Opinion
No. C 02-01757 CRB
October 8, 2003
MEMORANDUM AND ORDER
Plaintiff, a former airline pilot, alleges that defendant violated the California Fair Employment and Housing Act ("FEHA") by refusing to hire plaintiff on account of his age. Now pending before the Court is defendants' motion for summary judgment. Defendants argue that plaintiffs FEHA claim is preempted, does not apply to defendants' conduct, and fails as a matter of law. After considering the papers filed by the parties, and having had the benefit of oral argument, the Court GRANTS defendants' motion on the ground that plaintiff's FEHA claim is preempted.
UNDISPUTED FACTS
Federal Aviation Administration ("FAA") regulations prohibit airlines from employing as a Captain or co-Captain a pilot who has reached the age of 60. 14 C.F.R. § 121.383(c). This regulation is known as the "Age 60 Rule."
The FAA has justified the retention of mandatory retirement for pilots on the
theory that "incapacitating medical events" and "adverse psychological, emotional, and physical changes" occur as a consequence of aging. "The inability to detect or predict with precision an individual's risk of sudden or subtle incapacitation, in the face of known age-related risks, counsels against relaxation of the rule."Western Airlines, Inc. v. Criswell, 472 U.S. 400, 404 (1985) (quoting 49 Fed. Reg. 14695 (1984)).
A. American's "years-to-Captain" policy
Until American Airlines ("American") began to phase out its three-seat aircraft, new pilots at American always began in the Flight Officer/Engineer position. There they received training and day-to-day experience with American's aircraft. The next step "up" is the Copilot position and then finally the "Captain."
In order to ensure that its Captains will acquire as much experience as possible flying for American, American has for many years followed several interrelated cockpit policies. First, American requires its pilots to move "up or out;" they must progress from the Flight Officer to Co-pilot to Captain positions or else leave the cockpit. Second, any pilot who has become permanently disqualified from advancing to or serving as Captain (for age or medical reason or otherwise) must also leave the cockpit so he or she will not occupy cockpit seats that could be used to give pilots "moving up" greater experience. Third, American only hires pilots who are young enough to reach the Captain position before being prohibited from serving as Captain by the FAA's Age 60 Rule. This last policy is known as the "years-to-Captain" policy.
Up until 1985, American guidelines prohibited the hiring of pilots over the age of 30 (later expanded to 40). This rule was intended to ensure that new pilots would have a high likelihood of advancing to and serving as Captains before reaching age 60 and being disqualified and therefore serve American's goal of maintaining a staff of Captains who have the longest possible record of experience in American's cockpits.
In 1985, after American expanded its operations and needed more pilots, it changed its "under age 40 rule" to the years-to-Captain policy. Under that 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. Based on those projections, and in light of the Age 60 Rule, American calculated a maximum remaining-years-of-flying/age cutoff for pilot applicants. For some period in the 1990's American hired new pilots up to age 50.
In the 1970's the Equal Employment Opportunity Commission ("EEOC") and a pilot applicant challenged American's age 30 rule as violating the Age Discrimination in Employment Act ("ADEA"). The district court, affirmed by the D.C. Circuit, found that the rule was a bona fide occupational qualification ("bfoq") and therefore did not violate the ADEA. The court found that American's rule maximized safety by hiring younger applicants who would progress through the ranks to Captain. Murnane v. American Airlines, Inc., 482 F. Supp. 135, 146 (D.C. Dist. 1979), aff'd, 667 F.2d 98, 102 (D.C. Cir. 1981).
When American changed to the years-to-Captain policy the EEOC again filed an ADEA lawsuit. The Fifth Circuit held that the EEOC's claim was barred by collateral estoppel arising from the Murnane action.EEOC v. American Airlines, Inc., 48 F.3d 164 (5th Cir. 1995). It held that the same reasoning that made the age 30 rule a bfoq made the years-to-Captain rule a bfoq as well.
B. The application of the years-to-Captain rule to plaintiff
Plaintiff was an experienced pilot with American Eagle Airlines. In February 1998 he applied for a pilot position with American. American declined to consider him for a position because of his age in accordance with its years-to-Captain policy.
On December 7, 2000, plaintiff again applied for a pilot position through a "How through" agreement between American and American Eagle Airlines pilots. Under the agreement, commuter jet Captains at American Eagle who had completed "initial operating experience" were offered certain rights to "flow through" from American Eagle to open positions for new pilots at American. To be eligible for a position with American, the American Eagle pilots were required to serve an initial "training freeze" for a period of at least 18 to 24 months after their initial operating experience as a commuter jet Captain. The flow-through agreement also provided that to be eligible for a new hire position at American, the American Eagle commuter jet pilot must satisfy American's years-to-Captain policy. In January 2001, American advised plaintiff that he did not qualify for a pilot position with American because he was over the age of 50, in other words, he did not meet the years-to-Captain requirement.
