June 15, 2009 Pamela F. Trice, Deputy Clerk U.S. Court of Appeals for the Fifth Circuit 600 S. Maestri Place New Orleans, LA 70130 RE: Letter Brief in EEOC v. Exxon Mobil Corp., No. 08-10624 At oral argument on June 2, 2009, this Court asked the parties to brief the question of "whether in light of the administrative change from [60 to 65], this appeal is moot." An action is moot if the issues are no longer live or the parties lack a legally cognizable interest in the outcome. DeFunis v. Odegaard, 416 U.S. 312, 317 (1974). And, "[a]n appeal is properly dismissed as moot [only] when an appellate court lacks the power to provide an effective remedy for an appellant, even if the court were to find in the appellant's favor on the merits." In re Watch Ltd., 295 Fed. Appx. 647, 650 (5th Cir. 2008). This case and appeal are not moot because the EEOC and Exxon still have legally cognizable interests in the outcome and the issues in dispute are very much alive. In September 2006, the EEOC filed this ADEA enforcement action to obtain relief for Michael Morschauser and other pilots in Exxon's aviation department who were forced to retire when they turned age 60, regardless of their good health, solid qualifications, and stellar proficiencies. ROA 11 (complaint); ROA 48 (EEOC's Prelim. Injunc. Mem. At 2). Believing this policy to be clearly against the public interest and in violation of the ADEA, the Commission sought reinstatement, back pay, and injunctive relief to end Exxon's reliance on age as a basis for mandatory retirement of its pilots. ROA 13, 48. This appeal turns on whether the district court should have granted summary judgment on the question of whether Exxon's age-based retirement policy violated the ADEA. The panel is concerned whether a viable controversy remains since, in December 2007, the Federal Aviation Administration (FAA) and Exxon changed their respective Age 60 rules to Age 65 rules. The ADEA provides in pertinent part that "[i]t shall be unlawful" for an employer to, inter alia, "discharge any individual ... because of such individual's age." 29 U.S.C. § 623(a)(1). If a violation is found, an aggrieved party is entitled to "[a]mounts owing ... as a result of a violation," which include wages, fringe benefits, and other job-related benefits, as well as liquidated damages for willful violations. 29 U.S.C. § 626(b). Victims of age discrimination are also entitled to "such legal or equitable relief as may be appropriate," which includes reinstatement. Id. at § 626(b). In addition, the ADEA provides for trial by jury "of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter." Id. at § 626(c)(2). See also Lorillard v. Pons, 434 U.S. 575 (1978) (noting that incorporation of procedures in Fair Labor Standards Act into ADEA dictates right to jury trials in ADEA lawsuits); EEOC v. Brown & Root, Inc., 725 F.2d 348, 349-50 (5th Cir. 1984) (per curiam) (deciding that EEOC like any private plaintiff is entitled to a jury trial of factual issues in an ADEA case). Here, Exxon indisputably terminated its pilots on their 60th birthdays because of their age, but the district court decided on a motion for summary judgment that Exxon's actions were justified by a statutory affirmative defense in the ADEA. On appeal, the Commission contends that Exxon did not satisfy its burden of proving that its age-based rule is a bona fide occupational qualification (BFOQ) as a matter of law because the district court applied an incorrect legal standard and because there are genuine issues of material fact on congruence that should be resolved by a jury, and not at the summary judgment stage. In the Commission's view, these infirmities, singularly or collectively, would justify reversal of summary judgment. The controversy concerning Exxon's termination of Morschauser and its other age 60 pilots because of their age is not extinguished by the FAA's December 2007 repeal of its Age 60 Rule for commercial pilots or its replacement with an Age 65 Rule. Nor is the case moot because Exxon subsequently altered its own retirement policy to conform it to the FAA's rule change.<1> Here, the pilots who were terminated pursuant to Exxon's age 60 rule were economically injured by their forced retirements, and if discrimination is proven, they are entitled to make-whole relief. The fact that Exxon has rescinded its policy and raised the age limit to 65 does not redress their grievance or compensate them for their losses of employment, wages, or benefits. Exxon has not rehired them as pilots even though they are now only 62 or 63<2> and have expressed a desire to regain their former jobs, as demonstrated by their participation in this litigation. Further, even if Exxon had rehired those aggrieved pilots after the rule change, the case would not be moot because they presumably would have lost their pay during the period of unemployment as well as forfeited their former seniority and fringe benefits.<3> Thus, the aggrieved pilots would not be in the position they would have occupied absent discrimination. In short, the administrative rule changes do not moot this action because if Exxon's mandatory retirement of its pilots is unlawful under the ADEA, dismissal of the appeal would leave the EEOC's claims on behalf of the terminated pilots unredressed.