United States Court of Appeals,
Fifth Circuit.
No. 94-10033.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,
v.
AMERICAN AIRLINES, INC., et al., Defendants,
American Airlines, Inc., Defendant-Appellee.
March 28, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before JONES and STEWART, Circuit Judges, and DUPLANTIER*, District
Judge.
EDITH H. JONES, Circuit Judge:
This is an action for age discrimination, 29 U.S.C. § 621 et
seq., brought by the United States Equal Employment Opportunity
Commission ("EEOC") on behalf of a class of pilots age forty and
over who applied and were denied employment by American Airlines,
Inc. ("American"). Two separate claims of discriminatory hiring
practices were alleged. First, EEOC charged that American's policy
of hiring only pilots who will progress to the rank of Captain
discriminated against applicants on the basis of age. Second, EEOC
alleged that American intentionally discriminated, as proved by its
pattern and practice, against applicants age forty and over who
were not excluded by the "years to Captain" policy. The district
court granted partial summary judgment for American on the first
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
1
claim, holding that the EEOC's challenge to the
"hire-only-Captains/years to Captain" policy is barred by
collateral estoppel. In a separate order, 835 F.Supp. 911, the
court eliminated EEOC's second claim for insufficient statistical
evidence to create a genuine issue of disputed fact. On EEOC's
appeal, this court reviews de novo a district court's grant of
summary judgment. Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th
Cir.1989). We affirm.
I.
BACKGROUND
A. American's General Pilot Hiring Policies
American employs pilots in three cockpit positions of
ascending seniority and authority: Flight Officer, Co-pilot, and
Captain. In all cases the entry level position at American is
Flight Officer. Progression from one cockpit position to another
depends on the size of American's pilot workforce, the number of
cockpit positions in the fleet, and the terms of the seniority
system established in the collective bargaining agreement between
American and the pilots' union. The district court relied upon
Murnane v. American Airlines, Inc., 482 F.Supp. 135, 144-45
(D.D.C.1979), aff'd, 667 F.2d 98 (D.C.Cir.1981), cert. denied, 456
U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174 (1982):
It is American's policy to hire only future Captains. In
other words, every pilot considered and hired by American is
evaluated as a future Captain and is expected to progress to
the position of Captain. American has an "up-or-out" policy,
which requires the pilot to demonstrate the ability to
progress to the next highest cockpit position or be
terminated.
2
* * * * * *
The Federal Aviation Administration ("FAA") has
promulgated regulations which require American to retire its
Captains and Co-pilots at age sixty ("the FAA age sixty
rule"). American does not allow former Captains, age sixty
and over, to bid back to the Flight Officer position.
Therefore, no pilot who has reached his or her sixtieth
birthday continues to work in an American cockpit.
Id. (footnotes & citations omitted).
B. The Challenge to the Age Thirty Guideline
Until 1985, American maintained a general guideline against
hiring persons over age thirty for the beginning position of Flight
Officer. Murnane v. American Airlines, Inc., 667 F.2d 98, 99-100
(D.C.Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72
L.Ed.2d 174 (1982); Murnane, 482 F.Supp. at 145 (describing
American's practice as an "unwritten policy against hiring pilot
applicants over age thirty" and noting that American claimed it was
a flexible, not categorical, guideline).
When American did not hire Edward Murnane, a 43-year old
retired military aviator, Murnane sued, asserting that American's
refusal to consider his application solely on the basis of age
constituted age discrimination. Murnane, 482 F.Supp. at 138. The
Secretary of Labor intervened as a party plaintiff and the EEOC was
substituted on appeal. American defended the age guideline1 as a
"bona fide occupational qualification" (BFOQ) that was "reasonably
necessary to the normal operation" of the airline. Murnane, 667
1
Since the ADEA protects only those aged forty or over, the
D.C.Circuit reviewed American's policy as an "age forty
guideline." 667 F.2d at 100 n. 3. For convenience, we also
refer to the policy as an age forty guideline.
3
F.2d at 100. After trial, the district court agreed that the age
guideline was a BFOQ and that Murnane was not competitively
qualified to be hired in any event. The Court of Appeals for the
District of Columbia Circuit affirmed. The court noted that the
BFOQ determination was not premised on a finding that older pilots
posed a safety concern because of diminished "ability to operate an
aircraft in a safe manner. On the contrary, [the district court]
concluded that an older Captain who had served in that position for
the longest possible time would be the safest Captain." 667 F.2d
at 100 n. 4.; see also id. at 100 ("the best experience an
American Captain can have is acquired by flying American aircraft
in American's three cockpit positions. Thus, the safest Captain
will be experienced, and as much of that experience as possible
will have been with American."). Further, Murnane held,
American's intended goal of maintaining a staff of Captains
which has the longest possible record of experience in
American cockpits is, in our opinion, completely justified.
