The opinion of the court was delivered by: RICHEY
This action is brought under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 Et seq. (1976), ("the Act" or "ADEA"). Section 4(a)(1) of the Act, 29 U.S.C. § 623(a)(1), makes it unlawful for an employer:
to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.
The defendant American Airlines, Inc., ("American"), is a commercial airline. It is an employer within the meaning of the Act. 29 U.S.C. § 630(b). The plaintiff, Edward L. Murnane, is a retired Navy and Coast Guard aviator who applied for position as a pilot with American when he was forty-three years old. He is thus a member of the protected class under ADEA, 29 U.S.C. § 631. The plaintiff-intervenor, Ray Marshall, is the Secretary of the United States Department of Labor. Under the Act, he is responsible for implementation of its provisions. 29 U.S.C. § 625.
Plaintiff Murnane filed this action on June 30, 1978, alleging that defendant American wilfully violated the Act by failing or refusing to hire or consider him for employment because of his age. On January 19, 1979, Secretary Marshall was given leave to intervene as a party plaintiff.
In his prayer for relief, plaintiff originally sought an offer of employment with the defendant upon such terms and conditions as he would have had but for the alleged discrimination. However, in his memorandum in opposition to defendant's motion for summary judgment (filed January 29, 1979), plaintiff indicated that "at this stage" he would request only injunctive relief requiring remedial flight training and consideration of his application by American. In addition, he seeks the amount of back wages he would have received if the defendant had employed him, an additional equal amount of liquidated damages as provided by the Act, 29 U.S.C. § 626, as well as costs, attorneys' fees, and other appropriate relief. The Secretary joins in these requests on plaintiff Murnane's behalf, and also seeks to permanently enjoin the defendant from violating the provisions of section 4(a)(1) of the Act, 29 U.S.C. § 623, as set forth above.
On January 22, 1979, the defendant filed a motion for summary judgment. However, since a five-day trial was held before the Court beginning on January 29, 1979, the Court will decide the case on the basis of the evidence adduced at trial.
The defendant has presented several challenges to the Court's jurisdiction over this action. It also contends that the plaintiff has failed to discharge his burden of establishing a Prima facie case of age discrimination within the meaning of the Act. In addition, defendant contends, among other things, that an age lower than plaintiff's at time of hiring is within the statutory exception under the Act for bona fide occupational qualifications (BFOQ), 29 U.S.C. § 623(f)(1). Finally, the defendant argues that whether or not there was impermissible age discrimination against plaintiff, he is not entitled to relief because he would not have been hired by American in any event. Thus, the issues before the Court are:
1) Whether the Court has jurisdiction over this action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626;
3) Whether an age lower than plaintiff's at time of hiring is a bona fide occupational qualification within the meaning of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623(f)(1);
4) Whether plaintiff would be entitled to any relief whether or not discriminated against on the basis of age.
The Court will first set forth background information which it considers relevant to its decision. American's policies concerning pilot hiring are more properly articulated in light of its contention that an age lower than forty at time of hiring is a bona fide occupational qualification for the position of Flight Officer within the meaning of ADEA, as amended, 29 U.S.C. § 623(f)(1). The Court then will consider the issues set forth above Seriatim. Accordingly, the following constitutes the Court's findings of fact and conclusions of law.
A. The Plaintiff's Application
Plaintiff applied for employment with American on April 1, 1976. He submitted an employment application and a "pilot supplemental sheet" at American's Los Angeles personnel office. The position for which he applied was that of Flight Officer, the entry level pilot position, which ultimately may result in advancement to the Captain position. The information received by American indicated that the applicant was forty-three years old. He had served on active duty as an aviator with the Navy and the Coast Guard for a total of twenty-six years. All agree that he met the Basic requirements for the position of Flight Officer, which are discussed in detail below. He also possessed a Federal Aviation Administration (FAA) Flight Engineer Certificate, which must be obtained to perform the duties of Flight Officer. In addition, he possessed the Air Transport Pilot's rating which is required to act as co-pilot or pilot of a commercial aircraft.
In September, 1976, plaintiff Murnane contacted the defendant's employee, Mrs. Juanita McCullough, who had received his application in Los Angeles, to inform her of his temporary move to another city and to update his application. In November, 1976, the application was transferred to American's Dallas-Fort Worth, Texas office, with other pending pilot applications. Plaintiff was informed of this transfer in January, 1977. Apart from this, he heard nothing from American concerning the application.