<4> Therefore, mootness cannot be a ground for dismissal. See Environmental Conservation Organization v. City of Dallas, 529 F.3d 519, 527 (5th Cir. 2008) ("[a] case should not be declared moot '[a]s long as the parties maintain a "concrete interest in the outcome" and effective relief is available to remedy the effect of the violation ....'") (quoting Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir.1998)). Second, Exxon's change to using age 65 as the rule for mandatory retirement does not moot this appeal because, even if abandoning the age 60 rule ended its alleged violation of the ADEA, which EEOC does not concede, the "'voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the cases, i.e., does not make the case moot.'" Locke v. Bd. of Pub. Instruction of Palm Beach County, 499 F.2d 359, 364 (5th Cir. 1974) (quoting Defunis, 416 U.S. at 318). See also Parents Involved in Commun. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 127 S. Ct. 2738, 2751 (2007) ("voluntary cessation does not moot a case or controversy unless 'subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur'")(omitting internal citation); Gamble v. Birmingham Southern R. Co., 514 F.2d 678, 683 (5th Cir. 1975) (rejecting argument that promotion of four Black employees just before trial was a defense to or mooted the non- promotion claims of Black plaintiffs). This is because "the defendant is free to return to his old ways and there is a public interest in having the legality of the practices settled." United States v. Atkins, 323 F.2d 733, 739 (5th Cir. 1963). In this litigation, the Commission's position is that Exxon has not met its burden of proving that there is no triable question as to whether age is a BFOQ necessary to ensure the safe operations of Exxon's aviation department. In other words, the issue in this case is not only whether Exxon's age 60 rule is an ADEA violation but whether Exxon is legally permitted to rely on age at all as a proxy for safety. See ROA 771-72. Exxon avers that, after the FAA's recission of the Age 60 Rule, it now follows the FAA's Age 65 policy and continues to enforce an age-based retirement policy against its pilots. Exxon Br. at 11. Therefore, Exxon's rule change from 60 to 65 still rests on a discriminatory criterion - age - that may not be a BFOQ under the ADEA. Since Exxon has admitted its age discriminatory practice will continue, it is in the public interest to resolve whether Exxon's reliance on age, whether 60 or 65, is unlawful under the ADEA. See Rangra v. Brown, --- F.3d ----, 2009 WL 1100611, at n.2 (5th Cir. 2009) (a case is not moot as long as a live controversy exists between at least one plaintiff and one defendant). Third, the FAA's administrative rule change does not moot this appeal because the focus of this litigation is on whether Exxon's age-based mandatory retirement policy is a BFOQ exception to the ADEA. The question before this Court is not whether FAA's Age 60 Rule is a BFOQ in general or whether it is a BFOQ for Exxon's pilots, especially since the FAA never subjected corporate pilots to its Age 60 Rule or its current Age 60/65 Rule. To be clear, even though Exxon claims to rely on the FAA's expertise, there is no conflict between the EEOC and the FAA when it comes to corporate pilots. Both agencies agree that neither age 60 nor 65 is a necessary safety proxy for corporate pilots. Hence, the FAA's Age 60 or Age 65 Rule, the relevance of which is in dispute in this case, cannot moot the question of whether Exxon has established as a matter of law that its policy is a BFOQ for Exxon's operations since it is not dispositive of Exxon's burden and does not vitiate the relief that EEOC is seeking for the terminated pilots. To satisfy its burden of proving that its corporate practice of terminating age 60 pilots is legitimate under the ADEA, Exxon must present evidence that satisfies a two-prong test. As stated in the EEOC regulations, which were approved by the Supreme Court in Criswell v. Western Air Lines, Inc., 472 U.S. 400, 417 n.24 (1985): 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 involved 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. 29 C.F.R. § 1625.6(b). In Criswell, the Court explained that if a group is not the precise target of the FAA's Age 60 Rule, such as the flight engineers in that case, then the Rule is not conclusive. 472 U.S. at 418. It added, however, that the Rule may be relevant in meeting the FIRST prong of the employer's BFOQ defense - i.e. that "'the job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business - here, the safe transportation of ... passengers from one point to another,'" id. at 413, - if the safety concerns are the same and the occupations are congruent. Id. at 418. In this case, because the FAA expressly exempted corporate pilots such as Exxon's from the Rule's coverage, EEOC Br. at 28, there is a strong basis for concluding that the FAA's retirement rule has very little relevance, before or after the change, and thus, cannot render this appeal moot or justify Exxon's policy. Alternatively, if the FAA's Age 60 Rule has relevance in this case, which EEOC maintains is disputed because of conflicting evidence on congruence, see EEOC Br. at 29-48, the case is not moot because to prove that its policy is a BFOQ as a matter of law, Exxon also must demonstrate that individualized testing of its pilots, not commercial pilots, is impractical or impossible such that age must be used as a proxy. As the Criswell Court stated: Unless 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<5> 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. Here, Exxon did not satisfy the individualized testing