEOC argued first that “Exxon cannot establish the BFOQ defense merely by relying on the FAA’s Age 60 Rule and its safety rationale.” EEOC Br. at 15 (emphasis in original).

The Commission also argued that because the FAA’s Rule targeted commercial pilots for mandatory retirement, and Exxon’s pilots were corporate pilots, “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.” EEOC Br. at 16. Finally, the Commission argued that, given the FAA’s express exclusion of Exxon’s pilots from its mandatory retirement rule, “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.” EEOC Br. at 19. In added support, the Commission noted how the safety concerns of the FAA and Exxon were different and how little congruity existed between the aviation operations and pilot’s duties of commercial and corporate entities. Id. at 19-37. In short, EEOC’s position is that the district court erred in ruling that Exxon’s reliance on the FAA Rule established Exxon’s BFOQ defense without more.

Moreover, Exxon’s claim that the “FAA’s Age Rule may establish that an identical age limit is a BFOQ for non-Part 121 pilots,” Exxon Br. at 19, ignores the FAA’s expert decision to refrain from imposing a similar retirement ban on corporate pilots. ROA 103, FAA Br. at 2 (“The Age 60 Rule explicitly applied to Part 121 operations (commercial aircraft) but not others, due to the distinctions in regulatory categories.”). Instead of explaining this contradiction, Exxon attempts to recast the FAA’s explanation for declaring its Age Rule as irrelevant to Exxon’s BFOQ defense and these proceedings by stating that “the context of the letter clearly shows that the FAA lawyer considered FAA’s Age 60 Rule ‘no longer relevant’ because it was replaced by the Age 65 Rule, not because an age rule is unnecessary for aviation safety.” Exxon Br. at 21-22. In that the FAA has declared its Age Rule and its underlying rationale immaterial to these proceedings because this case involves Part 91-regulated operations and pilots, RE-T.10, FAA Letter at 2 (“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”), Exxon’s reading is untenable.

Lastly, Exxon misrepresents that the EEOC’s challenge to Exxon’s arbitrary age-based retirement policy for its corporate pilots is an attack on the FAA’s regulatory decision to impose a similar ban on commercial pilots. See, e.g., Exxon Br. at 46 n.24. [2] The Commission has repeatedly made clear that this enforcement action is about Exxon’s discriminatory policy, and not the FAA’s Age 60 Rule. Moreover, the FAA understands that the EEOC is not challenging any of its mandatory retirement policies. In its brief, the FAA observed, “the EEOC has unequivocally stated on the record that it will not be calling into the question the Age 60 Rule.” 2:1 ROA 105, FAA Br. at 4. Thus, Exxon’s misrepresentation of the Commission’s litigation position is no more than a distraction from the fact that Exxon has not satisfied its burden of proving that its retirement policy is reasonably necessary to the operations of its aviation business and its failure to overcome the hurdle that the FAA and EEOC are wholly in agreement that the FAA’s Age 60 Rule has no application to corporate pilots – something that Exxon and the district court continue to ignore. Therefore, Exxon’s reliance on the assumption that the FAA’s Age 60 Rule is a BFOQ provides no support for a finding that Exxon’s own age discriminatory rule is a valid exception to the ADEA.

Exxon also argues that the EEOC erred in citing to the district court decision in Gathercole v. Global Assocs., 560 F. Supp. 642 (N.D. Cal. 1983), which stated that the FAA Age 60 Rule cannot establish a BFOQ for corporate pilots, because the Ninth Circuit reversed that ruling on appeal. Exxon Br. at 23 n.11. While the Ninth Circuit did reverse the district court decision in Gathercole , see 727 F.2d 1485, 1486 (9^th Cir. 1984), it subsequently overruled its Gathercole decision in EEOC v. Boeing Co., 843 F.2d 1213, 1219-20 (9th Cir. 1988), because post-Criswell, non-Part 121 employers cannot treat the FAA’s Age-60 Rule as conclusive evidence of a BFOQ defense and because the EEOC had rescinded the ADEA regulations that listed the FAA’s Rule as illustrative of an appropriate BFOQ – factors on which the Gathercole relied. Boeing, 843 F.2d at 1220. Thus, the Gathercole district court conclusion that the FAA’s Age 60 Rule does not apply to, or establish a BFOQ for, Part 91 pilots is consistent with current legal standards.

