_____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ No. 08-10624 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. EXXON MOBIL CORPORATION, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Texas _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4731 paula.bruner@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT The EEOC requests oral argument in this case. The district court's determination that, as a matter of law, Exxon's BFOQ defense justified the age- based termination of its company pilots under the ADEA raises several complex factual and legal issues. Oral argument would help to address any questions the Court may have about the legal and factual errors in the district court's ruling. TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Preliminary Injunction Proceeding. . . . . . . . . . . . . . . . . . 4 2. Summary Judgment Proceeding. . . . . . . . . . . . . . . . . . . . 11 C. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . . .12 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 I. SUMMARY JUDGMENT WAS INAPPROPRIATE BECAUSE THE DISTRICT COURT MISAPPLIED THE GOVERNING LEGAL STANDARD IN EVALUATING EXXON'S BFOQ DEFENSE. . . . . . . . . . . . . . . . . . 16 A. The Proper BFOQ Defense -- the Tamiami-Criswell Standard. . . . . . 18 B. The Improper Exxon BFOQ Standard. . . . . . . . . . . . . . . . . . 20 II. THE FAA'S REGULATIONS AND SAFETY OBJECTIVES DO NOT SUPPORT THE DISTRICT COURT'S FINDING THAT EXXON'S AGE 60 RULE IS JUSTIFIED BY THE ADEA'S BFOQ EXCEPTION. . . . . . . . . . . . . . . . . 25 A. The FAA's Explicit Exemption of Company Pilots from the Age 60 Rule Precludes the Finding that Exxon's Policy is a BFOQ. . . . . . . . . . . . 26 B. The FAA's and Exxon's Safety Concerns Are Different. . . . . . . . . . . . 29 C. The FAA's Age 60 Rule is Not Dispositive of Exxon's BFOQ Defense Because There Are Triable Issues of Fact Regarding Congruence. . . . . . . . . 40 1. There is Credible Evidence that Exxon's Operations Differ from Commercial Airlines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 2. There are Material Dissimilarities in the Duties of Exxon Pilots and Commercial Pilots. . . . . . . . . . . . . . . . . . . . . . . . . . . 44 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Arismendez vs. Nightingale Home, 493 F.3d 602 (5th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . 14 Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473 (5th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 14 Broadnax v. City of New Haven, 415 F.3d 265 (2d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 13 Coupe v. Federal Express Corp., 121 F.3d 1022 (6th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . 31 Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950 (1971). . . . . . . . . 31 EEOC v. Boeing Co., 843 F.3d 1213 (9th Cir.), cert. denied, 488 U.S. 899 (1988) . . 17, 21, 22 passim EEOC v. El Paso Nat. Gas Co., 626 F. Supp. 182 (W.D. Tex. 1985). . . . . . . . . . . . . . . 9, 17, 21, 26, 27 FAA v. Landy, 705 F.2d 624 (2d Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . 27 Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . 25 In re Japanese Electronics Prods. Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . 23 Johnson v. Mayor & City Council of Baltimore, 472 U.S. 353 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Minter v. Great Am. Ins. Co., 423 F.3d 460 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . .13, 14 Monroe v. United Air Lines, Inc., 736 F.2d 394 (7th Cir. 1984), cert. denied, 470 U.S. 1004 (1985). . . . . . . .24 Murnane v. American Airlines, Inc., 667 F.2d 98 (D.C. Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . 31 National Union Fire Ins. Co. v. Puget Plastics Corp., 532 F.3d 398 (5th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . 13, 29 Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Thibodeaux v. Executive Jet Intern., Inc., 328 F.3d 742 (5th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . 3 TWA v. Thurston, 469 U.S. 111 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Usery v. Tamiami Trail Tours, Inc., 532 F.2d 224 (5th Cir. 1976). . . . . . . . . . . . . . . . . . . . . 18, 19, 39 West Houston Air Committee v. FAA, 784 F.2d 702 (5th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . 25, 28 Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985). . . . . . . . . . . . . . . . . . . . . 13, 18, 19 passim Yetman v. Garvey, 261 F.3d 664 (7th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 24, 28, 47 STATUTES 28 U.S.C. § 1291. . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . 1 Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.. . . . . . . . 1 29 U.S.C. § 626(b). . . . . . . . . . . 1 Fair Treatment for Experienced Pilots Act (FTEPA), 49 U.S.C. § 44729. . . . . . . . . . . .3 Federal Aviation Act of 1958, 49 U.S.C. 1421(a)(6). . . . . . . . . 25 REGULATIONS 14 C.F.R. § 91.501(b)(5). . . . . . . . 3 14 C.F.R. § 121.1(a)(5). . . . . . . . 27 14 C.F.R. § 121.383(c). . . . . . 3 14 C.F.R. § 135.243. . . . . . . . . 22 29 C.F.R. § 1625.6(b). . . . . . . 19, 27 49 Fed. Reg. Part 40 (Dec. 5, 1959) . .26 49 Fed. Reg. 14692 (Apr. 12, 1984). . .26 68 Fed. Reg. 54529 (Sep. 17, 2003). . .36 OTHER AUTHORITY Chapman, PJC, The Consequences of In-flight Incapacitation in Civil Aviation, 55 Aviation Space Environmental Medicine (1984). . . . . . 6 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). The district court granted summary judgment in favor of Exxon Mobile Corporation on April 28, 2008. RE-T.4 (ROA 784).<1> Final judgment was entered on May 2, 2008. RE-T.5 (ROA 797). The EEOC filed a timely notice of appeal on June 27, 2008. RE-T.2 (ROA 798). This Court has jurisdiction under 28 U.S.C. § 1291. ISSUES PRESENTED FOR REVIEW 1. Whether the district court applied the correct legal standard in evaluating Exxon's bona fide occupational qualification (BFOQ) defense under the ADEA. 2. 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 is justified by the BFOQ exception to the ADEA. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court dismissing this ADEA lawsuit. The EEOC filed suit in September 2006, alleging that Exxon violated the ADEA when it terminated a class of corporate jet pilots who had turned age 60 because these pilots were not subject to the mandatory retirement age required by the Federal Aviation Administration (FAA). R.1, Complaint at 1 (ROA 11). EEOC petitioned for a preliminary injunction to prevent the forced retirement of age-60 pilots but the district court denied the petition. R.2, EEOC Application for Temporary Restraining Order and Preliminary Injunction (PI) (ROA17); R.26, PI Op. (ROA 474). Exxon filed a motion for summary judgment and the EEOC opposed it. R.31 (ROA 525); R.36 (ROA 733). On April 28, 2008, the district court issued an opinion granting Exxon's motion for summary judgment. RE-T.4 (ROA 784-96). Final judgment was entered on May 2, 2008. RE-T.5 (ROA 797). The EEOC filed a notice of appeal on June 27, 2008. RE-T.2 (ROA 798). 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. 