... We conclude that American's age forty guideline was
a bona fide occupational qualification "reasonably necessary
to the normal operation" of American Airlines.
Id. at 101.
C. The Years-to-Captain Rule and the Instant Case
American continued to use the maximum age guideline in hiring
pilots until 1985, when the airline expanded its operations. As a
result of the expansion, pilots progressed more rapidly through the
cockpit positions. American needed more pilots. To broaden the
pool of eligible pilot applicants, while maintaining its
"hire-only-Captains" and "up-or-out" policies, American replaced
4
the age thirty guideline with the "years-to-Captain" rule. Under
the years-to-Captain rule, American periodically projected the
length of time necessary for a newly hired pilot to progress
through the cockpit positions and to attain the position of
Captain. American based its projections on the number of pilots
employed, the expected retirement and attrition rates, and the
number of aircraft expected to be in the fleet. The estimated
years-to-Captain are subtracted from sixty (the FAA mandatory
retirement age) to determine the age cutoff for pilot applicants
during the relevant hiring period.2 At some point in 1991, after
the EEOC began investigating American's pilot hiring practices,
American modified the years-to-Captain rule "to state that
applicants must be expected to serve as Captain for a minimum of
five years."
Since 1989, the "years-to-Captain" projection has fluctuated
from ten to twenty years.3 Hence, American expanded the pool of
those it was willing to hire to pilot applicants as old as fifty
under certain circumstances.
Paradoxically, this loosening of an age-related policy did not
elicit kudos from the EEOC but instead prompted a new lawsuit on
the two grounds noted. Each basis of potential liability deserves
2
For example, if American projects that it would take 15
years to become Captain, the age cutoff for pilot applicants
would be 45.
3
In the Murnane court's discussion of the age 40 guideline
as a BFOQ, it took note of the fact that "it takes at least ten
to fifteen years" to progress from Flight Officer to Captain.
667 F.2d at 100.
5
discussion.
II.
COLLATERAL ESTOPPEL
EEOC first contends that American violated the federal age
discrimination law by refusing to hire any pilot applicant who,
because of age, is not projected to become a Captain before age
sixty. American persuaded the district court that this claim is
barred by the doctrine of collateral estoppel in light of the
vindication of American's policies over the EEOC's challenge in
Murnane.
Before collateral estoppel can bar a lawsuit, three elements
must exist: 1) the issue at stake must be identical to the
one involved in the prior litigation; 2) the determination of
the issue in the prior litigation must have been a critical,
necessary part of the judgment in that earlier action; and 3)
the special circumstances must not exist which would render
preclusion inappropriate or unfair.
Texas Pig Stands, Inc. v. Hard Rock Cafe Int'l, Inc., 951 F.2d 684,
691 (5th Cir.1992) (citing Montana v. United States, 440 U.S. 147,
154, 99 S.Ct. 970, 974, 59 L.Ed.2d 210 (1979)).
The court of appeals in Murnane found:
The issue before the court, then, is whether age is a "bona
fide occupational qualification" (BFOQ) which is "reasonably
necessary to the normal operation" of the airline business.
We conclude that it is.
Murnane, 667 F.2d at 100. According to Murnane, "American's hiring
policies, including the age forty guidelines, might result in the
death of one less person than were American required to abandon or
modify these policies." Id. at 101. Ultimately, the airline's
"public duty to operate with the highest degree of safety" was
found to "completely justif[y]" American's policies aimed at
6
"maintaining a staff of Captains which has the longest possible
record of experience in American cockpits." Id. Because of
Murnane 's findings, American argues that EEOC should not be
allowed to relitigate American's use of age in its hiring
practices.4
EEOC responds that the defense of collateral estoppel should
not be available to American in this case because 1) American's
modification of its hiring policy in 1985 (i.e. replacing the age
forty guideline with years-to-Captain rule) created "a significant
change in the controlling facts," 2) the Supreme Court's decision
in Western Air Lines v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 86
L.Ed.2d 321 (1985) significantly changed the applicable law and 3)
equitable principles counsel against giving preclusive effect to
Murnane against the different pilot applicants in this case. We do
not agree.
