_____________________________________________ 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 ____________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ RONALD S. COOPER EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E., Fifth Floor Acting Associate General Counsel Washington, DC 20507 (202) 663-4731 (w) PAULA R. BRUNER (202) 663-7090 (f) Attorney paula.bruner@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694 (5th Cir. 1999), cert. denied, 531 U.S. 917 (2000). . . . . . . . . 7 Aviation Specialities, Inc. v. United Tech. Corp., 568 F.2d 1186 (5th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . .8 EEOC v. Boeing Co., 843 F.2d 1213 (9th Cir.), cert. denied, 488 U.S. 899 (1988). .14, 17 18, 22, 24, 25 EEOC v. El Paso Nat. Gas Co., 626 F. Supp. 182 (W.D. Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . 23 Gathercole v. Global Assocs., 727 F.2d 1485 (9th Cir.), cert. denied, 469 U.S. 1087 (1984). . . . . . . . 17, 18 Hoefelman v. Conservation Comm'n of Mo., 541 F. Supp. 272 (W.D. Mo. 1982), aff'd, 718 F.2d 281 (8th Cir. 1983). . . . . . . . . . . . . . . . . 18, 19, 20 21 King v. Laborers Int'l Union, 443 F.2d 273 (6th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . 13 Marzano v. Computer Science Corp., 91 F.3d 497 (3d Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Rasberg v. Nationwide Life Ins. Co., 671 F. Supp. 494 (S.D. Ohio 1987). . . . . . . . . . . . . . . . . . . . . 18, 19 Russell v. Plano Bank & Trust, 130 F.3d 715 (5th Cir. 1997), cert. denied, 523 U.S. 1120 (1998). . . . . . . . . 8 Steering Committee v. Exxon Mobile Corp., 461 F.3d 598 (5th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 13 Texas v. United States, 730 F.2d 339 (5th Cir.), cert. denied, 469 U.S. 892 (1984). . . . . . . . . . . . 8 United States v. Atkinson, 297 U.S. 157 (1936). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . 16, 25 Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985). . . . . . . . . . . . . . . . . . . . . . . 10, 11, 16, 23, 24 Williams v. Hughes Helicopters, Inc., 806 F.2d 1387 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . 17 REGULATIONS AND RULES 60 Fed. Reg. 65977-01. . . . . . . . . . 14 Fed. R. Civ. P. 16(b)(3)(B)(ii). . . . . . 8 Fed. R. Civ. P. 16 (c)(2)(A). . . . . . 8 Fed. R. Civ. P. 16 (c)(2) (L). . . . . . 8 Fed. R. Civ. P. 16 (c)(2) (P). . . . . . 8 ARGUMENT In its opening brief, the EEOC contended that the district court erred in granting summary judgment for Exxon in this ADEA action because neither governing law, the FAA's Age 60 Rule, the FAA's regulations, or the facts addressing congruency compel a finding that the application of an age 60 mandatory retirement rule to its company pilots is necessary to ensure the safe operations of Exxon's aviation department. Therefore, Exxon did not meet its burden of proving as a matter of law that its discriminatory policy is justified by the ADEA's BFOQ exception. Specifically, the Commission argued that summary judgment was not warranted because the district court failed to apply the correct legal standard to evaluate Exxon's BFOQ defense. Based on this legal error, the court improperly restricted discovery and the summary judgment pleadings to the issue of congruence, in the mistaken belief that congruence was dispositive. EEOC Br. at 16-25. In the Commission's view, even if congruence existed - a factual finding that we maintain is disputed and should be resolved by a jury, not by summary judgment - the court failed to require Exxon to demonstrate that individualized testing of its pilots for physical, psychological, or performance deficiencies was impossible or impractical. Instead, the court ignored this critical element of the two-pronged test and summarily granted judgment for Exxon. Further, the Commission argued that the district court, in assessing Exxon's rationale for imposing a mandatory retirement policy on its pilots, improperly disregarded the FAA's express exclusion of company pilots from its Age 60 Rule, and thus failed to accord the regulations the substantial deference they were due. Id. at 25-29. Finally, the Commission asserted that this case should be reversed and remanded for trial because the district court did not comply with summary judgment standards. In evaluating the congruency evidence, the district court uncritically adopted, as if undisputed, Exxon's over-generalized assertions and concluded that the company's safety concerns mirrored those of the FAA. Additionally, the court improperly resolved in Exxon's favor, conflicting evidence and numerous factual disputes regarding the pilots' duties and company operations. Id. at 29-48. In response, Exxon asserts that the district court properly granted summary judgment because EEOC waived any argument challenging the court's restriction of discovery and the summary judgment proceedings to the issue of congruence. Exxon Br. at 15-17. In Exxon's view, since the EEOC did not file a Rule 56(f) motion conveying a need for additional discovery, the Commission is foreclosed from raising any objections on appeal, even though the Commission "did argue for