14 C.F.R. § 121.383(c). The FAA never applied the Age 60 Rule to company or corporate pilots. RE-T.4 at 2 (ROA 12). 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. Exxon owns an aviation department with a fleet of nine jets. RE-T.4 at 1 (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 2 (ROA 785). Exxon has operated under general aviation rules set forth in Part 91of the FAA's regulations, R.38, EEOC Opp. at 3 (ROA 742), which apply to "private or non-commercial" carriers and to use by a company of its own airplane. 14 C.F.R. §91.501(b)(5); Thibodeaux v. Executive Jet Intern., Inc., 328 F.3d 742, 745 (5th 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). Exxon has rationalized that its rule was necessary because of the congruence of duties between its company pilots and those commercial pilots covered by the FAA. R.32, Exxon Br. in Support of Summary Judgment (SJ Br.) at 1 (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.4 at 2 (ROA 785). In 2006, several Exxon pilots filed charges with the EEOC alleging that their forced retirements at age 60 violated the ADEA. RE-T.4 at 2 (ROA 785). The Commission filed suit on their behalf and sought a preliminary injunction prohibiting Exxon from retiring pilot Michael Moreschauser and other age 60 pilots while the lawsuit was pending. Id. at 3 (ROA 786); see also R.2, EEOC Application for Temporary Restraining Order and Preliminary Injunction (ROA 17-25). 1. Preliminary Injunction Proceeding During the preliminary injunction proceeding, the EEOC proffered evidence to establish that an age restriction was not necessary to insure flight safety by company pilots who were age 60. To begin with, the EEOC informed the court that Mr. Moreschauser 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. R.3, EEOC PI Mem. at 3-4 (ROA 49-50). This evidence was offered to rebut any contention that there is a factual basis to believe that Exxon's age 60 pilots are unsafe. Next, EEOC proffered evidence of the lack of congruity between the occupations at issue. R.3, EEOC PI Mem. at 11-12 (ROA 57-58); see also R.24, EEOC Supp. PI Br. at 12-14 (ROA 359-61). The EEOC argued that there were disputed issues of fact concerning the congruence between Exxon and commercial pilots because "airline pilots fly at least twice as many hours, flight legs and days per month, fly significantly more in poor weather conditions and are away from home far more often than corporate pilots." Id. at 11 (ROA 57). Further, EEOC argued that Exxon could not establish that age 60 is a necessary proxy to fly safely on the basis that it would be impossible or impractical to conduct individualized testing. EEOC argued that Exxon only employs 25-30 pilots and according to its pilot employees, each one received extensive medical examinations each year. R.3, EEOC PI Mem. at 12 (ROA 58). EEOC noted that medical groups such as the Institute of Medicine of the National Academy of Sciences, have stated that "with regard to pilots, age 60 does not mark the beginning of a special risk or special increase in risk for significant cardiovascular events and stroke." Id. EEOC also introduced evidence of testimony by Dr. Stanley Mohler, an aviation medical examiner, that research has shown that regardless of age, professional pilots are the healthiest group of individuals in the world. R.24, EEOC Supp. PI Br. at 6-7 (ROA 353-54). His testimony also revealed that their average risk for future heart problems is significantly less than the general population's and that their average lifespan is longer. Id. at 7 (ROA 354) (citing Mohler Aff. at 1045 (ROA 185)). The Commission presented simulator studies estimating that the risk of cardiac incapacitation for a pilot of any age occurring at a critical point in flight is less than one event in more than 20 million flight hours, with a calculated probability of an accident occurring as a result of pilot incapacitation of less than one accident every 400 years. Id. (citing Chapman, PJC, The Consequences of In-flight Incapacitation in Civil Aviation, 55 Aviation Space Environmental Medicine 497-500 (1984)). It proffered expert testimony by Dr. Jefferson Koonce, a professor of psychology with 31 years of pilot experience, that the accident data rate such as found in the FAA's Hilton Study shows that pilots age 60-64 had the lowest accident rate of any age group studied. R.15, EEOC Mot. to File Additional Affidavits and Exhibits in Support of Prelim. Injun. (EEOC Add. Mot) at 8-9 (ROA 129-30); R.24, EEOC Supp. PI Br. at 7 (ROA 354) (citing Koonce Decl. at 13 (ROA 273)). Finally, the Commission provided testimony by Dr. Asenath LaRue, a neuropsychologist, professor, and veteran researcher on issues relating to aging, indicating that "neurophysical testing measures can identify individuals with clinically significant cognitive impairments with a high degree of accuracy." R.15, EEOC Add. Mot at 8 (ROA 129) (citing LaRue Aff. at 311 (ROA 203)). In supplemental briefing, the EEOC proffered additional evidence refuting the necessity of Exxon's age 60 rule. Specifically, EEOC noted that on January 30, 2007, FAA Administrator Marion Blakely announced the agency was abandoning its Age 60 Rule and increasing the retirement age for commercial pilots to 65. R.24, EEOC Supp. PI Br. at 2-3 (ROA 349-50); RE-T.8 at 3-7 (ROA 372-76). The Commission highlighted the FAA Administrator's observation that a large number of senior business aviation pilots over the age of 60 were currently flying aircraft and that the data derived from the agency's reviews "is very positive from the standpoint of the competency of people who are over 60." Id. at 3 (ROA 350) (quoting RE-T.8 at 9 (ROA 378)). Furthermore, the Commission argued that the Administrator's speech, in which she said, "I think we all agree that medical science is at a place where we're all living longer and healthier, and that includes the cockpit," made clear that the FAA was putting to rest any arguments that medical science still endorsed the Age 60 Rule as a necessary restriction. Id. at 6 (ROA 353) (quoting RE-T.8 at 4 (ROA 373)). Along with the Administrator's statements, the EEOC referenced a February 2005 report by the International Civil Aviation Organization (ICAO), whose policy change permitting pilots to fly until 65 served as the impetus to FTEPA. In that report, there were key findings and data refuting the viability of the Age 60 Rule. For example, survey results from 116 states and international organizations indicated that the majority believed age 65 was the most appropriate age limit for pilots. R.24 EEOC Supp. PI Br. at 8-9 (ROA 355-56); R.24-2 at 18 (ROA 387) (ICAO graph). The report agreed with the Aerospace Medical Association that "there is insufficient medical evidence to support restriction of pilot certification based upon age alone." Id. at 8 (ROA 355). It found that "[t]here are no studies that indicate a significant increase in risk to flight safety posed by older airline pilots; [o]n the contrary, both the [1995] and the present ICAO survey indicate that older pilots do not