PROCEDURAL HISTORY
— After exhausting his administrative remedies, plaintiff filed this lawsuit in state court alleging that defendant refused to hire him in 1998 and again in January 2001 because of his age in violation of FEHA and California public policy. After the case was removed on the basis of diversity jurisdiction, the Court dismissed the public policy claim and the challenge to the 1998 refusal to hire on statute of limitation grounds.
American now moves for summary judgment of the one claim remaining in this lawsuit, namely, plaintiffs claim that American's refusal to hire him through the flow-through agreement violated FEHA's prohibition on age discrimination. American makes three arguments. First, it contends that plaintiffs FEHA claim is preempted by federal law. Second, it argues that plaintiff cannot state a claim under California law because at the time American refused to hire plaintiff, plaintiffs job was based in Chicago, Illinois. Lastly, it asserts that plaintiffs FEHA claim fails because the undisputed evidence establishes that there were no vacant pilot position available at American for plaintiff to fill.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett. 477 U.S. 317, 323-24(1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
In determining whether to grant or deny summary judgment, a district court is not required "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations omitted). Rather, a court is entitled to rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment. See id.
DISCUSSION
I. PreemptionAmerican moves for summary judgment of plaintiff s state law FEHA claim on preemption grounds. As the Ninth Circuit has explained:
Article VI of the Constitution provides that the laws of the United States "shall be the supreme Law of the Land; . . . any Thing in the Constitution or laws of any state to the Contrary notwithstanding." "Consideration of the issues arising under the Supremacy Clause 4start[s] with the assumption that the historic police powers of the states [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.'"Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000). The Ninth Circuit has based its preemption analysis on the Supreme Court's three categories: (1) express preemption — "where Congress explicitly defines the extent to which its enactments preempt state law;" (2) field preemption — "where state law attempts to regulate conduct in a field that Congress intended the federal law exclusively to occupy;" and (3) conflict preemption — "where it is impossible to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id.
American argues that plaintiffs FEHA claim challenging the legality of American's years-to-Captain rule is preempted under all three categories. "In determining whether a [state law] is preempted by federal law, [the court's] sole task is to ascertain the intent of Congress." Bank of America v. City and County of San Francisco, 309 F.3d 551. 557-58 (9th Cir. 2002).
A. Express preemption
American asserts that plaintiffs state law claim is barred by the express preemption provision of the Airline Deregulation Act ("ADA"). That provision provides:
[N]o state or political subdivision thereof and no interstate agency or other political agency of two or more states shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law related to a price, route or service of an air carrier that may provide air transportation under this subpart.
ADA § 1305(a)(1). American contends that "safety" is a "service" of an airline and therefore plaintiff's FEHA claim, which attempts to regulate American's "safety" years-to-Captain policy, is expressly preempted.
American's argument is foreclosed by binding Ninth Circuit law. InCharas v. TWA. 160 F.3d 1259 (9th Cir. 1998), an en bane court held that Congress's "'clear and manifest purpose' in enacting the ADA was to achieve . . . the economic deregulation of the airline industry. Specifically, 'the ADA . . . was designed to promote "maximum reliance on competitive market forces.' The purpose of preemption is to avoid state interference with federal deregulation."Id. at 1265. The court therefore concluded that "Congress used 'service' in § 1305(a)(1) in the public utility sense-i.e., the provision of air transportation to and from various markets at various times." Id. at 1266. "'[S]ervice' . . . refers to such things as the frequency and scheduling of transportation, and to the selection of markets to or from which transportation is provided."Id. at 1265-66.
The court applied the Charas definition of "service" the following year in Newman v. American Airlines. Inc., 176 F.3d 1128 (9th Cir. 1999). The plaintiff sued for disability discrimination after the airline refused to allow her to board without a doctor's certificate stating that she could fly (she was in a wheelchair and had a heart problem). The Ninth Circuit held the plaintiffs claim was not preempted: "the term 'service' does not refer to alleged discrimination to passengers due to their disabilities." Id. at 1131;see also Duncan v. Northwest Airlines, Inc., 208 F.3d 1112, 1114 (9th Cir. 2000) (stating that Charas provided "a definitive interpretation of the term 'service.'").
If "service" does not include discrimination to passengers due to disabilities, it also does not include discrimination to employees due to their age. Accordingly, American's express preemption argument fails as a matter of law.
B. Field preemption
The Supreme Court has "recognized that a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, . . . or when state law is in actual conflict with federal law." Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995).
American argues that Congress has preempted the field of airline safety, or at least, airline safety as it relates to pilot qualifications, and therefore plaintiffs FEHA claim is preempted. Field preemption "may be inferred when federal regulation in a particular field is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. 'In such cases of field preemption, the 'mere volume and complexity' of federal regulations demonstrate an implicit congressional intent to displace all state law." Bank of America v. City and County of San Francisco. 309 F.3d 551, 558 (9th Cir. 2002).