extensive discovery beyond congruence" in the district court. Id. at 16. Alternatively, Exxon asserts that the EEOC approved the court's treatment of the issue of congruence as "outcome determinative to the BFOQ analysis" because it never told the district court that congruence alone would not justify Exxon's age 60 retirement rule. Id. at 29-30. Consequently, Exxon asserts that the Commission has waived the opportunity to raise its "congruence-plus" argument and require Exxon to prove that individualized testing is not feasible. Id. at 32-33. Exxon also argues that the district court did apply the correct legal standard in evaluating Exxon's BFOQ defense because "[o]ne way to satisfy both prongs of the BFOQ test is to prove congruence with pilots covered by the FAA's Age 60 Rule." Id. at 18, 29-32. According to Exxon, the FAA's "Age 60 Rule has been long recognized as a BFOQ for Part 121 operations," id. at 19, and in promulgating and reaffirming the Rule, the FAA determined that individualized testing and medical certification of commercial pilots was inadequate, impossible, and impractical. Id. at 20. Hence, Exxon asserts that as long as it establishes that its pilots are congruent with commercial pilots, it can rely on the FAA's Age 60 Rule and satisfy its burden of proving that its retirement rule is a BFOQ. Id. at 13, 19-22. Lastly, Exxon contends that summary judgment was warranted because it presented evidence that its safety concerns "are identical" to the safety rationale undergirding the FAA's Age 60 Rule, and because "the actual tasks of the occupations at issue are congruent." Id. at 24; see also id. at 25-29. Notably, Exxon fails to respond to the Commission's argument that the FAA's exclusion of corporate pilots from the reach of its age 60 rule undercuts reliance on that rule to defend the company's discriminatory policy. Its silence constitutes a concession that proper deference to the expertise of the FAA compels rejection of Exxon's defense in this case. For the reasons discussed below (and in its main brief), the Commission urges this Court to reverse the district court's summary judgment decision and remand the case for reconsideration under the appropriate legal standards or for trial. 1. The District Court is Required to Evaluate Exxon's BFOQ Defense under the Proper Legal Standards As the EEOC stated in its opening brief, this Court should reverse summary judgment because in making the determination that Exxon's age-based retirement policy is a BFOQ, the district court failed to consider whether individualized testing of Exxon's pilots is possible or practical. EEOC Br. at 16-25. In the Commission's view, this error was compounded by the district court's restriction of discovery and the summary judgment pleadings to the issue of congruence as if congruence alone were a dispositive basis for approving Exxon's BFOQ defense. Id. at 23-25. Exxon asserts that the EEOC's request that its BFOQ defense be evaluated under prevailing legal standards, which it calls the "congruence-plus" BFOQ standard, has never before been raised by the EEOC or applied by any court. Exxon Br. at 13. Thus, it contends that EEOC's "novel" argument for the two-part standard and its observation that discovery and the summary judgment pleadings were improperly restricted have been waived. Id. Exxon's argument is without merit. First, there is nothing new or novel about the BFOQ standard pressed by the Commission. Throughout this litigation, Exxon and the district court have acknowledged that the Supreme Court's two-part test for assessing a BFOQ defense controls, and that the second part of this test required proof that it is impossible or highly impractical to determine on an individual basis whether a particular pilot's age renders him unable to perform safely and efficiently before a BFOQ defense could be sustained. R.26, PI Op. at 12-13 (ROA 485-86) ("[a]s both Parties agree, the Supreme Court adopted a two-part to determine whether a BFOQ has been established"); RE-T.4 at 5 (ROA 788). Where EEOC differs from Exxon and the district court is in their erroneous belief that Exxon may rely on the rationale for the FAA's Age 60 Rule alone to satisfy its burden of proving that individualized testing is impossible or impractical for Exxon's pilots. Indeed, during the preliminary injunction proceedings - the only opportunity EEOC had to discuss testing - the Commission argued that, unlike the thousands of commercial pilots governed by the FAA's Age 60 Rule, Exxon only had 25-30 pilots and therefore could adequately test its pilots to determine when they were medically disqualified from flying. See R.24, EEOC Supp. P.I. Br. at 6-7, 19-20 (ROA 353-54, 366-67); R.26, PI Op. at 14 (ROA 487). As Exxon noted, while the FAA requires its Part 121 pilots to undergo a physical examination every six months, Exxon "requires each of its pilots to undergo . . .in some instances, three physicals per year," confirming the plausibility of EEOC's view that Exxon could adequately test its pilot pool for deficiencies. Exxon Br. at 29 n.15. Moreover, the Commission noted that