IN RE: Airline "Age of Employees" Employment Practices Litigation

© Case MDLN0.399 Document2 Filed 05/18/15 Page10f9
: MULTE A oy REE oh . }Fo Tea Ty AE :
ED Vote] RANJAIE22 139 PNPATS wy Co
Clingory, nnn - v7BEFORE THE JUDICIAL PANEL : UTES .
MULTIDISTRIOT LITIGATION -
IN RE AIRLINE "AGE OF EMPLOYEE" ) DOCKET NO. 399 .
EMPLOYMENT PRACTICES LITIGATION ) | EE
OPINION AND ORDER EE
BEFORE MURRAY I. GURFEIN*, CHAIRMAN, AND ANDREW A. CAFFREY,
ROY W. HARPER, CHARLES R. WEINER, EDWARD S. NORTHROP, AND
ROBERT H. SCHNACKE, JUDGES OF. THE PANEL. oo
PER CURIAM SR
This litigation presently consists of twelve actions - LL Co oo
pending in three districts: nine actions in the Northern . oo
District of Illinois, two actions in the Southern District |
of New York, and one action in the District of Minnesota. : -
In April, 1978, Congress amended the Age Discrimination Te
in Employment Act (ADEA), 29 U.S.C. §1621 et seq., and thereby
deleted the provision which exempted from the Act's pro- :
ibition the involuntary retirement of persons before age
65 pursuant to a bona fide pension plan. Apparently, prior Lo oC
to that time in the airline industry, all flight deck crew
embers (captain, first officer and second officer) had been
etired under such pension plans. In addition, federal air
egulations specifically prohibit an air carrier from per- :
itting anyone who reaches 60 years of age from serving as . -
captain or first officer. With the passage of the 1978
Judge Gurfein took no part in the decision of this matter.
: .

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5 amendment to ADEA, a number of captains past the age of 60, oo i BN
3 disqualified by reason of their age from continuing	in their rn
4 position as captains, sought to transfer to jobs as second
officers (also known as flight engineers) or positions as
> check airmen and flight instructors. The denial of these oo
6 requests by defendant airlines has spawned nine of the twelve
7 actions in this litigation.
8 Five of these nine actions have been brought in the
9 Northern District of Illinois by former captains against BE
10 Northwest Airlines, Inc. (Northwest), Continental Airlines, oe
1 Inc. (Continental), Eastern Air Lines, Inc. (Eastern), United SE |
Air Lines, Inc. (United), and Braniff Airways, Inc. (Braniff),
12 respectively. The respective plaintiffs in each of these |
3 five actions were formerly employed by the respective defendant :
L4 in that action. In each action, plaintiffs allege, inter | oo
5 alia, that the particular defendant airline permitted captains oo
6 under age 60 to work as flight engineers after having been
Ki captains or first officers; that the defendant airline did |
Pr not require flight engineers to work in the first officer oo
5 or captain positions as soon as they were entitled to do
so; that other air carriers employed flight engineers past
° the age of 60; that the airline was a member of the Air Trans- :
1 port Association (ATA), a group that opposes employment of
2 flight deck crew members beyond age 60; and that the defendant oo
3 airline had violated ADEA by refusing to continue plaintiffs’ |
4 employment beyond age 60, for which plaintiffs are entitled
5 °° damages and injunctive relief. In two more actions, one |	i : .
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3v2 brought against American Airlines, Inc., (American) by former
3 American captains in the Northern District of Illinois and
4 one brought against Trans World Air Lines, Inc., (TWA) by
5 former TWA captains in the Southern District of New York, L/
similar allegations are raised with the additional allegation
© that American and TWA employed flight engineers who were
7 past the age of 60. In the eighth action, brought against
8 Western Air Lines, Inc., (Western) by a Western captain in
9 the Northern District of Illinois, the plaintiff briefly
10 alleges that Western equivocated with respect tec plaintiff's
11 request to continue employment beyond age 60, and then finally
12 denied the request in violation of ADEA. The ninth action
C is brought in the District of Minnesota by Northwest against3 the Secretary of Labor, the Airline Pilot Association (ALPA)
14 and the pilots who are plaintiffs in the action brought in
15 the Northern District of Illinois against Northwest. Northwest
16 brings the action against defendants as individuals and as
17 representatives of a class of all pilots employed by Northwest
18 at any time on or after April 6, 1978. Northwest seeks a
19 judicial declaration that age less than 60 is a bona fide
20 occupational qualification for Northwest pilot employees
. (including second officers) and that Northwest has not violated
21
ADEA.