2. Exxon Has Not Satisfied its Burden of Proving that Age is a BFOQ or that it was entitled to Summary Judgment.

As the Commission asserted in its opening brief, Exxon bears the burden of proving the affirmative defense that its age-restricted retirement policy qualifies as a BFOQ exception to the ADEA. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414-15 (1985). Exxon has not satisfied this burden.

The BFOQ defense is a narrow statutory exception to the general prohibition against age discrimination. Criswell, 472 U.S. at 412; Johnson v. American Airlines, Inc., 745 F.2d 988, 991 (5th Cir. 1984) (emphasis added). Hence, Exxon’s burden is one of persuasion, not simply production. Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 93 (2008) (the BFOQ provision “creat[es] a defense for which the burden of persuasion falls on the ‘one who claims its benefits,’… the ‘party seeking relief’”) (internal citations omitted). This burden of persuasion cannot be satisfied “with general evidence or assertions” that older pilots would somehow affect flight safety. Guild v. Kansas City Southern Ry. Co., 2013 WL 4780516, *5 (5^th Cir. 2013). “Rather, [Exxon] ‘must come forward with evidence of the specific burdens imposed.’” Id. (internal citations omitted). And even if safety risks may justify an employer erring on the side of caution, Criswell, 472 U.S. at 419, Exxon’s concerns about flight safety do not relieve Exxon of its burden of establishing the BFOQ. Id. at 419 n.29 (safety considerations “are only relevant at the margin of a close case, and do not relieve the employer from its burden of establishing the BFOQ by the preponderance of credible evidence”).

Further, this case should not have been resolved by summary judgment. As the movant, Exxon has the burden of persuading this Court 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 this burden. Viewing the evidence in the light most favorable to the EEOC and resolving any ambiguities and conflicts in the evidence against the movant Exxon, as the district court was required to do and this Court must do on appeal, Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 477 n.1 (5^th Cir. 2008), there are a myriad of material factual disputes regarding Exxon’s BFOQ defense that warrant evaluation by a jury. Further, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether the ruling is on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986) (internal citations omitted). Thus, it was error for the district court to weigh the evidence, to make credibility assessments, and to resolve conflicts against the EEOC instead of submitting the case to a jury.

a. There is Conflicting Evidence on the Issue of Congruity and therefore Summary Judgment was Inappropriate.

In this second appeal (and in Exxon I), both EEOC and Exxon have exhaustively briefed the issue of whether there is congruity between Exxon’s aviation operations and pilot functions and those of commercial pilots to determine whether the safety policy undergirding the FAA’s Age Rule should be extended to Exxon’s corporate pilots. See EEOC Br. at 29-37; Exxon Br. at 23-38.[3] For example, Exxon claims that “aspects of its piloting are more strenuous than commercial piloting. . . .” Exxon Br. at 24. Yet, EEOC’s evidence demonstrates that Exxon pilots fly significantly fewer hours, are not attached to a fixed schedule, and do not fly in extreme bad weather, in contrast to commercial pilots. EEOC Br. at 31-32. Further, while Exxon asserts that the FAA’s safety concerns involved commuter airlines with as few as 10 passengers as well as large passenger planes, Exxon Br. at 25 & 26 n.12, Exxon continues to ignore that its own airline generally services no more than 1-3 passengers per flight, EEOC Br. at 22, 33, and that the FAA did not consider corporate pilots or Part 91-regulated operations like Exxon’s to present the same public safety risks. RE-T.10, FAA Letter 1-2; 2:1 ROA 106, FAA Br. at 5. These recitations of disputed facts and conflicting testimony are sufficient to establish that material disputed facts exist that make summary judgment inappropriate.

Criswell provides added support for finding that summary judgment was inappropriate in this case. Indeed, the comparative analysis of the pilot and flight engineer positions in Criswell raised distinctions similar to those articulated by the EEOC in this case, and based on that evidence, the jury found that congruity did not exist and the Supreme Court did not disturb that finding.