in deciding to abandon its Age 60 Rule, the FAA itself recognized the availability of accurate individualized testing of older pilots, further undermining Exxon's reliance on the federal rule to justify its own age-based policy EEOC Br. at 7. Finally, the fact that the district court rejected the Commission's position establishes that EEOC properly advanced its view before the district court that individualized testing of corporate pilots should be addressed as part of the BFOQ determination. See R.26, P.I. Op. at 14-15 (ROA 487-88). Exxon next argues that EEOC waived its objections about the legal standard imposed by the district court because it should have filed a Rule 56(f) motion requesting additional discovery during the summary judgment stage if it believed that the individualized testing prong should have been addressed as part of the BFOQ assessment. Exxon Br. at 15. Exxon's argument is unavailing. Rule 56(f) is a tool that can be used to seek a continuance when the nonmovant needs to engage in additional discovery to present facts essential to its opposition to the summary judgment issues. See Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 697 (5th Cir. 1999) ("the appropriate way to raise th[is] issue is for the party opposing the motion for summary judgment to file a motion for a continuance with an attached affidavit stating why the party cannot present by affidavit facts essential to justify the party's opposition"), cert. denied, 531 U.S. 917 (2000). In this case, although it was aware that EEOC wanted to address individualized testing during the summary judgment stage, the district court purposely restricted the summary judgment pleadings to the issue of congruence. EEOC was permitted to discover facts and evidence relevant to the congruence issue. Thus, a Rule 56(f) motion to engage in discovery on individualized testing would not have been germane to the summary judgment issue at hand. Further, a Rule 56(f) motion would have been futile. Rule 16 gives the district court wide latitude to limit discovery, "formulate or simplify" issues, and adopt special or expedient procedures for managing potentially difficult actions in its governance of the case proceedings. Fed. R. Civ. P. 16(b)(3)(B)(ii); 16(c)(2)(A), (L) & (P). See also Aviation Specialities, Inc. v. United Tech. Corp., 568 F.2d 1186, 1189 (5th Cir. 1978) (courts have discretion to curtail discovery). In its joint report, EEOC requested an opportunity to discover and address matters relating to the individualized testing issue; thus, the district court was aware of its concerns. However, the court decided it would address any "remaining disputed issues in the case" under a new scheduling order. RE-T.7 at 1-2 (ROA 532-34). Given the court's unfettered control over its management of the case, EEOC was not in a position to file further objections. Cf. Russell v. Plano Bank & Trust, 130 F.3d 715, 720 (5th Cir. 1997) (noting in ADA action, "[a] party may be excused from the requirement of making a specific objection only where 'the party's position previously has been made clear to the trial judge and it is plain that a further objection would be unavailing'"), cert. denied, 523 U.S. 1120 (1998). Finally, even if this Court believes EEOC's objections to the improper truncation of the BFOQ standard and limited discovery were not properly preserved, it should not treat the agency's concerns as waived. This Court has said that the determination of whether to consider an issue not raised below is within the discretion of the appellate court and should be decided on a case-by-case basis. Texas v. United States, 730 F.2d 339, 358 n.35 (5th Cir.), cert. denied, 469 U.S. 892 (1984) (deciding in commerce clause case that it may be proper to consider an issue raised for the first time on appeal if it "concerns a pure question of law" or "if the proper resolution of the issue is beyond doubt"). One of the considerations informing that decision is the public interest in assuring that judicial proceedings are conducted free from obvious errors that affect fairness. Cf. United States v. Atkinson, 297 U.S. 157, 160 (1936) (observing in a criminal case that "appellate courts, in the public interest, may, on their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or the public reputation of judicial proceedings"). In the Commission's view the lower court's misapplication of a settled legal standard is precisely the sort of obvious legal error this Court is permitted to correct in the interest of fairness. Here, at Exxon's urging, the district court imposed an incorrect legal standard to assess Exxon's BFOQ defense by summarily adopting the FAA's determination that testing of commercial pilots is infeasible and failing to consider whether individualized testing is possible or practical for corporate pilots. Exxon argues that the district court's approach was correct because the FAA determined that individualized testing was not possible or practical for commercial pilots when it created the Age 60 Rule, and thus Exxon and the district court can rely on the FAA's determination without more to establish that its corporate rule satisfies that prong of the BFOQ standard. Exxon Br. at 13, 20. Exxon and the district court are wrong. The Supreme Court made clear that the FAA's Age 60 Rule is not conclusive as to whether an age-based mandatory rule is a BFOQ for any occupation other than commercial pilots, even when the employer itself is a commercial airline. