•

-----
lJ.~. Di~, i ;\.,:---:[ UidRT
ORTHEHi\ n;s DUCT OF TEXAS
'ILED

IN THE UNITED STATES DISTRICT CO
oRIG INAL FOR THE NORTHERN DISTRICT OF DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff,

}

}

v.

}

}

EXXON MOBIL CORPORATION

}

}

Defendant.

}

-------------------------------}

CIVIL ACTION NO.
3~06CV1732-K
COMPLAINT
JURY TRIAL DEMANDED

NATURE OF THE ACTION

This is an action under the Age Discrimination in Employment Act to correct an unlawful

employment practice on the basis of age and to provide appropriate relief to Glen Skaggs, Michael

Morschauser and a class ofsimilarly situated aggrieved individuals. Specifically, Defendant Exxon

Mobil discriminated against Morschauser, Skaggs and the class ofaggrieved individuals by its policy

or practice that prohibits a pilot from flying Exxon Mobil corporate airplanes after they reach the

age of 60, and that forces the pilot into involuntary retirement. Exxon Mobil Corporation

discriminated against Mr. Morschauser and Mr. Skaggs by removing them from flight duty, resulting

in their involuntary retirement because of their age.

JURISDICTION AND VENUE

1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343,

and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA"), which

incorporates by reference Sections 16 and 17 of the Fair Labor Standards Act of 1938, as amended,

~...

"

29 U.S.C. §§ 216 and 217. 2. The employment practice alleged to be unlawful was and is now being committed
within the jurisdiction of the United States District Court for the Northern District of Texas. PARTIES
3. Plaintiff, Equal Employment Opportunity Commission (the "Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 ofReorganization Plan No.1 of 1978,92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705.
4. At all relevant times, Defendant Exxon Mobil Corporation ("Defendant"), has continuously been and is now doing business in the State of Texas and has continuously employed at least fifteen employees.
5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Section 11(b), (g) and (h) ofthe ADEA, 29 U.S.C. § 630(b), (g) and (h).
CONCILIATION 6. Prior to institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practice alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).

2

. ,

, '

•

STATEMENT OF CLAIMS 7. Since at least 1999, the Defendant has engaged in an unlawful employment policy or practice of removing pilots from flight duty and involuntarily retiring them when they reach age 60 in violation of Sections 4(a)(1) and (d) ofthe ADEA, 29 U.S.C. § 623(a) and (d). Specifically, the EEOC alleges that Glen Skaggs and Michael Morschauser suffered adverse employment actions, when they were removed from their positions by implementation of the age 60 policy in violation of the ADA. 8. The effect of the practices complained of in paragraph 7 above has been to deprive Glen Skaggs, Michael Morschauser and a class of similarly situated aggrieved individuals of equal employment opportunities and otherwise adversely affect their status as an employees because of their age. 9. The unlawful employment practice complained of above was willful within the meaning of the ADEA.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant, Exxon Mobil Corporation, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of age. B. Order the Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for qualified individuals who are at least age 40, and which eradicate the effects of its past and present unlawful employment practices. C. Order the Defendant to pay Glen Skaggs, Michael Morschauser and other
3

• ,

\,

4 '"

•

similarly situated individuals appropriate back wages, in an amount to be proven at trial, and an equal amount in liquidated damages, and prejudgment interest.
D. Order the Defendant to make Glen Skaggs, Michael Morschauser and other similarly situated individuals whole by providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to rightful-place reinstatement.
E. Grant such further relief as the Court deems necessary and proper in the public interest.
F. Award the Commission its costs in this action.

JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its Complaint.
Respectfully submitted,
JAMES LEE Deputy General Counsel
GWENDOLYN Y. REAMS Associate General Counsel
~ ROBER A CANINO Regional Attorney Oklahoma State Bar No. 011782
.,-(~~
SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
4

. ..

•
Senior Trial At Texas State Bar No. 01493850
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 Tel No. (214) 253-2742 Fax No. (214) 253-2749

5

------J fr:" --, 'Il!.JS (Re~:, ~J!/~ L,

_=>

t.2 m The JS 44 ¢ti~l versma~

U

,"

atio co

CIVIL COVER SHEET
ined herein neither replace nor sv:plement the filing and service of pleadinNs or other payers as required by law, except

provided by c rule

u

i

apllr by the Judicial Conference of the nited States in September 1974, is require for the use 0 the Clerk ofCourt for the purpo

of initiati~~ the ci il docket sheet (SEE INSTR:pCiIC ~s ON THE REVERSE OF THE FORM)

I. (a)

I
"uL.As~..!Ml!1'i~~t)g~S!,~I,9l~~~~!~

RTUNITY COMMISSION

DEFENDANTS EXXON MOBIL CORPORATION

oRIG I (b) County of Residence of First Listed Plaintiff "~I~ S, PLAINTIFF CASES)

County of Residence of First Listed Defendant (IN U,S, PLAINTIFF CASES ONLy)
NOTE, IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED,

(c) Attorney's (FIrm Name, Address, and Telephone Number) WILLIAM C. BACKHAUS, SENIOR TRIAL ATTORNEY, EEOC, 207 S, HOUSTON ST., 3rd FL" DALLAS, TX 75202 (214) 2532742

3 - 0 6 CV 1 7 3 2 - K Attorneys (IfKnown)

II. BASIS OF JURISDICTION (Place an "X" In One Box Only)

J(1 U,S Government
Plamtlff

03 Federal Question (U,S Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintl

(For D,verSIty Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

CitIzen of This State

01 01 Incorporated or Principal Place

04 04

of Business In This State

02 U.s, Government Defendant

04 Diversity (Indicate CItIzenship of Parties in item III)

CItizen of Another State
Citizen or Subject of a Foreign Country

o 0 2

2 Incorporated and Principal Place

of Business In Another State

o 03

3 Foreign Nation

o 5 05 o 6 06

IV. NATURE OF SUIT (place an "X" in One Box Only)

I

CONTRACT

o 110 Insurance

,TORTS

PERSONAL INJURY

PERSONAL INJURY

0120 Manne

0 310 AIrplane

0 362 Personal Injury -

o0130 MIller Act 140 Negotiable Instrument

0 315 Airplane Product Llabihty

o 150 Recovery of Overpayment 0 320 Assault, LIbel &

Med, Malpractice 0 365 Personal Injury -
Product Liabihty

& Enforcement ofJudgment

Slander

o 151 Medicare Act

0 330 Federal Employers'

o 152 Recovery of Defaulted

Liability

0 368 Asbestos Personal InjUry Product
Llabihty

FORFEITUREIPENALTY
o 610 Agnculture o 620 Other Food & Drug o 625 Drug Related Seizure
of Property 21 USC 881
0 630 Liquor Laws 0 640 R R & Truck 0 650 Airlme Regs, 0 660 Occupational

Student Loans
(Excl Veterans)
o 153 Recovery of Overpayment
of Veteran's Benefits
o 160 Stockholders' SUIts o 190 Other Contract o 195 Contract Product Liability o 196 Franchise
REAL PROPERTY
g 210 Land CondemnatIOn
o 220 Foreclosure o 230 Rent Lease & Ejectment
0240 Torts to Land
o'0 245 Tort Product Liability 290 All Other Real Property

0 340 Marine 0 345 Marine Product

oPERSONAL PROPERTY 370 Other Fraud

LiabIlity
0 350 Motor Vehicle 0 355 Motor VehIcle
Product Liability

0 371 Truth in Lendmg 0 380 Other Personal
Property Damage
0 385 Property Damage

0 360 Other Personal InjUry

Product LIabIlity

§ CIVIL RIGHTS 441 Votmg 442 Employment

PRISONER PETITIONS
ID 510 MotIons to Vacate
Sentence

443 Housmgl
o Accommodations IQ '0 444 Welfare o o 445 Amer. wlDisabilities-
o Employment
iO o 446 Amer, wlDlsabolities -

Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 CIvil Rights 555 Pnson Condition

SafetylHealth
0 690 Other
LABOR
'0 710 Foor Labor Standards
oo Act 720 LaborlMgmt Relations
730 LaborlMgmtReportmg
& Disclosure Act
o 740 Roolway Labor Act o 790 Other Labor LItigation
o 791 EmpL Ret Inc,
Secunty Act

o Other 440 Other CiVIl RIghts

BANKRUJ>'rCY ,',
o0422 Appeal 28 USC 158 423 WIthdrawal 28 USC 157

,:', OTHER STATU'fE5.',0
o 400 State Reapportionment o 410 Antitrust g 430 Banks and Banking o 450 Commerce

cr p PROPERTY RIGHTS ,.,- 0 460 Deportation

810 Copynghts

470 Racketeer Influenced and

o0830 Patent 840 Trademark

Corrupt Organizations
o 480 Consumer Credit o 490 CableiSat TV

0 810 Selective Service

, ISOOAL SE URI rv ,',. 0 850 Securities/Commoditles/

BoQ 861 HIA (I 395ff[ 862 Black Lung (923) 863 DIWCIDIWW (405(g»

Exchange 0 875 Customer Challenge
12 USC 3410

o 864 ssm Title XVI 865 RSI (405(g»

oQ 890 Other Statutory Actions 89 I Agricultural Acts

o FEDERAL TAX SUITS

892 Economic Stabilization AI

ID 870 Taxes (U,S, PIamtiff
or Defendant)
0871 IRS-Third Party

Q 893 Environmental Matters
o 894 Energy Allocation Act o 895 Freedom ofinformatlon

26 USC 7609

Act

0 900 Appeal of Fee Determinatio Under Equal Access

to Justice

0 950 Constitutionality of

State Statutes

T"~V1

ORIGIN Original

Proceeding

o (Place an "X" in One Box OnIyl

2 Removed from

'0 3 Remanded from

State Court

Appellate Court

0 4 Reinstated or 0
Reopened

Transferred from

5 another district 0 6 Multidistrict

(specify)

Litigation

Cite the U,S, Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

A eal to Dlstnc
o JJ'/ge from
7 Magistrate
Judgment

VI. CAUSE O F ACTION Brief description of cause: Rule 65 of FRCP to enjoin Exxon from involuntarily retiring CP Morschauser on or before 10/1106.

VII. REQUESTED IN COMPLAINT:

LJ CHECK IF THIS IS A CLASS ACTION UNDER F,R,C.P, 23

VIII. RELATED CASE(S)
IF ANY

(See instructions)'

JUDGE

DEMANDS

SIGNATURE OF ATTORNEY OF RECORD
~ fj;z./.e;b

CHECK YES only ifdemanded in complaint:

JURY DEMAND:

;'Yes LJNo

DOCKET NUMBER

RECEIPT #

AMOUNT

- - - - - - APPLYING IFP

JUDGE

MAG,JUDGE

 
 .

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

Page 1 of 30 PageID 7

IN THE UNITED STATES DISTRICT CO

FOR THE NORTHERN DISTRICT OF

OR\G\NAL

DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY }

CLiRK, BY--+--~~----~

COMMISSION,

}

}

Civil Action No.

Plaintiff

}

}

v.

}

COMPLAINT

}

EXXON MOBIL CORPORATION

} }

3-06CVI732-K

}

______________D_e_fe_n_da_n_t.___________}}

APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

NATURE OF ACTION

This is an action under the Age Discrimination in Employment Act of 1967, as amended,

29 U.S.C. § 626 (the "ADEA'') and Rule 65 ofthe Federal Rules of Civil Procedure to enjoin

Exxon Mobil Corporation ("Defendant" or "Exxon Mobil") from involuntarily retiring Charging

Party Michael Morschauser on or before October I, 2006.

Specifically, Plaintiff Equal Employment Opportunity Commission (the "EEOC" or

"Commission") files this Complaint in Application to this Court for a temporary restraining order

and preliminary injunction which shall restrain and enjoin the Defendant from involuntarily

retiring Charging Party Michael Morschauser on or before October 1, 2006. Defendant has

implemented and enforced an age 60 practice that prohibits a pilot from flying corporate

airplanes at the age of 60, forcing Mr. Moreschauser into involuntary retirement. Defendant

claims that age 60 is a bona fide occupational qualification ("BFOQ") to involuntarily retire its

APPLICATION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

1

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 2 of 30 PageID 8

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,

1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) ofthe Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA''),

which incorporates by reference Section 17 of the Fair Labor Standards Act of 1938 (the

"FLSA"), as amended, 29 U.S.C. § 217.

2. The employment practices alleged to be unlawful were and are now being

committed, or will be committed, within the jurisdiction of the United States District Court for

the Northern District of Texas, Dallas Division.

PARTIES

3. Plaintiff, the Equal Employment Opportunity Commission (the "EEOC" or

"Commission"), is the agency of the United States of America charged with the administration,

interpretation and enforcement of the ADEA and is expressly authorized to bring this action by

Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan

No. 1 of 1978,92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705.

4. At all relevant times, Defendant, Exxon Mobil Corporation, has continuously

been doing business in the State of Texas, and has continuously had at least 20 employees.

5. At all relevant times, Defendant, Exxon Mobil Corporation, has continuously

been an employer engaged in an industry affecting commerce within the meaning of Sections

11(b), (g) and (h) ofthe ADEA, 29 U.S.C. §§ 630(b), (g) and (h).

CONCILIATION

6. Prior to the institution of this lawsuit, the Commission's representatives attempted

APPLICATION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

3

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 3 of 30 PageID 9

pilots, regardless of their health, qualifications and proficiencies. EEOC complains that such policy is clearly against the public interest and in violation of the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 626.
REQUEST FOR EXPEDITED HEARING The EEOC respectfully requests an expedited hearing on this matter. Mr. Moreschauser' s 60th birthday was September 7, 2006. Exxon has already removed him from flight duty, and threatens to involuntarily retire him on or before October 1, 2006. Mr. Moreschauser will be irreparably harmed if forcibly retired. By letter dated June 19, 2006, Defendant has stated in absolute terms that Mr. Moreschauser will be removed from flight duty on September 7, 2006 and will be retired on or before October 1, 2006. (Letter of June 19, 2006, attached as Exhibit 1). Mr. Morschauser was involuntarily removed from flight status on September 7, 2006. Mr. Morschauser will be forcibly retired on or before October 1, 2006. If retired, Mr. Moreschauser will lose the position he has held for more than 20 years, because by the time litigation has concluded, a court would not as a practical matter, be likely to require Exxon Mobil to reinstate Mr. Moreschauser to a position then long-held by his replacement. If forcibly retired, Mr. Moreschauser will suffer irreparable harm to his piloting skills. It is not likely that Mr. Moreschauser will be able to find a full-time pilot position with another company or afford the significant expense of periodic flight testing. For the above reasons, the EEOC requests that this Court hold an expedited hearing on this matter, or in the alternative, requests that this Court order the Defendant to stay any retirement procedures or actions regarding Mr. Moreschauser until this Court is able to hold a hearing on this matter.

APPLICATION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

2

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 4 of 30 PageID 10

to eliminate the alleged unlawful employment practices and to effect voluntary compliance with

the ADEA through informal methods of conference and persuasion within the meaning of

Section 7(b) of the ADEA, 29 U.S.C. § 626(b). EEOC specifically requested that the Defendant

stay any action against Mr. Morschauser while conciliation was pending. Defendant absolutely

declined that request, making this request for court intervention necessary to preserve Mr.

Morschauser's rights under the law.

STATEMENT OF CLAIMS

7. On February 24, 2006, Glen Skaggs filed a charge of discrimination (450-2006-

00615) with the EEOC Dallas District Office, alleging that Exxon Mobil Corporation

discriminated against him based on his age by the development and implementation of a policy

that excludes corporate pilots from flight duty at age 60, in violation of the Age Discrimination in

Employment Act of 1967. (Skaggs Charge of Discrimination, attached as Exhibit 2).

8. On August 9, 2006, Michael Morschauser filed a charge of discrimination (450-

2006-02150) with the EEOC Dallas District Office, alleging that Exxon Mobil Corporation

discriminated against him based on his age by the development and implementation of a policy

that prohibits corporate pilots from flight duty at age 60, in violation of the Age Discrimination

in Employment Act of 1967. (Morschauser Charge of Discrimination, attached as Exhibit 3).

9. The EEOC notified Exxon Mobil Corporation of Mr. Skagg's charge on February

24, 2006, and requested a Position Statement responding to the charge.

10. Exxon Mobil Corporation submitted a Position Statement on March 27,2006.

(Position Statement attached as Exhibit 5)

11. On August 9, 2006, EEOC notified Exxon Mobil Corporation ofMr.

APPLICATION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

4

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 5 of 30 PageID 11

Moreschauser' s charge of discrimination.

12. On August 16, 2006, EEOC issued a Letter of Determination finding that Exxon

Mobil violated the ADEA by its development and implementation of a policy that removes

corporate pilots from flight duty when they reach age 60. The EEOC found that Exxon Mobil

discriminated against Charging Parties and a class of similarly situated employees in violation of

the ADEA. (EEOC Letter of Determination, attached as Exhibit 4).

13. In its position statement to the EEOC, Exxon Mobil stated that it has a long-

standing practice of removing pilots from flight duty when they reach age 60. Exxon Mobil

specifically stated that ExxonMobil Aviation has established a bona fide occupational

qualification that its personnel will not pilot its corporate aircraft after the pilot reaches age 60.

Exxon Mobil stated that the reason for this practice is safety, and that it is consistent with and

based squarely on the FAA regulations governing commercial passenger airline pilots. (Exxon

Mobil Position Statement, attached as Exhibit 5). Exxon Mobil reiterated this position in a letter

sent to EEOC September 15, 2006. (Exxon Mobil Letter of September 15, attached as Exhibit

8).

14. On August 22, 2006, EEOC sent Mr. O'Niell a letter, indicating that EEOC could

not wait until September 15, 2006, to talk about resolving this case because Mr. Morschauser' s

birthday is September 7, 2006. EEOC said it would agree to an extension if Exxon would agree

to not take any action against Morschauser. EEOC said it would agree to extend a date for

response until August 28, 2006. (EEOC Letter attached as Exhibit 9).

15. On August 29,2006, EEOC received a letter from Mr. O'Niell indicating that the

company would not agree to a stand down for any period of time, and indicated that Exxon

APPLICATION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

5

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 6 of 30 PageID 12

Mobil was unwilling to depart from its Age 60 policy for even a short period of time. (Letter

attached as Exhibit 10).

16. A Temporary Restraining Order and Preliminary injunctive relief is necessary

because Charging Party Michael Moreschauser will be involuntarily retired some time between

now and October 1, 2006. Mr. Morschauser has not been offered the prospect of a non-flying

position with the company.

17. The accompanying affidavit of Michael Morschauser provides factual support for

this Complaint in Application for a Temporary Restraining Order and Preliminary Injunction.

(Affidavit attached as Exhibit 6).

18. The requirements for a Temporary Restraining Order and Preliminary Injunction

are satisfied in this case.

19. The EEOC incorporates by reference the attached Memorandum in Support of its

Complaint in Application for a Temporary Restraining Order and Preliminary Injunction.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a Temporary Restraining Order and Preliminary Injunction restraining

Defendant from involuntarily retiring Mr. Morschauser on or before October 1, 2006.

B. Schedule a hearing for the earliest possible date following issuance of a

Temporary Restraining Order to hear this matter on the Commission's Application for a

Preliminary Injunction.

C. Following a hearing, issue a Preliminary Injunction restraining and enjoining

Defendant, its officers, agents, servants, employees, and attorneys and those persons acting in

APPLICATION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

6

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 7 of 30 PageID 13

concert or participation with them from using age as a bona fide occupational qualification for its corporate pilots as that term is defined in 29 U.S.C. § 623(f)(l). Instead, the Court will order the Defendant to revise its corporate pilot retirement practice in light of current medical and technological developments and make an individualized assessment as to pilot retirement date based on factors other than age.
D. Grant such further relief as the Court deems necessary and proper in the public interest.
E. Award the Commission its costs of this action. WHEREFORE, premises considered, the EEOC respectfully prays that this Court award the EEOC a temporary restraining order and preliminary injunction which shall restrain and enjoin the Defendant from involuntarily retiring Mr. Morschauser on or before October 1, 2006. The EEOC respectfully prays that this Court will grant the EEOC an expedited hearing on this matter. The EEOC prays for such other and further relief to which it may be entitled.

APPLICATION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

7

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 8 of 30 PageID 14

Respectfully submitted,

JAMES LEE Deputy General Counsel

GWENDOLYN Y. REAMS Associate General Counsel

J , ·\.-{ A.CtLAt.iN
ROBERT A. CANINO Regional Attorney Oklahoma State Bar No. 011782

t)t;J?6'krc6{~ .. _
c:Jy?£-e--

SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
WILLIAM C. BACKHAUS Senior Trial Attorney Texas Bar No. 01493850
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston, 3rd Floor Dallas, Texas 75202 (214) 253-2742 (214) 253-2749 (FAX)

APPLICATION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

8

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 9 of 30 PageID 15

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Plaintiffs Complaint in Application for a Preliminary Injunction was served by certified mail, return receipt
requested on counsel of record on the ,,.:{;!_(}!/day of 3ef,}le,nbll/' , 2006.

Herbert O'Niell Exxon Mobil Corporation Law Department Houston, Texas 77252-2180

Suzanne M. Anderson

APPLICATION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

9

• Case 3:06-cv-01732-K Document 2
lbxon lloltil Corporlltion 3250 -Love Field Drive
Dallas, Texas 75235
972 373 3790 Telephone 972 373 3769 Facs1mt1e

Pat. Filed 09/22/06 Page 10 of 30 PageID 16 Andre. . Manager A·,iat•or; Servtc-.es

EJf<onMobil
June 19, 2006

Mr. Michael C. Morschauser 1625 Glen Springs Drive Plano, TX 75093
Dear Mike:
In keeping with the Company's present policy to have pilots cease flying upon reaching age 60, we would like to confirm that you will be removed from flight duty effective September 7, 2006 and retire on or before October 1, 2006. As you may be aware, this policy has been in place for many years.
The estimated retirement package that is being offered to you includes an enhanced benefit in the form of a severance payment. Attached is a waiver and release form related to that benefit. This form must be signed and returned for you to receive the severance payment. If you have any questions about the terms of the Waiver and Release, you should consult your personal attorney. We request that the form be returned by July 14, 2006.
If you have any questions, or need additional information regarding your upcoming retirement, piease contact the Benefits Office in Houston at 713-6805858 or 800-262-2383 or Luciana Abud in HR at 972-444-1874.

Attachment

Best regards,
yfo~

EXHIBIT

Case 3:06-cv-01732-K Document 2 Filed 09/22/06 Page 11 of 30

CHARGE OF D

TION

AG

This form is affected by the Privacy Act of 1974; See Privacy Act Statement before

D FEPA

completing this form.

[K) EEOC

PageID 17
CHARGE NUMBER 450 2006 00615

CIVIL RIGHTS DIVISION, TEXAS WORKFORCE COMMISSION

and EEOC

NAME(Indicate Mr., Ms., Mrs.)

Glen E. S

HOME TELEPHONE (Include Area Code)
458-5151

STREET ADDRESS

CITY, STATE AND ZIP CODE

113 Hiawassee Lane Lowden, TN 37774

DATE OF BIRTH
01/06/1946

NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY, APPRENTICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENT

AGENCY WHO DISCRIMI

ME

list

NAME
EXXON MOBIL CORPORATION

NUMBER OF EMPLOYEES, MEMBERS
500+

TELEPHONE (Include Area Code)
373-3790

STREET ADDRESS
3250 Love Field Dr. Dallas, TX 75235

CITY, STATE AND ZIP CODE

COUNTY
Dallas

NAME

EXXON MOBIL CORPORATION

TELEPHONE NUMBER (Include Area Code)
444-1803

STREET ADDRESS

CITY, STATE AND ZIP CODE

5959 Las Colinas Blvd., Room 1152, lrvi TX 75039-2298

COUNTY
Dallas

DATE DISCRIMINATION TOOK PLACE

D DRACE

COLOR

D

0 0 RETALIATION

AGE

SEX
0

D RELIGION DISABILITY D

D NATIONAL ORIGIN

OTHER (Specify)

11/03/2005

01/01/2006

D CONTINUING ACTION

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

PERSONAL HARM:
On November 3, 2005, I was advised by a letter from Patricia Andrews, Manager, Aviation Services, that I would have to cease flying and my retirement would become effective on December 30, 2005. I received a second notification dated December 30, 2005, from Ms. Andrews, advising me that my separation would be effective on January 1, 2006 and I would no longer be an employee of Exxon Mobil Corporation. Exxon Mobil Corporation states that it is their present policy to have pilots cease flying upon reaching the age of 60 and are forced to retire. I believe this to be a discriminatory practice because of my age and because Exxon Mobil Corporation operates under FAR Part 91, General Aviation Regulations, not FAR 121.
I believe I have also been retaliated against because I would not agree to the terms of the company's severance agreement. In December 2005, I was taken completely off flight status and grounded from flying. On January 6, 2006, I received a checklist memo advising me that I was terminated as it instructed me to turn in my badge and keys, however, I had already been locked out and unable to enter the premises.
DISCRIMINATION STATEMENT: I believe I have been discriminated against because of my age, 60, in violation of the Age Discrimination in Employment Act of 1967, as amended, and retaliated against for opposing to unlawful practices by my former employer, in violation of Section 704(a) of the Civil Rights Act of 1964, as amended.

I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address cr telephone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures.
I declare under penalty of perjury that the foregoing is true and correct.
)_1.. JP_/t~
Ch'arging Party {Stgnature)

NOTARY- (When necessary for State and Local Requirements)

I swear or affirm that I have read the above charge and that it is true to the

best of

information and belief.

SIGNATU:Zl::ff"'N'-"T>JLAV""•...,
SUBSCRIBED AND SWORN (Day, month, and year)

EEOC FORM 5 (REV. 3/01)

EXHIBIT 2

EEOC Form 5 (5101)Case 3:06-cv-01732-K Document 2 Filed 09/22/06 Page 12 of 30

CHARGE OF 01

INATION

Th1s form 1s affected by the Pnvacy Act of 1974 See enclosed Pnvacy Acl Statement and other 1nformat1on before completmg this form

Charge

To.

D FEPA 0 EEOC

PageID 18
Agency(1es) Charge No(s).
450-2006-02150

Name (md1cate Mr, Ms . Mrs)
Mr. Michael Morschauser

Texas Workforce Commission Civil Rights Division
State or local Agency, 1f any Home Phone (Inc/ Area Code)
(972) 407-0964

and EEOC
Date of B1rth
09-08-1946

Street Address
1625 Glen Springs Dr., Plano, TX 75093

City, State and ZIP Code

Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others (If more than two, list under PARTICULARS below.)

Name

No Employees. Members

Phone No (Include Area Code)

EXXON MOBIL CORPORATION

500 or More

(972) 373-3790

Street Address
3250 Love Field Dr., Dallas, TX 75235

C1ty, State and ZIP Code

Name

No Employees Members

Phone No (Include Area Code)

Street Address

C1ty. State and ZIP Code

DISCRIMINATION BASED ON (Check appropnate box(es))

DRACE

0 COLOR

D

SEX

D

RELIGION D

NATIONAL ORIGIN

D

RETALIATION

0 D AGE

DISABILITY

D OTHER (Specify below.)

THE PARTICULARS ARE (If add1t1onal paper IS needed. attach extra sheet(s}).
PERSONAL HARM:

DATE(S) DISCRIMINATION TOOK PLACE

Earliest

Latest

06-19-2006

0 CONTINUING ACTION

I believe I am being discriminated against under the Age Discrimination in Employment Act (ADEA) of 1967, as amended, because my employer has a policy/practice that requires me to retire at the age of 60.

I want th1s charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies 1f I change my address or phone number and I Will cooperate fully with them in the processing of my charge 1n accordance w1th their procedures.
I declare under penalty of perjury that the above is true and correct.

Aug 09,2006
Date

)kt.i~{!fl?~~ k1~
Chargmg Party Signature

NOTARY - When necessary for State and Local Agency Reqwrements
I swear or aff1rm that I have read the above charge and that 1t is true to the best of my knowledge, Information and bel1ef. SIGNATURE OF COMPLAINANT
7Jue-tzudJ·~ )?7M4d~
SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE
'~£~ 'PtiwlU o\1(~'&

EXHIBIT 3

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

Page 13 of 30 PageID 19

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Dallas District Office

207 s. Houston Street. 3'1 1'1oor
Dallas. TX 75202-4726 (214) 253-2700
TTY (214) 253-2710 FAX (214) 253-2720

EEOC CHARGE NO: EEOC CHARGE NO:

,.450-2006-00615 and 450 2006 02150

Glen E. Skaggs 113 Hiawassee Lane Lowden, TN 37774
Michael C. Morschauser 1625 Glen Springs Dr. Plano, TX 75093

CHARGING PARTIES

EXXON MOBIL CORP. 3250 Love Field Dr. Dallas, TX 75235

RESPONDENT

Exxon Mobil Corporation Attention: Herbert O'Niell Counsel, Labor/Employment & Special Services Law Department P.O. Box 2180 Houston, TX 77252-2180

DETERlVIINATION
Under the authority vested in me by the Commission's Procedural Regulations, I issue on behalf of the Commission the following determination as to the merits of the subject charges filed under the Age Discrimination in Employment Act (ADEA) of 1967, as amended.
All requirements for coverage have been met. Charging Parties allege in their EEOC charges that Respondent discriminated against them by implementing a policy and practice that requires a pilot to cease flying corporate airplanes when the pilot reaches the age of60 on his date of birth, which forces the pilot to involuntary retirement.
Respondent denies the a11egations that it violates the ADEA. Respondent admits that it has implemented a policy that does not allow pilots to fly corporate aircraft after reaching age 60. Respondent claims that the age of a pilot is a bona fide occupational qualification ("BFOQ") necessary to the normal operations ofthe Respondent's business. The Respondent states that its policy is identical to FAA "Age 60 Rule" found in the Federal Air Regulations, FAR 121.383(c).

EXHIBIT 4

Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 14 of 30 PageID 20

The investigation revealed that there is sufficient evidence to show that the Respondent violated the Age Discrimination in Employment Act by the development and implementation of its policy. The FAA "Age 60 Rule" does not directly apply to the Respondent's flight operations. The Respondent has not met its burden of showing that the age of a pilot is a BFOQ. Therefore, there is reasonable cause to believe that the Respondent discriminated against the Charging Parties and a class of similarly situated employees in violation of the Age Discrimination in Employment Act of 1967, as amended.
The Commission has further concluded that at this time, it will not make any finding on the claim of retaliation also raised in the charge of discrimination.
The Commission attempts to eliminate the alleged unlawful practices by infonnal methods of conciliation. Therefore, the Commission now invites the parties to join with it in reaching a just resolution of this matter, which will inc Jude immediate suspension of the Respondent's age 60 rule. If the Respondent declines to discuss settlement or if, for any other reason, a settlement acceptable to the Office Director is not obtained, the Director will inform the parties and advise them of the court enforcement alternatives available to aggrieved persons and the Commission.

AUG 1 6 2006
Date

Case 3:06-cv-01732-K
Exxon Mobil Corporation Law Department P.O. Box 2180 Houston, Texas 77252-2180 713 656 7990 Telephone 713 656 9697 Facsimile

Document 2

Filed 09/22/06

Page 15 of 30 PageID 21
He-'Niell
Counsel
Labor/Employment & Special Services

March 27, 2006

EJf(onMobil

Lillie R. Wilson, Enforcement Supervisor Equal Employment Opportunity Commission Dallas District Office -- 450 207 S. Houston Street 3d Floor Dallas, Texas 75202

Re: Charge # 450-2006-00615 Glen E. Skaggs

Dear Ms. Wilson:

This letter states 'the position of the Respondent Exxon Mobil Corporation (or

"Ex~Mobl§ftpn the above charge. Exxon Mobil Corporation denies any

U0:::J:JuFenudlreta~euIrlamo~~~~~~~h:we1.dtrihescrsiapmreeicn1a.f1~tcrioonrceesdpuoorr~asl1.rbe1~th?atnlyisa1!fdiooernrasta1f.oeangsaa.1irn~1ttrnacvlutedhl m~ag~dCrhtehasepreg~~in.1thgngfooPr fartthhtyee.