present any particular risk to flight safety." Id. at 9 (ROA 356). The EEOC noted that the FAA took these findings into consideration and abandoned its Age 60 Rule. Given this extensive evidence, EEOC advanced that Exxon could not satisfy its BFOQ burden since the FAA now supports the EEOC's long-held position rejecting age as a proxy for a pilot's health or safety and thus a BFOQ for non-commercial pilots. Id. at 11 (ROA 358). Moreover, the Commission argued that even if there were congruity between Exxon's pilots and commercial pilots, its significance is mooted by the FAA's statements about the availability of accurate individualized testing and the abandonment of its Rule. Id. at 6-7, 19-20 (ROA 353-54, 366-67). In the Commission's view, "the defense and rationale of safety raised by [Exxon] in support of its position in favor of an arbitrary age 60 cut-off for pilots has evaporated" and increased the likelihood of EEOC's success on the merits. Id. at 4 (ROA 351). Despite this wealth of evidence, the district court denied the Commission's request for a preliminary injunction. R.26, PI Op. (ROA 474). Taking into consideration Exxon's contention that its age 60 rule is identical to the current FAA Policy for airline pilots and thus qualifies as a BFOQ under the ADEA, the court opined that "[u]nder the congruence standard, Exxon is entitled to rely upon the expertise of the FAA and apply the Age 60 Rule to its own pilots as a BFOQ." Id. at 11 (ROA 484) (citing EEOC v. El Paso Nat. Gas Co., 626 F. Supp. 182, 186 (W.D. Tex. 1985)). It determined that the work performed by Exxon pilots is substantially similar to the work performed by commercial and commuter and regional airline pilots. Id. It also found that Exxon pilots transported "significant numbers of passengers, including executives and employees, over long distances in various kinds of sophisticated jet aircrafts." Id. at 12 (ROA 485). Finally, it decided there was no substantial difference between commercial and Exxon pilots' qualifications because Exxon pilots had to hold Airline Transport Pilot licenses and have broad international experience since they fly all over the world in the same airspace and air traffic control sectors, under the same weather conditions, and using the same landing strips as the commercial airlines. Id. Accordingly, the court concluded that Exxon properly relied on the FAA's expertise and Rule in implementing its own policy. Id. Recognizing that congruency did not end the inquiry, the court entertained evidence regarding individualized testing. It noted the FAA's recent determination that "it remains impossible to predict, with reliable accuracy, the presence or onset of various medical problems in an aging pilot or detect and measure adequately declining physical and mental functions," and stated that Exxon had perhaps a greater justification for its age-based policy because its pilots have more pre-flight responsibilities than even commercial airline pilots since they perform their own route planning, weather checking, and fuel computations. R.26, PI Op. at 14 (ROA 487). It rejected the EEOC's argument that individualized testing could be conducted since Exxon only had fewer than 30 pilots because the FAA had rejected proposed alternatives to the Age 60 Rule such as periodic medical examinations and performance checks. Id. at 15 (ROA 488). In short, the court believed that "no medical testing methods can predict with necessary accuracy, whether and when an individual Exxon pilot may no longer be able to fly safely" and concluded that testing was impossible or highly impractical. Id. Finally, the district court rejected EEOC's contention that FAA Administrator Blakey's statements about the demise of the Age 60 Rule increased the likelihood of the Commission's success. The court stated that until the Rule was changed, Exxon as well as commercial airlines were entitled to rely on it. R.26, PI Op. at 18-19 (ROA 491-92). Moreover, it asserted that, even under FTEPA, no commercial aircraft could be operated solely by an age 60 pilot, as the new rule requires that at least one of the pilots in the cockpit be under 60. Id. at 7 (ROA 480). In conclusion, the court resolved that the EEOC did not meet its burden and demonstrate that its claimants would be irreparably harmed or that the Commission was likely to succeed on the merits. Id. at 19 (ROA 492). 2. Summary Judgment Proceedings Following a joint scheduling conference, EEOC requested comprehensive discovery. Specifically, to address the issue of congruency and individualized testing, EEOC wanted written testimony from Exxon pilots, national and regional commercial airline pilots, Exxon's flight operations personnel, FAA experts and policymakers, and scientific and medical experts as well as documentation concerning flight mileage and hours, job duties, passenger lists, training programs, and regulatory compliance. RE-T.5 at 3-8 (ROA 509-14); RE-T.6 at 2-5 (ROA 519-22) (discovery list). However, the district court issued a scheduling order limiting discovery and the summary judgment pleadings to the issue of congruence. RE.T.7 at 1 (ROA 523). The court stated that in the event the case was not disposed of on the issue of congruence as a matter of law, it would enter a new scheduling order to address the remaining disputed issues. Id. at 1-2 (ROA 523-24). On August 31, 2007, Exxon filed a motion for summary judgment with a supporting brief and an appendix addressing only the congruency issue. R.31 (ROA 525); R.32 (ROA 527); R.33 (ROA 538). The EEOC in turn filed a response in opposition, along with a brief and appendix to which Exxon replied. R.36 (ROA 733); R.38 (ROA 737); R.39 (ROA 775); R.40 (ROA 776). C. District Court's Decision Based on evidence similar to that submitted by Exxon in support of its opposition to the EEOC's request for preliminary injunctive relief, the court granted Exxon's motion for summary judgment. To start, the district court adopted Exxon's argument that its safety concerns regarding flight operations mirrored the FAA's when it imposed the age 60 rule on its company pilots. RE-T.4 at 3 (ROA 786). It then reasoned that Exxon's reliance on the FAA's Age 60 Rule is probative evidence of whether Exxon's mandatory retirement rule is a BFOQ because there is congruence between the duties of a commercial pilot and the duties of an Exxon pilot. RE-T.4 at 5 (ROA 788). Rejecting the EEOC's position that material differences in pilot duties and flight operations existed, the court concluded that there was no material difference between the planes used by Exxon and commercial airlines or the experience, qualifications, and job responsibilities of the Exxon and commercial pilots. Id. at 6-12 (ROA 789-95). Accordingly, the court concluded that Exxon demonstrated "that some pilots possess a disqualifying trait that cannot be ascertained except by reference to age" and hence, established its BFOQ defense as a matter of law. Id. at 12-13 (ROA 794-95). STANDARD OF REVIEW This Court reviews a district court's award of summary judgment de novo. Minter v. Great Am. Ins. Co., 423 F.3d 460, 464-65 (5th Cir. 2005). Exxon had the burden of proof on its BFOQ affirmative defense, Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414-15 (1985), and summary judgment is rarely granted to the party bearing the burden of proof. Broadnax v. City of New Haven, 415 F.3d 265, 270 (2d Cir. 2005) ("[j]udgment as a matter of law on an issue as to which the movant bears the burden of proof is 'rare'"). 