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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                      No. 13-10164                             March 25, 2014
                                                                               Lyle W. Cayce
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                                            Clerk


                                                 Plaintiff-Appellant,
v.

EXXON MOBIL CORPORATION,

                                                 Defendant-Appellee.




                   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
(“ADEA”).     In response, Exxon asserted an affirmative defense—that the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 13-10164
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868 (5th Cir. 2009) (unpublished).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
narrowly.”   Criswell, 472 U.S. at 412 (internal quotation marks omitted)
(quoting 29 C.F.R. § 860.102(b)(1984)).
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      To establish a BFOQ, an employer must demonstrate: (1) 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 413–14 (internal quotation marks and citation omitted) (emphasis
in original). There are two ways to establish the second prong of this test: (1)
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 414. (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 418 (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
418). “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 1959, the FAA adopted a rule prohibiting pilots from flying in any
operations in Part 121 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, 1959).
Part 121 applies to “large commercial passenger aircraft, smaller propeller
aircraft with 10 or more passenger seats, and common carriage operations of
all-cargo aircraft with a payload capacity of 7,500 pounds.” Examining the
Federal Aviation Administration’s Age 60 Rule: Hearing Before the Subcomm.
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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.
      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



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                                        No. 13-10164
commuter pilot operations 1 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 until 2007. 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(f)(1). Exxon relied on the FAA’s Age 60
Rule 2 to establish this defense.          See Exxon I, 344 F. App’x at 870.                The



       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).
       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
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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
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



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.
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                                      No. 13-10164
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
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 non-
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movant 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
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,
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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 of piloting 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.




                                             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


       3 The EEOC relies on a Ninth Circuit case, EEOC v. 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 v. 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.
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                                      No. 13-10164
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
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 91 like Exxon’s nor has the EEOC adequately explained why



       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.
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                                      No. 13-10164
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
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



       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.
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                                  No. 13-10164
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
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.
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                             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.




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