UE_har~ v1s'd the challenged policy that would also render 1t non-v1able. Any

<J=xx@obi!Zl~uments and information provided in response to the Charge are

~onsi!ere~~idential, valuable business information.

a::

~
25

t,:-',l0o.-..~l

Exxo"ii'"Mobil~rporation, a New Jersey corporation, is a large integrated energy

company with headquarters in Irving Texas. The Charging Party, Mr. Glen E.

Skaggs, was a Pilot in the Aviation Services Department until his separation from

employment effective December 31, 2005.

Mr. Skaggs' principal duties included acting as pilot or pilot-in-command of Global Express and Gulfstream IV corporate aircraft. These company-owned aircraft are used to fly company personnel and business passengers to destinations worldwide. The Global Express is an ultra long range corporate jet designed to fly at high altitudes and at speeds just below sonic level (i.e. Mach 0.88 or 0.85). This aircraft is capable of extremely long intercontinental flights (e.g., New York to Tokyo) without refueling and can fly between any two points on the globe with only one refueling stop. The Global Express can be configured to accommodate up to eighteen passengers and a flight crew of two. The Gulfstream IV is also a high altitude, high speed corporate aircraft with a capacity of up to 19 passengers and two crew. Both aircraft are highly complex and designed for long range international travel. Typical worldwide destinations include Angola, Cameroon, Chad, Nigeria, Equatorial Guinea, Indonesia, and Kazakhstan.

EXHIDIT .:;

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

Lillie R. Wilson

-2-

Page 16 of 30 PageID 22 March 27, 2006

Under Federal Aviation Administration (or "FAA") regulations covering Section 121 operations, no person may serve as the pilot of any covered aircraft after attaining the age of 60. The FAA regulations (14 CFR 121) cover primarily commercial scheduled passenger aircraft operations. Section 121.383(c) of Title 14 C.F.R. states no person may serve as a pilot on an airplane engaged in operations under part 121 if that person has reached his 60th birthday. The reason for this regulatory age restriction is passenger and flight operations safety. The FAA has found upon repeated study that human physiological function declines with age and this decline affects a pilot's performance over time. The FAA has also found there are no medical testing methods that can identify the age at which a specific pilot can no longer fly safely. The FAA's longstanding selection of 60 as its pilot age cutoff has been challenged unsuccessfully by various pilots associations on numerous occasions and has not been revoked or modified.
ExxonMobil aviation operations are not technically covered by Section 121. However, ExxonMobil aviation operations have significant similarities to Section 121 operations, including large and complex high speed, high altitude aircraft that carry large numbers of passengers and crew over long distances and populated areas. ExxonMobil pilots have responsibilities for their craft, crew, passengers, and the public that are the same as the responsibilities of pilots of craft regulated by Section 121.
ExxonMobil believes its corporate aircraft operations should be as safe for its pilots, passengers, guests, and the public as FAA Section 121 commercial aviation. Therefore, ExxonMobil Aviation aligns its practices with these regulations, requires its pilots meet Class 1 medical requirements, and has established a bona fide occupational qualification that its personnel will not pilot these complex corporate aircraft after the pilot reaches age 60. The reason for these practices is safety and they are consistent with and based squarely on the FAA regulations governing commercial passenger airline pilots.
In 1999 all pilots were reminded of the company's safety-based qualification standard that pilots would not be allowed to fly company aircraft after attaining age 60. Historically, in cases in which there have been other suitable job assignments available, pilots reaching age 60 have been reassigned to other, non-pilot jobs within the company. Some pilots have refused such other work assignments and have resigned from the company; some of these have left with a severance package. In Mr. Skaggs' case, there was no other suitable job assignment for him. He was offered a severance package, refused to execute the release required to obtain the severance benefit, and was separated from the company with retiree status.

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

Lillie R. Wilson

-3-

•Page 17 of 30 PageID 23 March 27, 2006

Mr. Skaggs' claim he was discharged in retaliation for refusing to execute the severance package release has no merit. The age-sixty qualification standard was communicated to Mr. Skaggs in 1999. He understood the requirement well, as he stated in his Employee Development Report for the 2001 - 2002 performance evaluation cycle: "Long term I would like to continue in that endeavor, but the parent company mandates retirement at 60 ... " And, again in his contribution to the Employee Assessment & Development Summary for the 2002 - 2003 performance cycle, he stated: "I would like to discuss with management Exxon's 'practice' of forcing all pilots to retire at age 60 ..." Mr. Skaggs knew that when he reached age 60 he would no longer be permitted to fly company aircraft. When Mr. Skaggs approached age 60 and no suitable job assignment existed for him, he was informed his separation would be effective December 31, 2005 and he was offered a severance package. He refused to accept the package offered and was separated from employment according to the company's well-known practice. As indicated by the fact that Mr. Skaggs' employment was terminated effective December 31 , 2005, his refusal to execute the Waiver and Release required to receive the severance package had nothing to do with his separation from the company. The release is a routine prerequisite to severance pay packages and is based on the voluntary choice of the employee.
For the reasons above, this charge is without merit and should be dismissed.

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 18 of 30 PageID 24

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff

}

}

v.

}

}

EXXON MOBIL CORPORATION

}

}

______________D_ef_en_d_a_n_t.__________}}

Civil Action No.

AFFIDAVIT

1. My name is Michael Morschauser. I am over 18 years of age and of sound mind. I

make this affidavit in connection with the Complaint in Application for Temporary

Restraining Order and Preliminary Injunction brought by the Equal Employment

Opportunity Commission against Exxon Mobil Corporation. I am one of the pilots

at Exxon Mobil.

2. My duties include flying as pilot both domestically and internationally.

3.

In my position, I used to fly Exxon Mobil company personnel and business

passengers on Bombardier Global Express and Gulfstream IV ultra-long range

business jets on flights to Angola, Moscow, London, Paris, Beijing, Nigeria,

Equatorial Guinea, Indonesia and Kazakhstan, among other destinations, including

multiple destinations in the Middle East.

4.

I hold an Airline Transport Pilot license and am fully qualified to fly these complex,

state-of-the-art business jets.

AFFIDAVIT

1
EXHIBIT 6

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

•Page 19 of 30 PageID 25

5.

I am in excellent health and hold a First Class Medical Certificate.

6.

My qualifications and proficiency to fly these aircraft are unquestioned. I was a pilot

for twenty years (1969-1989) of continuous flight duty in the Marine Corps. I flew

10,000 hours during my military service. Between 1981 and 1989, I was the

Command Pilot for the Commandant of the Marine Corps. The Commandant is a

Four Star General who has his own aircraft and sits on the Joint Chiefs of Staff. I was

a Standards Captain for Exxon Mobil from 1989 until 2006.

7. I am aware ofExxon Mobil's practice of removing corporate pilots from flight duty

at age 60.

8. On June 19, 2006, I received a letter from Exxon Mobil that indicated that "in

keeping with the Company's policy to have pilots cease flying upon reaching age

60," the company decided to remove me from flight duty effective September 7, 2006

and retire on or before October 1, 2006. (Letter of June 19, 2006, attached as Exhibit

1).

9.

I did not want to be retired from flying effective September 7, 2006 at

age 60. I do not want to be permanently retired on or before October 1, 2006.

10. I have not been offered any non-flight position at Exxon Mobil.

11. I will suffer immediate and irreparable harm for the following reasons. If retired, I

would lose a position that I have held for decades, because after protracted litigation,

a court would likely not require Exxon Mobil to reinstate me to a position then long-

held by another employee. Ifretired, I also would be unable to keep up with the daily

operations of Exxon Mobil's sophisticated aviation department. If retired, I would

AFFIDAVIT

2

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

Page 20 of 30 PageID 26

suffer irreparable harm to my piloting skills. This is especially so since Exxon Mobil flies such large and sophisticated jets. 12. Furthermore, even corporate aircraft departments that have no age policies are reluctant to hire pilots over age 60, because they commonly assume that the financial investment in training a pilot who would work only a few more years would not be cost effective. I know this from my experience and connections within the industry. 13. Once grounded and involuntarily retired, I likely would be unable to find full-time pilot employment or afford the significant expense of the periodic flight training necessary to maintain my flight proficiency. 14. Because recent flight experience has proven to be the most important factor in maintaining piloting skills, the longer I am off flight status the more my piloting skills will erode from non-use, and I might never fully regain those skills even if Exxon Mobil subsequently reinstates me to flight status. 15. On August 9, 2006, I filed EEOC Charge of Discrimination No. 450-2006-02150 with the Dallas District Office, complaining that Exxon Mobil discriminated against me because of my age in violation of the Age Discrimination in Employment Act. 16. On August 16, 2006, EEOC issued a Letter of Determination finding that Exxon Mobil violated the ADEA by its development and implementation of a policy that removes corporate pilots from flight duty when they reach age 60. The EEOC found that Exxon Mobil discriminated against me, Charging Party Glen Skaggs and a class of similarly situated employees in violation of the ADEA.

AFFIDAVIT

3

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

Page 21 of 30 PageID 27

I declare under penalty of perjury that the foregoing is true and correct. Executed on this_

1 ij /'11 of

''-r- -- r' )C' I{;; f! 7"1t:- " , 2006.

AFFIDAVIT

4

• • Case 3:06-cv-01732-K Document 2 Filed 09/22/06 Page 22 of 30 PageID 28 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Dallas District Office

207 s. Houston Street, 3"' Floor

Dallas, TX 75202-4726 (214) 253-2700
TTY (214) 253-2710 Fax (214) 253-2720 EEOC Website: www.eeoc.gov

VIA FACSIMILE (262) 314-2331

William C. Backhaus, Trial Attorney Direct Dial (214) 253-2742 Direct Fax (214) 253-2749
E-mail:william.backhaus@eeoc.gov

August 21, 2006

Herbert O'Niell Counsel, Labor/Employment & Special Services Exxon Mobil Corporation Law department P.O. Box 2180 Houston, Texas 77252-2180

RE

EEOC Charge No. 450-2006-00615 (Skaggs)

EEOC Charge No. 450-2006-02150 (Morschauser)

Dear Mr. O'Niell:

I'm glad that we had the opportunity to speak on the telephone this morning and discuss our respective positions in the above referenced charges of discrimination. As stated in EEOC's Letter of Determination issued August 16,2006, the EEOC's view is and will continue to be that Exxon's policy and practice for removal of pilots from flight status at the arbitrary age of60 is a violation of the Age Discrimination in Employment Act. The Commission remains prepared to resolve these charges through conciliation, if possible. However, given that Charging Party Mike Morschauser's 60th birthday is September 7, 2006, the Commission seeks quick and immediate action from Exxon to resolve these charges on his behalf.

As I indicated to you in a voice message on Thursday, August 17, 2006, EEOC is willing to enter into a "stand down" agreement for 60 days during which time Mr. Morschauser will not be removed from active flight status and the parties can proceed through the conciliation process. This is an eminently reasonable course of action that will spare Mr. Morschauser irreparable harm and at the same time avoid court intervention. In our conversation this morning, you indicated that Respondent is not willing to change its plans to involuntarily retire Mr. Morschauser from active flight status effective September 8, 2006 pursuant to "long-standing company policy." You also indicated that the "timing was too tight" for Respondent to respond to EEOC's proposed Conciliation Agreement and you requested an extension until September 15, 2006 to do so. While the Commission is not averse to continuing the conciliation dialogue in good faith, Mr. Morschauser faces irreparable injury and adverse employment action if he is involuntarily retired effective September 8, 2006. Therefore, in light of Respondent's entrenched position regarding the removal of Mr. Morschauser from active flight status, please be advised

EXHffiiT 7

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

Page 23 of 30 PageID 29

that the Dallas District Office has no choice but to consider its options to file a temporary restraining order and preliminary injunction against Exxon.

Feel free to call me at (214) 253-2742 if you want to discuss this matter further.

