"4. That its experience of over 40 years proves that an interstate bus driver is most safe after acquiring 16 years of interstate bus driving experience which experience could not be acquired by newly-employed drivers up to the age of 65 years."

Through the centuries volumes have been written on the subject of aging. It is a process that intrigues not only the scientific and philosophic mind but the less learned one as well. Aging is a phenomenon in which all humanity shares. The volumes that have been written are doubtless merely a fraction of what is yet to be studied. There will be inquiry and research as long as man exists for there will be the fascination with himself that leads to such study. For the moment, however, I must rely for my decision on that which exists in the realm of learning and on what I believe is both justiciable and correct under the existing law.

Defendant's policy of not considering applicants over the age of 35 has been in effect since approximately 1929. This is true regardless of an applicant's prior experience. At least two of defendant's officers, Mr. Forman and Mr. Gocke testified that they did not know why age 35 was originally selected nor why other ages were not selected. However, they and defendant's other witnesses vigorously sipport the age limitation policy and maintain that since the policy has produced results from a safety standpoint it has never been deemed necessary to change the rule. The National Association of Motor Bus Owners (hereinafter referred to as NAMBO) was granted leave to participate as amicus curiae for the plaintiff. In its trial brief it stated the issue at bar succinctly:

"It is submitted that the essence of the motor carriage of passengers is safety and that if the employment of drivers over age 35 would undermine that safety, the maximum age standard utilized by defendant is "reasonably necessary" within the meaning of the bona fide occupational qualification exception to the Act."

Thus the battle lines have been drawn. The plaintiff contends that the Age Discrimination in Employment Act of 1967 was enacted for the express purpose of "promoting employment of older persons based on their ability rather than ge and prohibiting "arbitrary age discrimination." Hodgson v. First Federal Savings and Loan Ass'n. of Broward County, Fla., 455 F.2d 818, 820 (5th Cir. 1972). The defendant contends that it has established a "valid justification" for its n.ring practices. Hodgson v. First Federal, supra, pg. 822.

In discrimination cases the law with respect to burden of proof is wellsettled. The plaintiff is required only to make out a prima facie case of unlawful discrimination at which point the burden shifts to the defendant to justify the existence of any disparities. See e.g., Noris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L.Ed. 1074 (1935); Muniz v. Beto, 434 F. 2d 697 (CA5, 1970); Works v. Southern Bell Telephone and Telegraph Company, 408 F. 2d 228 CA5, 1969); Gates v. Georgia-Pacific Corporation, 326 F. Supp. 397 'D.C.D. Or. 1970). Once the plaintiff has made out his prima facie case we look to the defendant for an explanation since he is in a position to know whether he failed to hire a person for reasons which would exonerate him. Hoigson v. First Fed. Sav. & L. Ass'n., supra, pg. 822.

I find that the plaintiff has made a prima facie case of refusal by the defendant to hire on the basis of age. Thus, it is incumbent upon me to carefully exam ine defendant's position and each of its contentions in order to arrive at a decision as to whether or not the defendant's reasons do indeed "exonerate' it.

Defendant Greyhound Lines, Inc., is the nation's largest inter city bus carrier with 105,000 route miles within the continental United States. The defendant ⚫mploys approximately 9,500 bus drivers all of whom must meet certain re, lite ments that are set by the defendant in accordance with Federal Regulations, State Statutes and the defendant's own policies. The above mentioned reg lite rents relate to an individual's character, age minimum age is 24, matim im 5, height, weight, education, health, driver training school and probationary period.

The purpose of the health examination is to detect the presence of and th or mental defect that would affect the applicant's ability wafely to Totor vehicle. Included in the instructions from the Department'd Trúl tion and the defendant that the examining physicians receive is

"The examining physician should be aware of the vizorova and mental and emotional responsibilities placed on the an motor vehicle. In the interest of public saferm the exam required to certify that the driver does not have any of organic defect of such a nature as to affect the driver anoth

for rejection or indicate the need for making certain laboratory tests or a further, and more stringent, examination. *** (Pltf. ex. 6 pg. 1; pltf. ex. 7)."

It is axiomatic that common carriers are held to an extremely high degree of care. Thus, it is the defendant's obligation to exercise the highest degree of care possible in all aspects of its business including, of course, the hiring of bus drivers. When successfully completed the aforementioned qualifications and requirements merely constitute an entry into defendant's organization. Greyhound bus drivers must continue to meet standards set by the defendant in accordance with Federal Regulations.

Those standards include a low accident rate, safe drinking habits, good health, good driver attitude and courtesy to customers (Pltf. ex. 1 req. 27). Each driver's reaction time is checked periodically as is his driving ability under all weather conditions. A physical examination is required by Federal Regulations at two-year intervals up to age 50 and annually thereafter until age 65. (Pltf. ex.'s. 1 and 2 req. 28).