22
23 1/ This action was filed originally in the Northern District
of Illinois and, on August 4, 1979, was transferred to the
4 Southern District of New York pursuant to 28 U.S.C. §1404.
¢ Motions for change of venue have also been filed in the actions	in the Northern District of Illinois brought against American,
25 Eastern, Braniff, Northwest and Continental.
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Two of the remaining three actions in this litigation
3 are brought in the Northern District of Illinois by flight
4 engineers against United and Braniff, respectively. Plaintiffs
5 claim that United and Braniff, by refusing to continue the
6 employment of flight engineers beyond age 60, have violated
7 ADEA.
2 The last action in this litigation is brought by ALPA
against TWA in the Southern District of New York. ALPA seeks
i to enjoin TWA from permitting its flight deck crew members
10 from working past the age of 60. Plaintiffs in the other
11 action brought against TWA have intervened in this action.
12 ALPA, in addition to the action brought by Northwest in the
13 District of Minnesota, is also a defendant or counterclaim
14 defendant in the two actions brought against Braniff, the. :
15 action brought by captains against TWA, the action brought
16 against Northwest, and the two actions brought against United.
Generally, ALPA is alleged to have taken action to oppose
17 the employment of flight deck crew members beyond the age
i 18 of 60 in violation of ADEA.
19 On August 7, 1979, the judge then assigned the Illinois
20 actions denied a motion of the plaintiff airline employees
21 in those actions to consolidate those actions pursuant to
22 Rule 42, Fed. R. Civ. P., holding in part as follows:
After reviewing the pleadings in all these cases
23 and the memoranda submitted by the parties, we conclude
that plaintiffs have not met their burden of showing
24 that common questions of law or fact so predominate
the actions that a consolidated trial would promote
25 judicial economy.
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@ 2 Thurston v. Trans World Air Lines, Inc., No. 78 C4507, slip
3 op. at 4 (N.D. Ill. August 7, 1979).
4 Presently before the Panel is a motion, pursuant to
28 U.S.C. §1407, to centralize all actions in this litigation
> in the Northern District of Illinois for coordinated or con-
6 solidated pretrial proceedings. Movants are the airline
7 employee parties who, taken together, are plaintiffs, de-
8 fendants or intervenors in the twelve actions. All airline
9 parties and ALPA oppose transfer.
10 We conclude that these questions raise insufficient
11 common questions of fact and that transfer under Section
1407 would not serve the convenience of the parties and
12 witnesses or promote the just and efficient conduct of this
@® 13 litigation. Accordingly, we deny the motion to transfer.
14 Movants argue that the allegations and defenses in |
15 each action are substantially identical, namely, that the
16 airlines and ALPA have violated ADEA; that age is a bona
17 fide occupational qualification reasonably necessary to the
18 ormal operation of the business of commercial air trans-
19 ortation; and that failure to continue employment beyond
age 60 was based on reasonable factors other than age. Movants
20 rge that each action will involve extensive common discovery
21 egarding 1) the practices and procedures of all the airlines
22 (relevant to the issue of whether a particular defendant
23 irline's procedures were reasonably necessary to operation
24 f the defendant's business), and 2) the conduct and activities
@® 55 | f ATA. Furthermore, movants assert that in all but three| |
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2 actions (the two New York actions and one of the Illinois
3 actions) the "bona fide occupational qualification" medical
4 issue will be a primary issue and will require extensive
discovery of experts in gerontology, aerospace medicine,
> cardiology and psychology. Movants also argue that ALPA
6 is a common party to eight of the actions and that the questions
7 involving ALPA will be nearly identical in all eight of those
8 actions. Movants thus urge that transfer under Section 1407
9 is necessary in order to avoid duplicative discovery, prevent
10 inconsistent pretrial rulings and conserve the resources
11 of the parties, their counsel and the judiciary.