prong. The district court excised this prong from its summary judgment analysis and instead improperly treated the FAA Rule as conclusive and favorably dispositive of Exxon's BFOQ defense. In doing so, the court failed to permit the EEOC an opportunity to introduce expert testimony demonstrating the availability of individualized testing or to refute contrary opinions on testing that the court extracted from the FAA's budgetary hearings. In contrast, despite the fact that summary judgment standards require the court to view the evidence in the light most favorable to the EEOC as the nonmovant, the district court ignored Exxon's assertion that it subjects all of its pilots to extensive training and testing that exceed FAA standards to ensure safety, evidence from which a reasonable jury could believe that individualized testing is possible. See Criswell, 472 U.S. at 423 (noting that "when the employer itself relies on individualized testing in similar circumstances, . . . the employer's attempt to justify its decision on the basis of contrary opinion of experts - solicited for purposes of litigation - is hardly convincing on any objective standard"). Indeed, Exxon asserted that "Exxon's pilots are subjected to more frequent medical testing than required by the FAA. Exxon also requires it pilots to undergo 20 different training programs ... [and] Exxon pilots go through extensive written, oral and practical testing to FAA standards." Exxon Br. at 8-9 (emphasis added). Finally, to the extent that Exxon contended at oral argument that it solely relied on the FAA's conclusions about the possibility of individualized testing, such reliance fails to moot the appeal because the FAA's conclusions concerned only commercial pilots and EEOC was not permitted to depose that FAA expert regarding his position as to corporate pilots. See EEOC v. Boeing Co., 843 F.3d 1213, 1220 (9th Cir. 1988) ("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 that neither the FAA's Age 60 nor Age 65 Rule addresses the possibility of individualized testing of Exxon's pilots, and the record is otherwise deficient on this issue, this case is not moot because this Court could grant the relief of reversal of the summary judgment and remand the case for trial or for discovery and further proceedings on the testing issue. For these reasons, and those in its prior briefs, the Commission urges this Court to reverse summary judgment and remand the case for additional proceedings consistent with established law because the case is not moot. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Sr. Appellate Attorney Equal Employment Opportunity Commission Office of General Counsel - Appellate Services 131 M Street, N.E., Fifth Floor Washington, DC 20507 (202) 663-4731 (w); paula.bruner@eeoc.gov Cc: D.Hartsfield *********************************************************************** <> <1> The only issue mooted by the administrative rule changes is the Commission's request for preliminary injunctive relief to stop Exxon from terminating any additional pilots who turned age 60. Since Exxon now bases its termination policy on age 65, its current pilots are no longer vulnerable to forced unemployment at age 60. Exxon's changed retirement practice, however, does not vitiate the controversy arising from its discriminatory dismissals pursuant to its former age 60 rule since EEOC maintains that no age limit is justified under the ADEA. See ROA 13 (complaint), 771-72 (EEOC opposition to summary judgment). <2> At oral argument, EEOC counsel misspoke in stating that the terminated pilots may now be ages 65 or 66. In that they were terminated by Exxon in or after September 2006, when they turned 60, Morschauser and Gary Schaffer are now 62 years old and Glen Skaggs is 63. See, e.g., ROA 48 (EEOC's Prelim. Injunc. Mem. At 2); ROA 775, EEOC OSJ App. at 201 (Andrews Aff. at 9). <3> When Congress passed the Fair Treatment for Experienced Pilots Act, Pub.L. No. 110-135, 121 Stat. 1450 (2007), which amended 49 U.S.C. § 44729, it placed a non-retroactivity clause in the statute. Pilots terminated pursuant to the FAA's former policy would not be entitled to "credit for prior seniority or prior longevity for benefits or other terms related to length of service prior to the date of rehire under any labor agreement or employment policies of the air carrier." Id. § 44729(e)(1). Presumably, Exxon would have applied a parallel rationale; thus, had it reinstated the aggrieved pilots, it would not have given them pay or benefits retroactively to the date of their terminations. <4> The filing of a new suit by the EEOC that challenges Exxon's age 65 policy, as suggested by this Court, would not be the appropriate course of action to obtain relief for the aggrieved pilots in this action. These pilots were not terminated pursuant to Exxon's Age 65 Rule and they were not employed by Exxon at the time the rule took effect. Further, in that they are under the age of 65, the aggrieved pilots would not be retirement eligible under the current rule. Hence, a new suit would fail to resolve the discrimination to which they were subjected. <5> The Supreme Court referred to 70 as a permissible mandatory retirement age because at that time the ADEA protected individuals between the ages of 40 and 70. See Age Discrimination in Employment Act Amendments of 1978, Pub. L. No. 95-256, §3(a), 92 Stat. 189-90 (1978). In 1986, Congress eliminated the age ceiling altogether. See 29 U.S.C. § 631(a).