Pilot's Age Not Necessarily Evidence of Discrimination

Being fired because of your age doesn’t mean that you are a victim of age discrimination, says the U.S. Eleventh Circuit Court of Appeals in Avera v. United Airlines.




Being fired because of your age doesn’t mean that you are a victim of age discrimination, says the U.S. Eleventh Circuit Court of Appeals in Avera v. United Airlines.

The decision held that a former United Airlines pilot cannot challenge the airline’s decision to terminate him under a Federal Aviation Administration rule mandating retirement at age 60 because he was not a victim of age discrimination.

The Court of Appeals ruled against former pilot Troy Avera, who argued that the U.S. District Court for the Northern District of Florida erred when it concluded that the Fair Treatment of Experienced Pilots Act barred his claims under the Age Discrimination in Employment Act (ADEA).

The FAA’s so-called “Age 60 Rule,” which was in effect from 1959 until 2007, forced pilots to retire at age 60, regardless of their health or flying proficiency. The law was essentially a union “featherbedding” regulation promoted and long supported by the principal collective bargaining unit, the Air Line Pilot’s Association (ALPA). In 2007, under pressure to stop institutionalized and codified age discrimination, Congress passed the Fair Treatment of Experienced Pilots Act, raising the mandatory retirement age for pilots to 65.

A three-judge panel of the Eleventh Circuit Court wrote in its decision that the Pilots Act explicitly states that any action taken under the “Age 60 Rule” cannot be used as the basis for liability under “any employment law or regulation,” such as the ADEA.

In addition, the court determined that Avera’s ADEA claims against United were properly dismissed because the airline provided a legitimate, nondiscriminatory reason for not rehiring him. A hiring freeze was in effect by the time he had completed the application process.

According to the opinion, Avera began working as a pilot for United in 1995. In 2007, two months before he turned 60, Avera unsuccessfully petitioned the FAA to waive the Age 60 Rule for him. When Avera turned 60 years old, United fired him. (In fairness to United Airlines, the aforementioned FAA regulation, 14 CFR 121.383, in effect at the time, did not allow United the option to retain Avera as a pilot. It is unknown as to whether United had put in place any policy on retention of pilots forced to retire under the “Age 60 Rule.”)

Five months after Avera was discharged from United Airlines, Congress passed the Fair Treatment for Pilots Act. Avera submitted an application for a pilot’s position with United, but failed to complete the application process properly. After he completed a second application, Avera was placed in the airline’s hiring queue. United imposed a hiring freeze at or about the time of Avera’s submission and denied his application.

It was then that Avera sued United Airlines in the U.S. District Court for the Northern District of Florida, seeking a declaratory judgment that the Pilots Act and Age 60 Rule were unconstitutional.

In a second suit, Avera sued the union that represented him, also seeking a declaration concerning the constitutionality of the Pilots Act and Age 60 Rule. The District Court granted United Airlines summary judgment and he then appealed to the Eleventh Circuit.

The three-judge panel affirmed in a per curium opinion, holding Avera could not re-litigate his claim that the Pilots Act and Age 60 Rule were unconstitutional because that issue had already been resolved in the prior proceeding against the union.

The Court found unavailing Avera’s argument that United violated the ADEA by not rehiring him as a pilot after the Pilots Act was enacted. Even if Avera had established a prima facie case of age discrimination, the court determined that United’s hiring freeze was a legitimate, nondiscriminatory reason for its action.

Further, the lower court properly granted United summary judgment on Avera’s claim that the airline violated the ADEA by not hiring him as a flight simulator instructor, because Avera had never applied for that position, therefore he could not show that the airline undertook an “adverse employment action,” the court concluded.

By-line

Jennifer Carrigan has spoken to numerous lawyers from mediation.com concerning rules and regulations in the current affairs of aviation.




One Response

07.02.12

There are some jobs that you can do well beyond the typical retirement age, but a commercial pilot isn’t one of them, in my opinion anyways. I think it’s a good rule.

Subscribe to my Blog

About Wayne Farley

Wayne Farley

I am Wayne, an aviation safety evangelist who once made my living working in the control tower. Engage me while I share my thoughts, experience, and news from the aviation world. After writing "13 Characteristics of an air traffic controller" in 2010, it went viral and established me as an unofficial ambassador for ATC.

.

Stalk me here:

Facebook Twitter LinkedIn Google+ RSS Feed


Dig Through My Archives

Follow on Twitter

Latest Tweets