We find these arguments unpersuasive. Employment
12 practices of eight different airlines are involved in this
13 litigation and it appears, on the basis of the record before
14 us, that the principal factual issues will be different as
15 to each airline. We observe that no more than one airline
16 is a party to each action; that no airline is a party to
17 more than two actions; that no industry-wide contract is
18 involved; and that each airline will have unique defenses |
19 arising out of its labor relations with its flight deck crew
members and its own views as to what constitutes safe operating
20 procedures. The mere fact that plaintiff airline employees
21 are represented by ALPA does not mean that identical contracts
22 and policies are involved. Opponents to transfer have noted,
23 for example, that the Eastern/ALPA contract prohibits captains
24 from down-bidding for first officer or second officer positions,
25 hile the Northwest/ALPA contract permits such a practice.
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@ 2 Thus even with respect to ALPA, it is likely that discovery
3 in each action to which ALPA is a party will focus on the
4 individual ALPA member union associated with each carrier.
5 We also observe that the bona fide occupational qualification
6 defense is not common to all actions; that some airlines
have "up or out" policies requiring flight engineers to advance
’ to first officer and captain positions or be terminated,
8 while other airlines do not have such a policy; that the
° action against Western involves a plaintiff retired before
10 the 1978 amendment to ADEA; that some airlines retire all
11 flight deck crew members at age 60 while other airlines do
12 not; and that the relevant airline records and witnesses
@- in each action will be found only at the particular airlineparty's offices. As a result of all these factors, we conclude
He that individual, rather than common, factual questions will
15 predominate in this litigation, and that common questions,
16 to the extent any exist among these actions, will be mainly
17 legal questions concerning the applicability of ADEA to airline
18 flight deck crew members. Under these circumstances, movants
19 have not demonstrated that the criteria for transfer under
20 Section 1407 have been satisfied. See In re Environmental
01 Protection Agency Pesticide Listing Confidentiality Litigation,
434 F. Supp. 1235, 1236 (J.P.M.L. 1977); In re Natural Gas
22 Liquids Regulation Litigation, 434 F. Supp. 665, 667-68
23 (J.P.M.L. 1977).
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2 IT IS THEREFORE ORDERED that the motion to transfer
3 the actions listed on the following Schedule A be, and the
4 same hereby is, DENIED.
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9.2 SCHEDULE A
MDL-399
3
4 NORTHERN DISTRICT OF ILLINOIS Civil Action No.
5 Gerry W. Monroe, et al. v. United 79 C 360
Air Lines, Inc.
6 Maurice Keating, Jr. v. Western 79 C 1019
Air Lines, Inc.
7
Daniel F. Neuman, et al. v. Northwest 79 C 1570
8 Airlines, Inc., et al.
9 Eugene W. Garges, Jr., etc. v. 79 C 1571
Eastern Air Lines, Inc.
10 Lee F. Higman, et al. v. United 79 C 1572
Air Lines, Inc.
11
Michael R. Ferrara, etc. v. Braniff 79 C 1573
12 Airways, Inc., et al.
Tom H. Frye, etc. v. Braniff Airways, 79 C 1574
13 Inc., et al.
14 aniel Gray, et al. v. Continental 79 C 2692
irlines, Inc.
15
. R. Johnson, et al. v. American 79 C 2693
16 irlines, Inc.
17 DISTRICT OF MINNESOTA
orthwest Airlines, Inc. v. Daniel 4-79-1122
18 euman, et al.
19 SOUTHERN DISTRICT OF NEW YORK
20 ir Line Pilots Association, 78 Civ 3707
nternational v. Trans World Air Lines,
nc., et al.
21
Harold H. Thurston, et al. v. Trans 79 Civ 4915
22 World Air Lines, Inc., et al.
23
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