Joseph A. Iervolino v. Delta Air Lines, Inc.

See United controlled substances. tribute Orozco-Prada, v.

States Cir.), denied, (2d cert. 1079-81 (1984).

—, 83 L.Ed.2d partici others that Munro and

The fact in distribution laundering

pated both

merely supports the conclusion Bur conspiracy. Finally, as single

was a large testified, it is in the nature

roughs dealings that means will be drug

scale of considera conceal the source

needed to Laundering is thus illegal proceeds.

ble conspir

integral type of distribution We hold that in this case.

acy involved conspir between

there was variance proved. It was conspiracy

acy pled and the other try Munro with

not unfair to conspiracy.

participants

IV. CONCLUSION reasons, we affirm foregoing

For the Fuente, Bollinger, de la

convictions Cruz-Barrientos, and Munro.

McTeer, Hall

AFFIRMED. IERVOLINO,

Joseph A.

Plaintiff-Appellant, LINES, INC., AIR

DELTA

Defendant-Appellee.

No. 84-8852. Appeals,

United States Court

Eleventh Circuit.

Aug. Banc En Rehearing

Rehearing and 25, 1986. Sept.

Denied

Lockheed requires 1011. This aircraft cockpit: three crew members a cap- tain, officer, a first and a second officer. captain pilot is the and controls the responsible aircraft. He is phases for all operation. of its The first officer is the copilot captain. assists The second officer or usually monitors side-facing panel, instrument and does operate controls. regulation A of the Federal Aviation Ad- Serwer, 111., Alan Chicago, plain- M. prohibits ministration any person from tiff-appellant. serving pilot as a or first officer on a Partain, Cannon, Eugene G. Carl Scott flight commercial “if person has Greene, Kassin, Lines, Thomas J. Air Delta reached his birthday.” 60th 14 C.F.R. Inc., Atlanta, 121.383(c) (1985). Airport, Hartsfield Intern. FAA, however, § Ga., defendant-appellee. for has refused mandatory to establish a re- age flight

tirement engineers. Delta employed captain Iervolino aas until his birthday. 1980, sixtieth In March retirement, five months before his Iervoli- ANDERSON, Before and JOHNSON Cir- requested position a transfer to the Judges, DYER, cuit Senior Circuit flight engineer so that he could continue Judge. employment beyond his age 60. Delta de- nied request, and he was retired ANDERSON, Judge: Circuit birthday. on his sixtieth Joseph brought this Iervolino action Iervolino against filed action Delta against his employer, former Delta Air in the United States District Court for the Lines, Inc., alleging that Delta’s refusal to Georgia, Northern arguing District permit position him to transfer to the permit Delta’s refusal to him to transfer to flight engineer Age violated the Discrimi- flight engineer position a violated the (“ADEA”), Employment nation in Act ADEA. Delta per- defended its refusal to (West 1985). U.S.C.A. ap- 621-634 On §§ flight mit engi- Iervolino to transfer to a peal from a judgment on a rendered position grounds: (1) neer on two that its Delta, verdict for Iervolino raises numer- policy captains prohibiting from transfer- instructions, challenges ous to the ring flight engineer positions (“two-step denial of judgment his motion for notwith- downbid”) qualified as a factor reasonable standing (“JNOV”) the verdict or alterna- (“RFOA”) age other than within the mean- trial, tively for a new and the district ing 623(f)(1)(West 1985),1 29 U.S.C.A. § evidentiary rulings. court’s We affirm. (2) under-age-60 qualification position flight engineer for the a bona I. BACKGROUND occupational qualification fide (“BFOQ”) In its operation, commercial airline reasonably necessary Delta transpor- to the safe operates variety aircraft, a including passengers.2 tation of 623(f)(1) provides part 623(f)(1) provides 1. Section part in relevant 2. Section in relevant employer employer shall shall "[i]t ”[i]t not be unlawful not be unlawful for an for an ... ... any prohibited to take any action otherwise under prohibited take action otherwise under (a), (c), (e) (b), (c), subsection or section (a), (b), (e) of this subsections or of this section ... occupational qualifica- where fide bona where the differentiation is based on reasonable reasonably necessary opera- tion to the normal age.” 623(f)(1) factors § other than 29 U.S.C.A. particular tion of a business.” U.S.C.A. (West 1985). 623(f)(1) (West 1985). § trial, potential problems could parties conflicting offered to the result At of a as to existence serving captains evidence from former as second ’ two-step downbids. prohibiting argued Delta officers. that since an that, pilots approach- except for contended pilot entirely may individual unaware of pilots permitted Delta had difficulty any flight in his transition to vacancy the bids bid awarded engineer position problem until after a oc- seniority. 1973 and Between based curs, predict it is which for- impossible cap- from transfers captains difficulty mak- mer would have flight copilot copilot from tain ing the transition. by crew under engineer members downbid”). respect question of presented With to the (“one-step under-age-60 of two instances in which Delta rule is a for the evidence two-step downbid. permitted had position, flight engineer Iervolino offered a permitted Ralph Sexton Delta variety support his evidence to conten- captain flight engineer transfer flight engineer’s that a normal duties tion result of medical condition flight less critical of a are to the a cap- his continued service as precluded captain first than those officer. Air acquired Delta Northeast tain. When example, FAA has not For extended Lines, (“Northeast”) Inc. two age-60 rule posi- captains were also Northeast tion because the evidence indicates that flight engineer positions Del- transfer to engineers rarely been a have contrib- ta. uting cause factor in commercial aircraft sug- also introduced evidence Iervolino flight engineers accidents and because do serving captains gesting that former as manipulate any flight controls. Iervoli- engineers present any flight would flight 485 no also introduced evidence that problems. point- Iervolino “role reversal” 60, engineers including over the 134 “role rever- that there have been no ed out captains, serving on former other captains either problems when senior sal” Finally, airlines. several for- commercial cockpit in a observer seat with more ride captains flight engineers serving mer as given captains captains or when are junior experienced no they testified had diffi- captains checks senior check proficiency safely flight culty performing engi- inspectors. also or FAA Iervolino claimed position. neer cap- could a former that Delta evaluate engineer ability flight to tain’s serve as a also offered evidence that already individual Delta on an basis since possible be for Delta to evaluate its ability captains their evaluates on to flight engineers individual basis for on an manage their crew in situations and medical potentially disqualifying condi- how well crew members interact observes on example, For Delta has relied tions. their and coordinate efforts. FAA-mandated medical examinations to as- Delta, hand, the other introduced evi- basis, sess, ability on an individual long-standing policy it has dence that flight engineers perform to their pilots and captains bidding down prohibiting safely efficiently. point- jobs engineer positions. Delta flight asserts pilots out that Delta had ed was based flight following diagno- duty return two-step associated down- problems with medically disqualifying serious condi- sis of Expert testimony indicated that bids. tions, later provided pilots pass could these engi- captains flight former serve as when Delta also has a medical examinations. neers, may members the roles the crew designed to system proficiency checks ambiguous confused former become per- can crew members ascertain whether engineers serving flight may captains job safely required of the form the duties during other members intimidate crew efficiently. emergency. pilots also testified as Several