During January, 1977, plaintiff complained to American representatives that his application was not being considered because of his age. This complaint was founded upon his familiarity with an industry-wide reluctance to hire older pilots. He was referred to American's Equal Employment Opportunity (EEO) officer, but was not given any reason at that time for failure to afford him an interview.
On February 1, 1977, plaintiff filed a complaint with the United States Department of Labor, alleging discrimination on the basis of age. He was notified on May 17, 1977, that the Department was undertaking informal remedial and conciliation efforts on his behalf. See 29 U.S.C. § 626(d)(2). On November 21, 1977, the Department notified plaintiff that the attempt at informal conciliation had failed, and he was therefore free to pursue independent legal action under the Act. At some time prior to May 26, 1977, a parallel complaint was filed with the California Fair Employment Practices Commission (FEPC).
This complaint was formalized on February 15, 1978. In response to the state agency's request for information regarding its hiring policies, American suggested that since plaintiff had chosen to pursue his federal remedies, the FEPC investigation should be closed, and refused to furnish the information requested.
For purposes of this lawsuit, all parties agree that defendant's conduct after December 31, 1976, with respect to plaintiff's application, is irrelevant. This agreement is based on the grounds that (a) any rejection of the plaintiff which the Court finds to have occurred must have occurred during 1976 and (b) plaintiff filed his federal employment discrimination complaint shortly after that date, on February 1, 1977. Plaintiff's conduct and performance on other jobs after December 31, 1976, however, is relevant to the issue of whether plaintiff would be entitled to any relief whether or not discriminated against on the basis of age. This issue will be considered in detail by the Court in part III. E., Supra, of this memorandum opinion.
III. THE JURISDICTIONAL CHALLENGES
Defendant American presents three challenges to the Court's jurisdiction over this action. The first two challenges encompass American's argument that plaintiff failed to comply with the "jurisdictional prerequisites" of the Act. The final challenge is founded upon the applicable statute of limitations. The Court will consider these challenges Seriatim.
First, American challenges plaintiff's filing of his formal "Notice of Intent to Sue" with the Department of Labor on April 25, 1977, as untimely under § 7(d)(1) of the Act, 29 U.S.C. § 626(d)(1). Prior to the Act's amendment in 1978, this section required a complainant to file a formal "Notice of Intent to Sue" with the Department of Labor within 180 days of the occurrence of the alleged unlawful employment practice.
However, § 7(d)(1) of the Act simply is not applicable to plaintiff. Rather, it is § 7(d)(2) of the Act, 29 U.S.C. § 626(e)(2), with which plaintiff must comply. Where, as here, the alleged unlawful practice occurs "in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice", 29 U.S.C. § 633, the complainant must file a formal "Notice of Intent to Sue" within 300 days after the alleged unlawful practice occurred or within 30 days after receipt by the complainant of notice of termination of proceedings under State law, whichever is earlier. 29 U.S.C. § 626(d)(2). Since the alleged unlawful practice occurred in California which has both an age discrimination law and the California Fair Employment Practice Commission (FEPC) which enforces that law, the 300-day, rather than the 180-day, notice requirement is applicable to plaintiff.
The Act does not specifically define the time when an alleged unlawful practice is deemed to have occurred. Under such circumstances, any ambiguity as to the date of that occurrence should be resolved in favor of the complainant. Moses v. Falstaff Brewing Corp., 525 F.2d 92 (8th Cir. 1975). For purposes of the 300-day notice requirement, the alleged unlawful practice would be said to have occurred on the date plaintiff received notice of, or could reasonably have been expected to have known of, the alleged unlawful rejection of his employment application. There is substantial question in this case as to the date on which the rejection occurred. It is American's position that it Never "rejected" plaintiff, because it never "rejects" any applicant. Certainly, American never notified plaintiff of his "rejection". The Court views this contention as frivolous and merely a futile semantic exercise on American's part. Further, the Court finds American in the anomalous position of denying that a rejection ever occurred while asserting that a rejection did occur and plaintiff was adequately informed of it, but did not file timely notice.
In order for plaintiff's April 25, 1977 filing with the Department of Labor to be considered untimely, plaintiff must have been rejected, and have notice of the rejection, prior to June 25, 1976. However, evidence has been presented which clearly establishes that plaintiff's application was updated and forwarded with other Pending applications to American's Dallas-Fort Worth office in November, 1976. Certainly, plaintiff was not rejected prior to this date. Thus, the applicable notice requirement of the Act, 29 U.S.C. § 626(d) (2), is not a bar to the Court's jurisdiction over this action.