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 418 (1985) (analyzing the BFOQ defense for flight engineers). In its analysis, the Court took into consideration the ADEA's purpose, which is to "promote employment of older persons based on their ability rather than age [and] prohibit arbitrary age discrimination in employment." Id. at 410. Further, to avoid group stereotyping, the Court required a case-by-case assessment of proof to a jury that age was a necessary proxy for job qualifications. Id. at 422. As background, the Supreme Court noted that, even where safety was a consideration, it would not summarily approve the retirement of certain older workers based on age, particularly when the FAA never imposed the Age 60 Rule on the occupational group at issue (flight engineers) and where there was evidence that many in the targeted group flew airplanes safely after reaching age 60. Id. at 404 ("the FAA has refused to establish a mandatory retirement age for flight engineers" despite the fact that they "contribute to the safe operation of the airplane"); id. at 407 ("several large commercial airlines have flight engineers over age 60 'flying the line' without any reduction in their safety record"). Most importantly, in stressing that the employer "must justify the rationale for the age chosen," Criswell, 472 U.S. at 422, the Court rejected the airline's argument that conflicting expert testimony as to the feasibility of individualized testing of persons age 60 must be resolved by the employer in a "conservative manner," and it rejected the notion that "all expert opinion is entitled to equal weight." Id. at 423. As the Court explained, such a view "virtually ignores the function of the trier of fact in evaluating conflicting testimony." Id. Accordingly, the Supreme Court held that "[u]nless an employer can establish a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position, the age selected for mandatory retirement less than 70 must be an age at which it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job." Id. at 422-23. Exxon cannot escape this mandate. It is not a commercial airline obligated to comply with the FAA's Age 60 Rule. EEOC Br. at 3. Its corporate pilots were not the target group of the FAA's Age 60 Rule and are in fact patently exempted from its coverage. Id. at 3 & 22. Exxon did not offer any facts establishing poor pilot performance by its age 60 pilots. Id. at 16. And several aviation experts, the International Civil Aviation Organization, and now the FAA believe that there are tests that can accurately identify pilot deficiencies. Id. at 5-8, 22-23. Hence, Exxon is obligated to prove through independent evidence that individualized testing of its 27 corporate pilots is not possible. Therefore, this Court should reject Exxon's contention that it is "entitled to rely, as a matter of law, on the FAA's expert determination about the inadequacy of individualized testing," Exxon Br. at 13.<1> Concomitantly, this Court should treat the district court's application of an incorrect standard of law as plain error warranting reversal. The exclusion of the testing element from the BFOQ analysis was obvious and prejudicial. The FAA studies on which Exxon and the district court relied are entitled to little weight since they addressed the practicality of testing commercial pilots who number in the thousands and thus have little bearing on whether a small operation of 27 corporate pilots could be adequately tested. More importantly, although there has been disagreement on the testing issue, there have always been expert testimony and documentary evidence indicating that individualized testing of pilots is feasible. See EEOC Br. at 22-24. Consequently, if the district court had applied the proper legal standard and permitted discovery on testing, EEOC's evidence as to the feasibility of testing corporate pilots may have raised, at a minimum, a triable issue for jury resolution. That EEOC was not afforded this opportunity was prejudicial. Hence, in the public interest, this Court should reverse the district court's entry of summary judgment for Exxon because it rests on an erroneous legal standard that compromised the integrity and fairness of the proceeding. Cf. Steering Committee v. Exxon Mobile Corp., 461 F.3d 598, 601 (5th Cir. 2006) (noting in class certification case that "a court by definition abuses its discretion when it applies an incorrect legal standard); Marzano v. Computer Science Corp. Inc., 91 F.3d 497, 507-09 (3d Cir. 1996) (holding district court committed reversible error when it applied wrong test in granting employer's motion for summary judgment in reduction-in-force action charging pregnancy discrimination); King v. Laborers Int'l Union, 443 F.2d 273, 278-79 (6th Cir. 1971) (after permitting EEOC to represent on appeal interest of pro se appellant who had counsel below who had failed to object to jury instruction, court held it was plain error to use wrong legal test to determine liability for race discrimination in jury charge). 