1413 contended, however, age- part Delta ‘as charge, the entire view the requirement flight for the allegations complaint, the evidence First, position. engineer presented, offered evi- Delta arguments and the counsel, flight engineer position dence determine whether the was misled flight safety. pilots essential Several and whether understood the is ” engineer’s testified failure to sues.’ National Distillers & Chemical properly adversely his duties could v. Corp. Products, Brad’s Inc., Machine flight safety, especially during 492, affect emer- (11th F.2d Cir.1982) (quoting gencies. An aircraft simulator demonstra- Virginia Benson, First Bankshares v. 1307, reports tion and various accident were also Cir.1977)); see importance introduced illustrate the Criswell, Air Western Lines v. flight engineer’s —, 2743, duties and need for 2755, 105 S.Ct. 86 L.Ed.2d 321 among cockpit (1985) (reviewing close coordination crewmem- jury instructions in the “ bers. ‘context of the charge’ overall case,” circumstances of the including de presented Delta also evidence that cer- closing argument) fendant’s (quoting Cupp age-related tain diseases and infirmities 141, Naughten, 147, 414 U.S. 94 S.Ct. attacks, strokes, dementia, (e.g., heart sus- 400, (1973)). 38 L.Ed.2d 368 reactions) ceptibility drug to adverse be- prevalent come at or more around the 1. Downbidding Policy pre- and that medical science cannot susceptible dict will challenges who these dis- Iervolino raises three eases. Dr. Rowe respect John and Dr. Donald instructions with to Delta’s policy prohibiting Kline there presently (1) concluded that exists two-step downbids: reasonable method Delta evaluate district court erroneously applied crew members an individual basis. the test set forth McDonnell Douglas v. Green, 411 U.S. general After trial the jury returned a (1973), case; (2) L.Ed.2d to the instant Delta, verdict favor of and the district improperly permitted that the instructions court denied Iervolino’s motion JNOV to Delta defend this on policy the inconsist- alternatively for a new trial. The fol- BFOQ grounds ent and RFOA de- lowing appeal ensued. fenses; (3) disprov- that the burden of ing the RFOA was incorrectly defense II. ANALYSIS placed on Iervolino rather than We Delta. appeal, challenges On jury Iervolino find no merit in these contentions. concerning policy pro- instructions Delta’s first Iervolino’s is that hibiting two-step downbids and the Douglas McDonnell allocation of the bur- defense, the of denial his motion for JNOV proof inapplicable den of in was the instant trial, evidentiary or for a new arid various presented case because he direct evidence rulings. We each in consider contention policy prohibiting step that Delta’s two turn. discriminatory was on downbids its face. reject We this contention. Jury A. Instructions only Iervolino raises numerous chal arguably evidence that lenges concerning age to the instructions constitutes direct evidence of discrimi policy prohibiting Delta’s two-step personnel down- in nation notation bids appeal, discharge defense. On file that the reason for his challenged we “Mandatory examine “the Retirement —AGE 60.” Thurston, Thurston, Relying inappropriate on Trans World Airlines v. test however, in the instant case. 613, support 469 U.S. (1985), 105 S.Ct. 83 L.Ed.2d 523 does not Iervolino. In Thur- ston, policy Iervolino also asserts that Delta’s Court that held the McDon- prohibiting discriminatory nell-Douglas two-step apply plain- downbids is test when the does face, making McDonnell-Douglas presents on its thus tiff direct evidence of discrimination. statement, object 9. This how- to the instructions Exh. Plaintiffs mean either ever, ambiguous: ground it could give is on this failure such from forced to retire Iervolino was that in an instruction the instant case does not age Was sim- 60 or that Iervolino Delta plain constitute error. captain position from his ply retired Rule 51 of the Rules of Federal Civil employ- to continue his remained free but party may Procedure mandates that “[n]o non-flying position. in a with Delta ment assign as giving error the or the failure to supports the record Iervolino asserts give objects an instruction unless he there interpretation,4 and concludes the former to before the retires to consider its presented direct evidence of that since he verdict, stating distinctly the matter discrimination, should have objects grounds he his if it this evi- found been instructed objection.” Fed.R.Civ.P. 51. the ab credible, then the burden shift- to be dence objection, we will sence such reverse by preponderance prove to Delta to ed exceptional cases the error where evidence the same decision would “ ‘so fundamental as result a miscar even the absence of have been reached ” Archer, Patton v. riage justice.’ We not reach the age discrimination. do (5th Cir.1979) (quoting De F.2d in Iervoli- question whether notation Service, Inc., v. lancey Towing Motichek personnel sufficient di- file constituted no’s (5th see also Cir.1970));5 age discrimination to re- rect evidence of Lobby, Liberty Hunt v. giving of such an instruction be- quire the Cir.1983); Housing sufficient, Barnett Au- even if this notation were cause ing position. requesting In his letter a transfer The direct evidence in Thur- expressly flight engineer position, consisted of a denied stated ston rule,” age: employment [age-60] privilege "pending on the basis relief he accept willing non-fly- would be "a transfer to disqualified Captains become from serv- who assignment” ing supervisory duty special or to a position than in that for reasons other seniority provided that his would "continue to displace automatically are able to less senior accrue, non-line-flying status flight engineers. Captains disqualified and that the ... be- from a Second are not this same would in or conceded Offi- cause “bumping" privilege. afforded Instead, cer/Flight they Engineer are forced status.” Plaintiff’s Exh. 3. bidding procedures responded impossible resort set forth Delta that it would be agreement. collective-bargaining during any period If request such “honor [his] bidding vacancy prior cap- your position seniority employment birthday, intact,” tain’s 60th he must retire. list remain but invited him to added) (footnote (emphasis 105 S.Ct. at 621 explain non-flying supervisory duty spe- what omitted). assignment acceptable would be to him: cial case, however, parties In the disa- instant your pro- respect With second alternative greed policy prohibiting about Delta’s i.e., supervisory posal, non-flying transfer to age. Although two-step based downbids was appreci- duty assignment, special I would suggesting evidence that this Iervolino offered your letting exactly you what ate me know approaching policy only applied captains to was may properly have in so that I evaluate mind birthday, introduced evi- their sixtieth Delta Also, your request. in of the fact that view practice long-standing that had a dence it has request your you on have conditioned this transfers, regardless cap- prohibiting of the such list, being seniority I to remain on the allowed age, practice was based on tain's and that this your letting you appreciate know if me problems with for- the role reversal associated pursue in fact that we desire to it view of the captains serving engineers. as Un- mer you seniority be to retain on the will unable Thurston, policy like Delta’s was not discrimina- list____ face, tory on its and thus could not constitute However, 21. Iervolino never Defendant’s Exh. age discrimination. direct evidence of request. Appeal, responded Record on to this 235-36, at vol. 21 vol. 13 at 2039-42. not necessar- 4. The notation in Iervolino's file is ily position inconsistent with Delta’s that while Prichard, City 661 F.2d 1206 5. In Bonner v. prohibited regulations FAA’s him from serv- the (en banc), (11th Cir.1981) adopted court this ing captain copilot as a after his sixtieth binding precedent all of the decisions the prohibiting any birthday policy and Delta’s two- prior to the down former Fifth Circuit handed step prevented to his transfer the downbids September on 1981. Id. flight engineer close business position, he free to remained non-fly- employment at in a 1209. continue his Delta thority, be Cir. asserted simultaneously respect with 1983). the same policy since factors “other than age” by prac- definition cannot a constitute object did not to the in Since Iervolino “age” BFOQ. tice where is a We find no the McDon ground structions on the in merit this contention. While is it true Douglas nell analysis in inappropriate was practice cannot simul- case,6 employment the we review the instruction instant taneously plain be both reasonable under the error standard and con factor oth- age clude the court not er than occupational district did commit bona fide plain instructing in jury qualification, error the on the this does not mean that alter- Douglas McDonnell allocation of the bur nate theories cannot be submitted the proof. den note We Iervolino’s i.e., jury, particular practice age that a proposed instructions were based on the neutral and that even if it were based on Douglas approach and McDonnell not did age, it is a occupational bona fide qualifica- request jury the on instructed case, tion. the instant example, Del- proof plaintiff burden of in cases where presented ta evidence that because of safe- presents direct evidence discrimination.7 prohibited ty, all captains, it only those Moreover, questioned when the court Ier approaching who age were from down- volino’s the appropriate counsel about allo bidding positions. If the proof cation of burden of on RFOA evidence, jury accepted this then Delta’s defense, his counsel conceded that Delta policy would abe reasonable factor other production, had burden not the age. If, hand, than on the other supra persuasion. See burden of 6. note concluded policy age- that Delta’s based, Iervolino’s next contention is that then Delta would still be entitled to improperly permitted the instructions Delta BFOQ. justify policy as a prohibiting step its policy defend two BFOQ. argument downbids as both a RFOA and Iervolino’s third is that Iervolino claims that these defenses cannot Delta should persuasion have the burden of describes, objected here, Iervolino claims that since he had present court which is not I McDonnell-Douglas perhaps use of formulation think that Circuit, could be the view of Fifth proof of the burden of when he made his mo- least in that case.” Id. at 2439. Un- circumstances, day tion for a directed verdict the der these before the we hold that Iervolino charged, unnecessary object charging was on him object charge ground. McDonnell-Douglas Ap- on the test. same However, pellant’s Reply Brief at 10-12. after record, carefully reviewing the we find proposed provide Iervolino’s objection. Iervolino did not make such an part: Dur- relevant support of a direct- proof plaintiff The burden of verdict, questioned ed the trial court him about discriminatory show treatment defendant proof the defense, burden of on Delta’s RFOA age by preponderance basis of i.e., policy prohibiting two-step evidence____ downbids, initially and Iervolino’s counsel re- whether, taking You must determine sponded inappropri- that an RFOA defense was whole, age evidence as a was a ate in case decision____ because have a case ”[w]e factor If more than one factor____ age The fundamental involved, plaintiff may prove factor was dis- oppose anyone working past tois 60.” criminatory treatment basis of if court, Appeal, Record on vol. 23 at 2436. The one the factors was his made however, explained that while Iervolino had permit a difference in Delta’s action not to presented age "some direct evidence” dis- (second flight engineer him to work cer) aas offi- crimination, question weight “the the and beyond birthday____ his sixtieth totally question effect of that evidence is a for Defendant denies that has discriminated whether, jury,” the and then asked Iervolino in the on basis of and has contended that case, prohibiting two-step policy However, such a Delta’s was not a factor in its action. legit- downbids would be "the articulation of plaintiff may prevail still if he shows the that reason, non-discriminatory imate which then reasons defendant has offered were not the by you, actions, must be rebutted or overcome shown real reasons for defendant’s but pretext.” agreed pretext be Id. 2438. for discrimination. hypothetical Appeal, that "in the situation which vol. 6 the Record at 1776.