Cordially,
~~~~<-~.~~~~~
Senior Trial Attorn

Page -2-

.

.~EP~lft-2006CFaRsle 303:0:462-cvPM-01E7X32~-KlLDocument 2

Filed 09/F2A2X/0N6O. -Pa5ge624 9o6f9370

P.
PageID 30

02/03

Exxon Mubil Corporation Law Department P.O. Bol( 2180 Houston, Texas 77252·2180 713 656 7990 Telephone
713 656 9697 Facsimile

Horbert E. o•INieJI Co1.1nsel Labor/Employment & Special Services

E)j'(onMobil

I
I
i

I
I

!
September

15,

2oos

' '
I
Att~mey Suzanne M. Anderson, Supervisory Trial

Equal Employment Opportunity Commission 1

207 S. Houston Street, 3rd Floor

\

Dallas, Texas 75202-4726

1

I

i

Re: EEOC Charge No. 450-20Q6..0p615 (Skaggs)

EEOC Charge No. 450..2006..0~150 (Morschauser)

j

Dear Ms. Anderson:

\

I
i
We have carefully considered the EEOC's~oposed resolution of the above-

referenced charges, as set forth in its offer f conciliation; however we cannot

agree with it. As you are aware, the F has thoroughly and repeatedly

analyzed this Issue and, to date continues to prohibit commercial airline and

cargo pilots from flying after reaching age ~0. Based on its analyses of the

scientific studies-both FAA research and \non-FAA research-the FAA has

concluded that no medical tests or combination of tests can be applied to reliably

predict the level of additional risks associated with aging, but that the increased
risk is real and well documented. As mad~·lclear in its Statement of Position, ExxonMobil implemented its policy to manag~ these documented risks to public

safety and the safety of its corporate pass~ngers (including employees and

guests) which the FAA has determined cann~t currently be eliminated with any

reliability by individual assessments. ExxonM?bil pilots are faced with the same

critical challenges as commercial pilots and c'rgo pilots directly covered by the

FAA rule, and we believe our passengers, as 'fllell as the thousands of people in the flight paths of our aircraft, should have the ~ame margin of safety that applies

to commercial flight operations.

\

I
l
I
I
l

I

l

I

!

I

i

EXHIBIT

I

8

" .. .SEP·-1~-2006CFaRsIe033::0462-cPvH-0E1X7Y3Ji211-1K131DL ocument 2

Filed 09F/A2X2/0N6O. ~Pa5ge6259o6f9730

P.
PageID 31

03/03

Suzanne M. Anderson

September 15, 2006

In light of the FAA's analysis and conctusio~s regarding the scientific research on the safety issue, we must err an the side of av,oiding risk to life and limb and we are not in a position to second-guess t~e FAA's conclusions on this issue. However, if the EEOC is aware of any inf9rmation indicating that the FAA has reconsidered its analysis on the safety que$tion, then it should provide such info
at to us so that we can consider it and discuss with you.
\
i '
Your cooperation in this matter is appreciatep. :
I
\
R1Jto;ll)

/ph

I

I

i

l
!
j
I i
! 1
!

\
I i
l
l
\
I
\ I
I
I
\
I
l
.'!
\
\ l i
I
i
I
\

Case 3:06-cv-01732-K

Document 2

Filed 09/F2A2X/0N6O. ~P~ag~e5266 9o6f9370

P.
PageID 32

01/03

\ I
I
\
EXXON MOBIL CORPORATION i
f'OST OFFICE BOX 21 eo •HOUSTON, TEXAS '1725:!·21BD

Law Popal1rnenr

FACSIMILE TRANSMt5 SION REQUEST

DATE: FROM:
TO:

September 15, 2006 Herb O'Niell

TIME: 4:37 PM EXT: 713...656-7990
FAX: 713-656-9697

;
Suzanne M. Anderson~ S~pervisory Trial Attorney

PHONE:

(214) 253-2700

I

!

:

l

FAX NO.: (214) 253-2720

I
i

'

i

'
!

i

i

I

MESSAGE:

RE: EEOC Charge· No. 450..2006-0 )615 (Skaggs) EEOC Charge ... No. 450..2006-0' 1~0 (Morschauser)

' '
'
' I
I I

use THIS TAANSMIT'rAL IS INT!iiNtiED ONLY FOR THE
INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL

OF THF. INDIVIDUAl. 0~ AN!l J:XEMI'T FROM DISC~~

I!NTITY TO WHICH IT J$ ADPRESSED, A~D MAY CONTAIN UREi 'UNPIR APPLICADL& LAW, IF THE Rew:J~ Of' THI$

TRANSIW!"''AL IS NOT TltE IIIITENDED RECIPiflNT. OFI THS EMPLOYEE OR AGrlf\11' INTI!NOEP RECIPIENT: YOU ARE HERIEIY NOTIFIEI) THAT ANY DISSEMINATION

&SPONSI!aLE FOR DELIVERING THE TRANSMm'AL TO THE DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS

STRICTLY PAOHIBI'I'ED. IF' YOU HAVE RECEIVI!O THIS COMMU~ICATION IN ~Ri R, PLEASE NOTIFY US IMMeDIATELY BY TELEPHONE AND

RETURN TI'IR ORIGINAL IUIESSAG£ 'rO US AT THE ABOVI! ADDRESS VIA TI1E U.S. PQ AL SERVICE. THANK YOU,

\ : FOR TRANSMISSION PROBLEM·1 ~ CALL: 713/656-4419

I
I

2 Page(s) to follow

;

!
i

\
I

\

I

. I t

I i

'

t

I I

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06

Page 27 of 30 PageID 33

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Dallas District Office

207 s. Houston Street, 3ro Floor

Dallas, TX 75202-4726

(214) 253-2700

TTY (214) 253-2710

FAX (214) 253-2720

EEOC Website: www.eeoc.gov

VIA FACSIMILE (262) 314-2331

August 22, 2006

Herbert O'Niell Counsel, Labor/Employment & Special Services Exxon Mobil Corporation Law department P.O. Box 2180 Houston, Texas 77252-2180

RE

EEOC Charge No. 450-2006-00615 (Skaggs)

EEOC Charge No. 450-2006-02150 (Morschauser)

Dear Mr. O'Niell:

The EEOC cannot agree to extend the date to September 15, 2006 for Exxon to respond to the EEOC's draft Conciliation Agreement. Your letter does not indicate any pressing reason why Exxon needs an additional3 weeks to respond to EEOC's request for conciliation ofthese charges. The EEOC could agree to extend the date for 7 days until August 29, 2006.

According to your letter, Exxon will enforce its Age 60 Policy and take away Mr. Moreschauser's piloting duties after his 601h birthday on September 7, 2006. EEOC cannot idly stand by while Mr. Morschauser is removed from flight duty. Would Exxon agree to postpone any action against Moreschauser until after the parties have had the opportunity to meet and discuss conciliation? If Exxon could agree to a standstill so that Mr. Moreschauser can continue all of his duties, then EEOC can agree to give Exxon a longer extension to think over the draft Conciliation Agreement. If Exxon cannot agree, then EEOC will have no choice but to fail conciliation and consider immediate legal options to protect Mr. Moreschauser's rights under the Age Discrimination in Employment Act.

Please call me at (214) 253-2740 if you have any questions. Please inform EEOC on or before August 28, 2006 as to whether Exxon can or cannot agree to postpone any action against Moreschauser. Thank you for your consideration.

Sincerely,

Suzanne M. Anderson Supervisory Trial Attorney

EXHIBIT
9

• Case 3:06-cv-01732-K Document 2 Filed 09/22/06
-cant rmat ion Report- Memory Send

•Page 28 of 30 PageID 34

Page

001

Date &Time: Aug-22-06 02:54pm

Line 1

2142532749

Line 2 +214 253 2749

Machine ID EEOC LEGAL

Job number

432

Date

Aug-22 02:53pm

To

1t92623142331

Number of pages

001

Start time

Aug-22 02:53pm

End time

Aug-22 02:54pm

Pages sent

001

Status

OK

Job number

432

*** SEND SUCCESSFUL ***

U.S. EQUAL Elv.IPLOYlv.IENT OPPORTUN:rr¥ C::::Olv.DVJISSJ:ON

Da.Uas Dist:ri.ce O:f'Dce

2.07 s. Hc:n.aston S'tre~. s - Floor

Onllas... TX 7.5'202.-J726

(21-4) 2534700

-r-rv (2.14> a53-27tO

PAX. (2'14) 253-2720

EBOC 'W'ebsiM~ WWW eppF agy

August 22, 2006

Herbert. O'Niell Counsel, Labor/Exn.ploy.zn.cnt & Exxon :tv.lobil Co;rporadon Lavv c:icparttncnt P.O. Box .2.180 Hous~n.. Texas 77252-2180

Special Services

EEOC Charge N"o. 4S0-2006-0061S (Skaggs) EEOC Charge N"o. 4S0-.2.006-021SO (lv.lorschauser)

Dear l'v.lr. O'Niell:

The EEOC cannot agree to extend the c:iate to September 15, 2006 for Exxon t:o respond to the EE.OC"s draft Co:nciliadon .A.greeznent. Your letter does :no!: indicate any pressing reason vvhy Exxon. :needs an additional 3 vveeks to rcspo:nc:it:o EEOC's request for conciliation of"'l:h.cse charges. The EEOC could. agree to extend. the date for 7 days until .August 29, 2006.

.Acco:rdi:ng to your leu:er. Exxon will enforce its Age 60 Policy and take avvay J.v.[r. J.v.loreschauser•s piloting duties after his 60"' birthday on Scpl:exn.bcr 7. 2006. EEOC cannot idly stand by ...,...hile :tv.lr. M.o:rsehauscr is removed fro:rn. £light duty. Would Exxon agree 1:0 postpone any action against M.oreschauser until after the parties have had the opportunity to :meet and discuss con.ciliation? X£" Exxon could. agree to a standstill so that~- lv.[o:reacha.user can continue all ofhis duties. then EEOC can agree 1:0 give Exxon a. longer extension to tbinlc: over the draft Conciliation. .A.groexn.en1:. If Exxon cannot agree. then EEOC vvill have no choice but to :fail conciliation ancl consider inunediate legal options 1:0 pro1:ec1: ~- lv.[oresch.a.user•s rights under l:b.e .Age Discri.n:lina.tion in. Eul.ploy.zn.ent Act:.

Please call :<neat (214) 253-2740 if you have any questions. Please inform EEOC on or before .A.ugt.Utt 28, 2006 as 1:0 whether Exxon can or cannot agree to postpone BJO.Y action against Mo:reschauscr. Thanlc you for your consideration.

Sincerely.
(}Z:mtJvo___

Suzan:n.e :tv.l. .Anderson Supervisory Trial .Attorney

• Case 3:06-cv-01732-K Document 2
Exxon Mobil Corporatie
Law Department P.O. Box 2180 Houston, Texas 77252-2180 713 656 7990 Telephone 713 656 9697 Facsimile

Filed 09/22/06 Page 29 of 30 PageID 35
A ~unrsbel. ' N i e l l
Labor/Employment & Special Services

EJf(onMobil

August 29, 2006

Suzanne M. Anderson, Supervisory Trial Attorney Equal Employment Opportunity Commission 207 S. Houston Street, 3rd Floor Dallas, Texas 75202-4726
Re: EEOC Charge No. 450-2006-00615 (Skaggs) EEOC Charge No. 450-2006-02150 (Morschauser) Your Letter of August 22, 2006
Dear Ms. Anderson:
We are disappointed that the EEOC has refused to extend the time until September 15 for ExxonMobil to consider your request to conciliate and has threatened to fail conciliation unless ExxonMobil first agrees to waive the Age-60 Rule for Mr. Morschauser and assign him to flying duties during the period of September 7 through September 15.
As you know, although Mr. Morschauser will not be permitted to fly after September 7, he will continue to receive full pay and benefits through the end of September. By September 15 (t:he date Exxon1viobii proposes to respond to the EEOC's conciliation request), only a week wiii have passed. We believe there is no irreparable harm in any event, but certainly under these circumstances, it is difficult to fathom that Mr. Morschauser will have been irreparably harmed by such a short extension (and a brief discontinuation of his flying duties).
On the other hand, the EEOC cannot expect ExxonMobil to agree, as a precondition for a reasonable extension of time to consider the request for conciliation, that it accept the risk-even for a short time--of a departure from a safety standard which we feel we must respect. As made clear in our Statement of Position, ExxonMobil implemented its policy to manage documented risks to public safety and the safety of its corporate passengers (including employees and guests) that cannot currently be eliminated with any degree of reliability by individual assessments. In balancing these risks against the Hobson's choice presented by the EEOC, ExxonMobil must err on the side of avoiding the risk to life and limb.

EXHIBIT 10

..c'' '~,

- · - · Case 3:06-cv-01732-K Document 2 Filed 09/22/06 Page 30 of 30 PageID 36

Suzanne M. Anderson

-2-

8/29/2006

We still plan to respond to the EEOC's conciliation request on or before September 15, 2006.
Very truly yours,

 
 Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 1 of 22 PageID 417

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff

}

}

v.

}

}

EXXONMOBIL CORPORATION,

}

}

Defendant.

}

__________________________________________}

Civil Action No. 3-06-CV-1732-K

PLAINTIFF’S SUPPLEMENTAL BRIEF AND AMENDED REQUEST FOR PRELIMINARY RELIEF

COMES NOW the Plaintiff Equal Employment Opportunity Commission (hereafter

“EEOC”) and files this Supplemental Brief and Amended Request for Preliminary Relief on

behalf of Buford “Buff” Barrett as another member of the class of pilots forced into retirement

by the Defendant. With this brief, EEOC reasserts its request for preliminary injunctive relief for

Mike Morschauser and now Burford “Buff” Barrett, both of whom ExxonMobil has removed

from active flight status, and other pilots who may reach age 60 prior to the conclusion of the

underlying civil action. EEOC requests the preliminary injunction to preserve the positions of

the parties until full discovery can be conducted and a trial can be held on the merits of the

EEOC’s age discrimination lawsuit against ExxonMobil on behalf of Mike Morschauser, Glenn

Skaggs, Buford Barrett and a class of similarly situated pilots adversely affected by

ExxonMobil’s mandatory retirement policy.

The EEOC also files this supplemental brief in an effort to provide information to the

Court relating to FAA Administrator Marion Blakey’s public remarks on January 30, 2007, and

the FAA’s announcement of proposed rulemaking on the FAA’s Age 60 Rule, 14 CFR

EEOC’S SUPPLEMENTAL BRIEF

1

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 2 of 22 PageID 418

§121.383(c). The EEOC has always maintained, consistent with FAA regulations, that the FAA’s Age 60 Rule for commercial airline pilots does not apply to corporate aviation pilots such as the pilots whose claims are being forwarded in the present case. It has been and continues to be the EEOC’s position that ExxonMobil’s blanket mandatory retirement policy violates the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. (ADEA). It also continues to be the position of the EEOC that (1) the lack of an amendment of 14 CFR §121.383(c) to include the business aviation pilots not previously covered, and (2) the FAA’s choice not to promulgate a parallel regulation to govern the age of the non-covered pilots, is conclusive evidence of thoughtful and purposeful inaction by the FAA because there is no safety-related or other business necessity for the arbitrary age limitation. Notwithstanding the direct inapplicability of the FAA’s Age 60 regulation to the particular class of pilots affected in the case currently before this Court, the EEOC understands that the Court is interested in the implications, rationale and policy considerations related to safety which underlie the regulation. Since the Defendant has attempted to draw upon the safety-related justifications underlying the inapplicable FAA regulation to construct a false exception for its non-compliance with the ADEA, the EEOC would show the Court as follows:
FAA’S ANNOUNCEMENT OF JANUARY 30, 2007 DISMISSES SAFETY REASONS AS RATIONALE FOR AN AGE 60 RULE On January 30, 2007, FAA Administrator Marion Blakey addressed the National Press Club in Washington D.C. with a speech entitled: “Experience Counts.” In her remarks, Administrator Blakey said that it was a “seize the day moment” for commercial aviation . “It is time to close the book on age 60,” Blakey said. “The retirement age for pilots needs to be raised, so the FAA will propose a new rule to allow pilots to fly until they are age 65.” Administrator Blakey affirmed the decision of the International Commercial Aviation Organization’s (ICAO)

EEOC’S SUPPLEMENTAL BRIEF

2

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 3 of 22 PageID 419

November 2006 increase of the flying age to 65 as “the right thing to do.” She said that the rule
the FAA intended to propose would be parallel to the ICAO standard: “Either pilot or co-pilot
may fly to age 65 as long as the other pilot is under age 60.” (Transcript of Administrator
Blakey’s speech attached as Exhibit 1.)
It is not surprising that the prepared part of Blakey’s speech about 14 CFR §121.383(c)
did not include any mention of corporate pilots for business aviation like the ExxonMobil pilots
whose continued careers are at issue in the present case. However, during a question and answer
session following the Administrator’s speech, the issue of whether there would be any
implications of the rule change for senior business aviation pilots was raised and pointedly
dismissed. The Administrator did not miss a beat in distinguishing the commercial airline pilots
affected from the situations involving corporate business plane pilots.
Q: How will the proposed rule affect the current pool of pilots who fly for business aviation and who may be over the age of 60?
A: They’re able to fly right now. You know, in fact, one of the interesting things that I followed in this is that NetJets has a very large pool of pilots over the age of 60. And we have continued to monitor that situation and look at the data. And again, the data is very positive from the standpoint of the competency of people who are over 60. So I don’t anticipate this would do anything but, you know, provide the opportunity to continue to fly in that environment. There may be somewhat fewer pilots who then are moving over into business aviation if they continue to fly for the carriers, but I don’t think we see this as having a major impact.
ANALYSIS AND ARGUMENT
EEOC REASSERTS ITS REQUEST FOR PRELIMINARY INJUNCTION TO PRESERVE THE PILOTS’ EMPLOYMENT RIGHTS PENDING DISPOSITION BY COURT ORDER OR RESOLUTION OF LITIGATION IN THE UNDERLYING ADEA CASE
Pursuant to the EEOC’s authority under Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § 626 (the “ADEA”) and Rule 65 of the Federal Rules of Civil Procedure
the EEOC seeks a preliminary injunction against ExxonMobil, requesting that this Court restrain

EEOC’S SUPPLEMENTAL BRIEF

3

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 4 of 22 PageID 420

and enjoin ExxonMobil from implementation of its policy and practice of removing pilots from active flight status and then involuntarily retiring them when they turn age 60. EEOC specifically seeks preliminary relief on behalf of ExxonMobil pilot Mike Morschauser, who was removed from active flight duty on September 7, 2006, though not yet involuntarily retired as a result of the Court’s request for maintenance of status quo pending a decision on the preliminary injunction. In this supplemental brief, EEOC further seeks preliminary relief on behalf of Buford “Buff” Barrett, who was more recently removed from active flight duty on his birthday on December 7, 2006, after commencement of this action. Mr. Barrett has not yet been forced to involuntarily retire by ExxonMobil. EEOC continues to seek preliminary relief to preserve the employment rights of Morschauser, Barrett and any other pilots who may reach age 60 prior to full discovery, litigation and settlement or trial of the underlying ADEA civil action.
It is the EEOC’s position that, if the Court continues to deem it helpful to look to the FAA or 14 CFR §121.383(c) for guidance on how to evaluate the validity of ExxonMobil’s defense, the recent and fortuitously timely FAA announcement of rulemaking has substantially, if not conclusively, increased the likelihood of the EEOC’s prevailing on the merits. While neither the requirements for proof of discrimination under the ADEA, nor the standard for preliminary injunctive relief have changed1 the defense and rationale of safety raised by Defendant in support of its position in favor of an arbitrary age 60 cut-off for pilots has evaporated. This is a clear example of where a long-held position of the EEOC has now been reinforced by another agency, the FAA. The conflict of government policy which Defendant has so vigorously attempted to accentuate between the objectives or interpretations of two federal

1 A preliminary injunction is awarded if a movant establishes: (1) a substantial likelihood of success on the merits;
(2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened
injury outweighs any damages that the injunction might cause; and (4) the injunction will not disserve the public interest. Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998)

EEOC’S SUPPLEMENTAL BRIEF

4

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 5 of 22 PageID 421

agencies, can no longer be a cover for its conduct. The transparency of the Defendant’s position can be noted by the Court in that prior to the January 30, 2007 announcement, ExxonMobil repeatedly paid genuine deference to the FAA as it sought refuge in the obsolete regulation for the commercial airline pilots. However, the prior deference has now become a disingenuous distancing and dismissive disavowal of the FAA’s own pronounced departure from a rule that is admittedly unsupportable. ExxonMobil is now left with the last resort appeal that until the rule is administratively formalized, the parties and the Court should just knowingly look away while the Defendant intransigently continues to maintain its own unjustified policy for another year or two.
The prohibitions against age discrimination as set forth in the Age Discrimination in Employment Act (“ADEA”) are contained in 29 U.S.C. § 623(a). Section 623(a) states:
It shall be unlawful for an employer – (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or (3) to reduce the wage rate of any employee in order to comply with this chapter. 29 U.S.C. § 623(a) (1999). The ADEA provides an exception to its general prohibition against age discrimination “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. § 623(f)(1). In order to prove a BFOQ defense, ExxonMobil has the burden to show that its policy: (1) is reasonably necessary to the safe operation of its corporate aviation department; and (2) is a legitimate proxy for safety because (a) the employer has reasonable cause to believe that all or substantially all pilots over age 60 would

EEOC’S SUPPLEMENTAL BRIEF

5

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 6 of 22 PageID 422

be unable to safely and efficiently fly, or (b) it is impossible or highly impractical to individually test older pilots' health and flight competency. See Western Airlines v. Criswell, 472 U.S. 400, 415 (1985). Likewise, there was nothing in FAA Administrator Blakey’s speech or the FAA’s announced rulemaking that supports a BFOQ requirement for excluding pilots who turn 60. To the contrary, the FAA firmly and confidently acknowledges the obsolescence of such a notion.
The FAA’s decision to “close the book” on the FAA Age 60 Rule makes it extremely difficult, if not impossible, for ExxonMobil to establish prongs (1) and (2) of the BFOQ defense and conversely, pursuant to the preliminary injunction burden of proof, makes it very likely that the EEOC will succeed on the merits. It is clear from the Administrator’s speech that the FAA supports the position long held by EEOC that age 60 cannot be used as an accurate measure of a pilot’s health or safety. During her speech she explained the common sense practicality behind the decision to change the rule:
“Why the change? Well, first, medically speaking, there are no scientific studies out there that say, “Don’t do this.” In fact, I think we’d all agree that medical science is at a place where we’re all living longer and healthier, and that includes in the cockpit.” “Back in 1955, the average lifespan in the United States was 69-and-a-half. Today, it’s more than 77. And if there’s a group of employees out there that are in better shape than airline pilots, generally speaking, they’re not coming to mind.” With these statements, Administrator Blakey and the FAA put to rest the arguments that medical science supports an Age 60 Rule as reasonably necessary to the safe operation of commercial or corporate aircraft or that age is a legitimate proxy for safety.2 The EEOC and medical experts have contended for many years that there is no additional medical or safety risk that begins when pilots reach their 60th birthday. In his affidavit, already filed in this case, Dr. Stanley Mohler confirms that research has shown that regardless of age, professional pilots are

2 This is especially compelling in the context of corporate pilots, who fly only a few passengers at a time, compared to commercial pilots who usually carry hundreds of passengers on each flight.

EEOC’S SUPPLEMENTAL BRIEF

6

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 7 of 22 PageID 423

the healthiest group of individuals in the world. Their average risk for future heart problems is significantly less than the general population’s risk. Their average lifespan is much longer than the general population’s lifespan. (Mohler affidavit at paragraph 45) Simulator studies have estimated that the risk of cardiac incapacitation for any age pilot occurring at a critical point in flight is less than one event in more than 20 million flight hours, with a calculated probability of an accident occurring as a result of a cardiac incapacitation of a pilot of less than one accident every 400 years. Chapman, PJC, The Consequences of In-flight Incapacitation in Civil Aviation. Aviation Space Environmental Medicine, 1984; 55:497-500 Accident rate data such as found in the FAA’s Hilton Study shows that pilots age 60-64 actually had the lowest accident rate of any age group studied. (See Affidavit of Jefferson Koonce, p.13, already filed in this case.) The Hilton Study concluded that there was “no support for the hypothesis that pilots of scheduled air carriers had increased accident rates as they neared the age of 60. Clear and convincing evidence, including medical and scientific data, as well as the continuing advancements in science, medicine and technology, have all weighed heavily and decisively against an age 60 Rule. Administrator Blakey even went as far in her speech as to suggest that medical science may have had little to do with the actual basis for the origination of the FAA’s Age 60 Rule:
It’s still a matter, I think, of genuine debate as to why the government made age 60 the limit. American Airlines at that point prevailed on the FAA in particular for this rule. Perhaps it was the strike that occurred. Maybe it was just a move to get beyond the issue. The man in charge of American at that point was C.R.Smith, and he wrote to Pete Quesada, my predecessor, who was the administrator at the time. He wrote, and I quote, “It appears obvious that there must be some suitable age for retirement.” Administrator Blakey recognized in her speech that international aviation has already stepped away from an age 60 mandatory retirement rule. One reason Blakey cited for the FAA’s proposed rulemaking is for harmonization with the international pilots and the International Civil Aviation Organization (ICAO). In November 2006, the ICAO changed its policy to allow a

EEOC’S SUPPLEMENTAL BRIEF

7

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 8 of 22 PageID 424

pilot to fly until his 65th birthday, with a compromise agreement that one pilot in the cockpit must be under age 60.3
The ICAO is an international organization developed by member countries as a means to secure international cooperation and the highest possible degree of uniformity in regulations and standards, procedures and organization relating to civil aviation matters. Since at least the 1990s, the ICAO has debated and considered raising the upper age limit for pilots. The ICAO sought and received comment from the Aerospace Medical Association (AsMA), the International Academy of Aviation and Space Medicine (IAASM) and the International Air Transport Association (IATA). In its comments, the AsMA concluded that there is insufficient medical evidence to support restriction of pilot certification based on age alone. The IATA agreed with the AsMA and recommended that the age be increased to 65. The IAASM also supported ICAO’s review of the validity of the age 60 limit.
In 2003, the ICAO Secretariat sought information from the Contracting States regarding their upper age limits for pilots. The Secretariat received information from 116 states and international organizations – a majority of which indicated that an upper age limit above 60years-old was appropriate. In fact, survey results from the 116 States showed that 72 percent of them believed that age 65 was the most appropriate upper age limit for pilots. (See ICAO graph attached as Exhibit 2.)
In February 2005, the ICAO issued a report that included the following key findings: • The report broadly agreed with the AsMA that there is insufficient medical evidence to support restriction of pilot certification based upon age alone.

3 EEOC supports raising the age limit for Part 121 pilots to age 65 for a specific time period as a reasonable interim step in the process of eventually eliminating age as a determinative factor in the employment of commercial airline pilots. As with age 60, there is no credible medical, scientific or aviation evidence to suggest that concerns for safety require a mandatory retirement age for pilots of 65. Raising the age limit to 65, however, may serve as a useful transitional step, allowing commercial pilots to continue flying beyond age 60 while the FAA continues to move in the direction of individualized testing of the skills and health of all pilots, regardless of age.

EEOC’S SUPPLEMENTAL BRIEF

8

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 9 of 22 PageID 425

• Only 25 countries have an age limit of 60 or younger. The U.S., China and France have been the only developed nations with limits that low.
• Over 80 percent of countries surveyed were in favor of an age limit above 60 years.
• The ICAO report recommended that the current upper limit for pilots be revised from 60 to 65 with the caveat that 65 is still an arbitrary age limit and there is still a need to collect data to definitely disprove the safety issues.
• There are no studies that indicate a significant increase in risk to flight safety posed by older airline pilots. On the contrary, both the previous (1995) and the present ICAO survey indicate that older pilots do not present any particular risk to flight safety. No scientific research exists that dictates the maintenance of the current upper age limit.
• A recent study of 165 commuter aircraft accidents in the U.S. between 1983 and 1997 points to no notable differences between the age groups except that the percentage of crashes involving pilot error decreased somewhat with age, being lowest for pilots between 58 and 63.
• A Japanese study of its 60 to 63-year-old airline pilots found that none had been involved in an accident during the 10-year-study period.
• The risk of two older pilots becoming medically incapacitated at the same time, during the same one-hour flight is one per trillion hours – a risk so low that it can safely be disregarded.
The information in this ICAO Report was considered by the FAA committees reviewing
the Age 60 Rule. (See Age 60 Aviation Rulemaking Committee Report to the FAA, November
29, 2006, attached as Exhibit 3.). In announcing its proposed Rulemaking, Blakey said it
“doesn’t make sense” to have international pilots over age 60 flying U.S. passengers over U.S.
skies while American pilots over age 60 are grounded. The FAA Administrator’s direct
comments as well as the behind-the-scenes view of the FAA decision and the ICAO’s findings
and approach, together convincingly establish that ExxonMobil will not be able to meet it burden
of proving that age 60 is a bona fide occupational qualification reasonably necessary to the
normal operation of the particular business.” 29 U.S.C. § 623(f)(1).

EEOC’S SUPPLEMENTAL BRIEF

9

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 10 of 22 PageID 426

EXXONMOBIL CANNOT BE ALLOWED TO CONTINUE TO RELY ON THE FAA AGE 60 RULE

Throughout this litigation (and most recently in the Joint Status Report), ExxonMobil has

claimed that it is entitled to rely upon the FAA Age 60 Rule as an excuse for its claimed BFOQ

exception to the ADEA’s requirements and prohibitions. It is undisputed that the FAA regulation established in 1959 prohibits an air carrier4 from using the services of any person as a pilot after his or her 60th birthday, and prohibits any such person from serving as a pilot in air carrier operations if that person has reached his or her 60th birthday. 14 C.F.R. 121.383(c). This

rule resides in Part 121 of the FAA regulations that sets forth certification criteria and operating

rules for major air carriers.

The FAA Age 60 Rule does not, however, apply to business aviation or corporate pilots,

which are governed by Part 91 of the FAA regulations. FAR Part 91 governs corporate flight

operations, training flights, test flights and flights flown by private pilots for personal or business

or pleasure. During the 47 years of existence of the Age 60 Rule, the FAA has never issued a

statement or announcement or indicated, in any way, an intent that the Age 60 Rule does apply

or should apply to the corporate aviation pilots. It is important for this Court to note that even

ExxonMobil, itself, admits that the FAA Age 60 Rule does not apply to corporate aviation. In a

document titled: “Age 60 Rule and Special Termination payment ExxonMobil Corporate Pilots”

(attached as Exhibit 4), produced by the Defendant to the EEOC during its federal investigation,

ExxonMobil indicates its strategy for talking to pilots about ExxonMobil’s mandatory retirement

policy. In this question and answer format, ExxonMobil includes a candid admission that the

FAA Age 60 Rule does not apply to corporate aviation:

4 An air carrier is defined as aircraft with a passenger capacity of 10 seats or more in fare-paying, regularly scheduled service and regularly scheduled cargo flights in aircraft in excess of a certain weight.

EEOC’S SUPPLEMENTAL BRIEF

10

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 11 of 22 PageID 427

4. What is to be communicated by Aviation Management to Exxon and Mobil pilots offered positions with ExxonMobil?
The following points should be communicated verbally: • ExxonMobil’s policy is to remove pilots from flight duty at age 60, consistent with the FAA’s “Age 60 Rule” for commercial aircraft pilots.
• If an appropriate alternative position is not available at that time, you will be separated from the Corporation and provided special compensation in consideration. (Remain silent on specific amount or process for calculating.)
• If in the future the Corporation changes its policy of removal from flight duty at age 60, or if removal from flight duty at age 60 becomes law* special compensation would not be provided. (*Example: if the FAA were to expand the “Age 60 Rule” to cover corporate pilots.) …
On January 30, 2007, the FAA Administrator’s answer in response to a question confirms
that the FAA does not intend for the Age 60 Rule to apply to corporate or business aviation. As
the videotape of the question and answer shows even more clearly than the written transcript,
Administrator Blakey had no hesitation and did not mention exclusions or specific circumstances
or other options for business aviation pilots. She simply said: “They are able to fly right now.”
(Blakey transcript, attached as Exhibit 1.)
This recent announcement by the FAA affirms the Ninth Circuit’s decision in the case of
EEOC v. The Boeing Company, 843 F.2d 1213 (9th Cir. 1988). In that case, the EEOC
challenged Boeing’s practice of removing its corporate pilots from active flight duty at age 60.
Boeing Company indicated that it removed its pilots based on the FAA’s Age 60 Rule. The
Ninth Circuit concluded that the FAA Rule should not be given conclusive weight in this case
that did not involve commercial airline pilots.

EEOC’S SUPPLEMENTAL BRIEF

11

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 12 of 22 PageID 428

Defendant has argued and continues to argue that ExxonMobil should be allowed to hide behind the FAA Age 60 Rule because its corporate aviation operations are in “congruity” with the Part 121 pilots, such as those who fly for United Airlines, Delta Airlines, Southwest Airlines or American Airlines. Not only has the “congruity” argument become moot by the FAA’s announcement for airline pilots, but even if congruity were still the issue, the facts simply do not support that Defendant’s argument. ExxonMobil pilots fly aircraft in many respects that are simply not congruent with Part 121 airlines like United Airlines. ExxonMobil has three types of planes: Gulfstream IV, Global Express and Challenger. Depending on their configuration, these three planes seat 11, 10 and 8 passengers, respectively. United Airlines flies A-319, B737-300, B747-400, B757-200, B767-300 and B777-200. These planes are configured to seat 120, 120, 347, 182, 244 and 348 passengers, respectively. At ExxonMobil, flight logs show that the aircraft often are flown with just a few passengers. (Aircraft Flight and Service Reports attached as Exhibit 5) Rarely does a United Airlines plane fly with only a couple of passengers. In fact, according to the affidavit provided by United Airlines captain Mary Ann Schaffer, she can remember only when occasion when she piloted a plane with fewer than 5 passengers. (Schaffer affidavit, attached as Exhibit 6). Ordinarily, the aircraft was more than 80 percent full. The United Airlines jets are clearly much larger than the jets flown by ExxonMobil. The wingspan of the Boeing 777 is 199 feet and 11 inches. The wingspan of the Gulfstream IV (the largest jet in service at ExxonMobil) is less than half the size at 77 feet, 10 inches. Even the smaller United Airlines Airbus 319 has a wingspan of 111 feet, 3 inches.
Further, according to United Airlines Captain Schaffer, she flew many more hours than the ExxonMobil pilots. Specifically, in her affidavit, Captain Schaffer states that during 2004, while assigned to the B767/757, she flew 672 flight hours, and was away from home for over

EEOC’S SUPPLEMENTAL BRIEF

12

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 13 of 22 PageID 429

150 days that year, and each month was away from home for approximately 300 hours. (Schaffer affidavit, Exhibit 6). By contrast, in 2004, Skaggs, Morschauser and Barrett flew 310.9, 353.4 and 324 flight hours, respectively. (See “Block Time” on 2004 Annual Pilot Flight Log for Skaggs, Morschauser and Barrett, attached as Exhibit 7). Skaggs, Morschauser and Barrett were away from home 73, 72 and 65 days, respectively. (See “RON” on 2004 Annual Pilot Flight Log for Barrett and Morschauser, Exhibit 7.) According to Captain Schaffer, airline pilots perform very few additional non-flying duties. They fly gate-to-gate. On the other hand, ExxonMobil pilots are required to refuel, carry luggage, greet passengers, perform office duties and other non-flying responsibilities. For example, Barrett indicates that it was one of his duties to recommend and help implement changes in Federal Aviation Regulations and ExxonMobil specific operational procedures and practices in the company’s Dulles operations. The training Barrett did ensured that all of the ExxonMobil crews could perform their duties in normal and abnormal conditions in a standardized manner to ensure the best Crew Resource Management possible. Similarly, Morschauser was responsible for office duty and standardization duties as well as duties training pilots as they were hired by ExxonMobil. Unless they request special leave, ExxonMobil pilots are on call 24 hours a day. Their duties do not end at the gate.