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. Minter, 423 F.3d at 464. The moving party must demonstrate that there are no interpretations of the evidence that a jury could resolve in favor of the non-moving party, National Union Fire Ins. Co. v. Puget Plastics Corp., 532 F.3d 398, 401 (5th Cir. 2008), and in assessing a motion for summary judgment, this Court views the evidence, as well as all reasonable inferences therefrom, in the light most favorable to the non-moving party. Minter, 423 F.3d at 465; Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 477n.1 (5th Cir. 2008) ("we resolve disputed issues of fact in favor of the plaintiff . . . and present them in the light most favorable to her"). 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 (5th Cir. 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. SUMMARY OF ARGUMENT The district court erred in granting summary judgment to Exxon because it improperly restricted discovery and the summary judgment pleadings to the issue of congruence of operations rather than applying the correct legal standard to evaluate Exxon's BFOQ defense. Proof of a BFOQ under the ADEA requires the defendant to prove both that its asserted job qualification is reasonably necessary to the essence of its business and that it is compelled to rely on age as a proxy for that qualification (here safe operation of aircraft). Here, the district court erred when it treated the issue of congruency as dispositive and when it prohibited the EEOC from presenting material evidence that would refute Exxon's rationale for using age as a proxy. Further, the court improperly disregarded the FAA's regulations expressly excluding company pilots from an age-based mandatory retirement. The agency charged with regulating the safety of the air traffic industry has articulated comprehensive regulations for commercial pilots and a different set of regulations for corporate pilots such as those employed by Exxon. The court ignored the legal and factual significance of this different treatment by the regulatory agency as well as the fact that the FAA has never extended its Age-60 rule to corporate pilots despite other extensions of the rule, and despite its authority to do so. Finally, the court failed to apply properly summary judgment standards in assessing the congruency evidence when it resolved conflicting evidence on whether Exxon's reasons for adopting an age 60 mandatory retirement policy were the same as the FAA's reasons for adopting the Age 60 rule for commercial pilots and when it uncritically accepted an over-generalized assertion that Exxon shared the same safety concerns that motivated the FAA. The court also improperly resolved numerous factual disputes on the congruence issue, concluding in favor of Exxon that Exxon's pilots' duties and company operations were similar to those of commercial airlines. This Court therefore should reverse the district court's summary judgment ruling that Exxon's retirement policy is excused by the BFOQ affirmative defense. ARGUMENT I. SUMMARY JUDGMENT WAS INAPPROPRIATE BECAUSE THE DISTRICT COURT MISAPPLIED THE GOVERNING LEGAL STANDARD IN EVALUATING EXXON'S BFOQ DEFENSE. In this case, it is undisputed that Exxon removed age 60 pilots from flight duty solely because of their age. R.32, Exxon SJ Br. at 6 (ROA 533). As justification for this practice, Exxon claimed that age 60 remains the best determinant to assess when a pilot's performance may decline and jeopardize safety. Id. at 6-8 (ROA 533-35). However, Exxon did not offer any evidence of poor pilot performance or medical deficiencies of the terminated pilots to establish that there was a factual basis to believe its age 60 pilots were unsafe. More importantly, Exxon proffered no medical evidence beyond FAA studies of Part 121 commercial pilots to establish that it is impossible to evaluate age 60 company pilots individually to determine whether they are safety risks. See generally R.33, Exxon SJ Appendix (App.) (ROA 538). Instead, Exxon has asserted that its practice is lawful because the age limit is a BFOQ "because Exxon's flight operations are congruent with those of commercial airlines covered by the FAA's Age 60 Rule." R.32, Exxon SJ Br. at 1 (ROA 528). Relying entirely on the FAA's Age 60 Rule and the agency's rationale for retiring commercial pilots, Exxon argued, and the district court agreed, that given the safety objective of the FAA rule and the congruence of duties between the Exxon and commercial pilots, an age restriction for Exxon's pilots was appropriate. Id. at 6-7 (ROA 533-34); RE- T.4 at 9 (ROA 792). See also Johnson v. Mayor & City Council of Baltimore, 472 U.S. 353, 371 (1985) (in determining whether a federal mandatory retirement age is relevant to an employer's BFOQ defense, "[t]he extent to which these factors [the evidence considered and conclusions drawn therefrom] are probative would . . . vary depending on the congruity between the . . . occupations at issue"). The district court misunderstood the standards governing the BFOQ defense and the issue of congruence. The BFOQ defense requires a more searching inquiry than whether Exxon's pilot duties and flight operations are congruent with those of commercial airlines. 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, but contrary evidence on the possibility of individualized testing is also relevant and must be weighed by a jury in deciding whether Exxon has met its burden of proving a BFOQ. EEOC v. Boeing Co., 843 F.3d 1213, 1221 (9th Cir. 1988); also see EEOC v. El Paso Nat. Gas Co., 626 F. Supp. 182 (W.D. Tex. 1985) (finding after a bench trial that EPNG could rely on the FAA rule to support its BFOQ, but also that, on balance, EPNG's expert testimony on the possibility of individual testing was more persuasive than the expert evidence offered by the EEOC). A review of the district court's analysis reveals that it did not correctly apply the appropriate BFOQ standard. Therefore, the court erred in granting summary judgment for Exxon. A. The Proper BFOQ Defense-the Tamiami-Criswell Standard In 1985, the Supreme Court examined the legal standards for a BFOQ defense regarding the compulsory retirement of flight engineers at age 60, and embraced this Court's two-prong test set out in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976), a case challenging a bus company's age qualification for hiring drivers. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 409, 415-16 (1985). 