1416 job quali- prong first is satisfied where the This contention defense. RFOA light are “reasonable” in of the repeatedly held fications have merit. We without per- safety risks: the burden plaintiff bears See, e.g., defense. on the RFOA plainly at odds Con- proposal suasion This with Inc., ADEA, 664 decision, Haring adopting v. C.P.C. in gress’ International 1981);8 (5th B 1234, Unit 1238 Cir. management F.2d decisions to a subject such Co., 627 F.2d & justification Roebuck in objective Houser v. Sears a court test 1980). (5th A Unit BFOQ adopted 757-58 Cir. standard in the law. The necessity,” one of “reasonable statute is BFOQ 2. reasonableness. Defense BFOQ challenges instruc at 2754. Id. (1) jury grounds: tion on several objection first is that the that the under erroneously instructed was incorrectly age- that the stated age-60 qualification for “reasonably” requirement only need be “reasonably” related position need transportation pas related to the safe (2) improp safety; that the instructions Although the instructions at one sengers. BFOQ two-part defense ar erly fused the job qual state that the point improperly Criswell, in Air Lines v. ticulated Western light ification must be “reasonable — U.S. —, L.Ed.2d safety,” Ap considerations of Record (1985), permitting jury to consid by improper peal, vol. 25 at instruc assessing whether er the need preceded by and tion was both followed necessary proxy for the age is a necessity properly articulated reasonable (3) engineer position; began by standard. The instructions considering the standards precluded from “reasonably charging that a must be FAA; (4) and airlines and the of other business,” employer’s necessary to the improperly allowed the the instructions reasonableness, mentioned improperly then non-age in evaluat to consider factors guide properly but then continued argu BFOQ defense. These Delta’s whether there was a however, ments, merit. are without risk,” so, “significant safety whether substantially persons all of the ex “all or Criswell, In Air Lines v. Western policy be unable to cluded 2743, 2751-53, U.S. —, S.Ct. safely,” or if not all or substantial perform (1985), Supreme ex L.Ed.2d 321 Court persons “some ex ly persons, all approved two-part test for eval plicitly would be unable cluded uating defense articulated Us ..., impossible safely and ... it is perform Tours, Inc., ery v. Tamiami Trail impractical to determine on an highly Cir.1976). (5th This test re 235-36 per safely ones can basis which individual (1) job quires employer to show that form, general rule.” thereby justifying necessary reasonably qualifications are BFOQ instructions The Id. at 2830-31. business, operation of the the essential of the a final statement concluded with (2) is a factual basis for believ that there necessity standard. Id. proper reasonable substantially per ing that all or at 2832. protected sons within the class Iervolino’s counsel closing argument, job ADEA unable to would be standard, id. impossi stated the efficiently or that it is safely and 2766-71, not contra- Delta’s counsel did job highly impractical to determine ble or Moreover, a careful statement. 105 dict this on an basis. fitness individualized reveals charge conference spe review of the Court at 2751-52. S.Ct. attorneys both court and the cifically rejected the Securities, Inc., Circuit. B the former Fifth of Unit Reynolds decisions In Stein Cir.1982), binding adopted court Id. at 30, 1981, precedent post-September all of the (2) recognized proper impractical sides that the standard that it is highly impossi- or necessity, not mere reason- ble persons was reasonable to determine which per- can apparent It is the record form job ableness. the safely. asserts, however, that the district court intended to articulate subsequent that a reference in necessity standard. the reasonable Id. vol. the instructions to the discretion that an significant at 2680-81. It is also employer in establishing job has qualifica- object did not specifically tions in cases where there greater is a of the term in the only use “reasonable” likelihood of improperly permitted harm place improper that we find an use.9 Eval- jury the to consider the need for safety in uating charge the as a whole and its articu- assessing i.e., step, the second in determin- proper necessity lation the reasonable whether necessary is a proxy for standard, light lack of job qualifications. the This contention is specific objection articula- without merit. An examination of the in- the tion the standard in structions passage reveals that this refers counsel, we conclude that has been to step BFOQ defense, the first i.e., the no reversible error. whether job qualifications the are reason- ably necessary transportation to the safe Iervolino’s next contention is that passengers, question not to the of whether erroneously jury instructions fused the necessary proxy is a for qualifi- those two-step analysis of the defense into cations. single complete “a standard of almost def- employer’s Appel- erence to the decision.” objects Iervolino also the in step lant’s Brief at 25. The first is wheth- improperly precluded structions jury job qualification reasonably er neces- from considering the standards of other sary transportation passen- to the safe airlines and the FAA: gers. The step second is whether there is The standard the reasonable- believing factual basis for that all or safety precautions ness of Delta’s is to persons substantially all of the within the judged be is not the standard of other