The type of aircraft flown by ExxonMobil and the job duties and responsibilities of the ExxonMobil pilots make the work at ExxonMobil much more congruent with other business aviation than with an airline. Actually, ExxonMobil aircraft, number of passengers and job duties have a great deal of similarity to the more than 400 members of the National Business Aircraft Association who responded to the NBAA Operator Profile and Benchmarking Survey. (See various charts showing results of NBAA survey, attached as Exhibit 8). ExxonMobil and its NBAA cohorts are not covered by the FAA Age 60 Rule; thus the Defendant should not be

EEOC’S SUPPLEMENTAL BRIEF

13

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 14 of 22 PageID 430

permitted to rely on the regulation to create an exception to the ADEA that does not otherwise exist, and which cannot now be justified by anyone’s interpretation of the regulation that was applied to the major airline pilots in the past.
THE TIME CONSUMING ADMINISTRATIVE PROCESSES WHICH ENCUMBER THE FAA IN THE IMMEDIATE REVOCATION AND REWRITE OF
THE RULE FOR AIRLINE PILOTS DOES NOT GIVE EXXONMOBIL A LEGAL BASIS TO CONTINUE A POLICY THAT VIOLATES THE ADEA
In its Joint Report, ExxonMobil stated its position as follows: “Exxon proposes to continue to apply the FAA Age 60 Rule unless and until the FAA changes it, and then to apply any new rule.” Although Blakey anticipates that the FAA proposed rulemaking on the new Rule will take approximately 18-24 months from announcement to implementation, there is no parallel administrative requirement or protracted process that applies to ExxonMobil’s ability to come into compliance with the ADEA. There is no legal basis upon which the Court should allow ExxonMobil a two-year window to continue its policy and practice of retiring pilots under an age 60 rule simply because governmental administrative prerequisite processes require a delay in the formalization of its policy. ExxonMobil has the ability to change, correct or update its policy with the nod of a head and the stroke of a pen. The failure to do so in the face of the acknowledgement by the FAA that safety is not a bona fide reason would be an act of unjustifiable recalcitrance which does not escape enforcement of the ADEA. Already, ExxonMobil has involuntarily retired Glen Skaggs because of his age (January 6, 2006) and has removed from active flight duty Mike Morschauser (September 7, 2006) and Buford “Buff” Barrett (December 7, 2006). As the attached ExxonMobil pilot list shows (attached as Exhibit 9), pilots Steven Herman (60th birthday May 22, 2007), Thomas O’Malley (June 1, 2007) and Gary Schaffer (May 31, 2007) are also expected to be involuntarily retired this Spring.
In conversations between the EEOC and with the Court, counsel for ExxonMobil has

EEOC’S SUPPLEMENTAL BRIEF

14

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 15 of 22 PageID 431

indicated that the company does not intend to reinstate any pilots who have already turned 60, or who will turn 60 and thus, who can be expected to lose their jobs with ExxonMobil prior to the finalization of the new FAA rule. Defendant is apparently relying on the fact that FAA’s proposed rulemaking does not include a waiver or “grandfather” clause to bring back pilots who are already retired or who may be retired prior to finalization of the revised rule. Certainly, the FAA and various major airlines might want to avoid the burden and complicated process of determining the reinstatement rights of hundreds or thousands of airline pilots over countless prior years, many of whom may not have stayed current in their flying qualifications. But, such impediments to smooth transition are in no way comparable to the lesser logistics that are required for ExxonMobil to correct its displacement of the pilots who have been or will be identified in the EEOC’s case, and who are still current in their skills and qualifications. It can in no way be argued by ExxonMobil that the reinstatement of these few pilots is an unmanageable or overly burdensome task. To the contrary, the ease by which most, if not all, of the handful of ExxonMobil pilots can be returned to the pilot seats while those seats are still relatively warm should bring a resolution of this case well within reach.
Blakey specifically addressed some of the difficult administrative problems the FAA would face with applying the Rule retroactively to the entire airline industry:
Q: Similarly, would you consider making the age 65 retirement age retroactive to those pilots who have already retired.
A: I know this is hard, but no. We do not plan to do that. Think about it for a moment. People who are already out of the system, who have already gone on. The questions of trying to bring people back in and whether at that point for what would be a very brief period of time, the training, the skills, are they up on the specific equipment, etc? I think this would be a very disruptive thing to do, and at the end of the day, I do not expect that this would be a part of a final rule.
But ExxonMobil is not faced with the same challenges as the major airlines in the case

EEOC’S SUPPLEMENTAL BRIEF

15

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 16 of 22 PageID 432

presently before this Court. Given a total pilot crew of only 27 people, ExxonMobil does not face disruption and training problems that would be encountered on a large scale by the national airline industry as governed by the FAA. A presumption against retroactivity as might typically come into play with some legislation need not be applied in this case because: (1) the new FAA age rule was never directly applicable to ExxonMobil for all of the reasons stated above, and (2) a change in ExxonMobil’s mandatory retirement policy to remove the age 60 limit would actually be a remedial action. ExxonMobil should not be allowed to discriminate against pilots Morschauser, Barrett and Skaggs. These pilots should be protected from future discrimination while ExxonMobil claims to be waiting on the FAA Administrative process to run its course on a mandatory retirement policy that is neither applicable to the company’s aviation practices, nor justified by safety and health concerns.
The linkage to the FAA Rule which the Defendant has argued by way of “congruity” becomes irrelevant in the context of whether the pilots represented by the EEOC should be allowed to fly now. “Congruity” is of no import to the issue of how long it takes the government to formalize a policy into the written product through protracted administrative processes. “Congruity” has nothing to do with whether the few ExxonMobil pilots over 60 or soon to be 60 are currently qualified or can readily be prepared to fly in the absence of an age limitation which has been debunked. If this Court agrees with the FAA, the EEOC and ICAO that the age 60 rule should not be applied to pilots, the Court must determine if there is any basis for which the remedy for those pilots should be anything other than putting them back into the cockpit. The EEOC urges that the any pilot whose employment is at issue in this particular suit should be ordered to be returned to work as a pilot unless health and qualifications preclude such person from returning to the job.

EEOC’S SUPPLEMENTAL BRIEF

16

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 17 of 22 PageID 433

POSSIBLE REMEDIAL MEASURES In evaluating the effects of the FAA’s pronouncement and correction, and in anticipation of the Status Hearing with the Court set for March 1, 2007, the EEOC identifies the following remedial measures that could be implemented through a settlement resolution or through the Court’s ruling and ordered disposition on the preliminary injunction. EEOC views the most significant remedy sought on behalf of Mike Morschauser and Buford “Buff” Barrett as an immediate return to active flight status with the same seniority, duties, pay and benefits5 as when they were removed from flight duty.6 Both Barrett and Morschauser have remained on the ExxonMobil payroll during the pendancy of this action, and neither has received his pension benefits yet. Morschauser has continued to fly for lesser pay and benefits as a pilot for Regal Aviation (now called “Jet Direct”). Barrett has sought other employment, and expects to soon receive an offer of employment for a pilot’s position with lesser pay and benefits than his position at ExxonMobil. Given their continued work as pilots, EEOC anticipates that there would be very few competency or administrative obstacles involved in reinstatement of Barrett or Morschauser to active flight duty at ExxonMobil. The EEOC would, of course, agree that Morschauser and Barrett would be required to successfully complete a physical examination and training and testing necessary to restore currency on the G-IV, Global Express and Challenger 300. EEOC does not agree that the pilots’ legal right to continue to fly for ExxonMobil is strictly contingent on the FAA Age 60 Rule or even upon the extended age 65 limitation that is part of the proposed change to the FAA Rule. However, given the high value of reinstatement to

5 EEOC specifically would request that four weeks of vacation time be restored for Morschauser because he used
those four weeks in October 2006 during the pendancy of the EEOC’s application for preliminary injunction. 6 If the EEOC is to proceed to trial in this ADEA case, EEOC would also expect to seek reinstatement of Glen
Skaggs who was retired in January 2006, or front pay in lieu thereof if the Court determines that reinstatement is not
feasible because of the length of time since Skaggs’ retirement.

EEOC’S SUPPLEMENTAL BRIEF

17

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 18 of 22 PageID 434

the displaced ExxonMobil pilots, the EEOC and the pilots represented by this suit would find
acceptable for purposes of this litigation only, a remedy that is consistent with the FAA’s
proposed parameters under the proposed rule with regard to continued qualification to fly.
Without conceding that the ExxonMobil would be in compliance with the ADEA, the EEOC
could agree to or accept a remedy applicable to the unique facts of this specific case, providing
that the Defendant’s policy of mandatory retirement at age 60 is enjoined. ExxonMobil has
represented that it is willing to adopt a policy consistent with the revised FAA Rule. The
disposition of this case on the claim brought by the EEOC would not require an order that
determines the validity of a revised or extended age-related policy. The Court need only find
that the Defendant’s current policy of age-60 is unjustified as a BFOQ and therefore violates the
ADEA, or that at the very least, that the EEOC has shown substantial likelihood of prevailing on
the merits with regard to the age-60 limit.
If this Court, determines that despite the evidence and arguments presented by the EEOC,
reinstatement to the pilot position is not an appropriate or feasible form of relief in the issuance
of a preliminary injunction, the EEOC requests the Court to consider the following forms of
interim relief pending the ultimate outcome of the underlying civil action:
Even if the pilots are not allowed to fly for ExxonMobil, they would be given a choice of either:
(1) remaining on the ExxonMobil payroll and continuing to be paid at the rate of the last salary earned, while accruing all of the options, medical benefits, vacation pay, thrift savings, and other compensation benefits and privileges which would ordinarily attach to their employment as pilots; or
(2) accepting employment as pilots with other employers, leaving backpay to accrue for an award of damages if the EEOC prevails on the underlying suit.
With respect to either of these two options, ExxonMobil would provide or pay for the training and medical certification requirements necessary for the affected class members to stay current as pilots for the G-IV, Global Express and Challenger 300.

EEOC’S SUPPLEMENTAL BRIEF

18

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 19 of 22 PageID 435

ExxonMobil will provide the affected pilots with positive letters of reference, indicating the number of years they have safely flown for ExxonMobil, and a statement that each pilot has been an excellent performer for the company.
Through the remedial options presented above, the EEOC may be able to agree to settle the claims for one or more of the aggrieved individuals separately, with the understanding that the EEOC would move forward with claims brought on behalf of the other aggrieved individuals and on the EEOC policy-and-practice claim of age discrimination. Resolution of any claims brought by the EEOC would require ExxonMobil's agreement to sign a Consent Decree as to those individual claims which are resolved. The Consent Decree would include all of the monetary and non-monetary terms of settlement and be filed in federal district court.
CONCLUSION In conclusion, EEOC reasserts its request for preliminary injunctive relief for Mike Morschauser and now Burford “Buff” Barrett, both of whom ExxonMobil has removed from active flight status. EEOC requests the preliminary injunction to preserve the positions of the parties until full discovery can be conducted and a trial can be held on the merits of the EEOC’s age discrimination lawsuit against ExxonMobil on behalf of Mike Morschauser, Glenn Skaggs, Buford Barrett and a class of similarly situated pilots adversely affected by ExxonMobil’s mandatory retirement policy. The EEOC further urges the Court that the FAA Administrator’s January 30, 2007 announcement about the U.S. government’s intent to increase the mandatory retirement age for the pilots under 14 C.F.R. 121.383(c) offers substantial indisputable support for the rationale and legal argument forwarded by the EEOC’s on its claim for preliminary injunction. The FAA’s change of position and move to update the now obsolete 47-year-old regulation also provides

EEOC’S SUPPLEMENTAL BRIEF

19

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 20 of 22 PageID 436

ample evidentiary basis upon which to uphold a finding by this Court in favor of the EEOC and the pilots represented. The EEOC is thus likely to succeed on the merits of this case because:
• The FAA Administrator supported the EEOC’s position by specifically stating that the FAA Age 60 Rule does not apply to business aviation; and
• The FAA Administrator’s pronouncement, the realization by the U.S. government of the practicality of coordinating with the ICAO’s approach, as well as the behind-the-scenes work of the FAA in making its decision to “close the book” on the Age 60 Rule, all together support the EEOC’s position that medical science and safety can no longer be used by the big or small aviation employers to justify claims that age 60 is a BFOQ under the ADEA.
The EEOC has met its burden of proof on its application for preliminary injunction. The EEOC respectfully requests that this Court grant the EEOC’s application for preliminary injunction to return Mike Morschauser to active flight status. EEOC further requests that this Court grant similar preliminary injunctive relief to Buford “Buff” Barrett and return him to active flight status. EEOC seeks this preliminary injunctive relief to preserve the positions of the parties at status quo, including other pilots whose 60th birthday may come prior to the conclusion of the underlying civil action. This injunctive relief should be granted until full discovery can be conducted and settlement is achieved or a trial can be held on the merits of the EEOC’s age discrimination lawsuit against ExxonMobil on behalf of Mike Morschauser, Glenn Skaggs, Buford Barrett and a class of similarly situated pilots adversely affected by ExxonMobil’s mandatory retirement policy. EEOC remains open to the possibility of resolving this case completely through settlement, through reasonable remedial approaches, including any of the approaches identified above or through agreement to other monetary terms which would

EEOC’S SUPPLEMENTAL BRIEF

20

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 21 of 22 PageID 437
reasonably compensate the pilots for past and future harms.
The EEOC, on behalf of the pilots, requests such other and further relief which this Court
may deem appropriate. The EEOC makes this request not for purposes of delay, but so that
justice may be served.
Respectfully Submitted:
GWENDOLYN Y. REAMS Associate General Counsel
ROBERT A. CANINO Regional Attorney Oklahoma State Bar No. 011782
/s/ Suzanne M. Anderson SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
WILLIAM C. BACKHAUS Senior Trial Attorney Texas Bar No. 01493850
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston, 3rd Floor Dallas, Texas 75202 (214) 253-2740 (214) 253-2749 (FAX)

EEOC’S SUPPLEMENTAL BRIEF

21

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

Case 3:06-cv-01732-K Document 24 Filed 02/26/07 Page 22 of 22 PageID 438

CERTIFICATE OF SERVICE

This is to certify that on this, the

day of February 2007, I electronically

transmitted the attached document to the Clerk of the Court using the ECF system of filing,

which will transmit a Notice of the Electronic Filing to Defendant’s counsel, an ECF registrant.

/s/ Suzanne M. Anderson SUZANNE M. ANDERSON

EEOC’S SUPPLEMENTAL BRIEF

22

AND AMENDED REQUEST FOR PRELIMINARY RELIEF

 
 Case 3:06-cv-01732-K Document 25 Filed 05/18/07 Page 1 of 4 PageID 460

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff

}

}

}

v.

}

}

}

EXXON MOBIL CORPORATION

}

}

Defendant.

}

__________________________________________}

Civil Action No. 3:06-CV-1732-K SUPPLEMENTAL COMPLAINT

SUPPLEMENT TO ITS PETITION FOR PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

EEOC files this Supplement to its Petition for Preliminary Injunction for the limited

purpose of adding the names of four Exxon Mobil pilots to the EEOC’s prayer for relief in the

Original Petition for Temporary Restraining Order and Preliminary Injunction filed on Spetember

22, 2006. EEOC hereby incorporates by reference all of the facts, evidence, affidavits and

analysis already presented to the Court on this issue.

In its Original Petition, EEOC sought to enjoin Exxon Mobil Corporation (“Defendant”

or “Exxon Mobil”) from involuntarily retiring Charging Party Michael Morschauser on or before

October 1, 2006 pursuant to the company’s age 60 mandatory pilot retirement policy. To

maintain the status quo, the parties agreed that Mr. Morschauser would remain an employee and

not be forcibly retired from his position as pilot while the EEOC’s application for preliminary

injunction was pending. Since the date EEOC filed its Original Petition, the parties reached the

SUPPLEMENT TO ITS PETITION FOR

PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

1

Case 3:06-cv-01732-K Document 25 Filed 05/18/07 Page 2 of 4 PageID 461

same agreement with regard to 60-year-old Exxon Mobil pilot Buford Barrett, who reached age

60 on December 7, 2006.

During the next two weeks through June 1, 2007, three additional Exxon Mobil pilots

will reach age 60:

• Steven Herman (60th birthday – May 22, 2007) (Herman’s affidavit is attached as

Attachment A.)

•

Gary Schaffer (60th birthday – May 31, 2007) (Schaffer’s affidavit is attached as

Attachment B.)

•

Thomas O’Malley (60th birthday – June 1, 2007) (O’Malley’s affidavit is attached

as Attachment C.)

Through this document, EEOC seeks to supplement its Original Petition to name

Herman, Schaffer, and O’Malley in its prayer for preliminary injunctive relief as they reach age

60. EEOC also seeks to supplement its Original Petition to name Barrett because he also was not

part of the original complaint.

EEOC attempted to resolve this issue with Exxon Mobil prior to filing this Supplemental

Petition. EEOC asked counsel for the Defendant if the company intended to apply the Age 60

policy and involuntarily retire Herman, Schaffer and O’Malley, or if the company would also

agree to maintain the status quo with respect to their employment, or if the company was willing

to consider some other option to maintain the status quo. After making two e-mail requests,

EEOC contacted counsel for the Defendant by telephone who indicated that he could not provide

any information to the EEOC regarding the employment status of the three pilots. Exxon has not

indicated a willingness to reach an agreement prior to the Court issuing its ruling for Herman,

SUPPLEMENT TO ITS PETITION FOR

PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

2

Case 3:06-cv-01732-K Document 25 Filed 05/18/07 Page 3 of 4 PageID 462
Schaffer and O’Malley that is similar to the agreement reached for Moreschauser and Barrett.1 Therefore, this supplement to the EEOC’s prayer for preliminary injunctive relief is
necessary to avoid irreparable harm to Herman, Schaffer and O’Malley when they are removed from flight duty and/or involuntarily retired on or before June 1, 2007. The EEOC also finds it necessary to supplement its petition by formally adding Barrett’s name as well.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court supplement the prayer in its Petition by adding a request that the Court: A. Granting a Preliminary Injunction restraining Defendant from involuntarily retiring Steven Herman, Gary Schaffer, Thomas O’Malley and Buford Barrett on or before June 1, 2007. B. Grant EEOC such further relief as the Court deems necessary and proper in the public interest.
Respectfully submitted,
GWENDOLYN Y. REAMS Associate General Counsel ROBERT A. CANINO Regional Attorney Oklahoma State Bar No. 011782

1 If indeed Exxon Mobil does decide to involuntarily retire these pilots, EEOC may be forced to file another Application for a Temporary Restraining Order seeking to stop the retirement of these pilots under the discriminatory policy.

SUPPLEMENT TO ITS PETITION FOR

PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

3

Case 3:06-cv-01732-K Document 25 Filed 05/18/07 Page 4 of 4 PageID 463
/s/ Suzanne M. Anderson SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470 WILLIAM C. BACKHAUS Senior Trial Attorney Texas Bar No. 01493850
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston, 3rd Floor Dallas, Texas 75202 (214) 253-2740 (214) 253-2749 (fax)
CERTIFICATE OF SERVICE This is to certify that on this, the 18th day of May, 2007, I electronically transmitted the attached document to the Clerk of the Court using the ECF system of filing, which will transmit a Notice of the Electronic Filing to Defendant’s counsel, an ECF registrant.
/s/ Suzanne M. Anderson SUZANNE M. ANDERSON

SUPPLEMENT TO ITS PETITION FOR

PRELIMINARY INJUNCTION PURSUANT TO RULE 65, F.R.C.P.

4

 
 Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

V.

§

§

EXXON MOBIL CORPORATION,

§

§

§

Defendant.

CIVIL ACTION NO. 3:06-CV-1732-K

MEMORANDUM OPINION AND ORDER

Before the Court are the following motions:

(1) the Equal Employment Opportunity Commission’s (the “EEOC”)

Application for Temporary Restraining Order and Preliminary Injunction

Pursuant to Rule 65 (Document No. 2);

(2) the EEOC’s Motion to File Additional Affidavits and Exhibits in Support

of its Application for Preliminary Injunction (Document No. 15-1);

(3) the EEOC’s Motion to Extend Time (Document No. 20);

(4) the EEOC’s Supplemental Brief and Amended Request for Preliminary

Relief (Document No. 24); and

(5) the EEOC’s Supplement to Its Petition For Preliminary Injunction

Pursuant to Rule 65 F.R.C.P. (Document No. 25).

The Court GRANTS the EEOC’s motion to file additional affidavits and exhibits. The

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 2 of 20
attached affidavits and exhibits are, therefore, deemed filed as of this date. The EEOC does not need to file those documents separately.
On October 16, 2006, the Court conducted a hearing to determine the EEOC’s Application for Preliminary Injunction. As set forth in the Court’s Order dated December 22, 2006, the Parties agreed to engage in settlement negotiations. On January 31, 2007, the Parties filed a Joint Status Report indicating that they could not reach a settlement. Subsequently, on March 1, 2007, the Court conducted a Status Conference regarding Federal Aviation Administration (“FAA”) Administrator Marion Blakely’s proposal to change the mandatory retirement age rule for United States commercial pilots. Because the Court considered the FAA’s proposal in the March 1, 2007 Status Conference and in this Order, the Court DENIES the EEOC’s Motion to Extend Time as moot.
The Court’s decision concerning the preliminary injunction is not a decision on the merits of the underlying case, and the following findings of fact and conclusions of law are not binding at trial. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). The Court DENIES the EEOC’s request for a preliminary injunction and preliminary relief because the EEOC has not met its burden of proving the elements necessary for establishing a such an injunction. Accordingly, any relief not expressly granted herein, is DENIED.
- 2 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 3 of 20
I. Factual and Procedural Background Defendant Exxon Mobil Corporation (“Exxon”) is a fully integrated global oil and
gas company with its own aviation department. Exxon’s aircraft fleet includes nine sophisticated jets–two Bombardier Global Express jets, two Gulfstream IV Jets, and five Bombardier Challenger 300 jets. In 2005, Exxon pilots carried nearly 4,000 passengers over 2,000,000 nautical miles.
Michael Morschauser has been a pilot for Exxon since 1989. As a pilot for Exxon, his duties include flying company personnel and business passengers on business jets domestically and internationally. Exxon maintains a corporate policy (the “Policy” or “Age 60 Rule”) which prohibits its pilots, like Morschauser, from flying corporate aircraft at the age of 60 and forces such pilots to involuntarily retire at that age. Exxon’s Age 60 Rule mirrors the FAA’s Age 60 Rule. Morschauser was aware of Exxon’s Policy and the fact that he would be relieved from flight duty at age 60.
On June 19, 2006, Morschauser received a letter from Exxon stating that “in keeping with the Company’s policy to have pilots cease flying upon reaching age 60,” Exxon would remove Morschauser from flight duty on September 7, 2006, his 60th birthday, and retire him by October 1, 2006. Morschauser and former Exxon pilot Glen Skaggs (“Skaggs”) filed separate Charges of Discrimination in the EEOC’s Dallas District Office alleging discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”). 29 U.S.C. § 623. Based on those charges, the EEOC issued a Letter
- 3 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 4 of 20
of Determination on August 16, 2006 finding that Exxon’s Policy violated the ADEA. The EEOC, therefore, found that Exxon discriminated against Morschauser, Skaggs and other similarly situated employees in violation of the ADEA. On February 26, 2007, the EEOC filed a Supplemental Brief and Amended Request for Preliminary Relief which added Exxon pilot Burford “Buff” Barrett (“Barrett”) to the class of similarly situated pilots who were removed from active flight status at the age of 60 by Exxon. Exxon removed Barrett from active flight duty on December 7, 2006. Similarly, on May 18, 2007, the EEOC filed a Supplement to its Petition for Preliminary Injunction to add (1) Steven Hermann (“Hermann”), (2) Gary Schaffer (“Schaffer”), and (3) Thomas O’Malley (“O’Malley”) to the class of similarly situated pilots who will be removed from active flight status at the age of 60 by Exxon on or before June 1, 2007.
The EEOC filed this action under the ADEA and Rule 65 of the Federal Rules of Civil Procedure to enjoin Exxon from involuntarily retiring Morschauser (and now Barrett, Hermann, Schaffer, and O’Malley)(hereinafter “Exxon’s Age 60 Pilots”) under its corporate Policy. In its Order dated September 27, 2006, the Court denied the EEOC’s Application for a Temporary Restraining Order as moot based on Exxon’s agreement not to take any action with respect to Morschauser’s employment until after the Court conducted a hearing and ruled on the EEOC’s Application for Preliminary Injunction. On October 16, 2006, the Court conducted a hearing regarding the EEOC’s Application for Preliminary Injunction. While the EEOC’s Application for Preliminary
- 4 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 5 of 20
Injunction was pending, the FAA announced a proposal to consider modifying the FAA’s Age 60 Rule. In light of the FAA’s proposal, the Parties agreed to engage in settlement negotiations as set forth in the Court’s Order dated December 22, 2006. On January 31, 2007, the Parties filed a Joint Status Report indicating that they could not reach a settlement. Subsequently, on March 1, 2007, the Court conducted a Status Conference to consider the FAA’s proposal to change its Age 60 Rule.
As set forth in its Brief in Opposition to the EEOC’s Application for Preliminary Injunction and during the Preliminary Injunction Hearing, Exxon contends, among other things, that its Age 60 Rule is identical to the current FAA Policy for airline pilots and qualifies as a bona fide occupational qualification (“BFOQ”) under the ADEA. Currently, the FAA Age 60 Rule provides that no airline carrier “may use the services of any person as a pilot...if that person has reached his 60th birthday. No person may serve as a pilot [in commercial airline] operations...if that person has reached his 60th birthday.” 14 C.F.R. § 121.383(c). After extensive research, the FAA implemented its Age 60 Rule in 1959 because of concerns that hazards to safety exist when airliners use aging pilots. Coupe v. Federal Express Corp., 121 F.3d 1022, 1025 (6th Cir. 1997). In December 1995, the FAA extended the Age 60 Rule to apply not only to major airline pilots but also to regional and commuter airline pilots. Exxon does not argue that these individuals are not highly skilled pilots; instead, this case is about whether Exxon may rely on the current FAA Age 60 Rule as a BFOQ.
- 5 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 6 of 20
Despite scientific advances since the Rule’s adoption, the FAA has concluded that
it remains impossible to predict, with reliable accuracy, the presence or onset of various
medical problems in an aging pilot or detect and measure adequately declining physical
and mental functions. In July 2005, during hearings before the Subcommittee on
Aviation of the Senate Committee on Commerce, Science & Transportation, Dr. Jon L.
Jordan, the FAA’s Federal Air Surgeon, stated,
[The Age 60 Rule] remains the best determination that can be made of the time when a general decline in health-related functions and overall cognitive capabilities has reached a level where decrements in a pilot's performance may jeopardize safety. The “Age 60 rule” has been repeatedly reviewed to determine whether new and sufficient evidence exists to warrant a reconsideration of the regulation. Studies conducted to date do not present sufficient information that would address concerns about negatively impacting the current level of safety by changing the rule.
Likewise, as recently as March 2006, during another hearing before the Subcommittee
on Aviation regarding the FAA’s fiscal year 2007 Budget, the FAA stated:
The FAA has conducted five studies, using various analytic methodologies, on the relationship of pilot age to accidents. The most recent study, published in April 2004, corroborates the findings of two previous empirical studies—specifically that accident rates appear to increase with pilot age. Recent non-FAA research, published in 2005 in open, peer-reviewed scientific literature, reported that the risk of violations of flight regulations increased with age in a longitudinal study of commuter air carrier and air taxi pilots. Violations of flight regulations are important indicators because pilots with violations are more likely to be involved in accidents or incidents than pilots without violations. The ‘‘Age 60 rule’’ has served well as a regulatory limit in the United States. The FAA recognizes that science does not absolutely dictate what age is most appropriate for retirement. No absolute, scientific formula may readily be applied to predict progressive, anatomic, physiological, and cognitive decline associated with aging because it is variable in severity and onset among individuals. The consistency of findings across empirical studies, however, suggests that changes to the ‘‘Age 60
- 6 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 7 of 20
rule’’ should be approached cautiously; so, we presently have no plans to revise the rule. Although the FAA has remained steadfastly committed to the Age 60 since its adoption, the FAA is now considering changing the rule. On January 30, 2007, while this motion was pending before the Court, Marion Blakely, the FAA Administrator, issued a public statement at the National Press Club that the FAA will propose a new mandatory retirement age rule that will parallel the standard adopted by the International Civil Aviation Organization (“ICAO”). Under the ICAO Rule, either the pilot or co-pilot may fly up to age 65 as long as the other crew member is under 60 (the “Age 65/60 Rule”). Therefore, under the Age 65/60 Rule, age 60 is still relevant as no agency allows commercial aircraft to be operated solely by pilots over age 60. According to Blakely, due to the procedural requirements, it may take as long as two years for the FAA to issue a final rule adopting or rejecting the Age 65/60 Rule. If adopted, the FAA has stated the Age 65/60 Rule would be applied prospectively, not retroactively. Thus, the new rule would not contain a “grandfather” clause and would apply only to those pilots who have not yet reached age 60 by the time the rule goes into effect. In Exxon’s Response to the EEOC’s Objection to the Joint Report and Motion for Extension filed on February 2, 2007, Exxon has stated that it would follow the proposed FAA Age 65/60 Rule if and when the final rule goes into effect. II. Analysis A preliminary injunction may be granted only if the EEOC establishes the
- 7 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 8 of 20
following four elements (1) a substantial likelihood that it will prevail on the merits, (2) a substantial threat that Exxon’s Age 60 Pilots will suffer irreparable injury if the injunction is denied, (3) that the threatened injury to Exxon’s Age 60 Pilots outweighs the threatened harm the injunction may do to Exxon, and (4) that granting the preliminary injunction will not disserve the public interest. See Harris County v. Carmax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999); Miss. Power & Light Co. v. United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir. 1985). The decision to grant or deny a preliminary injunction is left to the sound discretion of the district court. A preliminary injunction is an extraordinary remedy which should only be granted if the movant has carried his burden of persuasion on all of the four factors. Miss. Power & Light, 760 F.2d at 621.
The EEOC argues that the Court should presume irreparable harm under Cosmair. 821 F.2d at 1090. The EEOC also contends that because irreparable harm is presumed, it need only prove “some chance” of winning, as opposed to a substantial likelihood of success on the merits. The Court disagrees with the EEOC and will not presume irreparable harm. In Cosmair, the Court held that irreparable injury is presumed when a civil rights statute has been violated. Id. In that case, the Fifth Circuit found that the company, which presented no legal defense, violated the ADEA when it retaliated against its employee for filing a charge of discrimination. Id. However, the EEOC has not proven a violation of the ADEA in this case because it has not “satisfied all the statutory
- 8 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 9 of 20
conditions.” Id. Exxon has presented a BFOQ defense, and the EEOC must overcome that defense in order to prove an ADEA violation as set forth in that statute.
In fact, Cosmair holds that only irreparable harm may be presumed when granting injunctive relief and only when a statutory violation has been proven. Torres v. County of Webb, 150 F. App. 286, 2005 WL 2367517 (5th Cir. Sept. 27, 2005). Therefore, even if the Court were to presume irreparable harm (which it does not), the EEOC would at least be required to carry its burden on all other required elements. Thus, the EEOC would have to prove a substantial likelihood of success on the merits, not merely “some chance” of winning.
The EEOC does not cite any law to support its contention that it need only prove “some chance” of winning, rather than a substantial likelihood of success on the merits. The EEOC’s argument fails for two reasons: (1) irreparable harm is not presumed in this case and (2) the Court will not uphold an unsupported contention when the EEOC is asking for such an extraordinary remedy. The Court concludes that the EEOC maintains the burden of persuasion on all of the four factors required to obtain a preliminary injunction. Miss. Power & Light, 760 F.2d at 621. Because the EEOC has not met its burden of proving the elements necessary for establishing a preliminary injunction, the Court DENIES the EEOC’s motion.
A. Substantial Likelihood of Success on the Merits On its motion for preliminary injunction, the EEOC must demonstrate a
- 9 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 10 of 20
likelihood of success on the merits as to asserted affirmative defenses. Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F. Supp. 1031, 1034 (N.D. Ga. 1986); MGM v. Showcase Atlanta Coop. Prod., Inc., 479 F. Supp. 351, 355 (N.D. Ga. 1979)(citing Canal Authority v. Callaway, 489 F.2d 567 (5th Cir. 1974)). Therefore, the EEOC must demonstrate that Exxon’s BFOQ defense is unlikely to prevail at trial. Appalachian Artworks, Inc., 642 F. Supp. at 1034; Showcase Atlanta, 479 F. Supp. at 355. In light of well-established case law and the evidence before the Court, the EEOC has not met that burden because (1) Exxon is entitled to rely on the FAA’s policies and expertise under the congruence standard and (2) Exxon’s Age 60 Rule is a BFOQ. EEOC v. El Paso Natural Gas Co., 626 F. Supp. 182, 186 (W.D. Tex. 1985)(citing Western Airlines v. Criswell, 472 U.S. 400 (1985)); Coupe, 121 F.3d at 1024.
As stated above, Exxon asserts that its Age 60 Rule is identical to the FAA’s Policy for airline pilots and qualifies as a BFOQ. In Exxon’s Response to EEOC’s Motion to Extend Time, Exxon has stated, “[i]f and when the FAA makes a final decision, Exxon will follow that decision and apply the same retirement age to its congruent operations.” The ADEA protects workers from discrimination based on age. 29 U.S.C. § 623; EPNG, 626 F. Supp. at 184. However, an employer may lawfully take any action otherwise prohibited by the ADEA where age is a BFOQ reasonably necessary to the normal operation of the particular business. 29 U.S.C. § 623(f); EPNG, 626 F. Supp. at 184.