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, in 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. While safety is often a crucial qualification in BFOQ cases, the ADEA also requires the employer to prove that being under a certain age is reasonably necessary to the essence of the employer's business. Criswell 472 U.S. at 414. Thus, 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. Reliance on age as a proxy is permissible only if the employer can demonstrate that "it had reasonable cause, that is, a factual basis, for believing that all or substantially all persons over 40 would be unable to perform safely and efficiently the duties of the job involved, or [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"). 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." Id. 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). B. The Improper Exxon BFOQ Standard In this case, the district court recited the appropriate legal standard for evaluating a BFOQ defense. RE-T.4 at 5 (ROA 788). However, the court departed from the proper standard when it opted to address only whether the FAA's Age 60 Rule was probative based on congruency and then summarily concluded that Exxon had met its BFOQ burden as a matter of law. Specifically, the district court observed that the propriety of Exxon's BFOQ defense depended on the "congruity between the occupations at issue and the weight of the evidence supporting the [FAA] Rule's rationale." Id. After deciding that the safety goals and concerns about skill deterioration associated with aging of pilots employed by Exxon and commercial airlines were the same, the court concluded that the work of the Exxon pilots was congruent with commercial pilots and therefore the FAA Rule was "highly probative of Exxon's BFOQ defense." Id. at 12 (ROA 795). Without more, the court then concluded that Exxon had demonstrated as a matter of law that its pilots possessed a disqualifying trait that could not be ascertained without reference to age "because it was highly impractical to deal with the employees on an individualized basis." Id. at 13 (ROA 796). Although there are triable issues on congruency, which will be discussed later, even if the district court correctly determined that the FAA's Age 60 Rule was probative of Exxon's BFOQ defense, that only answered part of the question and should not have been viewed as conclusive of whether Exxon's mandatory retirement policy was a BFOQ necessary for flight safety. Criswell, 472 U.S. at 418 ("the FAA's rule for pilots . . . is not to be accorded conclusive weight"). By according conclusive weight to the congruency issue, the court failed to consider whether there was (or could be) conflicting evidence on the second prong of the defense-whether there is a factual basis for believing that all or substantially all persons above the age limit would be unable to perform safely and effectively the duties of the job, or that it is impossible or highly impractical to determine job fitness on an individualized basis. Most courts which have addressed the individualized testing issue have considered conflicting, independent medical and expert evidence beyond that supporting the FAA's Age 60 Rule. In Criswell, the airline presented expert testimony that it was highly impractical to test individual flight engineers for safety risks, which the employee countered with industry practices rebutting that view. 472 U.S. at 422-23. In Boeing, the court stressed that the FAA's conclusions and record were evidence to be weighed by a jury along with conflicting expert evidence offered by the EEOC on the issue of the adequacy of modern testing techniques. 843 F.2d at 1216-1217. Even in El Paso, 626 F. Supp. at 186-87, which the Exxon court cited for the governing standard, the district court entertained expert testimony from both parties as to whether medical or psychological appraisals existed that could single out those individual older pilots who might pose a safety hazard, and made a factual finding after trial, not a summary judgment ruling, that the company's experts were more persuasive. In this case, the court did include in its opinion excerpts from the FAA's congressional hearings addressing whether individualized testing could definitively ascertain decline in physical and mental functions of commercial pilots, but that evidence is insufficient to support the conclusion that Exxon's practice is a BFOQ. See RE-T.4 at 6-7 (ROA 789-90). While such information may support the FAA's rationale for subjecting commercial pilots to mandatory retirement at age 60, it has little bearing on whether individualized testing can be conducted of Exxon's company pilots with sufficient reliability. Boeing, 843 F.2d at 1221 ("level of safety required in a particular job category is also relevant to the degree of reliability required of testing procedures to detect individual deterioration due to aging"). Indeed, the FAA not only expressly excluded company pilots from its Rule's coverage, 14 C.F.R. §135.243, but it has now recognized that older pilots are healthier in the cockpit and that individualized testing of commercial pilots is possible. R.24, EEOC Supp. PI at 2-3, 6 (ROA 349-50, 353) (citing Blakey's Statement- ROA 324). When the district court restricted the summary judgment evidence to congruency and denied the EEOC's request for comprehensive discovery on all issues relating to the BFOQ standard-discovery that was essential for the EEOC to provide adequate evidentiary support for its summary judgment opposition-the court applied an incorrect legal standard and short-circuited the EEOC's opportunity to present critical evidence on individualized testing. More importantly, the court's ruling created a deficient record that, under the correct legal standard, would not compel a jury to find that Exxon met its burden of proving that its age-based retirement policy is a BFOQ. See RE-T.5 at 6 (ROA 512); RE-T.6 at 1-4 (ROA 519-22) (seeking allowance to conduct discovery on Exxon pilots' and complainants' fitness, medical studies challenging Age 60 Rule, expert testimony on aging and test regimens that would identify incapacitation); RE-T.7 at 1 (ROA 523) (restricting discovery and filings to congruence). Also see In re Japanese Electronics Prods. Antitrust Litigation, 723 F.2d 238, 270 (3d Cir. 1983) (court may not by premature resort to summary judgment order deprive party resisting it of fair opportunity to present facts essential to justify its opposition). The court's error is particularly troubling because, contrary to the court's determination, there is evidence indicating that individualized testing to determine age-based deterioration of skills does exist and is reliable. The EEOC submitted such evidence during the preliminary injunctive proceeding. R.3, EEOC PI Mem. at 12 (ROA 58) (noting reports by medical groups that "age 60 does not mark the beginning of a special risk or special increase in risk for significant cardiovascular events and stroke"); R.24, EEOC Supp. PI Br. at 6-7 (ROA 353-54) (citing testimony of medical experts regarding existence of reliable tests that detect aging issues); id. at 7 (ROA 354) (presenting simulator studies estimating