protected perform class would unable to bodies or other airlines. job safely efficiently or Instead, policy must be assessed impossible impractical highly or to deter- against Delta’s own commitment to safe- job mine fitness on an individualized basis. ty as demonstrated what it actually Iervolino contends the instructions promotion safety does in the compa- instant improperly case rable areas. jury to consider need for determining step second had Id. at 2832. object Since Iervolino did not

been satisfied in the instant case. instruction, to this we review it for plain error. object

Since Iervolino did not ground Lines, the instructions on Western Air charge conference, review this we instruc Court concluded that the standards of the standard, plain tion under the error and we FAA and other are airlines relevant to an defense, find no such error they here. instructions airline’s but are not to i.e., properly charged step, prop weight. second be accorded conclusive erly Viewing informed two methods the record as a whole, establishing necessary we are satisfied would (1) proxy job qualification: have understood the relevance of the stan- substantially all of the individuals ex dards of other bodies in wheth- BFOQ. First, policy cluded Delta’s be unable to er Delta’s job efficiently safely, specifically informed object- satisfy Ap We note that when counsel tions to Record these concerns. 2688-89, 2680-81, to the use of "reasonable” peal, ed the term in other vol. 24 at 2692-96. contexts, the district court modified the instruc- 1418 any regulation oper- did not have would have on the of Delta’s