- 10 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 11 of 20
1. Exxon is entitled to rely on the FAA Age 60 Rule Under the Congruence Standard
Under the congruence standard, Exxon is entitled to rely upon the expertise of the FAA and apply the Age 60 Rule to its own pilots as a BFOQ. EPNG, 626 F. Supp. at 186 (holding EPNG entitled to rely on FAA rule under congruence standard because there was no substantial difference between the work performed by commercial airline pilots and EPNG’s corporate pilots); Coupe, 121 F.3d at 1024-25 (holding that the FAA Age 60 rule provided Federal Express a valid defense to the ADEA claim as a matter of law and plaintiff therefore had no right to an injunction requiring Federal Express to reinstate him as a pilot); Criswell, 472 U.S. at 418. As the EPNG Court held, the FAA Age 60 Rule is relevant evidence in support of Exxon’s BFOQ defense. 626 F. Supp. at 185-86 (citing Criswell, 472 U.S. at 418). The extent to which the Age 60 Rule is probative depends on the congruity between the occupations of airline pilots and corporate pilots. Id. Like the EPNG Court, this Court finds that the occupations of airline pilots and Exxon’s corporate pilots are congruent. Id. Exxon has established congruence by demonstrating that the work performed by Exxon pilots is substantially similar to the work performed by commercial and commuter and regional airline pilots. EPNG, 626 F. Supp. at 185-86 (finding that no substantial difference between the work performed by airline pilots and EPNG’s pilots existed because EPNG’s pilots, like airline pilots, transport significant number of passengers over long distances in various kinds of aircraft).
- 11 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 12 of 20
Similar to commercial and commuter and regional airline pilots, Exxon’s pilots transport significant numbers of passengers, including executives and employees, over long distances in various kinds of sophisticated jet aircrafts. Id. Likewise, no substantial difference exists between the qualifications for pilots of commercial and regional airliners and the qualifications for Exxon’s pilots. To be hired by Exxon, pilots must hold an Airline Transport License, the highest level of qualification for pilots, and have broad international experience. Such experience is necessary because, like airline pilots, Exxon’s pilots fly all over the world in the same airspace and air traffic control sectors as airlines. Exxon pilots fly under identical weather conditions and take off and land at the same or similar domestic and international airports. Because Exxon’s aviation operations are substantially similar to airline operations, Exxon has properly relied on the FAA’s expertise and the FAA rule requiring retirement of commercial airline pilots at age 60 in implementing its own Age 60 Rule. Id. at 186 (concluding EPNG entitled to rely upon the expertise of the FAA and apply the Age 60 Rule to their own pilots as a BFOQ). If the FAA does in fact adopt the Age 65/60 Rule, Exxon must implement the same Age 65/60 Rule in order to maintain its BFOQ defense.
2. Exxon’s Age 60 Rule is a BFOQ under Two-Part Test As both Parties agree, the Supreme Court has adopted a two-part test to determine whether a BFOQ has been established: (1) the age limit must be reasonably necessary for the safe operation of Exxon’s aircraft; and (2) that it is impossible or highly
- 12 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 13 of 20
impractical to determine on an individual basis, whether a particular pilot’s age renders him unable to perform safely and efficiently. Criswell, 472 U.S. at 412-15; Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 236 (5th Cir. 1976); EPNG, 626 F. Supp. at 184. As previously stated, Exxon may rely on the FAA’s Age 60 Rule in determining that (1) its Age 60 Rule is necessary to safely operate its planes and (2) that it is impossible or highly impractical to determine on an individual basis, whether a particular pilot’s age renders him unable to perform safely and efficiently. Coupe, 121 F.3d at 1026 (FAA performed the same analysis that a court would undertake in determining the legitimacy of a BFOQ under the ADEA); EPNG, 626 F. Supp. at 185-86; Criswell, 472 U.S. at 418.
Like the FAA’s Age 60 Rule, Exxon’s Age 60 Rule is reasonably necessary to safely operate its corporate aviation department. Criswell, 472 U.S. at 418; EPNG, 626 F. Supp. at 184. Safety goes to the core of an aircraft pilot’s performance. Coupe, 121 F.3d at 1025. In fact, the EEOC does not dispute that safety goes to the core of an aircraft pilot’s performance and is reasonably necessary to safely operate Exxon’s aviation department. Criswell, 472 U.S. at 418 (plaintiffs “have not seriously disputed–nor could they–that the qualification of good health for a vital crew member is reasonably necessary to the essence of the airline’s operations.”); EPNG, 626 F. Supp. at 184. The FAA has decided that safety concerns make the Age 60 rule “reasonably necessary” for pilots. See Coupe, 121 F.3d at 1025. Even under the proposed Age 65/60 Rule, aging pilots remain a safety concern for the FAA–under the proposed rule, a pilot may fly up
- 13 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 14 of 20
to age 65 so long as the other pilot is under 60–presumptively due to safety issues concerning aging pilots. As stated above in Section I of this Order, the FAA has concluded, that it remains impossible to predict, with reliable accuracy, the presence or onset of various medical problems in an aging pilot or detect and measure adequately declining physical and mental functions. Based on the FAA’s determination and the evidence before the court, Exxon’s Age 60 Rule is reasonably necessary to safely operate its corporate aviation department. Id.; EPNG, 626 F. Supp. at 184. Shall the FAA’s determination change by adopting the Age 65/60 Rule, Exxon has confirmed that it will continue to rely on the FAA’s expertise and change its Age 60 Rule to conform with the FAA’s Age 65/60 Rule. Exxon may have an even greater justification for relying on the FAA’s expertise because its pilots have greater pre-flight responsibilities than even commercial airline pilots. EPNG, 626 F. Supp. at 184 (in upholding Defendants’ BFOQ defense, the Court noted that corporate pilots often have greater pre-flight responsibilities). For example, unlike commercial airline pilots, Exxon’s pilots perform their own route planning, weather checking, and fuel computations.
It is impossible or highly impractical to determine on an individual basis whether a particular Exxon pilot’s age renders him unable to perform safely and efficiently. Since it employs 25-30 pilots, the EEOC argues that Exxon can individually test its pilots individually to determine when a pilot would become medically disqualified. However, the current FAA studies confirm the views of Exxon’s medical experts that certain
- 14 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 15 of 20
physiological and psychological functions of Exxon’s pilots will deteriorate with age; that over time, this deterioration affects the pilots ability to safely perform; and that no medical testing methods can predict with necessary accuracy, whether and when an individual Exxon pilot may no longer be able to fly safely. The FAA has rejected proposed alternatives to the Age 60 Rule such as periodic medical examinations and performance checks. See Prof. Pilots Fedn.v. FAA, 118 F.3d 758, 764 (D.C. Cir. 1997); see also Baker v. FAA, 917 F.2d 318 (7th Cir. 1990). As aforementioned, the FAA stated before the Senate Subcommitte on Aviation that:
no absolute, scientific formula may readily be applied to predict progressive anatomic, physiological, and cognitive decline associated with aging because it is variable in severity and onset among individuals. Relying on the FAA’s expertise and the evidence before the Court, it is impossible or highly impractical to determine on an individual basis whether a particular Exxon pilot’s age renders him unable to perform safely and efficiently.
3. The FAA’s Proposed Age 65/60 Rule The Court acknowledges that Administrator Blakey stated that the FAA is considering changing the current Age 60 Rule at least in part because the average life span has increased since the adoption of the current rule. Even under the new Age 65/60 Rule proposal, however, age 60 remains a relevant age as pilots over age 60 must fly with a crew member under age 60. Further, pilots must retire at 65 under the Age 65/60 Rule. The Court will not attempt to predict whether the FAA will formally adopt the
- 15 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 16 of 20
rule after an exhaustive rule-making process. In any event, Exxon has confirmed it will implement the Age 65/60 Rule as soon as the FAA adopts the Age 65/60 Rule.
4. The EEOC has not met its burden of proving a substantial likelihood of success on the merits
The EEOC cites several cases in an attempt to carry its burden of a substantial likelihood of success on the merits including EEOC v. The Boeing Co. and EEOC v. Lockheed in support of its argument. 843 F.2d 1213 (9th Cir. 1987); 1991 WL 101185 (C.D. Cal. 1991). However, the facts in those cases are clearly distinguishable from the facts in this case because they involve flight instructors and test pilots which fly aircraft that rarely carry passengers. In those cases, Boeing and Lockheed’s aviation operations were not substantially similar to commercial and regional and commuter airline operations; therefore, they were not entitled to rely on the FAA’s Age 60 Rule as a BFOQ.
For instance, in Boeing, the trial court granted summary judgment on Boeing’s BFOQ defense. 843 F.2d 1213. However, in applying the congruence standard, the Ninth Circuit reversed and remanded the case for trial finding that the BFOQ issue raised fact questions. Id. The Ninth Circuit found that Boeing failed to establish, as a matter of law, that its corporate pilots had the “same characteristics” as airline pilots subject to the FAA Age 60 Rule. Id. at 1220. The Boeing Court based their conclusion on the fact that (1) a significant portion of Boeing pilots train other pilots, (2) some Boeing pilots perform experimental flights, and (3) most Boeing pilots do not carry
- 16 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 17 of 20
passengers. Id. at 1221. However, unlike Boeing, Exxon’s operations are substantially similar to airline operations. Unlike the corporate pilots in Boeing, Exxon’s pilots fly numerous passengers in the most sophisticated jets to domestic and international destinations. In 2005, Exxon pilots carried nearly 4,000 passengers over 2,000,000 nautical miles to destinations such as Tokyo, Shanghai, Melbourne, Kuwait City, Cairo, Angola, Cameroon, Venezuela, Ecuador, London, Paris, Rome, Prague, Kazakhstan, Norway, and Moscow.
In support of its argument that it is likely to succeed on the merits, the EEOC also cites EEOC v. International Paper Co., C.A. No. 92-0062 (S.D.N.Y. June 6, 1992). In that case, International Paper lost a jury verdict on the BFOQ question. However, International Paper is distinguishable from the facts in this case because at the time the case was decided by the jury the FAA had not extended its Age 60 Rule to include regional and commuter airline pilots. It is clear Exxon pilots fly aircraft far faster than turboprop planes operated by many U.S. regional airlines. For example, Exxon’s Global Express and Gulfstream IV aircraft are larger, faster, and have greater range than the fifty-seat Canadair Regional Jet and the Embracer Regional Jet, two of the most common regional jets used by commercial airliners such as American Eagle, United Express, Northwest Airlink, and US Airways. Because Exxon pilots fly jets just as sophisticated or more sophisticated as regional and commuter jets, the nature and the risks of operating such planes are substantially congruent to those airliners. In light of the fact
- 17 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 18 of 20
that (1) Exxon’s pilots fly numerous passengers to domestic and international locations in the most sophisticated jets and (2) the FAA has extended its Age 60 Rule to include regional and commuter pilots, the Court finds that the facts in this case are clearly distinguishable from International Paper. The EEOC’s reliance on two cases involving test pilots with clearly distinguishable facts and one jury verdict in a case that was decided before the FAA extended its Policy to include commuter and regional airliners does not demonstrate that Exxon’s BFOQ defense is unlikely to prevail at trial.
Because the EEOC has not demonstrated that Exxon’s BFOQ defense is unlikely to prevail at trial, the EEOC has failed to carry its burden of proving a substantial likelihood of success on the merits. Based on case law and evidence before the Court, Exxon is entitled to rely on the FAA’s policies and expertise because its aviation operations are substantially similar to airline pilots subject to the FAA Age 60 Rule. In addition, Exxon’s Age 60 Rule is a BFOQ because its rule is reasonably necessary to the safe operation of corporate aircraft and Exxon should be able to rely on the FAA as to the safe age of pilots. Without citing any legal authority, the EEOC now argues in its Supplemental Brief and Amended Request for Preliminary Relief that Administrator Blakey’s comments increased the likelihood that it will prevail at trial. The EEOC is incorrect because if the Age 60 Rule is a BFOQ that is based on the FAA rule, Exxon must be able to rely on that rule until it is changed. The Court is probably making a decision just prior to a change in the FAA Age 60 Rule. Until that change is made and
- 18 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 19 of 20
since the Court has found Exxon to be congruent to a commercial airline, Exxon should be able to rely on the same standards that govern every commercial airline in this country. All commercial airlines are continuing to follow the Age 60 Rule until the FAA or Congress formally changes that rule.
B. Irreparable Harm As stated above, the EEOC argues that under Cosmair irreparable harm should be presumed. 821 F.2d at 1090. Because Exxon has presented a BFOQ to the EEOC’s alleged ADEA violation which is identical to the FAA’s current Age 60 Rule, the Court disagrees with the EEOC and will not presume irreparable harm. Where money damages adequately compensate the aggrieved party, no irreparable injury exists. DFW Metro Line Serv. v. Southwestern Bell Telephone, 901 F.2d 1267, 1269 (5th Cir. 1990). In this case, monetary damages would adequately compensate all Exxon’s Age 60 Pilots from any injury resulting from a new job paying less or conferring less benefits. Id. The Court concludes the EEOC has not carried its burden of proving irreparable harm particularly in light of the fact a preliminary injunction is such an extraordinary remedy and that any difference in salary and benefits could be compensated with money. Id. C. Whether the threatened harm to Exxon’s Age 60 Pilots outweighs
that of Exxon Because the EEOC has failed to establish that (1) it is substantially likely to prevail on the merits and (2) the pilots will suffer irreparable harm if the injunction is denied, the Court does not address whether the threatened injury to Exxon’s Age 60
- 19 -

Case 3:06-cv-01732 Document 26 Filed 05/30/2007 Page 20 of 20 Pilots outweighs the threatened harm to Exxon nor does the Court address whether the preliminary injunction will serve or disserve the public interest. III. Conclusion
The Court GRANTS the EEOC’s motion to file additional affidavits and exhibits; therefore, the attached affidavits and exhibits are deemed filed as of this date. The Court DENIES the EEOC’s motion to extend time as moot. Because the EEOC has not carried its burden on all four elements necessary to obtain a preliminary injunction, the Court DENIES the EEOC’s Application for a Preliminary Injunction.
SO ORDERED. Signed May 29th, 2007.
____________________________________ ED KINKEADE UNITED STATES DISTRICT JUDGE
- 20 -

 
 Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 1 of 13 PageID 774

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

V.

§

§

EXXON MOBIL CORPORATION,

§

§

Defendant.

§

CIVIL ACTION NO. 3:06-CV-1732-K

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment (Doc. No. 31). The Court GRANTS the motion because there are no genuine issues of material fact.
I. Factual and Procedural Background Defendant Exxon Mobil Corporation (“Exxon”) is a fully integrated global oil and gas company with its own aviation department. Exxon’s aircraft fleet includes nine sophisticated jets—four Bombardier Global Express jets and five Bombardier Challenger 300 jets. These planes carry 8 to 11 passengers, have a range of 3,000 to 6,000 miles, and a top speed of over 500 nautical miles per hour. Exxon’s aviation department provides air transportation to employees and business associates. All of Exxon’s domestic and international flights involve the transportation of passengers. In 2005, Exxon pilots carried nearly 4,000 passengers over 2,000,000 nautical miles.

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 2 of 13 PageID 775
At the time this suit was commenced Exxon maintained a corporate policy which prohibited its pilots from flying corporate aircraft after they reached the age of 60 and forced such pilots to involuntarily retire at that age (hereinafter “Age 60 Rule”). Exxon’s Age 60 Rule mirrored a rule used by the Federal Aviation Administration (“FAA”) which applied to pilots flying for commercial airlines. Because Exxon’s pilots were “company pilots”— as opposed to “commercial pilots”— the FAA rule did not directly apply to them. Since the filing of this suit, Congress has passed and the President has signed the Fair Treatment for Experienced Pilots Act (hereinafter “FTEPA” or “the Act”). The Act raised the mandatory retirement age for commercial pilots to 65 subject to a limitation relating to international flights. See 49 U.S.C. § 44729. Exxon has since altered its retirement rule to mirror the new rule enacted by Congress.
On June 19, 2006, Michael Morschauser, an Exxon pilot, received a letter from Exxon stating that “in keeping with the Company’s policy to have pilots cease flying upon reaching age 60,” Exxon would remove Morschauser from flight duty on September 7, 2006, his 60th birthday, and retire him by October 1, 2006. Morschauser and former Exxon pilot Glen Skaggs filed separate Charges of Discrimination in the EEOC’s Dallas District Office alleging discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”). 29 U.S.C. § 623. Based on those charges, the EEOC issued a Letter of Determination on August 16, 2006 finding that Exxon’s Policy violated the ADEA. The EEOC found that Exxon discriminated against Morschauser,
- 2 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 3 of 13 PageID 776
Skaggs, and other similarly situated employees in violation of the ADEA. On September 22, 2006, the EEOC filed this action under the ADEA seeking,
among other things, an injunction prohibiting Exxon from enforcing its Age 60 Rule. The EEOC filed an application for preliminary injunction along with its complaint in this case. On February 26, 2007, the EEOC filed a Supplemental Brief and Amended Request for Preliminary Relief (Doc. No. 24) which added Exxon pilot Burford “Buff” Barrett to the class of similarly situated pilots who were removed from active flight status at the age of 60 by Exxon. Exxon removed Barrett from active flight duty on December 7, 2006. Similarly, on May 18, 2007, the EEOC filed a Supplement to its Petition for Preliminary Injunction (Doc. No. 25) to add (1) Steven Hermann, (2) Gary Schaffer, and (3) Thomas O’Malley to the class of similarly situated pilots who will be removed from active flight status because of Exxon’s Age 60 rule by June 1, 2007. In its Order dated May 30, 2007, the Court denied the EEOC’s request for a preliminary injunction.
The passage of the FTEPA does not significantly alter the Court’s analysis in this case. The EEOC still argues for an injunction to prevent Exxon from enforcing a mandatory retirement age for its pilots that mirrors the rule applied to commercial pilots by the FAA. Exxon still argues that its mandatory retirement age is not a violation of the ADEA because it constitutes a bona fide occupational qualification (“BFOQ”)—particularly in light of its congruence with the rule applied by the FAA.
- 3 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 4 of 13 PageID 777
II. Summary Judgment Summary judgment is appropriate when the pleadings, affidavits and other summary judgment evidence show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment on an affirmative defense is appropriate when the party asserting the defense has conclusively establishes the defense as a matter of law. Crescent Towing & Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994). III. Defendant’s Motion for Summary Judgment Exxon contends that its policy of removing pilots from active flight status when they attain a specified age constitutes a BFOQ under the ADEA. The FAA’s Age 60 Rule provided that no airline carrier “may use the services of any person as a pilot . . . if that person has reached his 60th birthday. No person may serve as a pilot [in commercial airline] operations . . . if that person has reached his 60th birthday.” 14 C.F.R. § 121.383(c). The FTEPA, which was effective as of December 13, 2007, repealed the FAA’s Age 60 Rule and provided, subject to a limitation related to international travel, “a pilot may serve in multicrew covered operations until attaining 65 years of age.” The ADEA prohibits discrimination “against any individual with respect to his
- 4 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 5 of 13 PageID 778
compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a). However, the ADEA also provides that it shall not be unlawful for an employer to take any action otherwise prohibited by the ADEA “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. § 623(f).
In order to prevail on a BFOQ defense, an employer must show that the age limit is reasonably necessary to the essence of the business. Western Air Lines, Inc., v. Criswell, 472 U.S. 400, 414-15 (1985); Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 227-28 (5th Cir. 1976). The employer must also demonstrate that all or substantially all of the individuals excluded from the job are in fact disqualified, or that some excluded individuals possess a disqualifying trait that cannot be ascertained except by reference to age because it is impossible or highly impractical to deal with employees on an individualized basis. Western Air Lines, Inc., 472 U.S. at 414-15; Usery, 531 F.2d 227-28.
Exxon contends that its reliance on the FAA rule prohibiting a pilot from flying after they reach a particular age is probative evidence of a BFOQ. Whether reliance by an employer on a government agency’s age-related rule is probative of a BFOQ, in this context, depends upon the congruity between the occupations at issue and the weight of the evidence supporting the rule’s rationale. Western Air Lines, Inc., 472 U.S. at 418. In this case, the dispute focuses on the congruence between the duties of a commercial airline pilot and the duties of an Exxon pilot. It is undisputed that the rationale for the
- 5 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 6 of 13 PageID 779
government’s age-related rule for commercial pilots is based on safety. It is further
undisputed that Exxon’s pilots, unlike commercial pilots, are not subject to the
government’s mandatory retirement age imposed by law for commercial pilots. It is also
undisputed that Exxon, as a matter of company policy, has voluntarily decided to
comply with the same rule that is mandatory for commercial pilots.
A. Mandatory Retirement for Commercial Pilots
The FAA has concluded that it is impossible to predict, with reliable accuracy, the
presence or onset of various medical problems in an aging pilot or detect and measure
adequately declining physical and mental functions. In July 2005, during hearings
before the Subcommittee on Aviation of the Senate Committee on Commerce, Science
& Transportation, Dr. Jon L. Jordan, the FAA’s Federal Air Surgeon, stated,
[The Age 60 Rule] remains the best determination that can be made of the time when a general decline in health-related functions and overall cognitive capabilities has reached a level where decrements in a pilot's performance may jeopardize safety. The “Age 60 rule” has been repeatedly reviewed to determine whether new and sufficient evidence exists to warrant a reconsideration of the regulation. Studies conducted to date do not present sufficient information that would address concerns about negatively impacting the current level of safety by changing the rule.
Likewise, as recently as March 2006, during another hearing before the Subcommittee
on Aviation regarding the FAA’s fiscal year 2007 Budget, the FAA stated:
The FAA has conducted five studies, using various analytic methodologies, on the relationship of pilot age to accidents. The most recent study, published in April 2004, corroborates the findings of two previous empirical studies—specifically that accident rates appear to increase with pilot age. Recent
- 6 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 7 of 13 PageID 780
non-FAA research, published in 2005 in open, peer-reviewed scientific literature, reported that the risk of violations of flight regulations increased with age in a longitudinal study of commuter air carrier and air taxi pilots. Violations of flight regulations are important indicators because pilots with violations are more likely to be involved in accidents or incidents than pilots without violations. The ‘‘Age 60 rule’’ has served well as a regulatory limit in the United States. The FAA recognizes that science does not absolutely dictate what age is most appropriate for retirement. No absolute, scientific formula may readily be applied to predict progressive, anatomic, physiological, and cognitive decline associated with aging because it is variable in severity and onset among individuals. The consistency of findings across empirical studies, however, suggests that changes to the ‘‘Age 60 rule’’ should be approached cautiously; so, we presently have no plans to revise the rule.
While the FTEPA altered the age at which mandatory retirement occurs, it did
not alter the government’s reliance on age as a determinative factor in deciding when a
pilot may no longer fly. The FTEPA was modeled, in part, on the rule used by the
International Civil Aviation Organization (“ICAO”). Under the ICAO rule, either the
pilot or co-pilot may fly up to age 65 as long as the other pilot is under age 60. The
FTEPA adopts the same rule with respect to international flights, requiring at least one
pilot to be under the age of 60.
Exxon argues that the rationale that supports the FTEPA’s mandatory retirement
age for commercial pilots applies with equal force to Exxon’s mandatory retirement rule
for its company pilots. The EEOC argues that material differences exist between the
duties performed by commercial pilots and Exxon’s company pilots such that age is not
a BFOQ for Exxon’s pilots.
- 7 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 8 of 13 PageID 781
B. Similarity of Work Performed By Exxon Pilots Exxon contends that the work performed by its pilots is substantially similar to, and sometimes more onerous than, the work performed by commercial airline pilots. Consequently, Exxon argues that its operations are congruent with those of commercial airlines in all material ways, and that its policy of mandatory retirement constitutes a BFOQ. Specifically, Exxon points to its planes, the experience and qualification of its pilots, and the job responsibilities of its pilots.
1. Exxon’s Planes In its motion for summary judgment Exxon argues that its planes are comparable to commercial airplanes. Exxon’s current fleet includes nine sophisticated jets, including four Bombardier Global Express jets and five Bombardier Challenger 300 jets. These planes carry 8 to 11 passengers, have a range of 3,000 to 6,000 miles, and a top speed of over 500 nautical miles per hour. The Global Express jets can fly between any two points on the globe with only one refueling stop. It is undisputed that Exxon’s aircraft fly as fast as, or faster than, most commercial airlines and far faster than twin-engine turboprop planes operated by many U.S. regional airlines. The EEOC argues that the planes flown by Exxon’s pilots are not similar to commercial planes. The EEOC points to “significant differences” between Exxon planes and commercial airplanes including “how and when to deploy engine thrust reversers,
- 8 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 9 of 13 PageID 782
how to apply the speed brakes and spoilers, use of nose wheel steering, braking techniques, operations at altitudes above 41,000 feet, specific operation of engines, cross feed/transfer of fuel, hydraulic and environmental systems and use of Flight Management Computers.”
Exxon responds by arguing that the differences pointed out by the EEOC are not material. The Court agrees. The primary thrust of the Court’s inquiry on this issue is whether the safety concerns that motivate the FAA rule are equally applicable to Exxon and its aircraft. The EEOC goes into painstaking detail describing the differences between Exxon’s aircraft and commercial aircraft; the EEOC goes as far as to submit summary judgment evidencing pointing out differences in the lavatories, the type of coffee provided on board, and towels used in the planes. Needless to say, these are nothing more than distinctions without differences. The Court is persuaded that there is no material difference, for purposes of this inquiry, between the planes used by Exxon, and the type of planes used by commercial airlines.
2. Experience and Qualification of Pilots Exxon argues that its pilots are substantially similar to commercial pilots in both experience and qualifications. Exxon employs 27 pilots. To be hired by Exxon, pilots must hold an Air Transport License, the highest level of qualification for pilots, and have broad international experience. Exxon says that it requires international experience because its pilots fly all over the world, to such places as Tokyo, Shanghai, Melbourne,
- 9 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 10 of 13 PageID 783
Kuwait City, Cairo, Angola, Cameroon, Venezuela, Ecuador, London, Paris, Rome, Prague, Kazakhstan, Norway, and Moscow. The EEOC apparently does not dispute that Exxon pilots are substantially similar to commercial pilots with respect to experience and qualifications. Instead, the EEOC argues that the actual job responsibilities of Exxon pilots are materially different than those of commercial pilots.
3. Job Responsibilities of Pilots Exxon contends that the job responsibilities of its pilots are at least as significant as those of commercial pilots, if not more so. It is undisputed that both Exxon and commercial airlines generally staff their cockpits with two people—the captain and the first officer. It is undisputed that unlike commercial pilots who receive a weather and flight plan prepared by a licensed dispatcher, Exxon pilots perform their own route planning, weather checking, and fuel computations. Exxon also contends that “Once airline and Exxon pilots board the plane, their pre-flight and cockpit responsibilities while flying are substantially similar.” In support of that contention, Exxon points out that “Exxon and commercial pilots fly in the same airspace and air traffic control sectors, under identical weather conditions, and take off and land at the same congested domestic and international airports. They use the same air traffic controllers and the same approach and departure routes.” The EEOC responds contending that “while pilots for [Exxon] might fly jet aircrafts in public airspace, their job responsibilities, duties, and overall mission are quite
- 10 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 11 of 13 PageID 784
different than those of commercial airline pilots.” In support of its contention, the EEOC points out that commercial airlines attempt to provide safe air transportation to the public in a manner that will be profitable to the airline, while Exxon’s pilots are responsible for transporting executives and guests to business and vacation destinations. Even assuming the accuracy of the EEOC’s depiction of the purpose of Exxon’s air operations, no genuine issue of material fact is raised. At this juncture, the Court is concerned with whether the safety concerns that drive the federal law mandating retirement of commercial pilots apply with equal force to Exxon’s pilots. The fact that Exxon’s aviation operation has a different purpose than a commercial airline is not material.
The EEOC goes on to argue that passengers on Exxon flights have a far greater degree of control over the flight than passengers on commercial flights. Exxon does not dispute this fact, but argues that it is not material. The Court agrees with Exxon. Like many of the other distinctions pointed out by the EEOC, this distinction does not demonstrate a material difference in the underlying safety concern applicable both to flights conducted by commercial pilots and Exxon pilots.
Finally, the EEOC argues that the size of Exxon’s aviation department makes it materially different than commercial airlines. The EEOC points out that Exxon has only 27 pilots, while most commercial airlines employ far more pilots. The EEOC claims that “the relatively small size of this crew means that Exxon Mobil pilots often fly with co-
- 11 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 12 of 13 PageID 785
workers with whom they are very familiar.” In contrast, the EEOC points to evidence that commercial airline pilots frequently fly with a co-pilot that they have never met before the flight. As a consequence, the EEOC contends, safety concerns that exist in the context of commercial airline flight, are not as significant for Exxon’s aviation operations. Even if the EEOC is right on this point, the summary judgment evidence establishes that the vast majority of safety concerns that apply to commercial airline pilots apply with equal force to Exxon’s pilots. Most fundamentally, a concern that as a pilot’s skills deteriorate with age the risk of an accident increases applies to both commercial pilots and Exxon’s pilots. The EEOC has not offered summary judgment evidence that demonstrates that the increased familiarity among Exxon’s pilots would eliminate, or even substantially reduce, the risk of an accident.
Based on the summary judgment evidence presented, the Court concludes that the worked performed by Exxon’s pilots is congruent with the work performed by commercial airline pilots in all material ways. Consequently, the existence of the federal age-related rule applicable to commercial airline pilots is highly probative of Exxon’s BFOQ defense in this case.
C. Exxon Has Established a BFOQ Defense as a Matter of Law While the ADEA protects workers from discrimination based on age, an employer may lawfully take any action otherwise prohibited by the ADEA where age is a BFOQ reasonably necessary to the normal operation of the particular business. 29 U.S.C. § 623(f); Equal Employment Opportunity Comm’n v. El Paso Natural Gas Co., 626 F. Supp.
- 12 -

Case 3:06-cv-01732-K Document 41 Filed 04/28/08 Page 13 of 13 PageID 786 182, 184 (1985). Because of the congruence between the work performed by Exxon pilots and the work performed by commercial pilots, the federal age-related rule is highly probative of Exxon’s BFOQ defense. Consequently, Exxon has demonstrated, as a matter of law, that some pilots possess a disqualifying trait that cannot be ascertained except by reference to age because it is highly impractical to deal with employees on an individualized basis. Western Air Lines, Inc., 472 U.S. 400; Usery, 531 F.2d 224.
IV. Conclusion Because the EEOC is unable to raise a genuine issue of material fact with respect to Exxon’s BFOQ defense, the Court concludes that summary judgment is appropriate. Exxon’s motion for summary judgment is GRANTED. SO ORDERED. Signed April 28th, 2008
____________________________________ ED KINKEADE UNITED STATES DISTRICT JUDGE
- 13 -

 
 Case 3:06-cv-01732-K Document 48 Filed 10/23/09 Page 1 of 8 PageID 884

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

3: o~cv'!73J_

FILED
August27,2009

No. 08-10624

Charles R. Fulbruge Ill

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Clerk__ -------
u.s. D!ST!~\CT COl. l
NORTI1Zlli~ DISTRICT nF TEXAS
FILED

v. EXXON MOBIL CORPORATION

Plaintiff- Appell nt
CLERK, U.S. DISTRICT COURT
~-------D-e-pu-ty-------Defendant - Appellee

Appeal from the United States District Court for the Northern District of Texas

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges. E. GRADY JOLLY, Circuit Judge:*
This appeal questions whether Exxon Mobil Corporation ("Exxon"), a private employer of corporate jet pilots, may remove its pilots from flight status on the basis of age. Exxon contends that age is bona fide occupational qualification ("BFOQ") for the pilots, such that it may require them to retire when they reach a certain age. Exxon seeks to establish this proposition on the basis of a Federal Aviation Administration ("FAA") regulation that requires commercial pilots to retire at a certain age.

*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Case 3:06-cv-01732-K Document 48 Filed 10/23/09 Page 2 of 8 PageID 885
For reasons that we will explain, however, we cannot answer this question today. We instead must remand for further development.
I. The Age Discrimination in Employment Act of 1967 ("ADEA") generally prohibits an employer from discriminating on the basis of age. See 29 U.S.C. § 623(a). As an exception, an employer may discriminate based on age "where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business." Id. § 623(0(1). This exception operates as an affirmative defense. See 29 C.F.R. § 1625.6(b). One approach in establishing this defense is to claim entitlement to assert a federal regulation that itself allows discrimination on the basis of age. However, such a regulation "is not to be accorded conclusive weight" unless it binds the employer asserting it. See W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 418 (1985); Coupe v. Fed. Ex. Corp., 121 F.3d 1022, 1026 (6th Cir. 1997). The extent to which the regulation is probative ofanother employer's BFOQ defense depends on two elements: first, the evidence supporting the regulation's rationale justifying discrimination; and second, the congruity between the occupations at issue. Criswell, 472 U.S. at 418. The employer must prove both of these elements for the federal regulation to establish its BFOQ defense.