2. The FAA Does Not Support an Age 60 Rule for Corporate Pilots In its responsive brief, Exxon fails to address the Commission's argument that Exxon's reliance on the FAA rule to buttress its own BFOQ defense for its pilots is unsound because corporate pilots were expressly exempted by the FAA from the federal Age 60 Rule. EEOC Br. at 28-29; EEOC v. Boeing Co., 843 F.2d 1213, 1220 (9th Cir.) (noting that 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, 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"), cert. denied, 488 U.S. 899 (1988). Nor does it contest the Commission's argument that the FAA's categorical exclusion of corporate pilots from the Age 60 Rule, despite its awareness that age 60 pilots were flying passengers in large and small airplanes to domestic and international destinations in non-Part 121 operations, should have compelled the district court to defer to that regulatory agency's expertise by declining to approve Exxon's rule as a BFOQ. EEOC Br. at 28-29. Indeed, from the outset and in response to numerous challenges, the FAA has consistently maintained that its concerns regarding pilot safety were limited to commercial pilots engaged in the transport of substantial numbers of passengers. See, e.g., 60 Fed. Reg. 65977-01, 1995 WL 749783 (Dec. 20, 1995) ("While the Age 60 Rule prohibits pilots from operating aircraft under part 121 after reaching their 60th birthdays, it does not impose mandatory retirement for affected pilots. A pilot may work as a flight engineer or flight instructor in operations conducted under part 121 or may work as a pilot in operations outside of part 121. The pilot also may function as an instructor or evaluator in simulators."). Finally, Exxon does not refute or mention the Commission's argument that, given the FAA's exclusion of corporate pilots from the Age 60 Rule, summary judgment was inappropriate because a reasonable jury could decide that corporate pilots did not present the same safety risks as commercial pilots and therefore should not be forcibly retired because of age. EEOC Br. at 29. In short, by its silence, Exxon essentially concedes the point that the imposition of its age-based retirement policy on its corporate pilots is an unfounded, unsound, and improper extension of the federal rule because such action cannot be squared with the FAA's regulations or intent. Accordingly, the district court's summary judgment ruling should be overturned. 3. Exxon's Congruity Evidence Is Not Enough To Satisfy Exxon's Burden of Proof under the BFOQ Standard Lastly, this Court should reverse summary judgment because Exxon misapprehends the role of congruity in the BFOQ analysis. In deciding whether an employer's age-based mandatory retirement policy was excusable under the BFOQ exception to the ADEA, the Supreme Court observed that when the FAA's Age 60 Rule is not conclusive, the "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.'" Criswell, 472 U.S. 418. The critical error in this case is the mistaken belief by Exxon and the district court that if the FAA's Age 60 Rule is relevant, congruity alone can establish that Exxon's age-based retirement policy is a BFOQ. In short, according to Exxon, "[o]ne way to satisfy both prongs of the BFOQ test is to prove congruence with pilots covered by the FAA's Age 60 Rule." Exxon Br. at 18. This rationale is infirm. As addressed earlier, the FAA's Age 60 Rule does not replace Exxon's obligation to establish that its pilots cannot be individually tested in order to establish its BFOQ defense. See supra at page 9-12. To relieve Exxon of this obligation would promote "precisely the stereotypical thinking that the ADEA was designed to prevent." Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 233-34 (5th Cir. 1976). See also Criswell, 472 U.S. at 423 ("A rule that would require the jury to defer to the judgment of any expert witness testifying for the employer, no matter how unpersuasive, would allow some employers to give free reign to the stereotype of older workers that Congress decried in the legislative history of the ADEA."). Next, Exxon's proposition that the FAA's Age 60 Rule alone can establish a BFOQ defense for pilots in congruent operations is indefensible. Exxon Br. at 21- 22. Apart from the fact that Exxon's evidence that its pilots are congruent with commercial pilots was contested by the EEOC's evidence on summary judgment, EEOC Br. at 40-48, the cases on which Exxon relies are unpersuasive. For example, in support of its position, Exxon cites to Williams v. Hughes Helicopters, Inc., 806 F.2d 1387 (9th Cir. 1986) and Gathercole v. Global Associates, 727 F.2d 1485 (9th Cir.), cert. denied, 469 U.S. 1087 (1984). Exxon Br. at 22. However, in Boeing, the Ninth Circuit explicitly rejected the argument that Hughes and Gathercole teach that "if