In its second "jurisdictional prerequisite" challenge, American maintains that plaintiff's failure to file a formal complaint with the California FEPC until February 15, 1978, nearly one year after the initiation of federal administrative action, constitutes a failure to comply with § 14(b) of the Act, 29 U.S.C. § 633(b).
Therefore, American argues, this Court lacks subject matter jurisdiction over this suit. Again, the Court disagrees.
Plaintiff filed an informal complaint with the Secretary of Labor on February 1, 1977. He then filed a formal "Notice of Intent to Sue" with the Secretary on April 25, 1977. At some time prior to May 26, 1977, a parallel complaint was filed with the California FEPC.
This state administrative complaint was formalized on February 15, 1978. Finally, plaintiff filed this suit in United States District Court on June 30, 1978. It is the delay of nearly ten months between the formal filings with the federal and state agencies which American maintains renders this Court's jurisdiction defective. Apparently, American also contends that the Act requires plaintiff to first resort to the state agency before pursuing federal administrative action.
The recent Supreme Court decision in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979), is dispositive of American's challenge in regard to plaintiff's state administrative action. Oscar Mayer makes it clear that the filing of state administrative proceedings is, as American maintains, a jurisdictional prerequisite to federal relief under the Act. However, under the Act, "grievants may file with state and federal agencies simultaneously." 99 S. Ct. at 2072. Thus, the Act permits concurrent rather than sequential state and federal administrative jurisdiction in order to expedite the processing of age discrimination claims. Furthermore, ADEA grievants may file with the state before Or after they file with the Secretary of Labor. 99 S. Ct. at 2072, n. 4. Thus, plaintiff's federal remedy is not jeopardized simply because he filed his complaint with the appropriate federal agency before filing a complaint with the authorized state agency. Nor is American's objection to the delay between the federal and state filings fatal to the Court's jurisdiction over this action. Clearly, plaintiff's informal complaint to the state agency prior to May 26, 1977, only one month after the formal federal filing, met the statutory purpose of § 14(b) of the Act, 29 U.S.C. § 633(b). As articulated in Oscar Mayer, this purpose is to permit the state agency an opportunity to attempt informal conciliation. See 99 S. Ct. at 2072. In addition, plaintiff's formal filing with the California FEPC on February 15, 1978, occurred more than sixty days prior to the bringing of this action on June 30, 1978. Thus, the sixty-day period for the pendency of state administrative proceedings had elapsed, as required by § 14(b) of the Act, 29 U.S.C. § 633(b). Therefore, the Court concludes that plaintiff is in full compliance with the jurisdictional prerequisites of § 14(b) of the Act, 29 U.S.C. § 633(b).
This action was filed in the District Court on June 30, 1978. The case would be barred only if plaintiff was rejected prior to June 30, 1976, and the defendant's action was not willful. The Court has already found that the plaintiff was not rejected before November, 1976. Therefore, the Court finds that plaintiff timely filed this suit and American's statute of limitations challenge is patently without merit.
A. The Existence of the "Age 30 Guideline", Without an Admission That It Was Applied to the Plaintiff, Does Not Constitute a Per Se Violation of the Act Under Houghton v. McDonnell-Douglas.
Plaintiff asks this Court to find that the defendant's conduct in relation to his application constitutes a Per se Violation of the Act, as occurred in Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir. 1977), Cert. denied, 434 U.S. 966, 98 S. Ct. 506, 54 L. Ed. 2d 451 (1977). In Houghton, the employer admitted that it had transferred the plaintiff from flight status as a test pilot solely on the proposition that age fell within the Act's exception for bona fide occupational qualifications (BFOQ), 29 U.S.C. § 623(f)(1). When the court found that age of less than fifty was not a BFOQ for an experienced test pilot, it was clear that the admitted application of such a standard to the plaintiff constituted a violation of the Act. Questions regarding plaintiff's Prima facie case and the defendant's alleged non-discriminatory reasons for the rejection simply did not arise due to this admission.
This case is not one of Per se age discrimination, as was found in Houghton. American does not deny that it has an unwritten guideline of age thirty for pilot hiring (the "age 30 guideline" is discussed in part D Infra). However, it contends that the guideline was not applied to plaintiff. Here, unlike the defendant in Houghton, American does not admit that age was a criteria, much less the sole criteria, used in considering plaintiff's application. Under these circumstances, the plaintiff must carry his initial burden of proof of a ...