To be specific, evidence in Criswell revealed that the “FAA has refused to establish a mandatory retirement age for flight engineers,” that flight engineers “may not assume the responsibilities of the pilot in command,” and “that flight engineers have rarely been a contributing cause or factor in commercial aircraft ‘accidents’ or ‘incidents.’” Criswell, 472 U.S. at 404. Similarly, in this case, record evidence demonstrates that the FAA has not established a mandatory retirement age for corporate pilots, 2:1 ROA 103, FAA Br. at 2; Part 91 corporate pilots do not have the same responsibilities or present the same safety concerns as Part 121 commercial pilots, EEOC Br. at 23-28, 30-37; RE-T.10, FAA Letter 1-2; 2:1 ROA 106, FAA Br. at 5, sudden in-flight incapacitation is a “rare” occurrence even for pilots over age 60, and if it occurred, resulting accidents or deaths would be highly unlikely because there is always a second pilot in the cockpit. EEOC Br. at 49-50. In that this evidence presents clear conflicts that the Criswell Court thought were properly evaluated by the jury in rejecting Western’s BFOQ defense, this Court should likewise find that Exxon’s mandatory retirement of pilots at age sixty cannot be a bona fide occupational qualification as a matter of law.

b. A Jury Trial is Necessary to Determine whether Individualized Testing is Possible for Exxon’s Corporate Pilots.

To satisfy the second prong of the BFOQ test, Exxon must establish that individualized testing of its age 60 and older corporate pilots would be “impossible or highly impractical.” Criswell, 472 U.S. at 414. This approach was designed to determine whether “knowledge of the applicant’s membership in the [age] class” was the only way to ascertain who was incapable of “safe and efficient job performance.” Id. at 415. In other words, “[i]f 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.” Id. at 416 n.24 (quoting EEOC regulations, 46 Fed. Reg. 47727 (1981), 29 C.F.R. § 1625.6(b) (1984)).

Here, a comparison of the Commission’s brief and Exxon’s brief on the issue of individualized testing underscores why this case should have gone to a jury. The briefs examine similar evidence, facts, and expert testimony and demonstrate, viewing the evidence in a light favorable to the EEOC, that a reasonable jury could reject Exxon’s BFOQ defense.

To begin with, Exxon presented expert testimony, medical studies, and pilot statements to support its position that individualized testing was not possible. Exxon Br. at 40-44. In its view, medical science still cannot accurately predict whether an older pilot will experience sudden incapacitation or subtle deterioration. Id. at 40. And, Exxon cites to FAA testimony and studies that have determined that no protocol or test is a reliable indicator of commercial pilot impairments or is sufficient to identify commercial pilots who will experience impairments. Id. at 40-41. See also id. at 42 (“Congress and FAA reaffirmed their reliance on a mandatory age limit for all Part 121 pilots because no regime of accurate, predictive individualized assessment is available.”).[4]

In rebuttal, EEOC proffered expert testimony that individualized testing of the few older pilots Exxon has in its employ to determine their job fitness is possible and highly practical since these pilots are subjected to much of the same medical, fitness, and physical testing prior to their 60^th birthdays. EEOC Br. at 44-46, 52-53. Additionally, even though it was Exxon’s responsibility to satisfy this burden, EEOC produced evidence that a pilot’s health and fitness, and not age, were factors contributing to sudden incapacitation, making medical, fitness, and performance tests an acceptable alternative to an age limitation which would better advance Exxon’s goal of flight safety with less discriminatory impact on older pilots. EEOC Br. at 46-49. Finally, EEOC identified other countries, aviation industries, and airlines that permit age 60 and older pilots to fly without incident. Id. at 48-49.

