Equal Employment Opportunity Commission v. American Airlines, Inc.

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