substantial evidence supports the safety rationale of FAA's Age-60 Rule, and there is sufficient congruity between the occupations of commercial airline pilots and [corporate] pilots, then the FAA rule establishes a BFOQ for [corporate] pilots as a matter of law." Boeing, 843 F.2d at 1219. The Ninth Circuit clarified that in Hughes, it simply "sustained the district court's rulings that both FAA's Age-60 Rule and expert testimony were admissible in support of Hughes' BFOQ defense" but it "did not hold FAA's regulations to be conclusive." Id. (quoting Hughes, 806 F.2d at 1389-92). In fact, the Ninth Circuit did not even rule that the FAA regulations were "substantial evidence sufficient to support the jury's verdict that the age limitation was necessary to the essence of Hughes' business" because "review of that issue was precluded by failure of the Hughes pilots to move for a directed verdict." Id. (quoting Hughes, 806 F.2d at 1392). Instead, as the Boeing Court explained, it simply held in Hughes that "the jury's verdict sustaining the BFOQ defense was not 'plain error.'" Id. As a result, Hughes does not support Exxon's argument in this case. The Boeing Court also ruled that Gathercole was not controlling. Boeing, 843 F.2d at 1219. The Court explained that its affirmance of the application of the FAA's Age 60 rule to contract pilots was based on the fact that the U.S. Army required the contractor to apply the FAA Age 60 rule to its pilots and that at the time of the Gathercole ruling, the FAA rule was still considered illustrative of a legitimate BFOQ. Id. at 1220. Here, Exxon is under no contractual obligation to apply the Age 60 Rule to its pilots and thus cannot make compliance with federal law the basis of its BFOQ defense. Further, after enforcement of the ADEA was transferred to the Commission and long before this action, the EEOC amended its regulations to delete reference to the FAA's Age 60 Rule as a BFOQ, and, as Exxon observed, Exxon Br. at 33-35, has consistently challenged this misperception. Consequently, these appellate decisions fail to support Exxon's position. The nonbinding district court decisions in Rasberg v Nationwide Life Insurance Company, 671 F. Supp. 494, 495-96 (S.D. Ohio 1987) and Hoefelman v. Conservation Commission of Missouri, 541 F. Supp. 272, 274 (W.D. Mo. 1982), aff'd, 718 F.2d 281 (8th Cir. 1983), on which Exxon relied, are equally unavailing. Exxon Br. at 22, 26-27. In Rasberg, the district court decided that an insurance company's rule retiring its corporate pilots at age 62 was a BFOQ as a matter of law. Rasberg, 671 F. Supp. at 495-96. In reaching that conclusion, the court relied on the Ninth Circuit's ruling in Gathercole, the district court's decision in EEOC v. Boeing, and the Department of Labor's guidance, all of which opined that the FAA's Age 60 Rule is a BFOQ under the ADEA that could justify the imposition of an age 60 rule on corporate pilots. Id. at 495. However, as discussed above, the Ninth Circuit in Boeing did not approve the extension of the FAA's Age 60 rule to corporate pilots and reversed the Boeing district court's decision. Additionally, the Ninth Circuit invalidated the analysis in Gathercole because, inter alia, the Labor Department's interpretive rule, on which the Rasberg court also relied, had been rescinded. Consequently, the Rasberg decision lacks the authority to sustain Exxon's position. Hoefelman, on the other hand, is distinguishable from the instant case. First, the BFOQ evaluation of the issues and evidence concerning the state agency's rule forbidding pilots from flying after they reached age 60 occurred during a bench trial, and not at summary judgment as in this case. Hoefelman, 541 F. Supp. at 273. Thus, resolution of conflicting evidence by the district court there was appropriate. Second, and most significantly, Allen Hoefelman, the displaced sixty-year old pilot in the case, was directly responsible for the department's age-based restriction. In short, as the Chief Aircraft Pilot, Hoefelman had prepared an Operations Manual for the Conservation Commission stating that "any pilot who has reached the age of 60 could not engage in hazardous low-level flying missions," a principal duty of the Aircraft Chief Pilot. Id. He explained that "he believed that the aging processes significantly affected a pilot's ability to safely engage in low-level flying" and that "aging slowed the reaction time of a pilot and led to increased fatigue." Id. Consequently, the Conservation Commission adopted the FAA's Age 60 Rule and instituted an official policy prohibiting age 60 pilots from flying Department aircraft. Id. Challenging his transfer from the Aircraft Chief Pilot job after turning age 60, Hoefelman contended that the determination of whether a pilot may become incapacitated during flight should be made on an individualized basis. Id. at 275. The district court decided, however, that in light of the FAA's studies and Hoefelman's own concerns about older pilots, expert testimony that "medical science cannot currently render sufficiently reliable individualized predictions" was