that the FAA of second offi- prohibiting employment ations because of its effect on crew com- age Appeal, structure, communication, 60.10 Record on vol. past cers mand crew jury If not intended to concentration, 25 at 2833. and crew or other sim- have position, consider the FAA it would relating safety. ilar reasons unnecessary for the instructions to been Id. at 2831-32. needWe not decide wheth- Moreover, point position out what its was. giving er the district court erred in this during closing argument, re- instruction because even the considera- peatedly referred the fact that the FAA non-age tion of factors in imposed and other airlines have not particular job qualification whether age-60 job qualification rule as a for the BFOQ error,11 we conclude that this 2753, engineer flight position, id. at 2761- error is harmless the instant case. The 2771, 2782, 62, 2770, Delta’s counsel and age reasonable factor other than issue was FAA position also referred to the properly jury before as an issue on airlines, 2808-09, 2813-14. and other id. at proof. which Iervolino had the burden of plain that there is no error in We conclude put It is harmless error to also the issue to regard. BFOQ jury in the context on which Finally, objects proof. Delta had the burden erroneously permitted instructions B. The Denial JNOV and a New non-age to consider factors deter Trial mining age requirement 60 Iervolino next contends that the district engineers BFOQ: was a denying court erred in his motion for assessing occupational the bona fide respect JNOV or for a new trial with Delta, qualification defense asserted BFOQ Delta’s RFOA defenses. These may simply indi- you consider more than contentions, however, are merit. without plaintiff’s ability perform the vidual job. of the second officer task appropriate standard of review for of a may also the effect the denial motion for JNOV is wheth- You consider er, considering allowing plaintiff light the evidence in the others [similar- ly] non-moving party, situated to serve as second officer most favorable to the provide age alleged BFOQ 10. The in relevant because harm to 35 as part: cockpit seniority age), crew was function 1007, 2299, denied, cert. 456 U.S. 102 S.Ct. 73 The Federal Aviation 60 Administration (1982); L.Ed.2d 1302 with Johnson v. American posi- rule does not its terms to the apply 988, Airlines, (5th Cir.1984) 745 F.2d 991-93 tion of second officer (permitting consideration of airline’s seat block Delta Air Lines. The FAA has no rule or defense), BFOQ and back seat driver factors regulation prohibiting employment of sec- denied, U.S. —, 3500, rt. 105 S.Ct. ce flight engineers ond officers or over the (1985); 87 L.Ed.2d 631 Murnane v. American 98, Airlines, (D.C.Cir.1981) (per 667 F.2d 100-01 Appeal, Record on vol. 25 at 2833. mitting BFOQ to be based on a defense combi including age, effects of the nation of factors adopted posi 11. Other circuits have different rule, training requirements, lengthy 60 question. Compare tions on this EEOC v. Coun denied, 915, experience), 1039, cert. 456 U.S. 102 S.Ct. (9th ty Angeles, Los 706 F.2d 1042 1770, (1982). 1983) (economic L.Ed.2d 174 We note that in 72 Cir. considerations cannot be case, denied, defense), of a sex discrimination we BFOQ the context considered in cert. BFOQ 1073, 984, (1984); that because "the defense is have held 79 L.Ed.2d employer when the can show that City Dept., available Wauwatosa Fire 697 F.2d Orzel 743, (7th Cir.) (economic class is unable to the excluded factors such as job," financially the essence of the duties that constitute "the need to have a definite and age upon potential is irrelevant feasible for fetal harm which a retirement benefit employer shows a direct formula could be cannot be the basis for issue "unless based” defense), denied, relationship actual cert. 464 U.S. between per (1983); ability pregnant or fertile female to S.Ct. Smallwood v. of a 78 L.Ed.2d 680 Lines, Shelby Hosp., job.” Hayes v. Memorial United Air 661 F.2d Cir. form her (11th Cir.1984). 1981) (airline hiring maximum cannot defend strongly points safety, especially during evidence so in favor of emergencies. party See, men not 974-81, that reasonable could e.g., 988-92, one id. vol. 16 at vol. See, contrary e.g., 1713-22, a reach verdict. 2130, Warren 19 at vol. 21 at vol. 22 at Co., 1373, Motor 693 F.2d 2170-71, v. Ford Credit 2240-41. There was ample Cir.1982); (11th Ship Boeing 1374-75 v. in the evidence record to establish the sec- (5th Cir.1969) man, 365, 411 F.2d 374-75 prong BFOQ (either ond defense banc). (en the We review denial of a new or substantially that all all individuals in deni under a different standard. The trial the group excluded could not safely and when, proper a after al of new trial is efficiently perform job the or that it would evidence, weighing the the trial court can impossible impractical be or highly pre- to contrary find that the verdict dict which individuals would unable to weight See, great e.g., of the evidence. job). the example, For Delta Co., Magnolia Brokerage v. 742 Jackson presented expert testimony that certain 1305, (11th Cir.1984), F.2d 1307 cert. de age-related diseases preva- become more —nied, —, 2704, 105 86 S.Ct. lent at the of 60 and that medical (1985). appeal, 720 On will L.Ed.2d we presently predict science is unable to the trial denial new reverse court’s of a individuals will be affected these dis- See, only trial of discretion. e.g., abuse 1025-43, eases. id. vol. 17 at See vol. 18 at Corp., v. Kimberly-Clark Rabun 678 Thus, 1331-39. we find that the district Cir.1982). denial court’s with respect JNOV Delta’s RFOA and defenses was We conclude that the district proper. denial court’s of JNOV was in the Turning case. de instant the RFOA We also find no merit in Iervolino’s con- fense, we find that is substantial tention that the denial new of a trial consti- this support evidence defense. ex For tuted an abuse of discretion. As described ample, presented Delta evidence re above, ample there was support evidence to captain, regardless fuses allow defenses, both and we conclude that flight posi age, engineer to downbid to the district court did not its abuse discretion in See, Appeal, e.g., tion. Record vol. 16 at finding verdict was not con- 866-67, 870-71, 1893-94; 20 at vol. Defend trary great weight the evidence. justified Exh. ant’s 21. Delta ground captain serving that a former C. Other Contentions as a would re create role challenges Finally, Iervolino the district See, problems. e.g., Ap versal Record on refusal to the jury court’s instruct on his 731-33, 1235-41, peal, vol. 15 at vol. 17 at disparate impact claim and numerous evi- 1830-33, 2132-36, 20 at vol. vol. vol. rulings. dentiary reject We these conten- Although 22 at 2242-44. Iervolino offered tions. variety a evidence show that Delta policy, have such the resolution of Iervolino first contends that disputed properly facts is the role of the court improperly district refused to in jury. disparate impact struct We also theory. disparate conclude He concedes that amply supported by theory defense was impact expressly was not listed as a respect order, With prong theory liability record. the first pretrial but (whether age-60 this defense pretrial rule is claims in the references reasonably transpor necessary the safe order attachments subsections 623(a)(1) 623(a)(2) ADEA, passengers), tation of Delta am introduced evidence, ple including reports regulations involving, accident and EEOC and case law alia, testimony pilots, disparate impact put to show claim inter performance improper flight engi present of a notice Delta on that he adversely impact neer's duties disparate could affect claim. argues a decision of the trial Iervolino also not reverse