a calculated probability of an accident occurring as a result of pilot incapacitation of less than one accident every 400 years). Additionally, "[t]he Age Sixty Exemption Panel has determined that [certain] tests, performed competently, together with other and further testing which may be medically and psychologically indicated, are sufficient to evaluate the fitness of pilots over sixty." Yetman v. Garvey, 261 F.3d 664, 673 (7th Cir. 2001). To the extent that such evidence would have conflicted with Exxon's medical evidence had it been allowed, it would have created fact questions inappropriate for resolution at the summary judgment stage. Cf. Monroe v. United Air Lines, Inc., 736 F.2d 394, 405 (7th Cir. 1984), cert. denied, 470 U.S. 1004 (1985) ("a once-valid BFOQ may lose its justification with advances in medical science. That the age 60 rule may have been a BFOQ in 1978 does not place it beyond challenge [in 1983]"). As the Ninth Circuit explained in Boeing, "the court was required to deny the motion unless in view of the whole record-including FAA's Age-60 Rule, the evidence considered by FAA, and the expert opinions and other evidence offered by the Commission-no reasonable jury could have decided that it was practical to test pilots age 60 and over for disabling conditions." 843 F.2d at 1216. Therefore, the court's failure to consider or allow evidence about whether individualized testing of company pilots is impossible or whether there exist any less discriminatory alternatives to the age restriction policy bars its conclusion that Exxon met its BFOQ burden. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) ("if the movant bears the burden of proof on an issue, . . . because . . . as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the . . .defense to warrant judgment in his favor")(emphasis in original). II. THE FAA'S REGULATIONS AND SAFETY OBJECTIVES DO NOT SUPPORT THE DISTRICT COURT'S FINDING THAT EXXON'S AGE 60 RULE IS JUSTIFIED BY THE ADEA'S BFOQ EXCEPTION. 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 (5th Cir. 1986). Despite this standard, the district court in this case improperly failed to defer to the FAA's expertise and regulations in deciding whether its Age 60 Rule was relevant to Exxon's BFOQ defense. A. The FAA's Explicit Exemption of Company Pilots from the Age 60 Rule Precludes the Finding that Exxon's Policy is a BFOQ 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. R.32, Exxon SJ Br. at 8 (ROA 535) (citing El Paso, 626 F. Supp. at 184); RE-T.4 at 13 (ROA 796). However, in accepting this argument, the court completely ignored the fact that the FAA never intended to restrict the employment of non-commercial pilots based on age. RE- T.4 at 5 (ROA 788). In 1959, the agency enacted the Age 60 Rule to address primarily sudden pilot incapacitation following an airplane crash by a 59-year-old pilot and adverse psychological, emotional, and physical changes associated with aging. See 49 Fed. Reg. 14692 (Apr. 12, 1984) (ROA 592); 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." R.33-5, Exxon SJ App. at 37 (ROA 588) (quoting 49 Fed. Reg. Part 40 at 9767 (Dec. 5, 1959)). In 1981, the agency reaffirmed the rule, stating: The FAA is convinced 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. This is based on the findings made by the NIA study and by a number of comments. Those findings are that advanced age does indeed adversely affect the level of safety for Part 121 operations and that currently no medical or performance tests are available which afford a sufficiently reliable basis for predicting or precluding those adverse effects in any individual case. 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"). Since Exxon irrefutably 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, R.38, EEOC OSJ Br. at 6 17 (ROA 745); RE-T.9 at 16 (Andrews Dep. at 59), it is clear that Exxon cannot establish the BFOQ defense merely by relying on the FAA's Age 60 Rule. Indeed, to rest on the FAA's Rule, 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 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 on the 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 it should have deferred to the FAA's patent exclusion of corporate pilots such as Exxon's from the scope of the Age 60 Rule, which at least suggests that 60-year old non-commercial pilots are not considered unsafe. See RE-T.4 at 9-12 (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." Boeing, 843 F.2d at 1220 (citing 14 C.F.R. §135.243). This exemption provision 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 intended 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, 261 F.3d at 670 (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, even as recently as 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-121 part operations . . . ." R.33-7, Exxon SJ App. at 44 (testimony of Dr. Jon L. Jordan at 1) (ROA 597). Similarly, FAA Administrator Blakey noted that, even in 1995, when they extended the Age 60 Rule to small commuter operators, the FAA "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." RE.T.8 (ROA 374). Therefore, in light of the FAA's continued express exclusion of Exxon's pilots from its mandatory retirement rule and its knowledge and approval that pilots age 60 were operating 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.4 at 12-13 (ROA 795-96). B. The FAA's and Exxon's Safety Concerns Are Different As the movant, Exxon had the burden of proving that there are no interpretations of the evidence that a reasonable jury could resolve in favor of EEOC. National Union Fire Ins. Co., 532 F.3d at 401 ("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). Further, Exxon bore 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. 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, as the district court was required to do, there are genuine issues of material fact as to whether the FAA's and Exxon's safety concerns are the same and whether there is congruence between Exxon's pilots and commercial pilots precluding summary judgment. In evaluating Exxon's BFOQ defense, the district court focused on the congruity between the occupations at issue and the weight of the evidence supporting the rule's rationale. RE-T.4 at 5 (ROA 788). The court also observed that the FAA's "age-related rule for commercial pilots is based on safety." Id. at 6 (ROA 789). Weighing these matters in the balance, the court concluded that the safety goals of the Exxon and the FAA are the same. Id. at 12 (ROA 795). The district court's determination is unfounded 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. Indisputably, safety is the essence of the aviation business. Murnane v. American Airlines, Inc., 667 F.2d 98, 101 (D.C. Cir. 1981). Because the primary function of an airline is to transport passengers safely from one point to another, Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 388 (5th Cir. 1971), safety "goes to the core of an aircraft pilot's performance," Coupe v. Federal Express Corp., 121 F.3d 1022, 1025 (6th Cir. 1997). However, in