A. Has American's Change of Policy Resulted in a Significant Change
in Controlling Facts?
EEOC principally asserts that collateral estoppel does not
apply because the facts have changed; American's new age-related
policy demands a new analysis. Murnane, in finding that the
age-based policy was a BFOQ, assumed that safety was optimized
because the hire-only-Captains, up-or-out, and age forty guidelines
4
There is a strong argument that American's
hire-only-Captains rule is not an age-based qualification at all,
but an experience-mandating qualification. See Hazen Paper Co.
v. Biggins, --- U.S. ----, ---- - ----, 113 S.Ct. 1701, 1706-07,
123 L.Ed.2d 338 (1993). The district court did not explore this
possibility, however, and we also find it unnecessary to discuss.
7
produced pilots who could serve as Captains for 10 to 15 years. As
a result of that policy, if American hired a "Flight Officer in his
forties he would probably not become Captain until his late fifties
[and] he would be able to serve only briefly as an American Captain
before he had to retire" because of the FAA age sixty rule.
Murnane, 667 F.2d at 100. Now that the age forty guideline has
been replaced by the years-to-Captain rule, however, American may
hire a Flight Officer, like Murnane, in his forties, who, if the
years-to-Captain is 15, may indeed "serve only briefly as an
American Captain." EEOC trumpets that the new, more liberal policy
renders the rationale proffered by American in Murnane
inapplicable.
But EEOC's reading of Murnane is too limited. As discussed
above, the issue before the court was "whether age is a [BFOQ]" for
an airline. 667 F.2d at 100. The court described "American's
intended goal" to be "maintaining a staff of Captains which has the
longest possible record of experience in American cockpits." Id.
at 101. The court was persuaded that " "the best experience an
[sic] American Captain can have is acquired by flying American
aircraft in American's three cockpit positions.' Thus, the safest
Captain will be experienced, and as much of that experience as
possible will have been with American." Id. at 100 (emphasis in
original, citation omitted). Id. "[B]y limiting its new hiring to
relatively young pilots, American thereby ensures that the
experience with American of its active Captains will be maximized.
This, as we pointed out above, maximizes safety." (emphasis in
8
original) None of these findings is premised on a mandatory period
of service as Captain; rather, they are broad endorsements of
American's hiring policies. See also id. at 100 n. 4 ("[A]n older
Captain who had served in that position for the longest possible
period of time would be the safest Captain.") (emphasis added).
Thus, among the essential facts found by Murnane was that
American's use of age cutoffs to hire only those who can progress
to serve as Captain before mandatory retirement at age sixty was
"reasonably necessary to the normal operation of the airline".
This finding is emphasized, as the court succinctly rejected EEOC's
argument that American should be made to hire older pilots who
could not serve long enough to become captains although they might
make safer flight officers and co-pilots: "it is more important to
have a safe Captain than a safe Flight Officer." 667 F.2d at 100
n. 5 (emphasis in original). With these underpinnings established,
Murnane concluded that American could lawfully refuse to hire any
applicant aged over forty, because American maximized safety by
hiring younger applicants who would progress through the ranks to
Captain.
"To produce absolution from collateral estoppel on the ground
of changed factual circumstances, the changes must be of a
character and degree as might place before the court an issue
different in some respect from the one decided in the initial
case." 1B JAMES W. MOORE, MOORE'S FEDERAL PRACTICE ¶ 0.448, p. 642 (2d
ed. 1994). It is not enough to avoid the preclusive effect of the
prior determination for the EEOC to show merely a change in facts:
9
a change must have occurred in facts that were essential to the
judgment and were "of controlling significance." Montana v. United
States, 440 U.S. at 159-161; 99 S.Ct. at 976-77; Hicks v. Quaker
Oats Co., 662 F.2d 1158, 1167 (5th Cir.1981) (interpreting Montana
to provide for issue preclusion even where the facts in the second
case are slightly different). EEOC's proffered change in
"controlling facts" is not of such character or degree. American's
age thirty guideline was not a "controlling factor" in the court's
analysis. Indeed, because the ADEA protects only those aged forty
and over, the court was constrained to construe and approve
American's policy as "an age 40 guideline". EEOC would have this
court interpret Murnane 's liberating holding as a restraint,5
5
Specifically, EEOC bases its limited view of Murnane on the
following passage of the district court's opinion:
It seems clear that the safest Captain is not an
American Captain who first assumes that position at age
fifty-five to fifty-nine, but an American Captain who
has the depth of experience that is the result of ten
to fifteen years flying as a Captain for American. The
Court concludes that if American were to hire pilots
above the age of 40 at the time of hiring, it would not
be possible for them to acquire this essential
experience before they are forced to retire by the FAA
age 60 rule. Therefore, the Court finds that American
has a factual basis for believing that all or
substantially all pilots of an age above forty at the
time of hiring would be unable to perform safely and
efficiently the duties of the job involved.