II.
Exxon employs pilots to fly a fleet ofcorporate jets-that is, until the pilots reach a certain age. Exxon then removes them from flight duty. It requires them to retire if no appropriate, non-flight employment is available within the
2

Case 3:06-cv-01732-K Document 48 Filed 10/23/09 Page 3 of 8 PageID 886
corporation. Exxon's age-based policy mirrors an FAA regulation that removes commercial pilots from flight duty at a certain age.1
A group ofpilots whom Exxon removed from flight status because oftheir age, or whose removal was imminent, filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"). They asserted that Exxon's age-based policy violates the ADEA. The EEOC agreed. It attempted conciliation with Exxon, then initiated the present action on the pilots' behalf.
The EEOC immediately applied for a temporary restraining order and a preliminary injunction to prevent Exxon from requiring its older pilots to retire while this action remains pending. As relevant to this appeal, Exxon raised the defense that age is a BFOQ for its pilots, "reasonably necessary" because: (1) some Exxon pilots experience physiological or psychological deterioration as they age that prevents them from performing their job duties safely and efficiently; and (2) no test can reliably determine which among Exxon's older pilots are unsafe. In support, Exxon cited the FAA regulation that removes commercial airline pilots from flight duty when they reach a certain age. Exxon also cited various FAA statements that no physiological or psychological test had been available during the time relevant to this litigation that could reliably determine which among older pilots are unsafe. It also introduced expert testimony to the same effect. The EEOC countered Exxon's evidence with expert affidavits that reliable, individualized testing had been available to determine which among older pilots are unsafe. In supplemental briefing, the EEOC added
1 The FAA historically has removed commercial pilots from flight duty at age sixty. See 14 C.F.R. § 121.383(c) (2007). The FAA now permits commercial pilots to fly until age sixtyfive, with the exception that a commercial pilot between ages sixty and sixty-five may not fly internationally unless accompanied by a pilot under age sixty. 14 C.F.R. § 121.383(e) (2009). At all times relevant to this action, Exxon's policy for its corporate pilots mirrored the FAA regulation in effect for commercial pilots.
3

Case 3:06-cv-01732-K Document 48 Filed 10/23/09 Page 4 of 8 PageID 887
to this evidence by citing FAA statements, more recent than Exxon's, suggesting the agency no longer supported its age-based rule for commercial pilots. The. district court weighed the conflicting evidence and denied the preliminary injunction.
Exxon and the EEOC then proceeded to litigate the merits of the case. In this phase, they disagreed as to how discovery should proceed. Exxon proposed bifurcating discovery, first restricting it to the "narrow but outcome determinative issue" of congruity and then opening it to other issues only if the congruity issue did not dispose of the case. The EEOC proposed opening discovery and pre-trial motions to all issues, including the weight ofthe evidence supporting the FAA regulation, from the outset.2 The district court adopted Exxon's proposal, entering an order that the parties first conduct discovery and then present motions addressing solely the issue of congruity. According to the court's order, the parties would conduct discovery and present motions on other issues, including the weight of the evidence supporting the FAA regulation's safety rationale, only if "this case is not disposed of on the issue of congruence as a matter of law."
After discovery on occupational congruity had been completed, Exxon moved for summary judgment. Despite the district court's order bifurcating the separate issues, Exxon's memorandum in favor ofsummaryjudgment addressed the continuing validity of the FAA regulation's rationale as well as the issue of congruity. The EEOC's responsive memorandum, by contrast, adhered to the scheduling order; it addressed only the issue of congruity.
2 Among these issues, the EEOC sought discovery that would supplement its preliminary-injunction evidence of the timely availability of physiological or psychological testing that could reliably determine which among older pilots are unsafe.
4

Case 3:06-cv-01732-K Document 48 Filed 10/23/09 Page 5 of 8 PageID 888
When ruling on summary judgment, the district court acknowledged that the probative value ofthe FAA's age-discriminatory regulation to Exxon's BFOQ defense depended on two factors: the congruity between the occupations at issue and the weight of the evidence supporting the regulation's safety rationale. Although the district court had directed the parties to conduct discovery and present motions addressing only the issue of congruity, its opinion on summary judgment proceeded to assume that the rationale justifying the FAA's regulation remained valid. The district court only then proceeded to address the issue of congruity. It held that commercial piloting and Exxon corporate piloting are congruent for BFOQ purposes, and it granted Exxon's motion for summary judgment.3
III. On appeal, the EEOC presents arguments that implicate whether the district court erred in assuming the continuingvalidity ofthe rationalejustifying the FAA's age-discriminatory regulation. Particularly, it argues that the district court had restricted discovery and dispositive motions solely to the issue of
3 Some of the parties' arguments assume that the district court granted summary judgment solely on the issue ofcongruity; that its decision was unaffected by the evidence that it mentioned concerning the continuing validity of the FAA regulation's safety rationale. A close examination of the district court's opinion, however, reveals that its decision to grant summary judgment to Exxon depended both on the issue of congruity and on the continuing validity of the FAA regulation's safety rationale.
In any event, the district court could not have granted summary judgment to Exxon solely on the issue of congruity. See Criswell, 472 U.S. at 418 ("The extent to which the rule is probative varies with the weight of the evidence supporting its safety rationale and 'the congruity between the ... occupations at issue."' (quoting Johnson v. Mayor & City Council of Baltimore, 472 U.S. 353, 371 (1985))); see also Monroe v. United Air Lines, Inc., 736 F.2d 394, 405 (7th Cir. 1984) ("[A] once valid BFOQ may lose its justification with advances in medical science. That the age 60 rule may have been a BFOQ in [the past] does not place it beyond challenge now.").
5

' .
Case 3:06-cv-01732-K Document 48 Filed 10/23/09 Page 6 of 8 PageID 889
congruity; and that it had provided the EEOC no notice that it would reverse course, opening all issues for decision.
On the other hand, Exxon presents us with arguments suggesting that the EEOC has waived this contention. It cites its memorandum in favor ofsummary judgment, which addressed both congruity and the weight of the evidence supporting the FAA regulation's rationale. Consequently, the proper time for the EEOC to object to considering the continuing validity ofthe FAA regulation's rationale may have been in its memorandum opposing summaryjudgment-the memorandum in which it addressed only the issue of congruity. Furthermore, Exxon points out, the EEOC did not appeal from the district court's scheduling order that bifurcated discovery and pre-trial motions; and the EEOC did not move under Federal Rule ofCivil Procedure 56(f) to continue summary-judgment proceedings pending discovery on issues other than congruity.
We agree with Exxon that the EEOC could have been more alert in the summary-judgment proceedings. Nevertheless, the EEOC was entitled to rely on the district court's specific order that both parties restrict discovery and summary-judgment motions solely to the issue ofcongruity. The district court's assumption concerning the rationale justifYing the FAA's regulation was beyond the scope ofits scheduling order; and insofar as the court's decision depended on this assumption, it amounted to a sua sponte grant of summary judgment on an issue and on grounds about which it did not give the EEOC proper notice. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) ("[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence."); Nowlin v. Resolution Trust Corp., 33 F.3d 498, 504 (5th Cir. 1994) ("The district court failed to give ten days notice of its sua sponte motion to grant summary judgment, as required by Federal Rule of Civil Procedure
6

Case 3:06-cv-01732-K Document 48 Filed 10/23/09 Page 7 of 8 PageID 890
56(c). This court has strictly enforced this notice requirement." (footnotes omitted)).
The district court's error of assuming that the rationale for the FAA regulation remained valid-consequently exceeding the scope of its earlier order-was not harmless. The EEOC had indicated the sort of evidence that it would adduce to challenge the continuing validity of the FAA regulation's rationale: at minimum, expert testimony that reliable, individualized testing had been available to ascertain which among older pilots are unsafe. The district court's scheduling order precluded the EEOC from pursuing discovery or presenting such evidence and arguments on summary judgment. The district court nevertheless resolved the issue in Exxon's favor at summary judgment by assuming that the FAA regulation's rationale remained valid, even though the issue had been disputed and was not properly before the court.
In short, the continuing validity ofthe FAA regulation's rationale was, and is, a crucial and determinative issue in this case. The district court prejudiced the EEOC when it effectively granted summary judgment to Exxon by resolving this issue without giving the EEOC fair notice.4
4 Because we reverse on this ground, we will not consider the EEOC's altemative arguments for reversal. These arguments include that the district court erred by disregarding the EEOC's preliminary-injunction evidence undermining the FAA regulation's safety rationale and in weighing the EEOC's summary-judgment evidence of occupational dissimilarity as being immaterial to Exxon's BFOQ defense.
In another alternative argument, the EEOC contends essentially that Exxon failed to meet its burden of production as to the continued validity of the FAA regulation's safety rationale; Exxon simply relied on FAA statements supporting the regulation's safety rationale instead of presenting its own evidence verifying the rationale's validity. Again, we do not reach this issue.
7

Case 3:06-cv-01732-K Document 48 Filed 10/23/09 Page 8 of 8 PageID 891
IV. For the foregoing reasons, the judgment ofthe district court is VACATED. The case is REMANDED for further proceedings not inconsistent with this opinion.5
VACATED and REMANDED.
5 Because we are vacating the judgment and remanding for further proceedings, we make no comment or judgment on the district court's ruling on the congruity of the job duties and responsibilities between commercial pilots and the Exxon pilots. Thus, the district court, in its appropriate discretion, may, or may not, reopen this issue. With respect to the weight of the evidence supporting the FAA regulation, however, our remand requires allowing the parties to develop and to present their respective evidence and arguments.
8

 
 Case 3:06-cv-01732-K Document 65 Filed 06/16/10 Page 1 of 4 PageID 977

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff,

}

}

CIVIL ACTION NO. 3-06-CV-1732-K

v.

}

}

EXXON MOBIL CORPORATION

}

}

Defendant.

}

__________________________________________}

FIRST AMENDED COMPLAINT JURY TRIAL DEMANDED

EEOC'S FIRST AMENDED COMPLAINT

NATURE OF THE ACTION

This is an action under the Age Discrimination in Employment Act to correct an unlawful

employment practice on the basis of age and to provide appropriate relief to Michael

Morschauser, Glen Skaggs and Gary Schaffer. Specifically, Defendant Exxon Mobil

discriminated against Morschauser, Skaggs and Schaffer by its policy or practice that prohibits a

pilot from flying Exxon Mobil corporate airplanes after they reach the age of 60, and that forces

the pilot into involuntary retirement. Exxon Mobil Corporation discriminated against

Morschauser, Skaggs and Schaffer by removing them from flight duty, resulting in their

involuntary retirement because of their age.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,

1343, and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the “ADEA”),

which incorporates by reference Sections 16 and 17 of the Fair Labor Standards Act of 1938, as

1
EEOC'S FIRST AMENDED COMPLAINT

Case 3:06-cv-01732-K Document 65 Filed 06/16/10 Page 2 of 4 PageID 978
amended, 29 U.S.C. §§ 216 and 217. 2. The employment practice alleged to be unlawful was and is now being committed
within the jurisdiction of the United States District Court for the Northern District of Texas. PARTIES
3. Plaintiff, Equal Employment Opportunity Commission (the "Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705.
4. At all relevant times, Defendant Exxon Mobil Corporation (“Defendant”), has continuously been and is now doing business in the State of Texas and has continuously employed at least fifteen employees.
5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Section 11(b), (g) and (h) of the ADEA, 29 U.S.C. § 630(b), (g) and (h).
CONCILIATION 6. Prior to institution of this lawsuit, the Commission’s representatives attempted to eliminate the unlawful employment practice alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
STATEMENT OF CLAIMS 7. From at least 2005, the Defendant engaged in an unlawful employment policy or practice of removing pilots from flight duty and involuntarily retiring them when they reach age
2
EEOC'S FIRST AMENDED COMPLAINT

Case 3:06-cv-01732-K Document 65 Filed 06/16/10 Page 3 of 4 PageID 979
60 in violation of Sections 4(a)(1) and (d) of the ADEA, 29 U.S.C. § 623(a) and (d). Specifically, the EEOC alleges that Morschauser, Skaggs and Schaffer suffered adverse employment actions, when they were removed from their positions by implementation of the age 60 policy in violation of the ADA. Exxon Mobil has represented to EEOC and the Court that as of December 13, 2007, the Defendant no longer applies an age 60 mandatory retirement policy to its pilots.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Morschauser, Skaggs and Schaffer of equal employment opportunities and otherwise adversely affect their status as employees because of their age.
9. The unlawful employment practice complained of above was willful within the meaning of the ADEA.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant, Exxon Mobil Corporation, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of age. B. Order the Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for qualified individuals who are at least age 40, and which eradicate the effects of its past and present unlawful employment practices. C. Order the Defendant to pay Morschauser, Skaggs and Schaffer appropriate back wages, in an amount to be proven at trial, and an equal amount in liquidated damages, and prejudgment interest. D. Order the Defendant to make Morschauser, Skaggs and Schaffer whole by
3
EEOC'S FIRST AMENDED COMPLAINT

Case 3:06-cv-01732-K Document 65 Filed 06/16/10 Page 4 of 4 PageID 980

providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to rightful-place reinstatement.
E. Grant such further relief as the Court deems necessary and proper in the public interest.
F. Award the Commission its costs in this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its Amended Complaint.
Respectfully submitted, P. DAVID LOPEZ General Counsel JAMES LEE Deputy General Counsel GWENDOLYN Y. REAMS Associate General Counsel

/s/ Robert A. Canino ROBERT A. CANINO Regional Attorney Oklahoma State Bar No. 011782

EEOC'S FIRST AMENDED COMPLAINT

/s/ Suzanne M. Anderson SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 Tel No. (214) 253-2742 Fax No. (214) 253-2749
4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

EXXON MOBIL CORPORATION,

§

§

Defendant.

§

CIVIL ACTION NO. 3:06-CV-1732-K

AMENDED MEMORANDUM OPINION AND ORDER

This Amended Memorandum Opinion and Order replaces the Court’s previous

Memorandum Opinion and Order (Doc. No. 125) dated September 13, 2012. Fed.

R. Civ. P. 60(a).

Before the Court are the following motions: (1) Defendant’s Motion to Strike

Plaintiff’s Expert Witnesses Robert “Hoot” Gibson, Joseph Eichelkraut, and Gaetan

Anthony Passannante (Doc. No. 91), (2) Plaintiff’s Motion to Strike Defendant’s

Expert Dr. P. Richard Jeanneret and Brief in Support Thereof (Doc. No. 92), (3)

Plaintiff’s Motion to Strike Defendant’s Expert Jorge Romero and Brief in Support

Thereof (Doc. No. 95), (4) EEOC’s Motion for Partial Summary Judgment or in the

Alternative Motion to Strike Affirmative Defenses and Brief in Support Thereof

(Doc. No. 93), (5) Defendant Exxon Mobil Corporation’s Second Motion for

Summary Judgment (Doc. No. 94), (6) Exxon Mobil Corporation’s Motion to Open

and Close at Trial and Brief in Support (Doc. No. 107), and (7) Agreed Motion to

Extend Deadline for Designation of Deposition Testimony (Doc. No. 108), and (8) Joint Motion Requesting Pre-Trial Conference (Doc. No. 114). The Court has considered all eight motions, all related responses, replies, evidence submitted by the parties, and applicable law. The following is hereby ORDERED:
Defendant’s Motion to Strike Plaintiff’s Expert Witnesses Robert “Hoot” Gibson, Joseph Eichelkraut, and Gaetan Anthony Passannante (Doc. No. 91), Plaintiff’s Motion to Strike Defendant’s Expert Dr. P. Richard Jeanneret and Brief in Support Thereof (Doc. No. 92), and Plaintiff’s Motion to Strike Defendant’s Expert Jorge Romero and Brief in Support Thereof (Doc. No. 95) are DENIED.
Because Defendant Exxon Mobil Corporation has established a bona fide occupational qualification as a matter of law, Defendant Exxon Mobil Corporation’s Second Motion for Summary Judgment (Doc. No. 94) is GRANTED.
EEOC’s Motion for Partial Summary Judgment or in the Alternative Motion to Strike Affirmative Defenses and Brief in Support Thereof (Doc. No. 93) is DENIED.
Exxon Mobil Corporation’s Motion to Open and Close at Trial and Brief in Support (Doc. No. 107), the Agreed Motion to Extend Deadline for Designation of Deposition Testimony (Doc. No. 108), and the Joint Motion Requesting Pre-Trial Conference (Doc. No. 114) are DENIED as moot.
Judgment will be entered by separate document. Fed. R. Civ. P. 58(a).
-2-

I. Factual and Procedural Background Generally, this case involves alleged age discrimination. At the time the suit
was commenced, Exxon maintained a corporate policy that prohibited its pilots from flying corporate aircraft after they reached the age of 60 and forced such pilots to involuntarily retire at age 60. This rule mirrored a rule used by the Federal Aviation Administration that applied to pilots flying for commercial airlines. Based on the “age 60 rule,” Exxon forced at least three pilots to retire in 2006 and 2007. The EEOC brought suit on behalf of these pilots and others alleging age discrimination.
A more detailed statement of the factual and procedural background in this case was discussed in this Court’s opinion dated April 28, 2008, that granted Defendant Exxon Mobil Corporations’s (“Exxon’s”) first motion for summary judgment. That factual and procedural background is incorporated herein by reference. The Court now sets forth only those additional facts necessary to dispose of the motions before the Court.
On August 31, 2007, Exxon filed a motion for summary judgment. Subsequently, on April 28, 2008, this Court granted the motion, and the Equal Employment Opportunity Commission’s (“EEOC’s”) case was dismissed with prejudice by final judgment entered May 2, 2008. The Fifth Circuit vacated judgment and remanded the case on the grounds that this Court had restricted discovery to the issue of congruency regarding bona fide occupational qualifications
-3-

prior to granting final summary judgment to Defendant. The Fifth Circuit found that the EEOC had been prejudiced when this Court granted summary judgment on both congruity and continuing validity regarding bona fide occupational qualifications but had not allowed sufficient discovery on the issue of continuing validity.
Although the Fifth Circuit vacated the summary judgment granted by this Court, the Fifth Circuit allowed this Court to decide whether to reopen discovery as to the issue of congruity. By order dated August 16, 2010, this Court denied the EEOC’s request to open discovery beyond the issue of continuing validity. II. Daubert Motions
Before the Court is Defendant’s Motion to Strike Plaintiff’s Expert Witnesses Robert “Hoot” Gibson, Joseph Eichelkraut, and Gaetan Anthony Passannante (Doc. No. 91), Plaintiff’s Motion to Strike Defendant’s Expert Dr. P. Richard Jeanneret and Brief in Support Thereof (Doc. No. 92), and Plaintiff’s Motion to Strike Defendant’s Expert Jorge Romero and Brief in Support Thereof (Doc. No. 95).
A. Legal Standard The trial court acts as a “gatekeeper” to exclude expert testimony that does not meet the relevancy and reliability threshold requirements. In this role, the trial court determines the admissibility of expert testimony based on Federal Rule of Evidence 702. When “[f]aced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is
-4-

proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). This determination hinges on reliability and relevance. The reliability standard is established by Rule 702's requirement that an expert's testimony pertain to “scientific . . . knowledge,” which implies a grounding in science's methods and procedures and more than subjective belief or unsupported speculation. Daubert, 509 U.S. at 589-80. The relevancy standard is established by Rule 702's requirement that the testimony “assist the trier of fact to understand the evidence or to determine a fact in issue.” This requires that the testimony by “helpful” by requiring “a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. at 592.
Many considerations will bear on the inquiry of admissibility of expert testimony, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. Id. at 591-95. “The inquiry envisioned by Rule 702 is . . . a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission.” Id. at 594-95.
-5-

Additionally, “the trial court's role as gatekeeper [under Daubert] is not intended to serve as a replacement for the adversary system.” Fed. R. Evid. 702, advisory committee's note, citing United States v. 14.38 Acres of Land More or Less Situated in Leflore Cty., Miss., 80 F.3d 1074, 1078 (5th Cir. 1996). Rather, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. Thus, a trial court is not permitted under Daubert to “transform a Daubert hearing into a trial on the merits.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002).
B. Analysis 1. Robert “Hoot” Gibson, Joseph Eichelkraut & Gaetan Anthony Passannante
Exxon seeks to exclude the testimony of Robert “Hoot” Gibson, Joseph Eichelkraut, and Gaetan Anthony Passannante, because Exxon contends that they are not qualified to offer opinions on the issue of continuing validity, their opinions are unreliable, and their opinions are not relevant to the issue of continuing validity. The crux of Exxon’s argument revolves around the fact that Mr. Gibson, Mr. Eichelkraut, and Mr. Passannante are pilots and do not have any education, experience, training, or skill in medicine or science. Additionally, Exxon contends that the pilots’ opinions are not based on recognized reasoning or methodology, and their personal interest in the FAA’s age-based rule makes their opinions unreliable. The EEOC, on the other
-6-

hand, argues that all three pilots have extensive and relevant training and experience as pilots that provide a reliable basis for them to testify on aviation safety and operational issues.
While Mr. Gibson, Mr. Eichelkraut, and Mr. Passannante may not have expertise in medicine, they do have significant training and knowledge as pilots. Their opinions based on this training and experience are certainly relevant to the core issue of this case, whether Exxon’s age-based rule is a bona fide occupational qualification. The Court will not exclude the entire opinions of Mr. Gibson, Mr. Eichelkraut, and Mr. Passannante. Rather, Exxon was free to vigorously cross-examine these witnesses by deposition, present contrary evidence in its briefing, or object to the specific portions of testimony that Exxon contends go beyond the scope of their expertise. Defendant’s Motion to Strike Plaintiff’s Expert Witnesses Robert “Hoot” Gibson, Joseph Eichelkraut, and Gaetan Anthony Passannante (Doc. No. 91) is DENIED.
2. Dr. P. Richard Jeanneret The EEOC seeks to strike the expert opinion of Dr. P. Richard Jeanneret. The EEOC contends that Dr. Jeanneret has no knowledge, skill, experience, training, or education in any of the subjects relevant to this litigation, by arguing that Dr. Jeanneret does not possess any education or experience on the effects of aging on cognition, cardiovascular function, or general abilities, operations and medical testing
-7-

of pilots. Additionally, the EEOC argues that Dr. Jeanneret did not familiarize himself with the techniques utilized by the authors of the studies he reviewed, did not take the time to read all of the publications generated by his research, and he does not understand why some publications were listed in his report as relevant to the formulation of his expert opinion.
Aside from these contentions, the EEOC admits that Dr. Jeanneret, among other things, is experienced in industrial and organizational psychology which includes the study of safety in the workplace. Dr. Jeanneret’s expert testimony includes the opinion that current pilot testing measures are less reliable than an agebased rule. Exxon has shown that Dr. Jeanneret's training, education, and knowledge allow him to statistically examine the reliability and validity of such testing measures. This testimony is relevant to the issue of continuing validity.
After review, the Court has determined that the EEOC’s arguments regarding Dr. Jeanneret’s expert opinion go to the weight to be given to the expert’s report and testimony, rather than to the admissibility. The EEOC was free to present contrary evidence and attempt to diminish the credibility of Dr. Jeanneret’s qualifications. Plaintiff’s Motion to Strike Defendant’s Expert Dr. P. Richard Jeanneret and Brief in Support Thereof (Doc. No. 92) is DENIED.
-8-

3. Dr. Jorge Romero The EEOC seeks to exclude the expert testimony of Dr. Jorge Romero, because the EEOC contends that he is not qualified to testify on the specific aviation medical issue involved in this case. Dr. Romero is a doctor specializing in neurology. The EEOC alleges that general knowledge and experience in neurology does not qualify Dr. Romero to testify as an expert on the aviation medical issues relating to the safety risk of sudden incapacitation of pilots by stroke. The EEOC argues that because of this, Dr. Romero has no independent basis in knowledge in any of the aviation medical matters about which he would be called to testify, nor has he conducted an analysis of Exxon’s flight operations or of the medical testing that Exxon has in place to assess the fitness of its pilots. Additionally, the EEOC argues that Dr. Romero’s expert testimony is not relevant, because his opinion applies to adults at large and fails to solely address the specific population of pilots. Dr. Romero’s expert opinion relates to the frequency of strokes and the ability to predict them. Much like Dr. Jeanneret’s testimony, the EEOC’s challenges to Dr. Romero’s testimony go to the weight to be given to the expert’s report and testimony, rather than to the admissibility. As a practicing neurologist with 34 years of experience in neurology, stroke prevention and stroke treatment, Dr. Romero is sufficiently qualified to testify regarding risk factors of a stroke (including age), the affect of stroke on a population and whether neurology can predict if a particular
-9-

individual will suffer a stroke. That testimony is certainly relevant to the continuing validity of the rationale supporting an age-based retirement rule for pilots. The basis of the EEOC’s challenge is that Dr. Romero lacks expertise related to the incapacitation of pilots specifically, and he relies on statistics related to the general population rather than the subgroup of pilots. To the extent that the EEOC claims that general neurology principles are not probative on pilots’ neurological risks, that claim goes to the weight of the expert’s opinion, not its admissibility. Plaintiff’s Motion to Strike Defendant’s Expert Jorge Romero and Brief in Support Thereof (Doc. No. 95) is DENIED.
C. Summary Having carefully considered the briefing, the evidence, and the applicable law, the Court finds that the expert challenges presented by Defendant’s Motion to Strike Plaintiff’s Expert Witnesses Robert “Hoot” Gibson, Joseph Eichelkraut, and Gaetan Anthony Passannante (Doc. No. 91), Plaintiff’s Motion to Strike Defendant’s Expert Dr. P. Richard Jeanneret and Brief in Support Thereof (Doc. No. 92), and Plaintiff’s Motion to Strike Defendant’s Expert Jorge Romero and Brief in Support Thereof (Doc. No. 95) were more appropriately handled by presentation of contrary evidence or other traditional means of attacking evidence. The motions (Doc. Nos. 91, 92, 95) are DENIED.
-10-

III. Exxon’s Second Motion for Summary Judgment Now before the Court is Defendant Exxon Mobil Corporation’s Second
Motion for Summary Judgment (Doc. No. 94). A. Summary Judgment Standard "Summary judgment is appropriate when the pleadings, affidavits, and other
summary judgment evidence show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Fed. R. Civ. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Triple Tee Golf, 485 F.3d at 261 (citing Celotex, 477 U.S. at 322 25). The burden then shifts to the nonmoving party to show the existence of a genuine issue of material fact for trial. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009).
A dispute of a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A fact is 'material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon, 560 F.3d at 326 (quoting Hamilton v. Seque Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant, and all disputed facts resolved
-11-

in favor of the nonmovant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); see also Sossamon, 560 F.3d at 326.
B. Bona Fide Occupation Qualification The ADEA prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a). However, the ADEA also provides that it shall not be unlawful for an employer to take any action otherwise prohibited by the ADEA “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. § 623(f). Exxon contends that its policy of removing pilots from active flight status when they attain a specified age constitutes a bona fide occupational qualification (“BFOQ”) under the ADEA. Pursuant to the standard set forth in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976), as approved by the United States Supreme Court in Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985), in order to establish a BFOQ, the employer must show that the age limit is reasonably necessary to the essence of the business. Additionally, the employer must demonstrate that the age limit is reasonably necessary to the particular business by establishing that it had reasonable cause to believe that all or substantially all persons over the age qualifications would
-12-

be unable to perform safely and efficiently the duties of the job involved or, alternatively, that it is impossible or highly impractical to deal with the older employees on an individualized basis (i.e. the trait cannot be ascertained except by age). See Western Air Lines, 472 U.S. at 414.
Exxon contends that its reliance on the FAA rule prohibiting a pilot from flying after they reach a particular age is probative evidence of a BFOQ. The FAA’s Age 60 Rule provided that no airline carrier “may use the services of any person as a pilot . . . if that person has reached his 60th birthday. No person may serve as a pilot [in commercial airline] operations . . . if that person has reached his 60th birthday.” 14 C.F.R. § 121.383(c). The Fair Treatment for Experienced Pilots Act (“FTEPA”), which was effective as of December 13, 2007, repealed the FAA’s Age 60 Rule and provided, subject to a limitation related to international travel, “a pilot may serve in multicrew covered operations until attaining 65 years of age.”
The passage of the FTEPA does not significantly alter the Court’s analysis in this case. The EEOC still argues that Exxon is improperly enforcing a mandatory retirement age for its pilots. Exxon still argues that its mandatory retirement age is not a violation of the ADEA, particularly in light of its congruence with the rule applied by the FAA. Whether reliance by an employer on a government agency’s age-related rule is probative of a BFOQ, in this context, depends upon the congruity
-13-

between the occupations at issue and the weight of the evidence supporting the rule’s rationale. Western Air Lines, Inc., 472 U.S. at 418.
1. Congruence The Court’s determination regarding congruity in the Court’s previous Memorandum Opinion and Order (Doc. No. 41) granting Defendant’s first motion for summary judgment remains the opinion of the Court. Neither party has presented any new arguments in their summary judgment briefing that would alter the Court's position. Exxon employs 27 pilots who fly all over the world with job responsibilities similar to those of commercial pilots. Exxon’s fleet includes nine jet aircraft, including four Bombardier Global Express jets and five Bombardier Challenger 300 jets. Operating these jets requires similar safety concerns as those of commercial airlines. This Court found that the work performed by Exxon’s pilots is congruent with the work performed by commercial airline pilots in all material ways. The Court will not unnecessarily restate the entire opinion of the Court regarding congruity and, instead, will incorporate the Court’s previous determination regarding congruity herein and only address the weight of the evidence supporting the rule’s rationale, i.e. continuing validity.
2. Continuing Validity Exxon’s summary judgment asserts that Exxon’s reliance on the FAA age-based rule establishes a Bona Fide Occupational Qualification in this case. As congruency
-14-

has already been established, in order to prevail on its summary judgment, Exxon must establish the continuing validity of the rationale supporting the FAA’s Age 60 Rule by providing evidence supporting its safety rationale. To conclusively establish continuing validity, Exxon must set forth evidence that shows that no testing existed to predict when or if an over-age-60 pilot might experience a medical event that could jeopardize aviation safety. The relevant time period is 2006 and 2007 when the pilots involved in this case were forced to retire; however, Exxon has provided conclusive evidence that the FAA’s safety rationale supporting the age-based rule was valid in 2006 and 2007 and continues to be valid today. Because Exxon has presented conclusive evidence that the risk of sudden incapacitating events increases with age and no test can identify if or when that event may occur, and because the EEOC has failed to set forth any evidence to the contrary, Exxon has proved the continuing validity of its age-based rule as a matter of law.
It is undisputed that the rationale for the federal government’s age-based rule for commercial pilots is based on safety. Generally, Exxon contends that aging causes a progressive physiological and cognitive decline, and that it remains impossible to determine whether or when an individual pilot will experience a medical event jeopardizing aviation safety. This was and is the rationale in support of the FAA’s age-based rule. Exxon has provided the expert testimony of Dr. Jon L. Jordan to establish that the FAA’s rationale for an age-based rule is based on three scientific and
-15-

medical determinations: (1) the risk of an incapacitating event, along with the fact that cognitive and motor abilities generally decline with age; (2) no combination of tests can identify whether or when a particular pilot will become incapacitated or experience more subtle cognitive declines; and (3) these risks increase sharply after age 60. As late as March 2006, the FAA reaffirmed the scientific and medical basis for the Age 60 rule. In December of 2007, Congress enacted the Fair Treatment for Experienced Pilots Act (“FTEPA”) and modified the age-based rule to allow airline pilots to fly until they are 65, subject to a limitation related to international travel. Thus, Congress maintained a mandatory retirement age for commercial pilots but raised the age limit for domestic flights by 5 years. There is no question that today Congress and the FAA continue to rely on an age-based rule for retirement of pilots.
Exxon points to multiple organizations, including the National Institute on Health, the Civil Aeromedical Institute, and the Aerospace Medical Association, that affirm the notion that sudden and subtle incapacitations cannot be predicted accurately as to any specific individual. Exxon’s own Global Medical Director, Dr. Clarion Johnson reviewed studies in 2003 that led him to conclude that scientific evidence supports the rationale of an age-based rule. Further, Exxon has offered expert testimony as to the continuing validity of the rationale. Dr. Jon Jordan, a doctor with a career in aerospace spanning over 40 years, Dr. William Roberts, a doctor trained in internal medicine, cardiology, and anatomic pathology and
-16-

Executive Director of the Baylor Heart and Vascular Institute of Baylor University Medical Center, and Dr. Jorge Romero, a neurologist affiliated with Baylor University Medical Center and certified in the specialty of neurology, have all unanimously provided testimony that medical testing does not yet exist that would be capable of singling out those individual pilots who would pose a safety hazard because of sudden incapacitation. Exxon has presented evidence that there is no genuine issue of material fact regarding the continuing validity of the safety rationale supporting and age-based rule.