We will district court abused its discretion in enforcing pretrial several evi- order absent court dentiary rulings, but three of these discretion, see, e.g., v. Bur abuse Woods rulings warrant discussion. The admissi- Co., 768 F.2d lington N.R.R. bility of is committed evidence to the sound (11th Cir.1985), granted cert. on other court, discretion of the district even U.S. —, grounds, found, party asserting error is the er- (1986); Lloyd L.Ed.2d Professional ror rights must show that substantial Services, Inc., Realty See, adversely e.g., affected. Perry v. — (11th Cir.1984), denied, 12 cert. U.S. n. Co., Casualty State Farm Fire & —, (1985), 105 S.Ct. 83 922 L.Ed.2d (11th Cir.1984). in the and we find no abuse of discretion conference, First, pretrial instant case. At Iervolino contends that excluding in repeatedly district court district court erred the identi warned ties of the commercial airlines that have parties they be held to the theo that permitted flight engineers, including for liability designated pretrial in the ries of captains, age sixty. mer to serve after Ier 129-30, order, Appeal, vol. 11 at Record proba volino claims that this evidence was 133-34, supple and Iervolino even filed a question age tive on the of whether the pretrial to the order to include addi ment requirement sixty was a for the relief, tional claims for id. vol. 6 at 1539- flight engineer position. agree We Thus, put on notice that 40. Iervolino was the exclusion of the identities of the other legal pre in any theories not included probably airlines was error since this evi trial order would waived. dence would have clarified that the airlines in the We also find that the references permitted age sixty individuals over order, 1432-39, pretrial 3 at id. vol. flight engineers large serve included give notice to either Delta or insufficient to comparable commercial carriers to Delta rely upon the court that Iervolino would and therefore would be relevant to the disparate impact theory. Subsections question age sixty Delta’s re 623(a)(1) 623(a)(2) ADEA do not flight engi quirement is a for the disparate impact refer to the method of position. neer See Western Air Lines v. proof, pretrial simply re and the order Criswell, —, regu general ferred in terms to the EEOC 2748, 2754, 2756, (1985). 86 L.Ed.2d 321 age lations on discrimination. The case However, we conclude that the exclusion order, listed in the Monroe v. United Air this evidence is not error in the reversible Lines, (CCH) Empl.Prac.Dec. ¶ instant case. Iervolino was 33, 330 (N.D.Ill.1983), rev’d, 736 F.2d 394 Cir. testimony flight introduce the of several 1984), disparate impact jury did involve a engineers age of past who had served instruction, simply but this instruction was see, Appeal, sixty, e.g., Record on vol. at in one of several issues the case. Since 623-710, 84-105, vol. 15 at and a document legal on notice that its theo listing persons or are who have served order, pretrial in ries had to be included flight engineers reaching serving as after comply and since it did not with this re sixty, Plaintiff’s Exh. 337. quirement, the district court did not abuse closing argument, Iervolino’s counsel his by refusing charge emphasized its discretion showed that this evidence disparate allowing captains to serve as impact claim.12 former disparate respectfully disagree treatment 12. We with the dissent’s assumed that the case was a suggestion volino intended parties Finally, all that Ier- were aware case focused case. on the evidence rely upon disparate im- theory, disparate and the little treatment pact theory. pretrial order was cast evidence which would also have been relevant disparate theory; open- mode of a treatment disparate impact theory was also relevant to a attorneys intro- statements of both disparate treatment. ductory judge remarks of the trial engineers flight would not create crew keep mouth closed.” Ap- Record on “[his] problems peal, coordination was not Thus, vol. 22 at 2344-46. tape necessary flight for proxy engineer testimony and related potential showed the position. Appeal, Record on vol. problem might cap- arise a former 2761-62, also introduced flight tain engineer. served as The dis- his emphasized closing evidence and ar trict court abuse its discretion gument that the FAA had not extended finding probative tape value of this age sixty captains requirement and was not substantially outweighed by the flight engineers, first officers to see Plain danger of prejudice. unfair 317; Appeal, tiff’s Exh. Record vol. carefully We have considered Iervolino’s 2753, 2770-71, was instruct challenges other to the district court’s evi- position, Ap ed on the FAA’s Record on dentiary rulings, but we they conclude that peal, Thus, vol. 25 at we are satis have merit and warrant no further dis- fied the jury was aware that the indus cussion. try imposed as whole had not sixty requirement engineers. III. CONCLUSION next Iervolino’s contention is that reasons, foregoing the For judgment the the district court abused its discretion court district is admitting of evidence the medical condition AFFIRMED. Paul, of A.B. captain Mr. another who had plaintiff as withdrawn a before the instant JOHNSON, Judge, dissenting: Circuit case We reject went trial. this conten problem My with the majority’s opinion tion. Paul’s medical condition was relevant summary disposition is with its of the evi- in the instant case since it illustrated the dentiary issues, with its resolution the of accompany decrements aging the disparate impact claim, instruction process. Under ques Fed.R.Evid. the with its upon refusal afford relief based probative tion of whether the value of evi given the by the trial court on outweighed substantially dence is by occupational qualification bona fide prejudice risk of unfair committed to question. court, broad discretion of the trial see Noel Evidentiary Issues: Shows, States, Inc. v. United F.2d (11th Cir.1983), and we find no of abuse Generally rulings a trial court’s on ad discretion the instant case. missibility of evidence will be on disturbed appeal only for abuse of discretion. Unit argues Iervolino also that the dis Russell, ed States v. by trict court abused its permit discretion (11th Cir.1983). The trial court’s decisions ting play cockpit tape Delta to record proffered the relevance of evidence is Flight 1080. Iervolino claims that subject to an abuse of discretion stan this evidence was inadmissible under Fed. Veal, dard. United States v. flight engineer R.Evid. 403 since the (11th Cir.1983). Fed.R.Civ.P. not play role the resolution of the permits setting aside grounds a verdict on emergency probative value of this admitting excluding of error in evidence outweighed evidence was therefore required by justice.” I “substantial However, prejudice. risk of unfair find we would hold that Iervolino has stated valid abuse discretion the admission of allegation error to three of the trial tape. tape impor This illustrated evidentiary rulings court’s and that sub during tance crew coordination an emer justice requires stantial a new trial. gency, supportive revealed role First, flight engineer during emergency. the trial court refused to admit the fact, flight engineer cap- permit involved in identities those airlines that ques two-step incident testified he considered tains to make downbids so as tioning captain’s flying actions continue after but decided revealing prejudice. Upon that these out and the result of

concern is (Alaska, American, major airlines comparison practice proper between the Northwest, Am, Braniff, Tiger, Pan Flying major competitors Delta and of its United, USAir, Western) TWA, the jury jurors might reached a contrary well have speculate appellant might was conclusion on Iervolino’s claim. comparable talking small carriers not about Second, the trial court Delta to appellee to Delta. The airline claims that play tape recording for the of an grounds exclusion was in-flight emergency. actual because the “would have prejudice inadmissible, was pointing claims it out per- recognized the names of the carriers question that in the incident in have, mitting practice such played no role engineer in the resolution personal experiences upon their with based probativeness the crisis and hence the was carriers, poor judgment attributed those outweighed prejudice and should have Delta.” excluded Fed.R.Evid. Del- been under precisely why This is the evidence was taped in this ta does not contest that inci- improperly excluded. The issue whether dent the involved proxy given job qualifi is a valid for a argues generally probative. but it was namely ability safely to func cation— admission evidence The of this was clear ar flight engineer. Assuming tion as a nil. It error. relevance was was mere guendo that individualized determinations designed jury; theatrics to inflame the feasible, are not the best evi fitness again inject the result was to into the prove disprove offer dence one could inaccurate, jurors prejudicial minds of the general age-based discrimination is information in all likelihood skewed practice industry as experience and a their deliberations. that, Thus the Court held whole. resolving challenge a to an airline’s man appellant complains The third that flight engi datory retirement permitted trial court introduction of weighing conflicting neers and testimo history condition of medical and Mr. A.B. ny, practice competitors of highly is Paul, earlier captain another who had been probative jury’s and would sustain the ver party prior to this who a suit but withdrew appeal. employee dict on “When an cover to trial. The court Delta to read point reputable ed the Act is able to to pages deposition of into the record industry in the businesses same that problems this show serious health of mandatory choose to eschew reliance on pilot de- over-60 relevant retirement earlier than 70 ... the em appellee argues fense. The that evi- this ployer’s attempt justify its decision on highly probative as dence was anecdotal contrary opinion of the basis of the ex evidence of “the decrements can ac- perts litiga purposes for the —solicited company age.” Any prejudice, Delta hardly any objective convincing tion—is on claims, was harmless. complete standard short deference.” — I it error. Paul was believe was clear Criswell, Western Air Lines v. party a to this suit and there was no not 2743, 2756, —, —, 105 S.Ct. 86 L.Ed.2d laid that he was in foundation to show (1985). The Court found such evidence West representative pilots. way of over-60 probative important because assisted ern and the ADEA both require em that compa whether the on an ployment decisions be made individu ny’s upon age proxy reliance aas substantially persons all al basis unless upon necessity, op a based reasonable job over 60 could not By qualifying erative standard. word screening vari no effective means of is “reputable” with the Court “businesses” n. employees. U.S. at — & ous obviously anticipated that the names of —, n. Nei 2750 & admitted. these businesses would be It here, least the evi- keep them is the was an abuse discretion ther case prejudice dence this record. The far remedy, mere reference to the statute does outweighed any probative value. incorporate This, not this theory. course, proves too much. The does statute majority today disposes of The these provide in words for the disparate summarily. they I that questions believe treatment theory of recovery either. Both level, serious error trial represent at the imported have been from analogous stat- especially allegation the first error in- utes. Delta’s in a nutshell volving identity of other airlines that telling the court that' one intends permit two-step I downbids. Thus dissent present a case under the ADEA does and would instead remand this case for a inform the court or the defendant one new trial and a new verdict untainted intends a remedy. to seek clearly This is such clear error. wrong. Erroneous Instructions: It is clear the transcription of the trial give The court refused pretrial discussions at the conference that appellant’s right