482 F.Supp. at 147. To EEOC, this holding depends on an
implied "years in service as captain" requirement. No such
limited view of the safety rationale was reflected in the
circuit court's decision. Rather, as extensively cited
above, that court evinced a desire to allow American to
maximize safety under the circumstances at hand, placing
emphasis on the safety advantage of "relatively young"
pilots with relatively longer experience flying for
American. This quoted language supports American's position
10
limiting American to hiring only pilots under forty or losing the
protection of Murnane. Since the years-to-Captain rule resulted in
age cutoffs ranging from 48-50 during 1989 (dropping back to 40-41
in 1992), EEOC argues the safety rationale underpinning Murnane can
no longer apply to justify American's refusal to hire those pilot
applicants older than the resultant age cutoffs. This perverse
construction is both counterintuitive and illogical.
This facet of EEOC's complaint alleges not that the ADEA is
violated when American hires a 45 year old pilot applicant who is
expected to progress to Captain a few years before his sixtieth
birthday, but instead when American fails to hire a 45 year old
applicant who is not expected to make Captain before the mandatory
retirement age. Murnane would condone American's refusal to hire,
for safety reasons, both classes of applicants under the previous
age-forty guideline. But, even if, contrary to our interpretation,
Murnane also turns on American's use of an age qualification to
maximize its pilots' years of service as Captain, as the EEOC
argued in the trial court and at oral argument, it does not follow
that American's present policy of refusing to hire applicants who
could not progress to Captain before retirement is unlawful. In
Murnane, the EEOC argued that American's hire-only-Captains policy
was not supported by the safety BFOQ. That argument was
specifically rejected by the circuit court. Murnane, 667 F.2d at
100 n. 5 and accompanying text. The promulgation of the
that Murnane condoned its use of age without limiting
American to a specific age cutoff.
11
years-to-Captain rule does not significantly change the controlling
facts relating to those applicants, represented by the EEOC in this
suit, who could not become Captain before their sixtieth birthday:
they would be excluded by both the age forty guideline and the
years-to-Captain rule. The difference is that under the age forty
rule at issue in Murnane, the affected applicants would have been
excluded solely because they were over-age without regard to
American's needs or expectations, whereas under the status quo the
applicants are rejected only if they could not become Captains
after acquiring the "best experience" by flying American aircraft
in the three cockpit positions. In effect, to deem American's
years-to-Captain rule as a "change in circumstances" that negates
collateral estoppel would subject American to another trial to
defend the hire-only-Captains/up-or-out policy vindicated in
Murnane.6
EEOC also argues that American's adoption of a policy which
permits the hiring of older pilots who could potentially become
Captain as late as age 59 undercuts American's proffered defense in
Murnane that the air carrier used age as a device to maximize
pilots' years of service, and hence safety, as Captain. We
6
That EEOC's challenge to the years-to-Captain rule flies in
the face of Murnane is evident from the agency's posture here.
By representing would-be American pilots in their fifties, EEOC
necessarily rejects American's view that airline safety is
maximized by nurturing the progression of pilots through the
cockpit positions in American's aircraft. But American's
reasoning was approved by the courts in Murnane, and the airline
should not be required to relitigate the soundness of that
position simply because American changed the method of
calculating the required progression.
12
disagree with EEOC's premised reading of Murnane and with its
conclusion. American's adoption of the years-to-Captain policy
does not significantly change the fact that American's
hire-only-Captains policy results in the selection of pilots who
will become Captains "with the longest possible record of
experience in American cockpits." Indeed, as between the
applicants who are selected because they will become Captain, even
if only briefly, before their sixtieth birthday, and the applicants
on whose behalf the EEOC brings this suit who cannot become
Captains before their sixtieth birthday, only American's selection
of the former would "ensure that the experience with American of
its active Captains will be maximized." 667 F.2d at 100 and n. 4.