credible and negated the possibility of individualized testing. Id. Accordingly, the district court held that the Conservation Commission had carried its burden of demonstrating that an age 60 rule was necessary to the agency's flying operations. Id. In this case, no Exxon pilot who was precluded from flying because of age has advanced the position that age 60 is a benchmark for determining when a pilot is unsafe, nor have those pilots or the EEOC indicated a belief that testing is impossible or impractical. In fact, in assessing the import of this ruling, the Hoefelman court admonished that its "conclusion in this case should not be viewed as a closing of this Court's doors to new knowledge" because "[t]he Court is mindful that the information concerning the effects of aging is not a stagnate [sic] body of knowledge." Id. Hence, nothing in Hoefelman precludes this Court from deciding that Exxon has not met its burden of proving as a matter of law that its age 60 rule is a BFOQ when there is evidence that advances in medical science can ensure the prediction of pilot deficiencies through testing. To the contrary, Hoefelman substantiates the EEOC's position that Exxon cannot simply rely on the FAA's Age 60 Rule, but must carry its "burden of demonstrating that [it has] relied on the best medical opinions available" to justify its age restriction. Id. As noted in the EEOC's opening brief, to meet its BFOQ burden Exxon must first demonstrate that the age 60 requirement is reasonably necessary to the essence of its business. In that the FAA's Age 60 Rule was premised on safety considerations involving the safe transport of a substantial number of passengers in large aircrafts operating under Part 121 regulations, while the essence of Exxon's business is the safe transport of two to three executives and their guests on company planes by corporate pilots regulated under Part 91, the weight of the evidence militates against any assumption 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." Boeing, 843 F.2d at 1220. Therefore, the district court's uncritical and summary ruling that Exxon and the FAA have identical safety concerns must be rejected, especially where substantial evidence in the record reveals that Exxon largely avoided the stringent regulations of Part 121, flew less frequently, faced fewer risks, and operated on a substantially smaller scale than commercial airlines. EEOC Br. at 32-39. Next, to the extent that congruity is significant to Exxon's BFOQ defense, congruity alone does not support summary judgment for Exxon. The Commission identified numerous areas in which Exxon's pilots and operations materially differ from commercial pilots and airlines, thereby creating triable issues of fact. EEOC Br. at 40-48. The district court improperly weighed or disregarded EEOC's conflicting evidence rather than resolving all inferences and doubts in favor of the EEOC, and erroneously concluded that congruity disposed of the case. Because any resolution of conflicting facts is for a jury, and not a summary judgment disposition, the district court's ruling is reversible error. Finally, Exxon's characterization of this case as a "second bite at the Age 60 Rule in this Circuit" because the Commission "has already litigated, and lost, a similar case involving a less congruent corporate aviation department" exemplifies Exxon's misunderstanding of the purpose of the ADEA and this legal action. First, under the ADEA, a BFOQ defense is to be proven on a case-by case basis. Criswell, 472 U.S. at 422. Therefore, even though the EEOC has litigated this issue in this Circuit, it is not foreclosed from challenging age discrimination by other aviation companies. Further, this case is distinguishable from EEOC v. El Paso Natural Gas Company, 626 F. Supp. 182 (W.D. Tex. 1985), in critical respects. The El Paso court considered conflicting evidence on the possibility of individualized testing rather than restricting its analysis to the FAA rule and congruity, while the district court in this case truncated the BFOQ analysis and considered only congruence of operations. Also, unlike the district court's decision in this action, the El Paso ruling arose out of a bench trial where resolution of conflicting facts and evidence by a judge is permissible. In contrast, the issues before this Court were vetted in a summary judgment proceeding where the district court impermissibly weighed evidence and resolved conflicts against the EEOC. Finally, in bringing this appeal, EEOC seeks to correct the district court's misinterpretations of the Criswell standard and BFOQ requirements, particularly since Exxon (and not the EEOC) bears the burden of persuading the Court that its BFOQ defense is justified - a responsibility Exxon has avoided by relying entirely on the FAA's judgment about a distinguishable group of pilots and circumstances. 