an instruction on of recov- all actors below aware that Iervolino ery theory impact, under the disparate planned argue disparate impact. basing that denial on the fact majority overlooks the pre fact that at appellant clearly had not set this forth as a conference, trial parties when the theory liability pretrial at the confer- judge engaged in Finding lengthy appellant colloquy ence.1 failed to set time, matter forth the appropriate raise this at the theories of recovery, remedy majority sought, offered, would refuse the claim to hear defenses invoking attorney clearly the abuse of rule. I discretion noted planned that he clearly pursue believe trial court was erro- disparate impact argument. That ground and I would planned neous reverse on this he to do so was so obvious to as well. parties lawyer that Iervolino’s twice stated (cid:127)his desire not to be rely misunderstood as trial, day appellant At the first ar- ing solely upon theory: “I don’t want gues, he informed the he court that intend- the court ... misunderstand that ours pursue summary ed to this line in his claim, disparate impact it’s [also] contentions and the court received evidence disparate treatment claim ...” R.11-147. theory. argues under when, pretrial, his counsel informed the 16(e) implicated Even if Rule by the court he intended pursue that to his reme- pretrial failure to include in the order the ADEA, 623(a)(1) (2), dies the under and §§ express of disparate impact election the necessity incorporated this of his intent to theory, provides that Rule also de- that a rely recovery the two theories of avail- may by fect remedied modifying the able under the statute. pretrial “prevent to injus- order manifest Regardless tice.” I do so here. of did object

Delta introduction any putative deficiencies in pretrial or- disparate evidence of impact at trial nor did der, I it think clear from the it record that object requested instruction both grounds the trial court and Delta surprise ap- or knew from prejudice. On argues beginning that peal this was one theory it that this is blocked avenue 16(e), recovery. objected Delta in- requires never Fed.R.Civ.P. which rule troduction evidence in pretrial support that a order “shall control the sub- of this sequent theory course of the mod- failed to show prejudice action unless and that subsequent ified from order.” Delta ar- would follow such instruction. Under that, gues circumstances, because does I the statute these think the judge trial provide in “disparate impact” clearly words for a in refusing erred re- argues Appellant disparate that had he allowed been be shown in treatment case. Nash pursue might prevailed Jacksonville, this line he City have be- v. Consolidated recovery impact disparate cause under the theo- (11th Cir.1985). intent, ry require proof does not must problems health age-related in the stan- ees affect-