As with the congruity evidence, the conflicting evidence on individualized testing in this case is no different from that tried to a jury in Criswell. There, the Supreme Court observed in 1985 that “[t]he actual capabilities of persons over age 60, and the ability to detect disease or a precipitous decline in their faculties, were the subject of conflicting medical testimony.” Criswell, 472 U.S. at 406. Specifically, the airline’s expert witness expressed concern “about the possibility of a ‘cardiovascular event’ such as a heart attack” and “testified that ‘with advancing age the likelihood of onset of disease increases and that in persons over age 60 it could not be predicted whether and when such diseases could occur.’” Id. In contrast, “plaintiffs’ experts . . . testified that physiological deterioration is caused by disease, not aging, and that ‘it was feasible to determine on the basis of individualized medical examinations whether flight deck crew members, including those over age 60, were physically qualified to continue to fly.’” Id. at 406-07. “These conclusions were corroborated by the nonmedical evidence” that “both the FAA and the airlines have been able to deal with the health problems of pilots on an individualized basis.” Id. at 407 (internal citations and quotations omitted). Further, plaintiffs’ evidence revealed that “several large commercial airlines have flight engineers over age 60 ‘flying the line’ without any reduction in their safety record.” Id. The Criswell Court concluded, therefore, that “the evidence clearly established that the FAA, Western, and other airlines all recognized that the qualifications for a flight engineer were less rigorous than those required for a pilot.” Id. at 418. Hence, the Court affirmed the district court’s decision to send the case to a jury and the jury’s conclusion that “Western’s mandatory retirement rule did not qualify as a BFOQ even though it purportedly was adopted for safety reasons.” Id. at 403, 420.

As in Criswell, the arguments and evidence on both sides are similar and thus this case should go to a jury.[5] There is some conflicting medical evidence and expert testimony in this case. Compare EEOC Br. at 39-46 with Exxon Br. at 40-45. However, undisputed evidence established that sudden incapacitation is caused by medical factors such as loss of consciousness, cardiac, neurological, and gastrointestinal impairments, not age. EEOC Br. at 39-43. All experts in this case agree that age alone is an insufficient criterion to determine pilot fitness and safety. EEOC Br. at 40-43. The FAA represents that Part 91 pilots do not present the same safety risks as Part 121 commercial pilots. RE-T.10, FAA Letter 1-2; 2:1 ROA 106, FAA Br. at 5. Dr. Jordan, Exxon’s own expert, viewed Part 91 operations such as Exxon’s as an aviation avenue for an age 60 pilot who could no longer fly commercial airplanes. See 2:1 ROA 894.

Medical studies and testimony reveal that individualized testing of a few older corporate pilots is not only possible but reasonable given the advances in medicine, EEOC Br. at 42-44; 2:3 ROA 5391, 5413 (pilot study proffered by Exxon reported “age was not a significant predictor of performance but cardio-pulmonary status was” and that “older pilots could be screened for cardiovascular risk”). Airlines require regular medical and fitness testing for all pilots because sudden incapacitation may occur at any age, EEOC Br. at 44 -45; 2:1 ROA 338, 1476, and these tests have revealed impairments that have sidelined pilots until their conditions improved. Id. at 45-46. In short, because there is conflicting evidence about the efficacy of individualized testing, Exxon cannot establish as a matter of law that its retirement policy is a justifiable BFOQ exception to the ADEA’s prohibition of age discrimination. Childers v. Morgan County Bd. of Educ., 817 F.2d 1556, 1559 (11th Cir.1987) (per curiam) ( “[c]ases which rely heavily on expert testimony, as is the case here, do not easily lend themselves to summary judgment. Indeed most of the public safety age discrimination cases seem to have been resolved at trial.”). Consequently, because “all expert opinion is [not] entitled to equal weight,” and the district court “virtually ignore[d] the function of the trier of fact in evaluating conflicting testimony [and medical evidence],” Criswell, 472 U.S. at 423, this case should be remanded for trial.

CONCLUSION

Substantial evidence in this record would permit a reasonable jury to conclude that age is not a necessary proxy to effectuate Exxon’s business or safety concerns, especially when the experts agree that sudden incapacitation can occur at any age. Further, triable issues exist as to whether there is congruity between Exxon’s corporate pilots and Part 121 airlines’ commercial pilots and whether individualized testing of pilots to determine fitness and health is a viable and less discriminatory alternative to using a blanket age restriction as an occupational criterion. Hence, a jury should have the opportunity to determine whether Exxon’s mandatory age-based retirement policy is a bona fide occupational qualification. Therefore, this Court should reverse the district court’s decision granting summary judgment and remand with explicit instructions that the case be set for trial without further delay.