Criswell, the Court stated that 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. This precedent requires that a court consider the evidence of the agency's rationale for adopting its rule rather than uncritically concluding, as the district court here did, 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. Although Exxon contends "[t]he nature-and the risks-of the Exxon and airline flight operations are substantially congruent," R.32, Exxon SJ Br. at 6 (ROA 533), and that all Exxon pilots are required to have an FAA First Class Medical Certificate, R.33-2 at 7 (Andrews Aff. at 6) (ROA 547), not all of the Exxon pilots are required to maintain a First Class Medical Certificate to fly an aircraft. R.38, EEOC OSJ Br. at 6 (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. RE-T.12 at 279 (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 operators of commercial airlines. Hence, a jury could believe that if Exxon does not require its pilots to adhere to stringent certification requirements to effectuate the goal of flight safety, its 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, R.32, SJ Br. at 6 (ROA 533), Exxon notably has never obtained a Part 121 Operating Certificate, which imposes the most stringent safety standards, and does not voluntarily impose any other Part 121 standards on its pilots other than the Age 60 rule. ROA 775, EEOC OSJ App. at 8 (Andrews Dep. at 28). Instead, it follows Part 91, the basic aviation standards. RE-T.9 at 9 (Andrews Dep. at 32). For example, Exxon does not require its pilots to attend annual aircraft recurrent training or take annual evacuation ditching training. R.38, EEOC OSJ Br. at 8, 11 (ROA 747, 750); RE-T.15 at 300 (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. RE- T.15 at 299 (Passannante Aff. at 3). Likewise, while airline pilots receive regular proficiency check 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. RE-T.11 at 274 (G.Schaffer Aff. at 5); RE-T.13 at 288 (Burnett Aff. at 3). Moreover, Exxon pilots are not subjected to FAA inspections. Id. at 274 (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 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. Further, record 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." R.33-5, Exxon SJ App. at 37 (Fed. Reg. Part 40 at 9767 (Dec. 5, 1959)) (ROA 588). 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." R.32, Exxon SJ Br. at 5 (ROA 532); see also RE-T.4 at 1 (ROA 784). However, this data is irrelevant 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." RE-T.9 at 9 (Andrews Dep. at 30). Hence, a reasonable jury could have decided to disbelieve these numbers. 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. RE-T.9 at 16 (Andrews Dep. at 60); RE- T.10 at 60 (Johnson Dep. at 37-38). In fact, occasionally, they flew with no passengers at all. ROA 775, EEOC OSJ App. at 18 (Andrews Dep. at 67). In stark contrast, evidence revealed that commercial airlines usually carry at least 100-300 passengers on a regular basis. RE-T.11 at 273 (G.Schaffer Aff. at 4); RE-T.12 at 278 (M.Schaffer Aff. at 3; 90 passengers); RE-T.13 at 283 (Burnett Aff. at 3; 100- 300 people); ROA 775, EEOC OSJ App. at 315 (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." R.33-5, Exxon SJ App. at 37 (ROA 588) (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." RE-T.11 at 275 (G.Schaffer Aff. at 6). Given the reduced number of passengers flown by the Exxon pilots 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.4 at 11 (ROA 794). Hence, a jury should have been allowed to consider this conflicting evidence. Moreover, contrary to the court's view, RE-T.4 at 11 (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. R.38, EEOC OSJ Br. at 6, 13 (ROA 745, 752); RE-T.9 at 16 (Andrews Dep. at 59); RE- T.14 at 97 (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 (Sep. 17, 2003), quoted in R.38, EEOC OSJ Br. at 30 (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, EEOC OSJ App. at 194 (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. R.38, EEOC OSJ Br. at 15 (ROA 754); ROA 775, EEOC OSJ App. at 295 (Monahan Aff. at 4); 310 (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.4 at 9-10 (ROA 792-93). However, EEOC evidence in the record revealed that international destinations are not common. The most frequent, recurring destinations from the Dallas base are Houston, Texas, Dulles, Virginia, White Plains, New York, London, and Qatar, ROA 775, EEOC OSJ App. at 244 (Johnson Aff. at 30), while pilots assigned to the Houston and Dulles hangars never fly to Europe. Id. at 11 (Andrews Dep. at 40). 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. 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 counsel against a BFOQ exception to the ADEA. RE-T.4 at 9 (ROA 792). According to EEOC's evidence, none of the Exxon planes (e.g., Gulfstream, Global Express, or Challenger) is 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). 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." RE-T.16 at 268 (Skaggs Aff. at 5). Exxon did not dispute the EEOC's evidence, but simply argued these differences are "not material." RE-T.4 at 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 weigh the evidence influencing the FAA's retirement rule, and improperly focused solely on the generalities of the occupations at issue. Accordingly, 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.4 at 12 (ROA 795). C. The FAA's Age 60 Rule is Not Dispositive of Exxon's BFOQ Defense 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. Resolution of the congruence question totally impacts whether the FAA's Age 60 Rule is probative as well as whether the FAA's and Exxon's safety concerns are the same and whether Exxon met its burden of proving its BFOQ defense. Thus, 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."). 1. 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.4 at 10 (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.3d 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 without merit. See supra at 35. Similarly, Exxon's contention that its pilots use the "same air traffic controllers" is equally flawed. RE-T.4 at 10 (ROA 793). While Exxon pilots have talked to the same air traffic controllers as the airline carriers, ROA 775, EEOC OSJ App. at 269 (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. R.33-4, Exxon SJ App. at 29 (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. RE-T.14 at 103 (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, EEOC OSJ App. at 200 (Andrews Aff. at 8). Therefore, the district court erred in ruling that this evidence supported Exxon's BFOQ defense. See RE.T-4 at 11 (ROA 794). Second, contrary to Exxon's contention, Exxon pilots do not fly under the same weather conditions as commercial pilots. RE-T.4 at 10 (ROA 793). According to Exxon's Dallas Aviation Manager, Exxon's flight department is not qualified to land in Category 2 or 3 weather. RE-T.10 at 61 (Johnson Dep. at 43). Rather, they are certified to fly only in Category 1 weather, and if the weather is worse, they select another landing airport or do not fly. RE-T.11 at 274 (G.Schaffer Aff. at 5). Third, unlike commercial fleets, Exxon pilots do not operate on a fixed flight schedule. RE-T.14 at 97 (Killian Dep. at 74); ROA 775, EEOC OSJ App. at 196 (Andrews Aff. at 4). They fly when the passengers are boarded or when weather permits. RE-T.9 at 16 (Andrews Dep. at 59); ROA 775, EEOC OSJ App. at 257 (Morschauser Aff. at 4); RE-T.16 at 264 (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. RE-T.9 at 16 (Andrews Dep. at 57); RE-T.10 at 273 (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. RE-T.9 at 16 (Andrews Dep. at 57); RE-T.14 at 97 (Killian Dep. at 74); ROA 775, EEOC OSJ App. at 267 (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 the passenger's visit. RE-T.16 at 264 (Skaggs Aff. at 1); ROA 572 (Cone Aff. at 2). 