The adoption of the years-to-Captain policy may have significantly
changed the circumstances with respect to applicants like Edward
Murnane who were rejected by the age forty guideline before 1985
but could have served as Captains for a few years pre-retirement.
But EEOC does not here represent those applicants on such a claim.
Instead, EEOC pursued this claim on behalf of only those applicants
who could not become Captain under the years-to-Captain rule.7 The
claim is barred because it was conclusively determined in favor of
American by the court in Murnane.
B. Did the Supreme Court's Western Air Lines v. Criswell Decision
Change the Controlling Legal Principles?
Noting that a "significant "change in the legal climate' " may
7
Indeed, the EEOC listed as claimants 6 applicants who were
over 60 years old at the time they applied, and 51 applicants who
were between the ages of 55-59 when they applied.
13
defeat collateral estoppel where "modifications in "controlling
legal principles' ... could render a previous determination
inconsistent with prevailing doctrine," Montana v. United States,
440 U.S. at 161, 99 S.Ct. at 977, EEOC proffers the Supreme Court's
ruling in Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 105
S.Ct. 2743, 86 L.Ed.2d 321 (1985) as such a change in ADEA law
since Murnane. This argument is easily refuted.
Criswell clarified that a BFOQ defense relating to safety
concerns in an ADEA case may succeed if the use of age was
"reasonably necessary to the normal operation" of the employer's
business; the Court rejected Western's argument that an employer
needed only to establish a "rational basis in fact" for its
age-based employment criterion. 472 U.S. at 421, 105 S.Ct. at
2755. In so holding, the Court expressly adopted the reasoning in
Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir.1976).
Criswell, 472 U.S. at 412-17, 105 S.Ct. at 2751-53. Tamiami, as
the Court observed, had already been approved by every circuit
court confronting the issue, by EEOC, and implicitly by Congress.
Criswell approvingly recited Tamiami 's objective standard for
reviewing the employer's claim that safety justified the age
qualification in selecting bus drivers:
"[T]he 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 bus
passengers from one point to another. The greater the safety
factor, measured by the likelihood of harm and the probable
severity of that harm in case of an accident, the more
stringent may be the job qualifications designed to ensure
safe driving." 531 F.2d at 236.
This inquiry "adjusts to the safety factor" by ensuring that
14
the employer's restrictive job qualifications are "reasonably
necessary" to further the overriding interest in public
safety. Ibid.
Criswell, 472 U.S. at 413, 105 S.Ct. at 2751 (emphasis in
original). The Court stated that Congress did not ignore the
public interest in safety in adopting the BFOQ standard of
"reasonable necessity":
That interest is adequately reflected in instructions that
track the language of the statute. When an employer
establishes that a job qualification has been carefully
formulated to respond to documented concerns for public
safety, it will not be overly burdensome to persuade the trier
of fact that the qualification is "reasonably necessary" to
the safe operation of the business. The uncertainty implicit
in the concept of managing safety risks always makes it
"reasonably necessary" to err on the side of caution in a
close case. [FN 29]
FN 29. Several Courts have recognized that safety
considerations are relevant in making or reviewing findings of
fact. [listing cases including Murnane, 667 F.2d at 101].
Such considerations, of course, are only relevant at the
margin of a close case, and do not relieve the employer from
its burden of establishing the BFOQ by the preponderance of
the evidence.
Criswell, 472 U.S. at 419 & n. 29, 105 S.Ct. 2754 & n. 29 (emphasis
added). Criswell rejected Western's novel "rational basis"
standard, which if adopted, would appear to give complete deference
to the employer's decision whenever the employer could produce an
expert willing to testify as to a rational basis for the reliance
on age. Criswell, 472 U.S. at 423, 105 S.Ct. at 2756.
EEOC contends that the Murnane decision was based on a
now-impermissibly deferential acceptance of American's safety
rationale for its hiring practices. Specifically, EEOC points to
the district court's findings that "American should be able to
apply a reasonable general rule in order to minimize the risks of
15
the disastrous consequences of an airline accident," and that
"American's hiring policy implements such a rule." Murnane, 482
F.Supp. at 147. EEOC argues that the appeals court "echoed" the
district court's improperly deferential approach, citing selected
parts of the following passage:
As the district court observed and emphasized, the airline
industry is one in which safety is of the utmost importance.