quest. the differences Given ing work 531 F.2d performance. 235-36. theory, prejudice for this proof dard inevitable. Iervolino was prong: —The “essence” directly Western accept major- the airline chal I likewise unable am Tamia lenged “reasonably necessary” court’s ity’s trial determination mi instruction for the prong, argu essence BFOQ both issue was instruction ing that deference was due airlines to more opera- due and unassailable insure of their the essence business —the plain error rule. I believe that tion of the passengers. ar their Western improp- demonstrably were the instructions gued that it should be able to succeed on a legal compared operative with the er when BFOQ if it could show a defense “rational not be and that Iervolino should standard flight engi in basis fact” for belief advancing foreclosed posed safety age sixty neers over hazard. mani- the error below was so today because this, squarely rejected The Court plain fest as to constitute error. finding 1978 amendments that the challenges the jury instruc- Appellant adopted implicitly ADEA the instruction we trial court stated tions because Congress sought Tamiami. articulated proper standard subject management “to decisions to a such BFOQ constituted a Delta justification in a objective test of court of rather than “reasonable “reasonableness” — at —, law.” 105 S.Ct. at 2754. U.S. proper task necessity.” Our is to review then, is whether the only question, a whole.2 the instructions as From improper trial instructions were be court’s plain there was perspective error. led the they might cause have to be opinion Usery seminal In our now legal finding lieve that standard for Tours, Tamiami Trail BFOQ Contrary to was reasonableness.3 (5th Cir.1976), two-step we articulated a that, majority, I believe viewed as a safety- evaluating of review for standard whole, misleading. the instructions 1) age-related defenses: related the words The trial court did use “reason “reasonably necessary” to must be necessity” able in its essence instruction. operation; using the “essence” business the instruction But summarized a) 2) he employer light must show that of considera the words “reasonable cause” to safety” had a “reasonable believe characterization to the tions —a given substantially age-based or all of a requested rejected same effect as at —-—, Western. employees “would be unable class of efficiently paragraphs duties of A few later safely S.Ct. 2753-54. b) precisely thing the same job impossible judge the trial involved” “it again.4 diluted employ- significantly This the force impractical” to screen individual employer’s reasonably appeal It is neces- we must examine the instructions business. On business, charge’ sary the ‘context of the overall essence of the "in it relates to the the case — transportation be] circumstances of must [We of which case is the safe in this jury's adequately attention satisfied that the passengers. legal West focused" ern, standards. Thus, occupa- justified fide bona to be — at —, 105 S.Ct. 2755. Thus U.S. policy qualification, tional Delta’s must be re- suggestion plenary; is o standard is no transportation passen- of its lated to the safe f presumption as to trial court’s deference gers, way, must be reason- or stated another instructions. safety. light able in of considerations (emphasis supplied). R. 25-2830 part the instructions were as fol- In relevant lows: judge follows: 4. The instructed as trial burden to the exist- is Delta’s establish [I]t connection, charge you I that the In this occupational qualifica- of a bona fide ence tion, safety greater the exercise of the need for prepon- they by must establish that brought by the likelihood harm about evidence. derance of the severity probable of that harm in case Now, occupational qualification fide a bona accident, employer more discretion an reasonably necessary is is one which Thus, instruction, especially when one real- Court.5 I believe we can and should necessity” words “reasonable allegation izes grant reach this of error and verbiage extend- in a mass were buried relief in the form of a new trial. pages. ing typed over three prong: —The second has held that an Our case law prong requires showing The second ei- may trial court be reviewed waived possible justifications age- ther of two error,” appeal only “plain which we nearly based discrimination —that all or defined as error that is “both obvious have people sixty per- over be unable Smith, and substantial.” United States v. safely form engineer, the task of Cir.1983). light In that while some per- would not be able to holdings of the clear of the former Fifth form it there way separate is feasible Tamiami, Supreme Circuit and of the the wheat from the appellant chaff.6 The Western, question there is no Court but argues that the court’s instructions on the in the trial court’s instruction error prong incorporated second irrelevant issues ought have been obvious to all. Fur- again legal diluted the force of the ther, that error was substantial because it by suggesting standard extremely expanded the narrow ex- unduly should be deferential Delta’s ception contrary to the clear intent Con- gress holding Supreme safety and the concerns.7 may lawfully establishing job qual- part, modify exercise in relevant the instructions as fol- high ifications. Where the risks are lows: safety requirements for the exercise are may simply [Y]ou consider more than great, permits employer an to estab- the law plaintiffs ability individual standards, stringent employee lish more if it job. duties of the second officer reasonably can show that such standards are may You also consider the effect that allow- any necessary risks of harm to reduce the plaintiff or others situated to serve as significant degree. safety second officer would have on the by The standard which the reasonableness operations Delta’s because of its effect on safety judged precautions of Delta’s is to be structure, crew command crew communica- of other bodies or standard other any tion and crew concentration or other sim- airlines. safety. ilar reasons related to (emphasis supplied). R. 25-2832 connection, charge you I that the Supreme clearly 5. While the Court said that the greater safety the need for the exercise of necessity,” BFOQ standard is "reasonable West brought about the likelihood of harm and ern, 105 S.Ct. at it two weeks denied later probable severity of that harm in case of certiorari on a Fifth Circuit case that had accident, employer an the more discretion the virtually instructions identical to those in this may lawfully establishing job qual- exercise in Airlines, Inc., case. Johnson v. American high ifications. Where the risks are and thé (5th Cir.1984), denied, F.2d U.S. —, 993-94 cert. safety requirements for the exercise of are (1985). 105 S.Ct. 87 L.Ed.2d 631 great, permits employer the law to estab- properly Of course denial of certiorari is not standards, stringent employee lish more if it taken to be a statement as to the merits of the reasonably can show that standards are such case, Show, Maryland v. Baltimore Radio necessary to reduce the risks of harm to 912, 919, 252, 255, 94 L.Ed. 562 significant degree. Frankfurter, J., (1950) (Opinion respecting The standard which the reasonableness certiorari). denial of The instructions in West reconciled; safety judged precautions is to be of Delta's ern and Johnson cannot be accord standards, ingly, of other bodies or other we must follow the Western the standard suggest here airlines. Instead, incorrect. against must be assessed safety Delta’s own commitment as demon- opinion suggests Our re in Tamiami actually pro- strated what it does in the quired showing is one of "reasonable cause." comparable motion of areas. upon While the Court relied Tamiami also, your And assessment will be based controlling as the standard it sotto voce mod light by you and considered in of all of the prong ified so second is Tamiami that the case, evidence in the on the risks in- other governed by reasonably necessary standard. volved, tendencies, any, if of Delta’s — at —, U.S. 105 S.Ct. at 2756. policy to reduce those risks. judge proper two-part 7. The first stated the in- R. 25-2831-32. on, quiry prong, on the second then went in plain respects. is error in two summarized the standard as Here there reasonable- First, language paragraph in the third necessity. ness instead of reasonable Ei- in 7 of is the quoted footnote this dissent way justifies ther it was error that relief. “adjusts safety to the factor” so-called Second, the instructions stated in the belongs of the as modifier clause paragraphs fourth and fifth footnote — at —, Western, prong. essence U.S. “adjust safety that this factor” re 2751. Instead the trial court 105 S.Ct. at quires jury particular to defer to the the second buried it the discussion of safety standards that Delta itself has cho prong. important Placement is because adopt compare than to them sen to —rather ex sliding determines this scale general industry standards. This is with safety is the essence of the tent to which There too squarely at odds with Western. fit” in defin permits It a “looser business. jury argued the airline should be “essence,” introducing ing subjective thus instructed to “defer to ‘Western’s selection By analysis. placing into the factors job qualifications position for the did, safety instruction where it the trial [flight engineer] that are reasonable in court to consider the light safety propos risks.’ This ... considering flight safety need for plainly Congress’ al is at odds with deci inquiry. prong’s job fitness This second sion, ADEA, adopting subject last, “all subjectivity is reinforced management decisions to a test of such paragraph in other evidence” footnote justification in objective a court of law. open-ended incorporation of that invites an BFOQ adopted in The standard the statute jury’s other factors suit the fan whatever necessity,’ one of not ‘reasonable reason cy- — at —, ableness.” U.S. S.Ct. at hand, prong the other the second On origi (emphasis supplied, brackets in strictly test. objective should function as a nal). objective justifi Demonstration of an employer nearly The must show mandatory cation for a retirement and no job, sixty are unable to do the those over policy, necessity, required that downbid factors, by objective or that there defined directed to the standards of the permits measure that is no valid scientific industry, merely not to those enunciated capable. is or is not who the defendant. The Court ex prong safety first on business focuses pressly held such evidence relevant and age; that are independent factors probative, though necessarily disposi prong second focuses on those cases where tive, question. this The fact that so Id. permissible proxy for these suggests denies many allow what Delta By placing clause in the in- factors. it because prong’s discus- struction after the second go does not to the essence of business. employee, sion of the effects error It obvious and substantial was both impermissibly court redirected the the trial court exclude this evidence for the trial focus, age-based for permitting looser fit consideration, and I believe jury’s from the generalities not tailored to the individual grounds for reversal. it constitutes employees. traits of below and judgment I would reverse the Again, plain I find this error. The case new trial untainted prongs, remand this for a effect to conflate the two mak employer by the various errors noted. impermissibly easier aggregate to show a means pref

characteristics “inconsistent with expressed

erence for individual evaluation language legislative history Western, at —, the ADEA.” potential at 2756. The S.Ct. placement

confusion was obvious. Even problem, again court

were not a the trial

Case Details

Case Name: Joseph A. Iervolino v. Delta Air Lines, Inc.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 15, 1986

Citation: 796 F.2d 1408

Docket Number: 84-8852

Court Abbreviation: 11th Cir.