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] Exxon challenges the EEOC’s reliance on the FAA’s letter to EEOC counsel as evidence of the FAA’s position about the non-application of the FAA’s Age 60 Rule to corporate pilots because the letter is “unsworn” and “correspondence between two government lawyers.” Exxon Br. at 21-22. In that Exxon did not move to strike, challenge its admissibility, or raise any objection to the FAA letter when it was presented as an attachment in support of the EEOC’s brief addressing whether the FAA was a necessary party to this litigation, see RE-T.2, Remand Docket at 12-21, the FAA letter was properly part of the summary judgment record and its contents were appropriately before the court even if the letter was not notarized. Further, in that the contents of the FAA’s letter was entirely consistent with its brief, 2:1 ROA 102-108, on which Exxon relies, see, e.g., Exxon Br. at 22, Exxon offers no basis for questioning whether the letter was the FAA’s “official” position.

[2] Yet, Exxon states elsewhere “EEOC does not directly challenge the proposition that the FAA Age Rule is a BFOQ for Part 121 pilots. . . .” Exxon Br. at 18. And it remarks that “EEOC marshaled no evidence to dispute the rationale for the FAA Age Rule.” Exxon Br. at 44. As aforementioned, EEOC does not challenge the FAA’s Rule or safety rationale because the FAA has made clear that it only applies to Part 121 pilots, who are not at issue in this case. EEOC does, however, challenge the validity of Exxon’s attempt to extend the FAA Rule to its Part 91 pilots, and its attempt to establish a BFOQ defense.

[3] The Commission notes that Exxon intimates that this Court somehow approved Exxon’s congruity evidence in the first appeal, asserting that “[t]his Court did not disturb the district court’s holding that Exxon piloting is congruent with Part 121 piloting.” Exxon Br. at 10. This misreads this Court’s prior decision. In Exxon I, this Court vacated the district court’s judgment in its entirety. EEOC RE-T8, 2:1, ROA33. This Court then explained, “[b]ecause we are vacating the judgment and remanding for further proceedings, we make no comment or judgment on the district court’s ruling on the congruity of job duties and responsibilities between commercial pilots and the Exxon pilots. Thus, the district court, in its appropriate discretion, may, or may not, reopen this issue.” Id. (emphasis added). The district court decided against reopening the issue, and simply reinstated its original flawed analysis. Hence, the congruity issue and the parties’ evidence on this point are properly before the Court.

[4] Exxon’s reliance on the FAA’s concerns and studies about commercial aviation operations, which have hundreds of pilots, to justify its view that it could not test its own corporate pilots for fitness, is misplaced. As previously noted, the FAA has plainly stated that corporate airlines and pilots operating under Part 91 regulations do not raise the same safety concerns as commercial airlines and pilots, even if they fly similar planes. RE-T.10, FAA Letter 1-2; 2:1 ROA 106, FAA Br. at 5.

[5] Exxon claims that EEOC puts it to the Hobson’s choice of “rely[ing] only on inaccurate individualized testing instead of FAA’s expert judgment that an age rule is safer” and “the threat of litigation from victims injured in an accident caused by an older pilot[.]” Exxon Br. at 50. Apart from the fact that Exxon refuses to accept the FAA’s expert judgment that an age rule is not necessary to ensure flight safety among Part 91 pilots, Criswell rejected a similar concern by Western Airlines, and admonished that “[w]hen an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is ‘reasonably necessary’ to safe operation of the business.” 472 U.S. at 419. The Court also noted that “[w]hen the employer’s argument has a credible basis in the record, it is difficult to believe that a jury of laypersons . . . would not defer in a close case to the airline’s judgment.” Id. at 420. In short, the Supreme Court ruled that the case was properly placed in the jury’s hands, noting 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.” Id. at 422.