The staggering death tolls and resulting human suffering which
have followed some of our nation's horrible air disasters
attest to this fact. Therefore, in our judgment, the airline
industry must be accorded great leeway and discretion in
determining the manner in which it may be operated most
safely, Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 236
n. 30 (5th Cir.1976). This is in accord with America's view
that "safe" is not sufficient. Rather the "safest" possible
air transportation is the ultimate goal. Courts, in our view,
do not possess the expertise with which, in a cause presenting
safety as the critical element, to supplant their judgments
for those of the employer.
Murnane, 667 F.2d at 101 (emphasis in original).
Reviewing the Murnane holdings as a whole, we conclude that
both the district and appellate courts applied the proper standard.
Although the district court in Murnane used the term "reasonable"
once while discussing the standard to be applied to American, 482
F.Supp. at 147, it had repeatedly stated in the preceding
discussion its finding that American's policies were "reasonably
necessary." Id. Further, the district court did not "completely
defer" to the airline's discretion as prohibited by Criswell.
Rather, the district court conducted a lengthy and thorough review
of the record that substantiated American's position. Id. at 145-
47. And, contrary to EEOC's position, the district court did not
relieve American of its burden of proof but instead stated: "In
attempting to implement the [BFOQ] exception of the Act, American
16
has the burden of proving its actions were within the scope of the
exception." Id. at 144.
The District of Columbia Circuit Court's decision in Murnane
admits of no Criswell-based infirmities. Indeed, the appellate
panel presciently cited the same passage of Tamiami quoted
extensively by the Supreme Court in Criswell. Compare Murnane, 667
F.2d at 101, with Criswell, 472 U.S. at 413, 105 S.Ct. at 2751
(passages quoted above). Just as Criswell rejected the proposition
of "complete deference" suggested by Western in favor of the
settled Tamiami standard, Murnane self-evidently applied the proper
test and evidentiary burdens:
In sum, there was ample factual evidence and legal precedent
to support the findings of the district court. We conclude
that American's age forty guideline was a bona fide
occupational qualification "reasonably necessary to the normal
operation' of American Airlines.
667 F.2d at 101. Because Criswell changed no controlling legal
principles relied upon by the court in Murnane, there is no reason
to deprive the Murnane determinations of their preclusive effect
here.
C. Do Special Circumstances Warrant an Exception to the Normal
Rules of Preclusion?
EEOC's equitable and policy considerations advanced against
the application of the normal rules of issue preclusion were
properly rejected by the trial court.
The Supreme Court has decisively rejected attempts by
government agencies to avoid the bar of issue preclusion in order
to litigate repetitively against the same defendant on virtually
the same facts. United States v. Stauffer Chemical Co., 464 U.S.
17
165, 172, 104 S.Ct. 575, 578-80, 78 L.Ed.2d 388 (1984); Montana v.
United States, 440 U.S. 147, 162-64, 99 S.Ct. 970, 978-79, 59
L.Ed.2d 210 (1979). Rejecting policy arguments similar to those
made here, the Court stated:
Indeed we think that applying an exception to the doctrine of
mutual defensive estoppel in this case would substantially
frustrate the doctrine's purpose of protecting litigants from
burdensome relitigation and of promoting judicial economy.
Stauffer Chemicals, 464 U.S. at 173, 104 S.Ct. at 579. EEOC
advances no authority to suggest that these decisions do not remain
authoritative. This argument is frivolous.
In light of the absence of any significant change in
controlling facts and legal principles and any rule allowing
"special circumstances" to prevent the application of issue
preclusion, the trial court properly granted summary judgment for
American on EEOC's challenge to American's hire-only-Captains
years-to-Captain guidelines on behalf of claimants who could not
become Captains before reaching their sixtieth birthday.
III.
THE SUFFICIENCY OF EEOC'S STATISTICAL ANALYSIS
EEOC's second claim is that American intentionally
discriminated as a matter of pattern and practice against
applicants age forty and over who were not otherwise excluded from
consideration by American's hire-only-Captains policy. EEOC
initially sought to prove this allegation solely by offering a
statistical analysis that applicants over forty were rejected in
disproportionate numbers to those under the age of forty. American
challenged the relevance of the statistical analysis because it
18
compared hired candidates to all applicants in each age group,
regardless of qualifications. Responding to American's second
summary judgment motion, EEOC revised its analysis to exclude
applicants whom American disqualified for eight precise reasons;8
according to the new results, 33.6% of the applicants under forty
not disqualified by the stated facts were hired, whereas only 23.1%
of the applicants over forty not so disqualified were hired.
