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June 29, 1992


The opinion of the court was delivered by: LEONARD D. WEXLER

 In the above-referenced case, Stanley S. Smilan ("plaintiff" or "Smilan") has brought suit against United Airlines, Inc. ("defendant" or "United") for alleged violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). In his first cause of action, Smilan claims that, in violation of the ADEA, United improperly denied him a paid relocation to Seattle. In his second cause of action, he contends that United, also in violation of the ADEA, improperly paid him for his accrued sick time and vacation time at a Second Officer's pay rate immediately after he reached age sixty, the mandatory retirement age for pilots.

 On January 6, 1992, United moved to dismiss the complaint on various grounds pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. On March 25, 1992, this Court notified the parties that pursuant to Rule 12(b), it was converting United's motion to dismiss to a motion for summary judgment under Rule 56. For the reasons stated below, defendant's motion for summary judgment is denied as to plaintiff's first claim and granted as to his second.


 Section 121.38(c) of the Federal Aviation Administration ("FAA") regulations (the "age sixty rule") prohibits commercial flights seating more than thirty passengers from taking off under the command of a pilot sixty years or older. 14 C.F.R. § 121.383(c) (1991); see Aman v. Federal Aviation Admin., 856 F.2d 946, 948 (7th Cir. 1988). Captains and First Officers of commercial aircraft are therefore required to step down from their positions upon reaching the age of sixty.

 The age sixty rule allows the former Captains or First Officers to continue working for the airlines, but in order to remain in the cockpit, they must accept a demotion to a position of lesser authority, such as that of a flight engineer or Second Officer. Id. United follows this FAA policy by allowing Captains who have reached the age of sixty to obtain Second Officer status and remain in that position for as long as they can meet the minimum physical requirements.

 From 1969 until November 1990, Smilan was employed by United as a Captain of various types of aircraft. In the latter part of 1988, when he was a Captain of a DC-10 and was domiciled in New York, he applied for a vacancy as Captain of a 747-100 based in San Francisco. Smilan's application was accepted and, after completing the required training, he was activated to the new position on February 14, 1989. At that time he was fifty-eight years old.

 Pursuant to Section 10 of the 1985 Collective Bargaining Agreement (the "Agreement") between United and the Air Line Pilots Association ("ALPA"), upon a pilot's activation to a new position, he became entitled to a company-paid move to a new domicile, so long as the move was made within two years of the date he was activated. Although Smilan was to be domiciled in San Francisco, he decided to relocate to Seattle. *fn1"

 From the latter part of 1989 until approximately May 1990, Smilan and his wife made a number of trips to Seattle to search for a house. During that period, United suggested to Smilan that he might not be entitled to move to Seattle because of Section 10-C-5 of the Agreement which provides:

Should a pilot be awarded an assignment with an advertised effective date within two (2) years of his normal retirement, he shall be entitled to use the associated paid move entitlement to move only to the geographic area of his new domicile. *fn2" (emphasis added).
paragraph 5 of the Age 60 Letter of Agreement which states, "One (1) year prior to age 60, all active pilots shall be required to sign a statement of intent to inform the company of his retirement or non-retirement plan upon reaching the normal retirement age." You will be reaching age 59 soon, and, therefore, will have to inform us prior to your 59th birthday, of your retirement intentions at age 60. . . .
It is necessary for us to know your intentions for purposes of manpower and vacation planning. . . .

 However, when Smilan subsequently inquired from Daley as to the definition of "normal retirement" in reference to paid relocations, Daley responded by letter dated March 14, 1990 as follows:

I checked with EXO regarding your inquiry as to the definition of "normal retirement" as it applies to the paid move provisions of the Agreement. Jerry Andrews -- EXOER says that age 60 retirement is considered normal for pilots regardless of intent to stay on past age 60 as a Second Officer.

 Smilan contends that it was only through this letter that he was definitively informed that he would not be eligible for a paid relocation to Seattle. He further contends that United's policy of restricting the company paid moves of pilots between the ages of fifty-eight and ...

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