4. Exxon's Inflammatory Attack on the EEOC's Enforcement Objectives Provides No Basis for Upholding the Lower Court's Erroneous Judgment As the enforcer of the ADEA, EEOC's purpose in bringing this action and appeal is an effort to fulfill the spirit and intent of the ADEA to end arbitrary discrimination against older workers solely because of their age, especially when "basic research in the field of aging has established that . . . many older American workers perform at levels equal or superior to their younger colleagues." Criswell, 472 U.S. at 409. The Commission's purpose is not, as Exxon contends, reflective of "a pattern of assault not simply on age restrictions for Exxon pilots, or Part 91 pilots generally, but on all pilots, including those subject to the FAA's Age 60 or 60/65 Rule." Exxon Br. at 33. The critical issue in this case is whether Exxon has met its burden of proving a BFOQ defense. As an affirmative defense the BFOQ constitutes a narrow exception to the mandate of the ADEA requiring that employers are to evaluate employees on their merits, not their age. See Criswell, 472 U.S. at 422. It is questionable whether the FAA's administrative decision to retire commercial pilots at age 60 satisfies the ADEA's requirements of proving a BFOQ defense. Boeing, 843 F.2d at 1220 ("[t]here is serious doubt that the FAA Rule reflects a determination by the FAA that age 60 is a BFOQ as defined by the ADEA for the commercial pilots to whom it applies, much less a BFOQ for [noncommercial] pilots" because "it has never been tested against ADEA's requirements for a BFOQ"). However, in this case, the EEOC is not challenging the FAA rule, but is seeking to limit the Rule to its intended regulatory scope. To accord conclusive weight to the FAA rule, as Exxon insists should be done, would inappropriately shift the responsibility for determining the validity of a BFOQ from the courts to the FAA. Id. at 1217 ("[t]he statute vests responsibility for determining the validity of a BFOQ in the courts . . . [and] the court may not abdicate its factfinding function to either of the other branches"). Further, to allow Exxon to rely on the FAA's rule as justification for a policy affecting a pilot group the FAA does not believe should be covered, leads "to the validation of age discrimination beyond the narrow confines of the BFOQ exception, particularly in view of the difference in the standards applied under ADEA and the Federal Aviation Act." Id. at 1217 n.4. Finally, to relieve Exxon of the burden of actually proving that it has no choice but to use age as a proxy would undermine the central purpose and intent of the ADEA. Id. ("[i]ndividualized case-by-case evaluation of each employee is the underlying principle of administration under ADEA"). As President Lyndon B. Johnson stated in his Older American Message of January 23, 1967: Hundreds of thousands, not yet old, not yet voluntarily retired, find themselves jobless because of arbitrary age discrimination. * * * In economic terms, this is a serious-and senseless-loss to a nation on the move. But the greater loss is the cruel sacrifice in happiness and well-being, which joblessness imposes on these citizens and their families. Opportunities must be opened to the many Americans [in the age-barred group] who are qualified and willing to work. Tamiami, 531 F.2d at 228-29. Arbitrary age discrimination in employment, such as that reflected in this case, has negatively and cruelly impacted Exxon's qualified older pilots who were not only willing and able to work, but also presented no actual or prospective safety risks. That is why the EEOC brought this suit. CONCLUSION In that substantial evidence in this record would permit a reasonable jury to conclude that age is not a necessary proxy to effectuate Exxon's business or safety concerns, and triable issues exist as to whether there is congruity between Exxon's company pilots and Part 121 airlines' commercial pilots, the district court inappropriately entered summary judgment in favor of Exxon. Therefore, this Court should reverse and remand this 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 131 M Street, N.E., 5th Floor Washington, DC 20507 (202) 663-4731 paula.bruner@eeoc.gov CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7)(B) because it contains 6,192 words, excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii). 2. 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 Roman 14 pt. _________________________ Attorney for the EEOC January 15, 2009 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. Jackson Lewis, L.L.P. 3811 Turtle Creek Blvd., Suite 500 Dallas, TX 75219 Tony Rosenstein, Esq. Baker Botts, L.L.P. 910 Louisiana Street Houston, TX 77002-4995 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 January 15, 2009 *********************************************************************** <> <1> This Court should wholly disregard Exxon's assertion that it does not have the "burden to independently prove that the FAA's determinations are correct or that the FAA's Age 60 Rule qualifies as a BFOQ for airline pilots." Exxon Br. at 13. The EEOC never argued or suggested that Exxon has the burden of defending the FAA rule for commercial pilots. Rather, Exxon's burden is to establish that its age 60 rule is a BFOQ for its corporate pilots and this it has failed to do.