Significantly, in its Response to American's Second Motion for
Summary Judgment, EEOC cited no cases and made no legal arguments
other than to agree with American that "the relevant comparison in
a pattern and practice involving an allegation of age
discrimination in hiring is between qualified applicants over and
under age 40." (citing American's Brief in Support of Summary
Judgment which cited Hazelwood School District v. United States,
433 U.S. 299, 308-09, 97 S.Ct. 2736, 2741-42, 53 L.Ed.2d 768 (1977)
(emphasis in original)).
American renewed its objection to the new statistics,
complaining that EEOC had yet to produce a comparison of those
pilots hired to those qualified to be hired as pilots for American.
At best, EEOC's new comparison measured pilots hired against those
who applied, while eliminating some applicants who were
8
EEOC's expert declared that he modified his analysis to
take into account the following criteria for exclusion which had
been listed by American in its motion: 1) exclusion by Years to
Captain Rule, 2) failed medical exams, 3) insufficient total
flight hours, 4) insufficient recent flight hours, 5) refusal to
proceed with the application, 6) failure to show up for
interview, 7) prior employment with Eastern Airlines, and 8)
having a close relative employed at American. Declaration of
Jack Kearns, p. 3 (R. 642).
19
disqualified by a few obvious criteria. American offered
deposition excerpts from EEOC's statistical expert admitting that
the EEOC had only eliminated those applicants who were disqualified
by the threshold criteria American had identified in the Second
Motion for Summary Judgment. The expert conceded that other such
criteria may have been unaccounted for by his analysis. He further
admitted that certain hiring policies and criteria not considered
in his analysis may have further reduced the apparent age disparity
in the hiring percentages. The expert admitted that, among other
deficiencies in the analysis, he had not removed from the applicant
pool the pilots who failed to pass a flight simulator test. For
these reasons, American urged that EEOC's statistics did not
support an inference of intentional discrimination, and summary
judgment was proper. EEOC did not respond. The district court
granted summary judgment for American because the EEOC had failed
to meet its burden of coming forward with summary judgment evidence
proving that its statistical comparisons are between those hired
and those qualified as required by Hazelwood School District v.
United States, supra.
On appeal, EEOC advances several elaborate arguments to rescue
its statistical analysis from summary judgment. Those arguments
were not, however, presented to the trial court, which was invited
simply to determine, by the parties' agreement, whether EEOC had
offered sufficient proof that qualified pilot applicants over forty
were rejected by American at a greater rate than younger
applicants. Hazelwood, supra; Anderson v. Douglas & Lomason, 26
20
F.3d 1277, 1286 (5th Cir.1994). EEOC did not attempt to show that
the over-40 applicants were qualified, but only that they applied
and were not disqualified by a fixed but narrow set of criteria.9
The district court did not err in finding EEOC's proof insufficient
to create a genuine issue of intentional discrimination.
IV.
CONCLUSION
For the reasons provided, the district court's grant of final
summary judgment for American on EEOC's two claims of ADEA
violations is AFFIRMED.
9
The agency asserts in this court that for purposes of
making a prima facie pattern-and-practice discrimination case, it
need not demonstrate that each of the rejected applicants from a
protected class would have been fully qualified under the
particular employer's criteria, but only that they were generally
equipped for employment. As a general principle, it is accurate
that gross statistical disparities alone in an employer's hiring
patterns may constitute prima facie proof of intentional
discrimination. Hazelwood, supra. The cases do not as yet
specify what level of qualification for employment is sufficient
to undergird such a statistical case. Intuitively, the level of
qualification must be correlated to the sophistication of the job
duties; the job of corporate chief financial officers, for
instance, would not readily yield a statistical case for
discrimination by pattern and practice. See City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 501-02, 109 S.Ct. 706, 726, 102
L.Ed.2d 854 (1989) ("But where special qualifications are
necessary, the relevant statistical pool for purposes of
demonstrating discriminatory exclusion must be the number of
minorities qualified to undertake the particular task." (citing
Hazelwood, supra )). To the extent this subtle inquiry involves
factual and legal considerations, EEOC chose not to raise it in
the district court and may not do so now.
21