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

                                                 FILED
                                                                           August 27, 2009

                                       No. 08-10624                    Charles R. Fulbruge III
                                                                               Clerk

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

                                                   Plaintiff - Appellant
v.

EXXON MOBIL CORPORATION

                                                   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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
      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(f)(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); Coupé v. Fed. Ex. Corp., 121 F.3d 1022, 1026 (6th Cir. 1997). 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. 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 of corporate 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
corporation. Exxon’s age-based policy mirrors an FAA regulation that removes
commercial pilots from flight duty at a certain age.1
       A group of pilots whom Exxon removed from flight status because of their
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 sixty-
five, 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
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 of the 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 of summary judgment 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
       When ruling on summary judgment, the district court acknowledged that
the probative value of the 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 continuing validity of the rationale justifying
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 of congruity; 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
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 of summary
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 of the FAA regulation’s
rationale may have been in its memorandum opposing summary judgment—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 of Civil 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 of congruity. The district court’s
assumption concerning the rationale 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. 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
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 of the 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 alternative
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
                                             IV.
       For the foregoing reasons, the judgment of the 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