The First Circuit's decision in French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989), is closely on point. French was a pilot for Pan Am. Pan Am learned that French might have used marijuana when he was off duty and ordered French to submit to a urine test. French refused and Pan Am fired him. French filed suit in state court arguing that his discharge violated Rhode Island law, and in particular, a statute governing when an employer can require an employee to take a drug test. See R.I. Gen. Laws § 28-6.5-1 (prohibiting urine tests unless, among other things, an employer has reasonable grounds to believe that an employee's use of drugs is impairing his ability to perform his job and the test is conducted in conjunction with a bona fide rehabilitation program).
The First Circuit held that the Federal Aviation Act ("the Act") demonstrates an intent by Congress "to occupy the field of pilot regulation related to air safety, to the exclusion of state law."Id. at 6. The court noted that the Act "assigns the overall responsibility for prescribing rules governing such matters a pilot qualification to the federal Secretary of
Transportation." Id. at 3. It also found that the Act "specifies the Secretary's role in great detail." Id. For example, the Act makes it unlawful for anyone to pilot a commercial aircraft without a pilot certification, 49 U.S.C. App. § 1430(a)(2), and it gives the Secretary the authority to issue the certifications.Id. § 1422. This authority includes the responsibility of proscribing the physical qualifications for pilots' certification. The court concluded: "[t]he intricate web of statutory provisions affords no room for the imposition of state-law criteria vis-a-vis pilot suitability. We therefore conclude, without serious question, that preemption is implied by the comprehensive legal scheme which imposes on the Secretary of Transportation the duty of qualifying pilots for air service." Id. at 4.
The court emphasized that the Secretary's regulations promulgated under the Act supported its holding that Congress intended to occupy the field of pilot regulation related to air safety. It noted, in particular, that the Secretary had prescribed the medical standards a pilot must meet, including, among other things, that a pilot not have a history of drug dependency. Id. at 4. The court concluded:
It is hard to imagine an area of regulation that is more closely related to air safety than pilot qualification. And local restrictions on pilot qualification would make impossible the attainment of the centralized control and uniformity of design so plainly coveted by the Congress.Id.
The French court's reasoning applies here. According to plaintiff, under California law American's "years to Captain" qualification standard is unlawful. To prevail, he will ultimately have to prove that the "years to Captain" policy is not a bfoq. Thus, plaintiff seeks to use state law to regulate who is qualified to be hired as a commercial airline pilot. As the French court observed, pilot qualifications is an area heavily and closely regulated by Congress. Indeed, the FAA itself has passed age-qualifying regulations, namely, the Age 60 Rule.
Plaintiff responds by not addressing French; instead, he notes that the FAA regulations do not mention discrimination and that nothing in the Act or its regulations evidence an intent to preempt state discrimination laws. The Court is not holding, however, that the Act impliedly preempts all state discrimination laws. A claim by a pilot applicant that he was not hired because of his race in violation of state law would not be impliedly preempted. The issue in such a case would be the reason for the non-hiring, not whether the reason given is a bfoq. Here, in contrast, there is no dispute that plaintiff was not hired because of American's age-based policy which it has adopted for safety reasons. Thus, plaintiff seeks to use state law to regulate pilot qualifications as they relate to safety. The Court agrees with the French court that Congress intended to occupy the field of pilot qualifications as it relates to safety to the exclusion of state law. To hold otherwise would mean that American could be subject to 50 different state laws regulating whether its pilot qualification/safety regulation is lawful.
Plaintiff also argues that because the Act includes an express preemption provision, and his claim does not fall within it, the Court should not find implied preemption. The Supreme Court has rejected this argument: "[i]mplied . . . preemption cart exist even when Congress has chosen to include an express preemption clause in a statute."Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199, 1204 (9th Cir. 2002) (citing Freightliner Corp. v. Mynick, 514 U.S. 280, 287 (1995)).
The Court's holding does not mean that American's age-based policy can never be challenged. Plaintiff could have brought suit under federal law, the ADEA; indeed, the previous cases brought by the EEOC challenging American's policy were brought pursuant to the ADEA. See EEOC v. American Airlines, Inc., 48 F.3d 164 (5th Cir. 1995):Murnane. 482 F. Supp. 135, 146 (D.C. Dist. 1979). The Court has not found any case, and plaintiff has not cited any, in which a plaintiff was allowed to challenge similar pilot qualification rules under state law.
C. Conflict preemption
American also argues for conflict preemption. The Supreme Court has "found implied conflict preemption where it is 'impossible for a private party to comply with both state and federal requirements,' . . . or where state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."Williamson. 208 F.3d at 1149. American has not established that it cannot comply with federal requirements and also comply with California anti-discrimination laws. Assuming American's years-to-Captain policy is unlawful under California law, federal law does not require American to adopt such a policy; thus, there is no conflict between federal and state law.
II. American's other arguments
Since the Court concludes that plaintiff's claim is preempted by federal law and therefore must be dismissed it need not address defendants' other arguments in support of summary judgment.
CONCLUSION
Plaintiffs claim that defendants' years-to-Captain policy violates state law is preempted because Congress intended to occupy the field of commercial airline pilot qualifications as they relate to safety. Accordingly, defendants' motion for summary judgment is GRANTED.