It is then the EEOC’s burden to present evidence that raises a fact question regarding continuing validity. The EEOC has had every chance to seek discovery and gather support for its position regarding continuing validity. Despite its best efforts, the EEOC has simply not presented any evidence that medical testing exists that could identify those individuals over a specified age that are at risk of sudden incapacitation. The lack of evidence by the EEOC reflects the limits of what scientific evidence is available.
The EEOC has attempted to counter Exxon’s expert testimony by outlining five facts it believes are controverted and present a genuine issue of material fact in this case. To substantiate its arguments, the EEOC offers expert testimony of its own. Although the EEOC’s experts all possess excellent credentials, including three pilots and an experienced Aviation Medical Examiner, for the reasons discussed
-17-

below, the expert testimony they present does not raise a genuine issue of material fact.
First, the EEOC offers evidence that accidents resulting from incapacitation of a pilot are rare. Rarity of occurrence alone fails to present a fact question as to continuing validity. The rationale supporting the age-based rule is not that accidents frequently occur due to incapacitation; it is that incapacitation cannot be “tested for” or “predicted” on an individual basis and sudden unpredictable incapacitation jeopardizes aviation safety.
Second, the EEOC points out that Exxon and its experts relied on statistics and studies of the general population rather than the sub-group of the pilot population. While the EEOC’s expert reports and evidence may support the conclusion that pilots as a subgroup are healthier than the general population, the EEOC has presented no evidence that pilots have zero risk of incapacitation as they get older or that their risk of incapacitation could be tested for or predicted. One of the EEOC’s experts, Dr. Stan Mohler, acknowledges the risk of incapacitation by stating that although a pilot’s risk of future heart problems is less than the general population’s risk, he admits that the risk of pilot incapacitation does indeed exist.
Third, the EEOC contends that the FAA’s medical exam (and additional testing), flight simulator testing, line checks, and crew resource management techniques are a reliable way to screen unsafe pilots, thus eliminating any need for an
-18-

age cut-off. The EEOC points to the fact that incapacitating events occur to pilots under the age of 60 that are tested and frequently returned to flight duty. The EEOC contends this same testing pinpoints those individuals over the age of 60 who pose a risk of sudden incapacitation. Similarly, in its fourth controverted fact, the EEOC asserts that medical advancements present alternatives to imposing an age-based rule.
Both sides agree that medical testing continues to advance and that medical testing provides a mechanism to test pilots. However, the rationale challenged in this case is that sudden incapacitation increases with age and cannot be tested for or predicted on an individual basis. The EEOC has not identified a specific test or method for identifying the risk of incapacitation in an individual over the age of 60. Dr. Mohler, one of the EEOC’s experts, points to various medical advancements, particularly in the area of cardiovascular health, that he believes defeat the rationale of an age-based rule. What Dr. Mohler describes is what this Court and both sides already know. Numerous significant advances in cardiovascular and neurological testing have and continue to occur. The EEOC’s experts, while thorough in their testimony that current testing is reliable in many ways and medicine continues to rapidly advance, demonstrate or present a fact question regarding the rationale. They point to no single test or collective tests that can identify when a pilot over age 60 will experience a sudden incapacitation.
-19-

Finally, the EEOC contends that at the time Exxon terminated the pilots involved in this case, the continued validity of the FAA age 60 rule had already been called into question. The EEOC points to congressional testimony, position papers, and international surveys that the EEOC argues indicate that in 2004 and 2005 the industry opinion was shifting away from an age 60 limit. The EEOC argues that had Exxon truly examined the rationale of the rule, Exxon would have discovered that the age 60 rule lacked continuing validity. Although Congress eventually altered the age at which mandatory retirement occurs, reliance on age as a determinative factor in deciding when a pilot may no longer fly has never wavered. Congress may have been considering altering the age limit, but as Exxon points out, as late as March 2006, the FAA reaffirmed the scientific and medical basis for the age 60 rule. The rationale underlying the rule, that the risk of sudden incapacitation cannot be tested for or predicted on an individual basis, continues to be the rationale for the new age 65/60 rule. Only the age-limit bar changed; the rationale for an age-based rule continues to be valid. The EEOC has offered no evidence that presents a question of fact as to the continuing validity of the rationale underlying the age-based rule.
Given the FAA’s age 60 rule in place at the time and applied by Exxon when it terminated the pilots involved in this case, Exxon must establish congruity and continuing validity to establish its BFOQ defense. Since Exxon established congruity as previously determined by the Court, and the evidence conclusively establishes the
-20-

continuing validity of an age-based rule, Exxon has established its BFOQ defense as a matter of law.
The EEOC has presented no evidence to create a question of fact regarding the continuing validity of the rationale. Exxon is entitled to summary judgment.
3. Non-FAA Support for the BFOQ The EEOC contends that the standard for establishing a BFOQ cases involving federal regulations requires a showing of both (1) congruency and continuing validity and (2) reasonable cause for believing all persons over 60 would be unable to perform safely or it is impossible or impractical to deal with persons over 60 on an individual basis. The Court disagrees. Even if the EEOC is correct, Exxon presented sufficient evidence to establish its BFOQ as a matter of law. As stated previously, in order to establish a BFOQ, the employer must show that the age limit is reasonably necessary to the essence of the business. Additionally, the employer must demonstrate that the age limit is reasonably necessary to the particular business by establishing that it had reasonable cause to believe that all or substantially all persons over the age qualifications would be unable to perform safely and efficiently the duties of the job involved or, alternatively, that it is impossible or highly impractical to deal with the older employees on an individualized basis (i.e. the trait cannot be ascertained except by age). The evidence from both sides before the Court establishes that the aging process impacts functions and health critical to a
-21-

pilot’s performance. Any sudden incapacitation can jeopardize aviation safety. The age-based job qualification imposed by Exxon is reasonably necessary to the safety of Exxon’s airplane passengers. Moreover, the evidence detailed previously in this opinion establishes conclusively that testing for the risk of sudden incapacitation on an individual basis is both impossible and impractical. The EEOC has presented no evidence to the contrary. Exxon is entitled to summary judgment on its BFOQ defense even without the support of the FAA regulation.
C. Conclusion The bottom line in this case is that conclusive evidence has been presented by Exxon that risk of sudden incapacitation and health deterioration increases with age. The EEOC does not contest this fact. Beyond this, Exxon has provided expert testimony that establishes no test can predict whether that risk will become a reality. Whether the risk is rare is not the point. Whether the medical field has advanced significantly in the last few years is not enough to raise a fact issue about the BFOQ in this case. Sudden incapacitation is a risk that jeopardizes the safety of Exxon’s passengers. Because Exxon cannot test for this risk on an individual basis, they have established a BFOQ as a matter of law. The EEOC has failed to raise a genuine issue of material fact with respect to Exxon’s BFOQ defense, and the Court concludes that summary judgment is appropriate. Defendant Exxon Mobil Corporation’s Second Motion for Summary
-22-

Judgment (Doc. No. 94) is GRANTED. Judgment will be entered by separate document. Fed. R. Civ. P. 58(a). IV. Remaining Motions
After review of the briefing, evidence, and applicable law related to EEOC’s Motion for Partial Summary Judgment or in the Alternative Motion to Strike Affirmative Defenses and Brief in Support Thereof (Doc. No. 93), the motion is DENIED. Because the Court has granted Exxon’s motion for summary judgment, Exxon Mobil Corporation’s Motion to Open and Close at Trial and Brief in Support (Doc. No. 107), the Agreed Motion to Extend Deadline for Designation of Deposition Testimony (Doc. No. 108), and the Joint Motion Requesting Pre-Trial Conference (Doc. No. 114) are all DENIED as moot. V. Conclusion
Defendant’s Motion to Strike Plaintiff’s Expert Witnesses Robert “Hoot” Gibson, Joseph Eichelkraut, and Gaetan Anthony Passannante (Doc. No. 91), Plaintiff’s Motion to Strike Defendant’s Expert Dr. P. Richard Jeanneret and Brief in Support Thereof (Doc. No. 92), and Plaintiff’s Motion to Strike Defendant’s Expert Jorge Romero and Brief in Support Thereof (Doc. No. 95) are DENIED.
Defendant Exxon Mobil Corporation’s Second Motion for Summary Judgment (Doc. No. 94) is GRANTED. Judgment will be entered by separate document. Fed. R. Civ. P. 58(a).
-23-

EEOC’s Motion for Partial Summary Judgment or in the Alternative Motion to Strike Affirmative Defenses and Brief in Support Thereof (Doc. No. 93) is DENIED.
Exxon Mobil Corporation’s Motion to Open and Close at Trial and Brief in Support (Doc. No. 107), the Agreed Motion to Extend Deadline for Designation of Deposition Testimony (Doc. No. 108), and the Joint Motion Requesting Pre-Trial Conference (Doc. No. 114) are DENIED as moot.
SO ORDERED. Signed December 19th, 2012.
_____________________________________ ED KINKEADE UNITED STATES DISTRICT JUDGE
-24-

 
 Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 1 of 13 PageID 6808

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10164

United States Court of Appeals Fifth Circuit
FILED
March 25, 2014

Lyle W. Cayce

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Clerk

~~-------------

TExAs U.S. DJSTRlCT COURT
Plaintiff-App llanr,oRTHERN ¥ir~~T oF

v.

EXXON MOBIL CORPORATION,

IV ·. 2 9 2014

Appeal from the United States District Court for the Northern District of Texas U.S.D.C. No. 3:06-CV-1732
Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit Judges. PER CURIAM:*
Plaintiff-Appellant the Equal Employment Opportunity Commission ("EEOC") appeals the district court's summary judgment in favor of Defendant-Appellee Exxon Mobil Inc. ("Exxon"). The EEOC challenged Exxon's mandatory retirement policy requiring its corporate pilots to retire at age sixty as a violation of the Age Discrimination in Employment Act
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 2 of 13 PageID 6809
No. 13-10164 ("ADEA"). In response, Exxon asserted an affirmative defense-that the requirement was a bona fide occupational qualification ("BFOQ"), relying on a comparable rule utilized by the Federal Aviation Administration ("FAA") for commercial pilots. The district court granted summary judgment to Exxon based on this defense. The EEOC appealed, and a panel of this court reversed and remanded the case for additional discovery and a decision addressing the full BFOQ analysis. See EEOC v. Exxon Mobil Corp. (Exxon I), 344 F. A'ppx 868 (5th Cir. 2009) (unpublished). On remand, the district court allowed additional discovery but again granted summary judgment to Exxon. The EEOC now appeals this judgment. We affirm the district court for the following reasons.
I. BACKGROUND Enacted in 1967, part of the ADEA's purpose is "to promote employment of older persons based on their ability rather than age [and] to prohibit arbitrary age discrimination in employment ...." 29 U.S.C. § 621(b). Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). This proscription presently applies to all persons at least forty years old. 29 U.S.C. § 631(a). However, Congress recognized that classifications based on age "may sometimes serve as a necessary proxy for neutral employment qualifications essential to the employer's business." W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 411 (1985). The ADEA provides that such a classification is lawful "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business ...." 29 U.S.C. § 623(f)(1). The BFOQ defense has only "limited scope and application" and "must be construed
2

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 3 of 13 PageID 6810
No. I3-IOI64 narrowly." Criswell, 472 U.S. at 4I2 (internal quotation marks omitted) (quoting 29 C.F.R. § 860.I02(b)(I984)).
To establish a BFOQ, an employer must demonstrate: (I) that the classification is "reasonably necessary to the normal operation of the particular business;" and (2) that "the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry." Criswell, 472 U.S. at 4I3-I4 (internal quotation marks and citation omitted) (emphasis in original). There are two ways to establish the second prong of this test: (I) the employer had reasonable cause to believe that substantially all persons over the particular age would be unable to perform the job safely and efficiently, or (2) it is "impossible or highly impracticable to deal with the older employees on an individualized basis." Id. at 4I4. (internal quotation marks and citation omitted).
A federal regulation is "relevant evidence" in a BFOQ defense, but "it is not to be accorded conclusive weight." Id. at 4I8 (citation omitted). "The extent to which the regulation is probative of another employer's BFOQ defense depends on two elements: first, the evidence supporting the regulation's rationale justifying discrimination; and second, the congruity between the occupations at issue." Exxon I, 344 F. App'x at 869 (citing Criswell, 472 U.S. at 4I8). "The employer must prove both of these elements for the federal regulation to establish its BFOQ defense." Id. "Even in cases involving public safety, the ADEA plainly does not permit the trier of fact to give complete deference to the employer's decision." Criswell, 472 U.S. at 423.
In I959, the FAA adopted a rule prohibiting pilots from flying in any operations in Part I2I of the FAA's regulations if the pilot was over the age of 60 ("Age 60 Rule"). See FAA Age 60 Rule, 24 Fed. Reg. 9772 (Dec. 4, I959). Part I2I applies to "large commercial passenger aircraft, smaller propeller aircraft with IO or more passenger seats, and common carriage operations of
3

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 4 of 13 PageID 6811
No. 13-10164
all-cargo aircraft with a payload capacity of 7,500 pounds." Examining the
Federal Aviation Administration's Age 60 Rule: Hearing Before the Subcomm. on Aviation of the S. Comm. on Commerce, Science, and Transportation, 109th
Cong. 8 (2005) (statement of Dr. Jon L. Jordan, Federal Air Surgeon, Office of
Aerospace Medicine, FAA).
The FAA supported this Age 60 Rule because:
there is a progressive deterioration of certain important physiological and psychological functions with age, that significant medical defects attributable to this degenerative process occur at an increasing rate as age increases, and that sudden incapacity due to such medical defects becomes significantly more frequent in any group reaching age 60.
Such incapacity, due primarily to heart attacks and strokes, cannot be predicted accurately as to any specific individual on the basis of presently available scientific tests and criteria.... Other factors, even less susceptible to precise measurement as to their effect but which must be considered in connection with safety in flight, result simply from aging alone and are, with some variations, applicable to all individuals. These relate to loss of ability to perform highly skilled tasks rapidly, to resist fatigue, to maintain physical stamina, to perform effectively in a complex and stressful environment, to apply experience, judgment and reasoning rapidly in new, changing and emergency situations, and to learn new techniques, skills and procedures. FAA Age 60 Rule, 24 Fed. Reg. 9772 (Dec. 4, 1959).
Given these concerns, the FAA concluded that the "possible hazards
... are entirely too serious to determine the question of safety by an attempt
to balance the increased chances of an incapacitating attack against the
possibility that the pilot might not be engaged in the carriage of a large number of passengers at the time of such an attack." Id. The FAA expressed hope that one day the rule might be unnecessary. Id. However, for the time being, the
FAA concluded that safety could not be compromised. Id.
4

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 5 of 13 PageID 6812
No. 13-10164 The Age 60 Rule applied to Part 121 operations only. See 14 C.F.R. § 121.383. The FAA expanded the application of the Age 60 Rule to include commuter pilot operations1 formerly in Part 135 when it moved these operations to Part 121. See Yetman, 261 F.3d at 669 n.3. However, the FAA continues to regulate corporate pilots in a separate part, Part 91. 14 C.F.R. § 91.501(b). Pilots regulated under Part 91 are not and have never been subject to the Age 60 Rule. Despite frequent reconsideration and review, the Age 60 Rule remained intact until2007. In 2007, in the middle of this litigation, Congress passed the Fair Treatment for Experienced Pilots Act ("FTEPA"), repealing the FAA's Age 60 Rule and generally permitting pilots to fly until age 65. 49 U.S.C. § 44729. The FTEPA applies only to those operations under Part 121 and was only
prospective in application. Id. § 44729(b), (e)(1). The FAA subsequently reflected this change in its regulations. 14 C.F.R. § 121.383(d)(1).
II. FACTS AND PROCEEDINGS In 2006, the EEOC brought this suit on behalf of Exxon pilots after two of Exxon's pilots had filed charges with the EEOC alleging that their forced retirements violated the ADEA. Exxon employs pilots to fly a fleet of its corporate jets. At the commencement of this suit, Exxon maintained a corporate policy that prohibited its pilots from flying corporate aircrafts after they reached the age of sixty and forced such pilots to retire. This rule emulated the FAA's Age 60 Rule. Exxon responded to this complaint by raising an affirmative defense that the mandatory retirement requirement based on age is a BFOQ. See 29 U.S.C. § 623(£)(1). Exxon relied on the FAA's Age 60
1 Commuter pilot operations are those that have 30 seats or less and 7,500 pounds or less payload capacity. See Yetman v. Garvey, 261 F.3d 664, 669 n.3 (7th Cir. 2001).
5

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 6 of 13 PageID 6813
No. 13-10164 Rule2 to establish this defense. See Exxon I, 344 F. App'x at 870. The underlying facts of this case are presented in greater detail in our Exxon I decision. See id. at 869-71.
Exxon filed for summary judgment based on its affirmative BFOQ defense, which the district court granted. The EEOC appealed and a panel of this court reversed. Exxon I, 344 F. App'x at 872. The panel held that the district court erred when it limited discovery and summary judgment pleadings to the issue of congruency between the two occupations. Id. This effectively assumed the continuing validity of the safety rationale behind the rule-a necessary element to establish a BFOQ defense. Id. Because the district court ruled in Exxon's favor on an issue not before the court the panel vacated the judgment and remanded the case. Id. at 872 (holding that the district court's decision "justifying the FAA's regulation was beyond the scope of its scheduling order; and insofar as the court's decision depended on this assumption, it amounted to a sua sponte grant of summary judgment on an issue and on grounds about which it did not give the EEOC proper notice" (citations omitted)). However, the panel did not address the validity of the district court's conclusions on the congruency between the two occupations and expressly permitted the district court to decide whether to reopen the issue of congruency. Id. at 872, n.5.
On remand, the district court permitted additional discovery regarding the continuing validity of the FAA's safety rationale behind its mandatory retirement policy. However, the district court limited discovery on the issue of
2 When Congress passed the FTEPA, Exxon changed its policy to mirror this law, requiring its pilots to retire at the age of 65 and not 60. We agree with the district court that the passage of the FTEPA does not significantly alter our analysis. The parties make the same arguments and the question is whether as a matter of law Exxon has established that the requirement is a BFOQ for its pilots. For this reason, we will continue to refer to the rule as the FAA's Age 60 Rule.
6

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 7 of 13 PageID 6814
No. 13-10164 congruency to evidence related to the change in the FAA's policy permitting commercial pilots to fly until age sixty-five. The district court denied the EEOC's motion to reopen discovery on this issue. The EEOC moved for partial summary judgment and Exxon moved for summary judgment. The district court granted summary judgment for a second time in favor of Exxon.
In its decision, the district court maintained its original opinion that the two occupations were congruent. It incorporated the analysis on this issue from its original opinion after concluding that neither party had presented arguments sufficient to alter it. The district court then held that Exxon had presented persuasive evidence that there was no genuine issue of material fact regarding the continuing validity of the safety rationale supporting the rule. Further, the EEOC failed to present any evidence that would create a genuine issue of material fact. Specifically, the EEOC failed to identify a specific test or method for identifying the risk of sudden incapacitation in an individual over the age of sixty or sixty-five. The district court concluded that age was still a determinative factor in deciding when a pilot may no longer fly. The EEOC timely appealed.
III. DISCUSSION The EEOC challenges three aspects of the district court's summary judgment: (1) the weighing of the conflicting evidence on the issue of congruence; (2) the consideration of the FAA's regulation, safety objectives, and rationale; and (3) the weighing of the conflicting evidence on the issue of the continuing validity of the FAA's safety rationale. We address each and affirm the district court in all respects.
A. We review a district court's summary judgment de novo, applying the same standards as the district court. Ballard v. Devon Energy Prod. Co., 678 F.3d 360, 365 (5th Cir. 2012). "Summary judgment should be granted if 'there
7

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 8 of 13 PageID 6815
No. 13-10164 is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."' Id. (quoting Fed. R. Civ. P. 56(c)). When the evidence is such that a reasonable jury could return a verdict for the nonmovant there is a genuine issue of material fact. Id. "All facts and evidence must be taken in the light most favorable to the non-movant." Id. (internal quotation marks omitted). However, in order to avoid summary judgment, "the non-movant must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial." Id.
B.
The EEOC argues that genuine issues of material fact remain precluding summary judgment based on the incongruity between the two occupations at issue. The EEOC asserts that the record refutes Exxon's contentions that because its pilots fly in the same airspace, with the same air traffic sectors, under identical weather conditions, and in the same congested domestic international airports the occupations are congruent. Specifically, the EEOC states that the piloting duties, planes, and operations of an Exxon pilot are materially different from that of a commercial pilot. In response, Exxon argues that these distinctions are not material. More importantly, according to Exxon, the EEOC improperly narrows the issue by ignoring the fact that pilots covered by Part 121 are not solely commercial pilots. Part 121 also includes those flying cargo planes and smaller commuter planes. Exxon states that its pilots must be compared to the wide range of piloting covered by Part 121, not solely large commercial aircrafts.
We agree with Exxon that the occupations are substantially similar and congruent. Exxon has put forth significant evidence demonstrating that its pilots fly similar planes, in similar conditions, and in the same airspace and airports as commercial pilots. Additionally, aspects of Exxon's piloting are more onerous than Part 121 piloting. Exxon's pilots must obtain some of their
8

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 9 of 13 PageID 6816
No. 13-10164 own pre-flight information, fly with little advance warning, allow passengers to change itineraries mid-flight, and occasionally fly into and out of unfamiliar remote airports. Although Exxon's pilots may face different regulations, certifications, and testing, the essence of their occupation-piloting Exxon's corporate aircraft-is congruent to the essence of commercial piloting and other piloting covered by Part 121.
The EEOC has failed to address the fact that Part 121 covers a wide range of operations and to distinguish Exxon's operations. Instead, the EEOC's evidence compares only commercial piloting to Exxon piloting or corporate piloting generally. When compared to commercial pilots, the EEOC is correct that corporate pilots may fly fewer hours, operate on a varying schedule, and only fly in certain weather conditions. However, these distinctions are distinctions without difference. Exxon's operations function in much the same manner as commercial, commuter, or cargo operations, all types ofpiloting covered by Part 121. Thus, the EEOC has not shown a genuine dispute of material fact that the occupations lack congruence. We agree with the district court that the two occupations are highly congruent for purposes of establishing a BFOQ defense.3 Pilots with a low risk of sudden incapacitation and subtle deterioration are reasonably necessary to Exxon's piloting.
3 The EEOC relies on a Ninth Circuit case, EEOC u. Boeing Co., 843 F.2d 1213 (9th Cir. 1988); however, the reasoning in Boeing is inapplicable. In Boeing, the Ninth Circuit found certain differences between a company's corporate pilots and commercial pilots, especially the fact that the corporate pilots did not fly passengers, significant in assessing the congruity of the occupations. Id. at 1220-21. However, in the years following Boeing, the FAA expanded Part 121 to include commuter pilots who fly fewer than thirty passengers. See Yetman, 261 F.3d at 669 n.3. Part 121 also includes cargo only pilots. See Coupe u. Fed. Exp. Corp., 121 F.3d 1022, 1023-24 (6th Cir. 1997). Given these facts, we cannot agree with the EEOC that because Exxon generally flies fewer passengers its operations are not congruent to those of pilots in Part 121.
9

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 10 of 13 PageID 6817
No. 13-10164
c.
Next, the EEOC argues that the district court improperly considered the FAA's regulations, safety objectives, and the Age 60 Rule. Specifically, it urges that the district court failed to evaluate the inapplicability of the evidence supporting the FAA's rule to Exxon's operations and improperly focused on the generalities of the occupations at issue. The EEOC relies on statements made by the FAA in connection with this litigation and in other contexts to support this argument.4
The EEOC's argument is unavailing. As discussed above, we have determined that the occupations are substantially similar and congruent. Although the FAA has not applied the Age 60 Rule to corporate pilots, that alone is insufficient to demonstrate a genuine issue of material fact concerning the applicability of the FAA's safety rationale. To imply such an automatic conclusion ignores the relevancy of federal regulations or statutes in a private employer's ability to establish a BFOQ. The FAA has not expressed any opinion on a private employer's decision to apply the rule to operations outside of Part 121. Nor would its opinion necessarily be decisive on a private employer's ability to establish a BFOQ.5
Despite the EEOC's assertions, this case is not similar to Criswell. In Criswell, the Court noted that there was evidence demonstrating that the FAA, the defendant airline, and other airlines recognized less rigorous qualifications for similar positions. See Criswell, 472 U.S. at 418. Here, the FAA recognizes the same exact qualifications for pilots in positions that we have concluded are
4 Specifically, the EEOC relies on a letter between its counsel and the FAA's counsel as well as a brief submitted to the district court by the FAA. Both of these documents were submitted to the district court in order to ascertain whether the FAA was a necessary party of this litigation, which the FAA adamantly stated it was not.
5 As recognized by the FAA, any BFOQ determinations made by the agency would be . beyond the scope of its statutory authority.
10

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 11 of 13 PageID 6818
No. 13-10164 substantially similar and congruent. The EEOC has not presented evidence explaining the FAA's rationale for declining to apply the rule to pilots regulated by Part 91like Exxon's nor has the EEOC adequately explained why the FAA's safety rationale would be inapplicable to Exxon's pilots when the occupations are congruent.6
The EEOC alleges that the type and size of the commercial planes, as well as their passenger capacity, factored strongly into the FAA's safety rationale behind the rule. Therefore, the differences between Exxon's operations and commercial operations matter in determining the applicable safety rationale. However, the EEOC fails to support its argument that these were "strong factors" in the FAA's decision. Again, as Exxon has sufficiently demonstrated, Part 121 operations also include piloting operations that carry only cargo or as few as ten passengers. The fact that the FAA utilized and continues to utilize the same safety rationale to apply its rule to include these type of operations undercuts the EEOC's assertions. Without any evidence to support its position, the EEOC has not established that the district court's analysis was in error, and we agree with the district court's application of the FAA's regulations, safety objectives, and the Age 60 Rule.
D.
Finally, the EEOC argues that Exxon has not proven that it was compelled to establish and keep the mandatory retirement rule. The EEOC asserts that age is not an adequate predictor of fitness and that individualized testing is not impractical nor impossible. Therefore, the safety rationale
6 Part 91 covers a wide array of piloting operations from the solo pilots to corporate pilots. The FAA may have chosen not to apply the rule for a variety of reasons. That decision does not preclude the application of the FAA's safety rationale-avoiding the increasing risk of sudden pilot incapacitation-as support for Exxon's rule when Exxon has demonstrated that the occupations are congruent and that the FAA's safety rationale should apply with equal force to its pilots.
11

Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 12 of 13 PageID 6819
No. 13-10164 behind the rule is insufficient to support it. Alternatively, the EEOC argues that there is a genuine issue of material fact regarding the individualized testing. The district court, according to the EEOC, improperly weighed the evidence and made credibility determinations on this issue. We address each argument in turn, but we ultimately conclude that the EEOC's arguments are unavailing.
Exxon has established that it was compelled to adopt the rule because there are no adequate means of individually testing each pilot. Exxon presented the testimony of several medical professionals-including a cardiologist and neurologist-and the reports of multiple organizations on the issue. Each affirmed the notion that there are no adequate medical tests that would help Exxon predict whether a pilot was at risk for suffering sudden and subtle incapacitation while in flight. Further, the evidence confirmed that the risk for this incapacitation increased significantly with age and no individualized testing could account for this increased risk.
The EEOC offered expert testimony and evidence of its own but fails to raise a genuine issue of material fact. The EEOC has not demonstrated that there is a specific means of individualized testing that would account for every risk of sudden incapacitation, a risk which Exxon has shown increases with age. Instead, the EEOC argues that the current method of testing pilots is the best method of assessing risk, accidents involving in-flight incapacitations are exceedingly rare and affect pilots of all ages, and other countries and companies permit pilots to fly over age sixty without incident. However, these arguments fail to challenge the underlying safety rationale of the rule or its continuing validity-namely, that the risk of sudden incapacitation increases with age and this cannot be accurately tested or predicted on an individualized basis. As Exxon has demonstrated, even with the current testing there remains a risk that cannot be accounted for or detected. Because the EEOC
12

' .
Case 3:06-cv-01732-K Document 135 Filed 05/29/14 Page 13 of 13 PageID 6820
No. 13-10164 has not offered record evidence identifying a means of testing that would predict or test for this risk on an individualized basis, Exxon is entitled to summary judgment.
IV. CONCLUSION For the aforementioned reasons, we conclude that Exxon has established that its mandatory age retirement rule is a BFOQ and the EEOC has not demonstrated a genuine issue of material fact; therefore, we AFFIRM the district court.
13

 
 Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 1 of 14
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:06−cv−01732−K

CLOSED,JURY

Equal Employment Opportunity Commission v. Exxon Mobil Corporation Assigned to: Judge Ed Kinkeade Case in other court: 08−10624
13−10164 Cause: 29:626 Job Discrimination (Age)
Plaintiff

Date Filed: 09/22/2006 Date Terminated: 09/13/2012 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Employment Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Robert A Canino , Jr Equal Employment Opportunity Commission Dallas District Office 207 S Houston St 3rd Floor Dallas, TX 75202 214/253−2750 Fax: 214/253−2749 Email: robert.canino@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Joel Philip Clark EEOC 207 S Houston St 3rd Floor Dallas, TX 75202 214/253−2743 Fax: 214/253−2749 Email: joel.clark@eeoc.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Meaghan Leigh Shepard EEOC − Dallas District Office 207 S Houston St 3rd Floor Dallas, TX 75202−4726 214/253−2746 Fax: 214/253−2749 Email: meaghan.shepard@eeoc.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Paula Bruner Equal Employment Opportunity Commission 1801 L Street NW Room 7044 Washington, DC 20507 202/663−4731 Fax: 202/663−7090 Bar Status: Not Admitted

Suzanne M Anderson Equal Employment Opportunity Commission Dallas District Office 207 S Houston

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 2 of 14
3rd Floor Dallas, TX 75202 214/253−2740 Fax: 214/253−2749 FAX Email: suzanne.anderson@eeoc.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
William C Backhaus Equal Employment Opportunity Commission 207 S Houston 3rd Floor Dallas, TX 75202 214/253−2742 Fax: 214/253−2749 FAX Email: william.backhaus@eeoc.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V. Defendant Exxon Mobil Corporation

represented by Dan Hartsfield Jackson Lewis PC 500 North Akard, Suite 2500 Dallas, TX 75201 214/520−2400 Fax: 214/520−2008 Email: dan.hartsfield@jacksonlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Christopher J Norfleet Baker Botts LLP 2001 Ross Ave Suite 1100 Dallas, TX 75201 214/953−6778 Fax: 214/661−4778 Email: christopher.norfleet@bakerbotts.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
David M Rivet Exxon Mobil Corp 800 Bell Street Suite 1583 PO Box 2180 Houston, TX 77252−2180 713/656−3636 Fax: 281/656−2254 FAX Bar Status: Admitted/In Good Standing
Dennis Paul Duffy Baker Hostetler LLP 811 Main Street Suite 1100 Houston, TX 77002 713.751.1600 Fax: 713.751.1717 Email: dpduffy@bakerlaw.com ATTORNEY TO BE NOTICED

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 3 of 14

Bar Status: Admitted/In Good Standing

JoAnn Lee Exxon Mobil Corp PO Box 2180 Corp−Emb−1806P Houston, TX 77252−2180 713/656−9255 Email: joann.lee@exxonmobil.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Karen E Griffin Jackson Lewis LLP 500 N. Akard, Suite 2500 Dallas, TX 75201 214/520−2400 Fax: 214/520−2008 Email: griffink@jacksonlewis.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Rod Phelan Baker Botts LLP 2001 Ross Avenue, Suite 600 Dallas, TX 75201−2980 214/953−6609 Fax: 214/661−4609 Email: rod.phelan@bakerbotts.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Thomas E O'Brien Baker Botts LLP 2001 Ross Ave Suite 600 Dallas, TX 75201−2980 214/953−6934 Fax: 214/661−4934 Email: tom.obrien@bakerbotts.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Tony P Rosenstein Baker Botts One Shell Plaza 910 Louisiana St Suite 3000 Houston, TX 77002 713/229−1390 Email: tony.rosenstein@bakerbotts.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Interested Party Federal Aviation Administration

represented by John R Parker−DOJ US Attorney's Office 1100 Commerce St 3rd Floor Dallas, TX 75242−1699 214/659−8728 Fax: 214/767−2916 Email: john.parker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 4 of 14 Bar Status: Admitted/In Good Standing

Date Filed 09/22/2006 09/22/2006 09/22/2006 09/22/2006 09/22/2006 09/22/2006 09/22/2006 09/22/2006 09/26/2006
09/27/2006 09/27/2006
09/27/2006 09/29/2006 10/05/2006
10/10/2006
10/11/2006 10/11/2006

# Docket Text
1 COMPLAINT against Exxon Mobil Corporation filed by Equal Employment Opportunity Commission. (nap, ) (Entered: 09/22/2006)
DEMAND for Trial by Jury by Equal Employment Opportunity Commission. (Filed within complaint)(nap, ) (Entered: 09/22/2006)