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." RE-T.12 at 277 (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." Id. at 278-79 (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. R.38, EEOC OSJ Br. at 6, 8, 20 (ROA 745, 747, 759). If an Exxon pilot's duty day exceeds 16 hours, he is only permitted to fly if the crew has a rest opportunity of at least five hours during the trip stopover period. ROA 775, EEOC OSJ App. at 129 (ExxonMobil Aircraft Operations Man. at Exxon 10627), 264-65 (Skaggs Aff. at 1-2). In contrast, because of the "economic competitiveness of the airline industry, as a for-profit air transportation company," airlines require their pilots to fly the maximum flight hours with minimal rest periods. RE-T.12 at 277 (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. RE-T.11 at 271 (citing 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. RE-T.9 at 16 (Andrews Dep. at 59). Their passengers are generally a company executive, a spouse, or a guest and they do not have to pay for their flight. R.38, EEOC OSJ Br. at 6, 7, 12 (ROA 745-46, 751); RE-T.14 at 97 (Killian Dep. at 74-75); ROA 775, EEOC OSJ App. at 144-172 (Exxon flight logs). As paying passengers were the focus of the FAA's 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 a jury. Because congruence is unmistakably a question of fact, it should have been left for resolution by a jury. 2. There are Material Dissimilarities in the Duties of Exxon Pilots and Commercial Pilots With respect to whether there was congruency in duties, the record falls short of establishing that the tasks performed by the Exxon pilots 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. RE-T.12 at 277 (M.Schaffer Aff. at 2); see also ROA 775, EEOC OSJ App. at 266 (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, EEOC OSJ App. at 257 (Morschauser Aff. at 4-5). However, contrary to Exxon's position, these tasks are not "onerous" and do not present "great risks" to flight or public safety. R.32, Exxon SJ Br. at 6 (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." R.32, Exxon SJ Br. at 5 (ROA 532); RE-T.4 at 10 (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. RE-T.10 at 55 (Johnson Dep. at 18); RE-T.14 at 91 (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 in its 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. R.38, EEOC OSJ Br. at 58, 14 (ROA 744, 753); RE-T.16 at 268 (Skaggs Aff. at 5). They must update navigation publications, maintain the standardization and operations manuals, and advise schedulers on possible trip itineraries. ROA 775, EEOC OSJ App. at 12 (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 the pilots. RE-T.10 at 57 (Johnson Dep. at 27-28). Commercial pilots are never required to perform administrative or office tasks. R.38, EEOC OSJ Br. at 59, 14 (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. RE- T.16 at 268 (Skaggs Aff. at 5). Some pilots received this 24-hour assignment consecutively for several days. RE-T.11 at 271 (G.Schaffer Aff. at 2). However, one pilot testified that in seven years with Exxon, he was only activated while on- call duty 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 RE-T.10 at 58 (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 conclude 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 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," summary judgment for Exxon should be reversed. Boeing, 843 F.2d at 1216. CONCLUSION On this summary judgment record, 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 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 further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel ______________________________ PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4731 paula.bruner@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 11,894 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Paula R. Bruner Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4731 paula.bruner@eeoc.gov Dated: October 27, 2008 CERTIFICATE OF SERVICE I, Paula R. Bruner, hereby certify that I filed one original and six hard copies of the foregoing brief, plus one electronic copy in PDF format on a CD, with this Court this 27th day of October, 2008, by overnight delivery, postage pre-paid. I also certify that I served two hard copies of the foregoing brief, plus one electronic copy in PDF format on a CD, this 27th day of October, 2008, by overnight delivery, postage pre-paid, to the following counsel of record: Dan Hartsfield, Esq. Baker Botts-Dallas 2001 Ross Avenue Dallas, TX 75201-2980 Paula R. Bruner Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4731 paula.bruner@eeoc.gov *********************************************************************** <> <1> "RE-T.[#]" refers to tabbed material in the EEOC's Record Excerpts. "R.[#]" refers to the district court docket entry. "ROA-[#]" refers to the paginated, certified Record on Appeal. Additionally, the district court's decision can be found at 2008 WL 1958992. <2> 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 60th birthday." 14 C.F.R. § 121.383(c). <3> Actually, the district court later recognized that the only restriction in FTEPA is that age 60 pilots who fly internationally must have an under-60 pilot in the crew. RE-T.4 at 7 (ROA 709). <4> The contents of the EEOC's appendix in support of its summary judgment opposition (R.39- EEOC OSJ App.) were not electronically filed in the district court because they were double- sided and too voluminous. See ROA 735, Notice of Manual Filing. Consequently, the pages of the documents comprising the appendix were not electronically paginated even though they are part of the record on appeal. See ROA 775. Therefore, the pages of these documents will be cited according to their original appendix pagination, i.e. ROA 775, EEOC OSJ App. at _. If these documents are part of the record excerpts, they will be cited according to the tab number and original appendix pagination, i.e. RE-T.# at _. <5> 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). <6> The court noted that in the March 2006 hearing, the FAA admitted that "science does not absolutely dictate what age is most appropriate for retirement." RE-T.4 at 7 (ROA 790) (quoting ROA 604, FAA FY 2007 Budget Hearing). ii 23