***Magistrate Judge Stickney chosen by random selection to handle matters that may be referred in this case. (nap, ) (Entered: 09/22/2006)
2 MOTION/Application for Temporary Restraining Order, MOTION for Preliminary Injunction by Equal Employment Opportunity Commission (nap, ) (Entered: 09/22/2006)
3 Brief/Memorandum in Support filed by Equal Employment Opportunity Commission re 2 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction (nap, ) (Entered: 09/22/2006)
4 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Equal Employment Opportunity Commission. (nap, ) (Entered: 09/22/2006)
5 Summons Issued as to Exxon Mobil Corporation. (nap, ) (Entered: 09/22/2006)
6 Order Designating Case for ECF − see order for specifics. (Signed by Judge Ed Kinkeade on 9/22/06) (nap, ) (Entered: 09/22/2006)
Minute Entry for proceedings held before Judge Ed Kinkeade: Telephone Conference. Order to be forthcoming setting preliminary injunction hearing. Attorney Appearances: Plaintiff − Suzanne Anderson and William Backhaus; Defense − Herbert O'Niell. (Court Reporter Not Present.) Time in Court: 20 Minutes. (NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY). (rrj, ) (Entered: 09/26/2006)
7 NOTICE of Attorney Appearance by Dan Hartsfield on behalf of Exxon Mobil Corporation (Hartsfield, Dan) (Entered: 09/27/2006)
8 ORDER denying as moot. 2 Motion for TRO. The Court,therefore, ORDERS the parties to appear before this Court on Monday, October 16, 2006 at 10:00 a.m. to conduct a hearing to consider Plaintiff's Application for Preliminary Injuction. See order for specifics. (Signed by Judge Ed Kinkeade on 9/27/06) (jrb, ) Modified on 9/28/2006 (jrb, ). (Entered: 09/27/2006)
Set/Reset Deadlines as to 2 Motion for Injunction. Motion Hearing set for 10/16/2006 10:00 AM before Judge Ed Kinkeade. (jrb, ) (Entered: 09/27/2006)
9 Agreed MOTION to Amend/Correct Modify Order by Exxon Mobil Corporation (Hartsfield, Dan) (Entered: 09/29/2006)
10 ORDER granting 9 Agreed Motion to Modify Order. Defendant Exxon Mobil Corporation shall file its responsive documents on Wed., 10/11/06 by 12:00 p.m. Plaintiff EEOC shall file its brief on Friday 10/13/06 by 5:00 p.m. The Preliminary Injunction Hearing remains set for Monday, 10/16/06 at 10:00 a.m. (Signed by Judge Ed Kinkeade on 10/5/2006) (kdc, ) (Entered: 10/06/2006)
11 Supplemental Document by Equal Employment Opportunity Commission as to 2 MOTION for Temporary Restraining Order MOTION for Injunction Supplemental Affidavit of Morschauser. (Attachments: # 1 Exhibit Att. A −− Email Request# 2 Exhibit Atta. B −− Affidavit)(Anderson, Suzanne) (Entered: 10/10/2006)
12 Memorandum of Law in Opposition filed by Exxon Mobil Corporation re 2 Application for Preliminary Injunction. (Hartsfield, Dan) Modified on 10/11/2006 (jrb, ). (Entered: 10/11/2006)
13 Notice of Manual Filing of Appendix by Exxon Mobil Corporation re 12 Memorandum of Law in Opposition to Plaintiff's Application for Preliminary Injunction. (Hartsfield, Dan) Modified on 10/11/2006 (jrb, ). (Entered: 10/11/2006)

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 5 of 14

10/11/2006 10/13/2006 10/13/2006 10/13/2006
10/16/2006 12/18/2006 12/22/2006 01/31/2007 01/31/2007 01/31/2007 02/02/2007 02/12/2007 02/26/2007
03/01/2007

14 Appendix in Support filed by Exxon Mobil Corporation re 12 Brief/Memorandum in Support of Motion (not imaged due to size−see records dept) (jrb, ) (Entered: 10/12/2006)
15 MOTION for Leave to File Affidavits and Exhibits in Support of EEOC's Application for Preliminary Injunction by Equal Employment Opportunity Commission with Brief in Support. (Attachments: # 1 Exhibit Attachment 1# 2 Exhibit Attachment 2# 3 Exhibit Attachment 3# 4 Exhibit Attachment 4# 5 Exhibit Attachment 5# 6 Exhibit Attachment 6)(Anderson, Suzanne) (Entered: 10/13/2006)
16 REPLY filed by Equal Employment Opportunity Commission re 2 MOTION for Temporary Restraining Order MOTION for Injunction (Attachments: # 1 Exhibit EEOC v. Lockheed, 1991 WL 101185 (C.D.Cal. 1991))(Anderson, Suzanne) (Entered: 10/13/2006)
17 OBJECTION filed by Exxon Mobil Corporation re 15 MOTION for Leave to File Affidavits and Exhibits in Support of EEOC's Application for Preliminary Injunction (Attachments: # 1 Exhibit E−mails Re: EEOC v. Exxon: Morschauser# 2 Exhibit E−mails Re: Morschauser & Regal Aviation# 3 Exhibit E−mails Re: EEOC v. Exxon Mobil# 4 Exhibit E−mails Re: Motion for Leave to Present Witness Testimony# 5 Exhibit E−mail Discussion Re: Motion for Leave to Present Witness Testimony)(Hartsfield, Dan) (Entered: 10/13/2006)
Minute Entry for proceedings held before Judge Ed Kinkeade : Motion Hearing held on 10/16/06 re 2 Motion for TRO, Motion for Injunction filed by Equal Employment Opportunity Commission. The Court takes the Matter under advisement. (Court Reporter Randy Wilson.) Time in Court: 1 Hour 45 Minutes. (NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY). (rrj, ) (Entered: 10/16/2006)
Minute Entry for proceedings held before Judge Ed Kinkeade : Telephone Conference held. (Court Reporter Not Present.) Time in Court: 30 Minutes. (NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY). (rrj, ) (Entered: 12/18/2006)
18 ORDER: The parties agreed to file a joint report as to the status of settlement negotiations on or before 1/31/2007. See order for specifics. (Signed by Judge Ed Kinkeade on December 22, 2006) (jyg, ) (Entered: 12/27/2006)
19 STATUS REPORT by Equal Employment Opportunity Commission, Exxon Mobil Corporation. (Hartsfield, Dan) (Entered: 01/31/2007)
20 MOTION to Extend Time by Equal Employment Opportunity Commission with Brief in Support thereof. (Attachments: # 1 Exhibit FAA Administrator Blakey's Speech) (Anderson, Suzanne) (Entered: 01/31/2007)
21 OBJECTION filed by Equal Employment Opportunity Commission re 19 Status Report (Anderson, Suzanne) (Entered: 01/31/2007)
22 OBJECTION filed by Exxon Mobil Corporation re 21 Objection, 20 MOTION to Extend Time (Attachments: # 1 Exhibit January 31, 2007 Letter to Plaintiff# 2 Exhibit EEOC 's portion of Joint Status Report# 3 Exhibit Report on the Status of Settlement E−mail to plaintiff) (Hartsfield, Dan) (Entered: 02/02/2007)
23 ORDER: Status Conference set for 3/1/2007 10:00 AM before Judge Ed Kinkeade. (Signed by Judge Ed Kinkeade on 2/9/07) (jrb) (Entered: 02/12/2007)
24 Supplemental Brief and Amended Request for Preliminary Relief by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Supplement Brief and Amended Request for Preliminary Relief# 2 Exhibit Supplemental Brief and Amended Request for Relief# 3 Exhibit Supplemental Brief and Amended Request for Preliminary Relief# 4 Exhibit Supplemental Brief and Amended Request for Preliminary Relief# 5 Exhibit Supplemental Brief and Amended Request for Preliminary Relief# 6 Exhibit Supplemental Brief and Amended Request for Preliminary Relief) (Anderson, Suzanne) Modified on 2/26/2007 (jb). (this will not be considered as a separate mtn−per CRD) (Entered: 02/26/2007)
Minute Entry for proceedings held before Judge Ed Kinkeade : Conference held with counsel on 3/1/07. (Court Reporter Not Present − nothing put on the record.) Time in

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 6 of 14

05/18/2007
05/30/2007
05/30/2007 06/13/2007 07/09/2007 08/03/2007 08/07/2007 08/31/2007 08/31/2007 08/31/2007
11/19/2007 12/02/2007 12/28/2007 12/28/2007 12/28/2007

Court: 1 Hour 45 Minutes. (NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY). (rrj) (Entered: 03/02/2007)
25 Supplemental Document by Equal Employment Opportunity Commission as to 2 MOTION for Temporary Restraining Order MOTION for Injunction Supplement to Petition for Preliminary Injunction. (Attachments: # 1 Affidavit Attachment A# 2 Affidavit Attachment B# 3 Affidavit Attachment C) (Anderson, Suzanne) (Entered: 05/18/2007)
26 Memorandum Opinion and Order granting 15 Motion for Leave to File, filed by Equal Employment Opportunity Commission, denying 2 Motion for Injunction filed by Equal Employment Opportunity Commission, denying 20 Motion To Extend Time filed by Equal Employment Opportunity Commission. See order for specifics. (Signed by Judge Ed Kinkeade on 5/29/07) (jrb) (Entered: 05/30/2007)
27 ORDER REQUIRING SCHEDULING CONFERENCE AND REPORT FOR CONTENTS OF SCHEDULING ORDER. The Joint Report shall be filed no later than 21 days from the date of the scheduling conference. See order for specifics. (Signed by Judge Ed Kinkeade on 5/30/07) (jrb) (Entered: 05/30/2007)
28 Original ANSWER to Complaint by Exxon Mobil Corporation (Hartsfield, Dan) (Entered: 06/13/2007)
29 Joint Regarding Contents of Scheduling Order by Equal Employment Opportunity Commission, Exxon Mobil Corporation. (Attachments: # 1 Exhibit List of Subjects on Which the EEOC Asserts Discovery is Necessary) (Hartsfield, Dan) Modified on 7/10/2007 (svc). (Entered: 07/09/2007)
Minute Entry for proceedings held before Judge Ed Kinkeade : Telephone Conference. Scheduling order to follow. (Court Reporter Not Present.) Time in Court: 30 Minutes. (NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY). (rrj) (Entered: 08/06/2007)
30 PRELIMINARY SCHEDULING ORDER: Discovery due by 1/1/2008. Dispositive Motions due by 9/4/2007. Responses due by 1/1/2008. Replies due by 1/16/2008. (Signed by Judge Ed Kinkeade on 08/07/2007) (axm) (Entered: 08/07/2007)
31 MOTION for Summary Judgment by Exxon Mobil Corporation (Hartsfield, Dan) (Entered: 08/31/2007)
32 Brief/Memorandum in Support filed by Exxon Mobil Corporation re 31 MOTION for Summary Judgment (Hartsfield, Dan) (Entered: 08/31/2007)
33 Appendix in Support filed by Exxon Mobil Corporation re 32 Brief/Memorandum in Support of Motion, 31 MOTION for Summary Judgment (Attachments: # 1 Exhibit Tab 1# 2 Exhibit Tab 2# 3 Exhibit Tab 3# 4 Exhibit Tab 4# 5 Exhibit Tab 5# 6 Exhibit Tab 6# 7 Exhibit Tab 7# 8 Exhibit Tab 8 (Part 1)# 9 Exhibit Tab 8 (Part 2)# 10 Exhibit Tab 9 (Part 1)# 11 Exhibit Tab 9 (Part 2)) (Hartsfield, Dan) (Entered: 08/31/2007)
34 Unopposed MOTION for Protective Order (Agreed) by Equal Employment Opportunity Commission, Exxon Mobil Corporation (Hartsfield, Dan) (Entered: 11/19/2007)
35 AGREED PROTECTIVE ORDER. (see order for specifics) (Signed by Judge Ed Kinkeade on 12/02/07) (lmp) (Entered: 12/04/2007)
36 RESPONSE in Opposition filed by Equal Employment Opportunity Commission re 31 MOTION for Summary Judgment (Anderson, Suzanne) (Entered: 12/28/2007)
37 Notice of Manual Filing of Notice of Manual Filing by Equal Employment Opportunity Commission re 36 Response in Opposition to Defendant's Motion for Summary Judgment (Anderson, Suzanne) (Entered: 12/28/2007)
38 RESPONSE Brief in Opposition to Motion for Summary Judgment filed by Equal Employment Opportunity Commission (in support of) 36 Response in Opposition to Defendant's Motion for Summary Judgment (Anderson, Suzanne) Modified on 1/17/2008 (npk) (Entered: 12/28/2007)

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 7 of 14

12/28/2007 01/16/2008 04/28/2008 05/02/2008 06/27/2008 07/03/2008 08/21/2008
09/11/2008 09/11/2008 10/10/2008 10/20/2008 09/01/2009 10/23/2009 10/23/2009 10/23/2009 10/26/2009

39 Appendix in Support filed by Equal Employment Opportunity Commission re 38 Response Brief to Defendant's Motion for Summary Judgment. (Document not imaged − 2 sided pages within this pleading.) (klm) (Entered: 01/02/2008)
40 REPLY Brief in Support filed by Exxon Mobil Corporation re 31 Motion for Summary Judgment. (Hartsfield, Dan) Modified on 1/17/2008 (npk) (Entered: 01/16/2008)
41 Memorandum Opinion and Order granting 31 Motion for Summary Judgment filed by Exxon Mobil Corporation. See order for specifics. (Signed by Judge Ed Kinkeade on 4/28/08) (jrb) (Entered: 05/01/2008)
42 FINAL JUDGMENT in favor of Exxon Mobil Corporation against Equal Employment Opportunity Commission. Plaintiff's case is DISMISSED with prejudice. The parties shall bear their own costs. (see order for specifics) (Signed by Judge Ed Kinkeade on 5/2/08) (tln) (Entered: 05/05/2008)
43 NOTICE OF APPEAL to the Fifth Circuit as to 42 Judgment, by Equal Employment Opportunity Commission. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (Anderson, Suzanne) (Entered: 06/27/2008)
USCA5 Case Number 08−10624 for 43 Notice of Appeal, filed by Equal Employment Opportunity Commission. (skt) (Entered: 07/07/2008)
44 TRANSCRIPT of Preliminary Injunction Proceedings held on 10/16/2006 before Judge Ed Kinkeade. Court Reporter/Transcriber Randy M. Wilson, Telephone number 214−766−9150. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. Redaction Request due 9/11/2008. Redacted Transcript Deadline set for 9/22/2008. Release of Transcript Restriction set for 11/19/2008. (rmw) (Entered: 08/21/2008)
Record on Appeal Certified to US Court of Appeals, 5th Circuit re 43 Notice of Appeal, − USCA5 Number: 08−10624. 3 vol. electronic record, 1 brown folder of original documents. (jmr) Modified on 10/9/2008 (jmr). (Entered: 09/11/2008)
SUPPLEMENTAL Record on Appeal Certified to US Court of Appeals, 5th Circuit re 43 Notice of Appeal, − USCA5 Number: 08−10624. 1 transcript. (jmr) (Entered: 09/11/2008)
45 NOTICE of Transfer of the Appellate Record to attorney for Equal Employment Opportunity Commission re: 43 Notice of Appeal. (jmr) (Entered: 10/10/2008)
46 NOTICE of Transfer of the Appellate Record to attorney for Exxon Mobil Corporation re: 43 Notice of Appeal. (jmr) (Entered: 10/20/2008)
Minute Entry for proceedings held before Judge Ed Kinkeade: Telephone Conference held. (Not Recorded.) Time in Court: 15 Minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (rrj) (Entered: 09/02/2009)
47 USCA5 BILL OF COSTS. (axm) (Entered: 10/26/2009)
48 Opinion of USCA (certified copy) in accordance with USCA judgment re 43 Notice of Appeal filed by Equal Employment Opportunity Commission. The judgment of the district court is VACATED. The case is REMANDED for further proceedings not inconsistent with this opinion. (axm) (Entered: 10/26/2009)
49 JUDGMENT/MANDATE of USCA as to 43 Notice of Appeal filed by Equal Employment Opportunity Commission. Case remanded to the district court for further proceedings. Issued as Mandate: 10/20/2009. (axm) (Entered: 10/26/2009)
50 ORDER REQUIRING SCHEDULING CONFERENCE AND REPORT FOR CONTENTS OF SCHEDULING ORDER: The Joint Report shall be filed no later than 10 days from the date of the scheduling conference. (see order for specifics) (Ordered by Judge Ed Kinkeade on 10/26/09) (tln) (Entered: 10/26/2009)

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 8 of 14

10/28/2009 10/30/2009 11/10/2009 01/15/2010 02/03/2010 04/26/2010 05/03/2010 05/11/2010
05/13/2010 05/17/2010 05/24/2010 06/01/2010 06/07/2010 06/07/2010 06/16/2010 06/18/2010 06/28/2010 07/12/2010 07/13/2010

51 Appeal Record Returned: One envelope of documents. (twd) (Entered: 10/29/2009)
52 Unopposed MOTION to Extend Time of Court's Order Requiring Scheduling Conference and Joint Report filed by Equal Employment Opportunity Commission (Anderson, Suzanne) (Entered: 10/30/2009)
53 ORDER granting 52 Unopposed MOTION to Extend Time of Court's Order Requiring Scheduling Conference and Joint Report. (see order) (Ordered by Judge Ed Kinkeade on 11/10/2009) (mfw) (Entered: 11/13/2009)
54 Joint STATUS REPORT SCHEDULING REPORT filed by Equal Employment Opportunity Commission, Exxon Mobil Corporation. (Anderson, Suzanne) (Entered: 01/15/2010)
55 ELECTRONIC ORDER: Proposed Joint Scheduling Order Report due by 4/26/2010. (Ordered by Judge Ed Kinkeade on 2/3/2010) (rrj) (Entered: 02/03/2010)
56 Proposal for contents of scheduling and discovery order Joint Report by Equal Employment Opportunity Commission. (Anderson, Suzanne) (Entered: 04/26/2010)
57 ORDER: The Parties are ORDERED to file a brief within ten (10) days from the date of this Order (See Order.) (Ordered by Judge Ed Kinkeade on 5/3/2010) (twd) (Entered: 05/04/2010)
58 SCHEDULING ORDER: Discovery due by 4/1/2011. Motions due by 5/1/2011. Pretrial Materials due by 10/3/2011. Amended Pleadings due by 5/31/2010. Joinder of Parties due by 5/31/2010. This case is set for JURY trial on the Court's three−week docket beginning 11/1/2011 before Judge Ed Kinkeade. (See Order.) (Ordered by Judge Ed Kinkeade on 5/11/2010) (twd) (Entered: 05/13/2010)
59 Brief/Memorandum in Support filed by Exxon Mobil Corporation re 57 Order (Duffy, Dennis) (Entered: 05/13/2010)
60 Brief/Memorandum in Support filed by Equal Employment Opportunity Commission re 57 Order (Attachments: # 1 Exhibit(s) FAA letter of Dec. 30, 2009, attachment) (Anderson, Suzanne) (Entered: 05/17/2010)
61 Brief/Memorandum in Support filed by Federal Aviation Administration re 57 Order (Parker−DOJ, John) (Entered: 05/24/2010)
62 Unopposed MOTION to Amend/Correct 1 Complaint filed by Equal Employment Opportunity Commission with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) First Amended Complaint) (Anderson, Suzanne) (Entered: 06/01/2010)
63 ORDER granting 62 Motion to Amend Complaint. It is Ordered that Plaintiff file its Amended Complaint within three (3) days of this Court's Order. (Ordered by Judge Ed Kinkeade on 6/7/2010) (axm) (Entered: 06/08/2010)
64 ORDER: The Court DENIES Plaintiff Equal Employment Opportunity Commission's request to reopen discovery regarding the congruence issue. (Ordered by Judge Ed Kinkeade on 6/7/2010) (klm) (Entered: 06/09/2010)
65 AMENDED COMPLAINT WITH JURY DEMAND against Exxon Mobil Corporation filed by Equal Employment Opportunity Commission. (Anderson, Suzanne) (Entered: 06/16/2010)
66 Defendant's ANSWER to 65 Amended Complaint filed by Exxon Mobil Corporation (Duffy, Dennis) (Entered: 06/18/2010)
67 MOTION for Discovery pursuant to Court's Order of June 7, 2010 filed by Equal Employment Opportunity Commission with Brief/Memorandum in Support. (Anderson, Suzanne) (Entered: 06/28/2010)
68 Unopposed MOTION to Extend Time TO FILE DESIGNATION OF MEDIATOR filed by Equal Employment Opportunity Commission with Brief/Memorandum in Support. (Anderson, Suzanne) (Entered: 07/12/2010)
69 ELECTRONIC ORDER granting 68 Motion to Extend Time to file Designation of Mediator. The Parties Designation of Mediator is due on or before August 6, 2010. (Ordered by Judge Ed Kinkeade on 7/13/2010) (chmb) (Entered: 07/13/2010)

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 9 of 14

07/15/2010 08/04/2010 08/16/2010 08/30/2010 08/30/2010 08/31/2010 09/17/2010
09/20/2010 10/29/2010 11/10/2010
11/11/2010
12/01/2010 12/01/2010
12/03/2010 12/07/2010 12/15/2010

70 RESPONSE filed by Exxon Mobil Corporation re: 67 MOTION for Discovery pursuant to Court's Order of June 7, 2010 (Duffy, Dennis) (Entered: 07/15/2010)
71 Designation of Mediator by Equal Employment Opportunity Commission, Exxon Mobil Corporation. (Anderson, Suzanne) (Entered: 08/04/2010)
72 ORDER denying 67 Motion for Discovery. This case is referred to United States Magistrate Judge Paul D. Stickney for a settlement conference. (see order) (Ordered by Judge Ed Kinkeade on 8/16/2010) (axm) (Entered: 08/18/2010)
73 Joint MOTION to Extend Time to designate expert witnesses filed by Equal Employment Opportunity Commission, Exxon Mobil Corporation with Brief/Memorandum in Support. (Anderson, Suzanne) (Entered: 08/30/2010)
74 ORDER: Settlement Conference set for 9/17/2010 09:00 AM before Magistrate Judge Paul D Stickney. (See Order.) (Ordered by Magistrate Judge Paul D Stickney on 8/30/2010) (twd) (Entered: 09/01/2010)
75 ORDER granting 73 Joint MOTION to Extend Time to designate expert witnesses. (see order) (Ordered by Judge Ed Kinkeade on 8/31/2010) (tln) (Entered: 09/01/2010)
ELECTRONIC Minute Entry for proceedings held before Magistrate Judge Paul D Stickney: Settlement Conference held on 9/17/2010. Did not settle. Attorney Appearances: Plaintiff − Robert Canino, Suzanne Anderson,; Defense − Dennis Duffy, Chip Casey. (Court Reporter: Not Recorded) (No exhibits) Time in Court − 2:30. (lmp) (Entered: 09/17/2010)
76 ORDER: The District Court referred this case to United States Magistrate Judge Paul Stickney for a settlement conference. The parties met and in good faith attempted to reach an agreement. Nevertheless, the case did not settle. (Ordered by Magistrate Judge Paul D Stickney on 9/20/2010) (tln) (Entered: 09/21/2010)
77 Designation of Experts by Equal Employment Opportunity Commission. (Anderson, Suzanne) (Entered: 10/29/2010)
78 ADDITIONAL ATTACHMENTS OF EXPERT REPORTS to 77 Designation of Experts by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Additional Page(s) Gibson Attached Report, # 2 Additional Page(s) Koonce Attached Report, # 3 Additional Page(s) LaRue Attached Report, # 4 Additional Page(s) Mohler Attached Report, # 5 Additional Page(s) Passannante Attached Report, # 6 Additional Page(s) Eichelkraut Report 1 of 4, # 7 Additional Page(s) Eichelkraut Report 2 of 4, # 8 Additional Page(s) Eichelkraut Report 3 of 4, # 9 Additional Page(s) Eichelkraut Report 4 of 4) (Anderson, Suzanne) (Entered: 11/10/2010)
79 MOTION to Strike 77 Designation of Experts or Alternatively, MOTION to Stay Expert Designation Deadlines, MOTION for Hearing and for Further Proceedings filed by Exxon Mobil Corporation (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D, # 5 Attachment E, # 6 Attachment F, # 7 Attachment G) (Duffy, Dennis) Modified on 11/12/2010 (mfw). (Entered: 11/11/2010)
80 Designation of Experts by Exxon Mobil Corporation. (Attachments: # 1 Report of Jon L. Jordan, M.D., J.D., # 2 Report of P.R. Jeanneret, Ph.D., # 3 Report of Jorge A. Romero, M.D.) (Duffy, Dennis) (Entered: 12/01/2010)
81 RESPONSE filed by Equal Employment Opportunity Commission re: 79 MOTION to Strike 77 Designation of Experts or Alternatively MOTION to Stay Expert Designation Deadlines MOTION for Hearing and for Further Proceedings MOTION to Strike 77 Designation of Experts or Alternatively (Anderson, Suzanne) (Entered: 12/01/2010)
82 Designation of Experts by Exxon Mobil Corporation. (Attachments: # 1 Expert Report of William C Roberts (Part 1), # 2 Expert Report of William C Roberts (Part 2)) (Duffy, Dennis) (Entered: 12/03/2010)
83 SETTLEMENT CONFERENCE REPORT filed by Equal Employment Opportunity Commission, Exxon Mobil Corporation. (Duffy, Dennis) (Entered: 12/07/2010)
84 REPLY filed by Exxon Mobil Corporation re: 79 MOTION to Strike 77 Designation of Experts or Alternatively MOTION to Strike 77 Designation of Experts or

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 10 of 14

02/14/2011 03/02/2011 03/03/2011 05/27/2011 06/10/2011 08/15/2011 09/08/2011
09/19/2011 09/19/2011 09/19/2011
09/19/2011 09/21/2011 09/28/2011

Alternatively MOTION to Stay Expert Designation Deadlines MOTION for Hearing and for Further Proceedings (Attachments: # 1 Exhibit(s) A) (Duffy, Dennis) (Entered: 12/15/2010)
85 Memorandum Opinion and Order denying 79 Motion to Strike. (Ordered by Judge Ed Kinkeade on 2/14/2011) (dnc) (Entered: 02/16/2011)
86 Joint MOTION to Extend Time To Complete Discovery, File Motions Challenging Expert Witnesses, and File Dispositive Motions filed by Equal Employment Opportunity Commission, Exxon Mobil Corporation (Attachments: # 1 Proposed Order) (Duffy, Dennis) (Entered: 03/02/2011)
87 ORDER granting 86 Joint MOTION to Extend Time To Complete Discovery, File Motions Challenging Expert Witnesses, and File Dispositive Motions: Discovery due by 6/17/2011. Dispositive Motions due by 7/15/2011. (Ordered by Judge Ed Kinkeade on 3/3/2011) (twd) (Entered: 03/04/2011)
88 First MOTION to Extend Time Scheduling Order Deadlines filed by Equal Employment Opportunity Commission, Exxon Mobil Corporation (Clark, Joel) (Entered: 05/27/2011)
89 ORDER granting in part 88 Joint Motion for Extension of Scheduling Order Deadlines. Discovery due by 8/29/2011. Jury Trial set for on the Court's three−week docket beginning 1/9/2012 before Judge Ed Kinkeade. Motions due by 9/19/2011. Pretrial Materials due by 12/27/2011. Proposed Pretrial Order due by 12/27/2011. (Ordered by Judge Ed Kinkeade on 6/10/2011) (mcr) (Entered: 06/14/2011)
90 NOTICE of Extension of Discovery Deadline filed by Equal Employment Opportunity Commission, Exxon Mobil Corporation (Duffy, Dennis) (Entered: 08/15/2011)
91 MOTION to Strike PLAINTIFF'S EXPERT WITNESSES ROBERT "HOOT" GIBSON, JOSEPH EICHELKRAUT, AND GAETAN ANTHONY PASSANNANTE filed by Exxon Mobil Corporation with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) Index of Appendix, # 3 Exhibit(s) Appendix Part 1, # 4 Exhibit(s) Appendix Part 2, # 5 Exhibit(s) Appendix Part 3, # 6 Exhibit(s) Appendix Part 4, # 7 Exhibit(s) Appendix Part 5) (Duffy, Dennis) (Entered: 09/08/2011)
92 MOTION to Strike Defendant's Expert Dr. P. Richard Jeanneret filed by Equal Employment Opportunity Commission with Brief/Memorandum in Support. (Attachments: # 1 Depo of Jeanneret, # 2 Depo of Jeanneret) (Anderson, Suzanne) (Entered: 09/19/2011)
93 MOTION for Summary Judgment (PARTIAL) or in the Alternative Motion to Strike Affirmative Defenses filed by Equal Employment Opportunity Commission with Brief/Memorandum in Support. (Attachments: # 1 Appendix 1−50, # 2 Appendix 51−110) (Anderson, Suzanne) (Entered: 09/19/2011)
94 Second MOTION for Summary Judgment filed by Exxon Mobil Corporation with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Brief in Support of Defendant Exxon Mobil Corporation's Second Motion for Summary Judgment, # 2 Exhibit(s) Appendix in Support of Motion, # 3 Exhibit(s) Part 1 (Ex. 1 − Ex. 2), # 4 Exhibit(s) Part 2 (Ex. 2(A)), # 5 Exhibit(s) Part 3 (Ex. 3 − Ex. 6(B)), # 6 Exhibit(s) Part 4 (Ex. 6(C)), # 7 Exhibit(s) Part 5 (Ex. 6(D)), # 8 Exhibit(s) Part 6 (Ex. 6(E) − Ex. 7), # 9 Exhibit(s) Part 7 (Ex. 8 − Ex. 9(K)), # 10 Exhibit(s) Part 8 (Ex. 9(L) − Ex. 9(O)), # 11 Exhibit(s) Part 9 (Ex. 9(P)), # 12 Proposed Order) (Duffy, Dennis) (Entered: 09/19/2011)
95 MOTION to Strike Defendant's Expert Jorge Romero filed by Equal Employment Opportunity Commission with Brief/Memorandum in Support. (Attachments: # 1 J. Romero Depo, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s)) (Anderson, Suzanne) (Entered: 09/19/2011)
96 NOTICE of Attorney Appearance by Meaghan Leigh Shepard on behalf of Equal Employment Opportunity Commission. (Shepard, Meaghan) (Entered: 09/21/2011)
97 RESPONSE AND OBJECTION filed by Equal Employment Opportunity Commission re: 91 MOTION to Strike PLAINTIFF'S EXPERT WITNESSES ROBERT "HOOT" GIBSON, JOSEPH EICHELKRAUT, AND GAETAN ANTHONY PASSANNANTE

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 11 of 14

10/10/2011 10/10/2011 10/10/2011 10/10/2011 10/10/2011 10/10/2011 10/12/2011 10/20/2011 10/24/2011 11/23/2011 11/28/2011 12/05/2011
12/09/2011

(Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s)) (Anderson, Suzanne) (Entered: 09/28/2011)
98 RESPONSE filed by Exxon Mobil Corporation re: 93 MOTION for Summary Judgment (PARTIAL) or in the Alternative Motion to Strike Affirmative Defenses MOTION for Summary Judgment (PARTIAL) or in the Alternative Motion to Strike Affirmative Defenses (Attachments: # 1 Exhibit(s) Appendix (Exhibits 1−8)) (Duffy, Dennis) (Entered: 10/10/2011)
99 RESPONSE filed by Exxon Mobil Corporation re: 92 MOTION to Strike Defendant's Expert Dr. P. Richard Jeanneret, 95 MOTION to Strike Defendant's Expert Jorge Romero (Attachments: # 1 Exhibit(s) Appendix (Exhibits 1−10)) (Duffy, Dennis) (Entered: 10/10/2011)
100 RESPONSE filed by Equal Employment Opportunity Commission re: 94 Second MOTION for Summary Judgment (Anderson, Suzanne) (Entered: 10/10/2011)
101 Brief/Memorandum in Support filed by Equal Employment Opportunity Commission re 100 Response/Objection To Defendant's Second Motion for Summary Judgment (Anderson, Suzanne) (Entered: 10/10/2011)
102 Appendix in Support filed by Equal Employment Opportunity Commission re 100 Response/Objection To Defendant's Second Motion For Summary Judgment (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix, # 7 Appendix, # 8 Appendix, # 9 Appendix, # 10 Appendix, # 11 Appendix) (Anderson, Suzanne) (Entered: 10/10/2011)
103 ADDITIONAL ATTACHMENTS CORRECTED Appendix #11 to 102 Appendix in Support, by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Corrected Appendix #11) (Anderson, Suzanne) (Entered: 10/10/2011)
104 REPLY filed by Exxon Mobil Corporation re: 91 MOTION to Strike PLAINTIFF'S EXPERT WITNESSES ROBERT "HOOT" GIBSON, JOSEPH EICHELKRAUT, AND GAETAN ANTHONY PASSANNANTE (Attachments: # 1 Exhibit(s) Appendix in Support of Reply (Ex.s 1−8)) (Duffy, Dennis) (Entered: 10/12/2011)
105 REPLY filed by Equal Employment Opportunity Commission re: 92 MOTION to Strike Defendant's Expert Dr. P. Richard Jeanneret (Attachments: # 1 Exhibit(s) Deposition of Dr. Jeanneret, pp. 84−85) (Anderson, Suzanne) (Entered: 10/20/2011)
106 REPLY filed by Exxon Mobil Corporation re: 94 Second MOTION for Summary Judgment (Attachments: # 1 Exhibit(s) Appendix (Exhibits 1−13)) (Duffy, Dennis) (Entered: 10/24/2011)
107 MOTION (Exxon Mobil Corporation's Motion to Open and Close at Trial) filed by Exxon Mobil Corporation with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Duffy, Dennis) (Entered: 11/23/2011)
108 Agreed MOTION to Extend Time − Deadline for Designation of Deposition Testimony filed by Exxon Mobil Corporation (Attachments: # 1 Proposed Order) (Duffy, Dennis) (Entered: 11/28/2011)
109 ELECTRONIC AMENDED SCHEDULING ORDER: This case, currently set for trial on the Court's three week docket January 12, 2012, is hereby RESET to the Courts three week docket beginning May 7, 2012. Unless otherwise directed by order, the parties must make the disclosure required by Fed. R. Civ. P. 26(a)(3)(A)−(B) by April 9, 2012. Within 14 days thereafter, a party must serve and file a list disclosing (i) any objections to the use under Rule 32(a) of a deposition designated by another party under rule 26(a)(3)(A) −(ii) any objection, together with the grounds therefore, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii), if any. All materials described in paragraph 10 of the Court's June 10, 2011, Order shall be filed by April 20, 2012. (Ordered by Judge Ed Kinkeade on 12/5/2011) (chmb) (Entered: 12/05/2011)
110 Unopposed MOTION for Extension of Time to File Response/Reply re: 107 MOTION (Exxon Mobil Corporation's Motion to Open and Close at Trial) filed by Equal Employment Opportunity Commission with Brief/Memorandum in Support. (Shepard,

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 12 of 14

12/09/2011 01/20/2012 01/27/2012 04/04/2012 04/12/2012
05/31/2012 07/03/2012 08/10/2012
09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/13/2012

Meaghan) (Entered: 12/09/2011)
111 ELECTRONIC ORDER granting 110 Motion to Extend Time to File Response/Reply. Responses due by 1/20/2012 (Ordered by Judge Ed Kinkeade on 12/9/2011) (chmb) (Entered: 12/09/2011)
112 RESPONSE filed by Equal Employment Opportunity Commission re: 107 MOTION (Exxon Mobil Corporation's Motion to Open and Close at Trial) (Anderson, Suzanne) (Entered: 01/20/2012)
113 REPLY filed by Exxon Mobil Corporation re: 107 MOTION (Exxon Mobil Corporation's Motion to Open and Close at Trial) (Duffy, Dennis) (Entered: 01/27/2012)
114 Joint MOTION to Request a Pretrial Conference filed by Equal Employment Opportunity Commission (Anderson, Suzanne) (Entered: 04/04/2012)
115 ELECTRONIC SECOND AMENDED SCHEDULING ORDER: This case, currently set for trial on the Court's three week docket on May 7, 2012, is hereby RESET to the Courts three week docket beginning September 10, 2012. Unless otherwise directed by order, the parties must make the disclosure required by Fed. R. Civ. P. 26(a)(3)(A)−(B) by August 10, 2012. Within 14 days thereafter, a party must serve and file a list disclosing (i) any objections to the use under Rule 32(a) of a deposition designated by another party under rule 26(a)(3)(A) −(ii) any objection, together with the grounds therefore, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii), if any. All materials described in paragraph 10 of the Court's June 10, 2011, Order shall be filed by August 27, 2012. (Ordered by Judge Ed Kinkeade on 4/12/2012) (chmb) (Entered: 04/12/2012)
116 Joint MOTION to Continue Trial Setting filed by Equal Employment Opportunity Commission, Exxon Mobil Corporation (Attachments: # 1 Proposed Order) (Duffy, Dennis) (Entered: 05/31/2012)
117 NOTICE (Joint Notice of Pending Issues) filed by Equal Employment Opportunity Commission, Exxon Mobil Corporation (Duffy, Dennis) (Entered: 07/03/2012)
118 ELECTRONIC ORDER granting 116 Motion to Continue. The Court hereby ORDERS that: This case is reset for trial beginning October 9, 2012. The parties must make the disclosure required by Fed. R. Civ. P. 26(a)(3)(A)−(B) by September 10, 2012. Within 14 days thereafter, a party must serve and file a list disclosing (i) any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A); (ii) any objection,together with the grounds therefore, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii), if any. All materials described in paragraph 10 of the Court's June 10, 2011 Order shall be filed by September 24, 2012. (Ordered by Judge Ed Kinkeade on 8/10/2012) (chmb) (Entered: 08/10/2012)
119 Pretrial Disclosures filed by Equal Employment Opportunity Commission. (Anderson, Suzanne) (Entered: 09/10/2012)
120 Exhibit List Joint Exhibit List by Exxon Mobil Corporation. (Phelan, Rod) (Entered: 09/10/2012)
121 Exhibit List of Exxon Mobil Corporation by Exxon Mobil Corporation. (Phelan, Rod) (Entered: 09/10/2012)
122 Witness List by Exxon Mobil Corporation. (Phelan, Rod) (Entered: 09/10/2012)
123 Designation of Deposition by Exxon Mobil Corporation. (Phelan, Rod) (Entered: 09/10/2012)
124 Amended Pretrial Disclosures filed by Equal Employment Opportunity Commission. (Anderson, Suzanne) (Entered: 09/10/2012)
125 MEMORANDUM OPINION AND ORDER: Defendant's Motion to Strike Plaintiff's Expert Witnesses Robert "Hoot" Gibson, Joseph Eichelkraut, and Gaetan Anthony Passannante (Doc. No. 91), Plaintiff's Motion to Strike Defendant's Expert Dr. P. Richard Jeanneret and Brief in Support Thereof (Doc. No. 92), and Plaintiff's Motion to Strike Defendant's Expert Jorge Romero and Brief in Support Thereof (Doc. No. 95)

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 13 of 14

09/13/2012
10/10/2012 10/30/2012 12/19/2012 12/19/2012
12/19/2012 02/14/2013
03/27/2013 03/27/2013
03/29/2013 05/15/2013 10/02/2013
10/21/2013 05/29/2014

are DENIED. Defendant Exxon Mobil Corporations Second Motion for Summary Judgment (Doc. No. 94) is GRANTED. Judgment will be entered by separate document. Fed. R. Civ. P. 58(a). EEOC's Motion for Partial Summary Judgment or in the Alternative Motion to Strike Affirmative Defenses and Brief in Support Thereof (Doc. No. 93) is DENIED. Exxon Mobil Corporation's Motion to Open and Close at Trial and Brief in Support (Doc. No. 107), the Agreed Motion to Extend Deadline for Designation of Deposition Testimony (Doc. No. 108), and the Joint Motion Requesting Pre−Trial Conference (Doc. No. 114) are DENIED as moot. (Ordered by Judge Ed Kinkeade on 9/13/2012) (skt) (Entered: 09/13/2012)
126 FINAL JUDGMENT: It is therefore ORDERED, ADJUDGED and DECREED that Plaintiff takes nothing by its suit against Defendant, and that Plaintiff's claims are DISMISSED with prejudice. All parties shall bear their own costs. (Ordered by Judge Ed Kinkeade on 9/13/2012) (skt) (Entered: 09/13/2012)
127 MOTION for Reconsideration re 125 Memorandum Opinion and Order,,,, 126 Judgment, filed by Equal Employment Opportunity Commission with Brief/Memorandum in Support. (Anderson, Suzanne) (Entered: 10/10/2012)
128 RESPONSE filed by Exxon Mobil Corporation re: 127 MOTION for Reconsideration re 125 Memorandum Opinion and Order,,,, 126 Judgment, (Phelan, Rod) (Entered: 10/30/2012)
129 AMENDED MEMORANDUM OPINION AND ORDER. (Ordered by Judge Ed Kinkeade on 12/19/2012) (tln) (Entered: 12/19/2012)
130 AMENDED FINAL JUDGMENT: This Judgment is entered pursuant to the Court's Amended Memorandum Opinion and Order of this same date, in which the Court granted Exxon Mobil Corporation's Motion for Summary Judgment. It is ORDERED that Plaintiff takes nothing by its suit against Defendant, and that Plaintiff's claims are DISMISSED with prejudice. All parties shall bear their own costs. (Ordered by Judge Ed Kinkeade on 12/19/2012) (tln) (Entered: 12/19/2012)
131 ORDER denying 127 Motion to Alter or Amend Final Judgment. (Ordered by Judge Ed Kinkeade on 12/19/2012) (tln) (Entered: 12/19/2012)
132 NOTICE OF APPEAL to the Fifth Circuit as to 129 Memorandum Opinion and Order, 131 Order on Motion for Reconsideration, 130 Judgment, by Equal Employment Opportunity Commission. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (Anderson, Suzanne) (Entered: 02/14/2013)
USCA Case Number 13−10164 for 132 Notice of Appeal, filed by Equal Employment Opportunity Commission. (svc) (Entered: 03/27/2013)
Record on Appeal for USCA5 13−10164 (related to 132 appeal): Record consisting of: 27 ECF electronic record, 1 Volume(s) electronic transcript, certified to USCA. To request a copy of the record (on disk or on paper), contact the appeals deputy in advance to arrange delivery. (svc) (Entered: 03/27/2013)
Record on Appeal for USCA5 13−10164 (related to 132 appeal): transmitted to Baker Botts on disk only by mail. (svc) (Entered: 03/29/2013)
Record on Appeal for USCA5 13−10164 (related to 132 appeal): transmitted to Paula Bruner, EEOC on disk only by mail. (svc) (Entered: 05/15/2013)
133 Record on Appeal for USCA5 13−10164 (related to 132 appeal): Record consisting of: 27 Volume(s) ECF electronic record, 1 Volume(s) electronic transcript, Original document number(s): 14, transmitted to USCA5. Shipped: Federal Express 296232215013161, 3178 & 3185 (svc) (Entered: 10/02/2013)
134 NOTICE of Docketing Record on Appeal from USCA re 132 Notice of Appeal, filed by Equal Employment Opportunity Commission. USCA Case Number 13−10164 (svc) (Entered: 10/23/2013)
135 Opinion of USCA in accordance with USCA judgment re 132 Notice of Appeal, filed by Equal Employment Opportunity Commission. (svc) (Entered: 06/05/2014)

Case: 3:06-cv-1732 As of: 06/08/2017 03:48 PM CDT 14 of 14

05/29/2014 01/08/2016
01/08/2016

136 JUDGMENT/MANDATE of USCA as to 132 Notice of Appeal, filed by Equal Employment Opportunity Commission. Judgment of the District Court is affirmed. Issued as Mandate: 5/19/14. (svc) (Entered: 06/05/2014)
137 NOTE: The documents attached were originally available in paper format only and are now attached here for electronic viewing in the clerk's office. Content includes items referenced in docket entries as −in paper− or −too large− etc. They were scanned in chronological order but are not separated with individual hyperlinks. The viewer is advised to scroll through content in order to locate requested material. (ali) (Entered: 01/08/2016)
138 NOTE: The documents attached were originally available in paper format only and are now attached here for electronic viewing in the clerk's office. Content includes items referenced in docket entries as −in paper− or −too large− etc. They were scanned in chronological order but are not separated with individual hyperlinks. The viewer is advised to scroll through content in order to locate requested material. (ali) (Entered: 01/08/2016)