Thus, it may be seen, a fortiori, that defendant does exercise a high degree of care in the hiring of its bus drivers.

Defendant's next contention is that the required physical examination "is incapable of discovering those physical and sensory changes common to all men' that would cause an interstate bus driver to be less safe while in the operation of defendant's business. This premise is not as easily dealt with as was defendant's first contention. The expert testimony tendered at trial and in exhibits differs greatly and so I feel constrained to review certain portions of that material.

Defendant's witness, Dr. Harold Brandaleone, a physician specializing in internal medicine and a medical consultant to bus and trucking companies, testified that he did not believe a man past 40 should be employed in a new job of driving an inter city bus. (tr. 352). Dr. Brandaleone testified that in general after a certain age, usually about 40, degenerative changes occur in the individual such as arteriosclerotic changes in the blood vessels, the heart, the blood vessels in the brain, the kidneys, the lungs, his lower extremities and his visual capacity or sensory changes including a decrease in his ability to see at night (tr. 351; 318). In response to questions concerning physical examinations Dr. Brandaleone testified as follows:

"Well, physical examination can find many of them but there are many things that cannot be detected by physical examination, or even those that may be detected at a periodic examination that could occur every year or every two years in the interim, and this is the thing that concerns me.

"An individual, as he becomes older, can develop any one of these disabilities or infirmities that would make him an unsafe driver, and unless he had been having a physical examination to have these things detected, they would go undetected." (tr. 340).

Further in the testimony the witness testified that the undetectable effects of aging in persons over age 40 are equally as likely to occur in defendant's present bus drivers over age 40 yet he did not consider them unsafe nor did he recommend that defendant retire its drivers at age 40. (tr. 384; 394).

Plaintiff's witness, Dr. Abraham J. Mirkin, a physician and surgeon and the first president of the American Association of Automotive Medicine, testified that defendant's policy of excluding bus driver applicants solely due to chron ological age is not based on medical statistics or medical facts since chronological age is not of itself a measurement of an individual's physiological capabilities nor an impairing factor in the ability to drive safely. (tr. 739–40; 749-52; 759; 760). Dr. Mirkin stated the following in relation to physical examinations.

*** I feel that although a physical examination for a driver candidate is an important part of the screening process, it is by no means the only factor nor, in my judgment, the most important factor, in determining whether a driver will be good or will not be good.

"I think a physical examination such as DOT gives or such as the average good internist gives, will screen out certain coarse and gross physical and pathological states and that is all; it will not of itself determine whether an individual is going to be a good driver.

"But all the other things we have to do, investigate the background of an individual, his relationship to police, his relationship to the motor vehicle administrator's office, his relationship to the welfare department, his relationship to Alcoholics Anonymous, his relationship to his indebtedness and his financial control, all of these factors ***” (tr. 760–61).

Professor Ross A. McFarland, Ph. D., a physiological psychologist and specialist in the field of aging was tendered as a witness by the plaintiff. Dr. McFarland testified that chronological age is not a reliable index of a person's physical or psychological condition and cannot be a basis to determine the ability of a person to drive. (tr. 1832; 1834; 1854). He emphasized that chronological age is not an accurate index of a person's physical condition, (tr. 1816; 1819), and stated that many physiological and emotional alterations which result from the aging process are not necessarily a cause for driver limitation or impairment. (tr. 1834). Dr. McFarland testified as follows:

* * * * I think the Greyhound data would show very little evidence that accidents have occurred because of physical defects. I think their medical screening is good and that they would pick up the physically ill or the markedly physically defective person, that would come out.

"There is very little evidence that medical conditions cause many accidents in public transportation. In fact, there are very few *** there is less evidence that heart disease and advanced illness cause automobile accidents. I have had two physician friends die recently and they have drawn up to the side of the road. They have become aware of their illness and they are not apt to have the sudden and acute heart failure while driving.

"This rarely, if ever, occurs in the bus or truck industry***" (tr. 1836). Later in the trial in response to cross-examination, Dr. McFarland stated the following:

*** I am saying that the physical examinations are poor and do not test functional ability, and I want a man judged on the basis of his functional ability, his capacity to do the work, and whenever you employ a man, you immediately put him through all of the functional tests of driving." (tr. 1914).

In an article Dr. McFarland wrote:

"Research has not yet furnished definitive answers to many questions of minimal physical standards for driving and of medical fitness to drive safely. There is great diversity in the requirements of the various states in this connection and in the prevailing professional opinions and practices. Thus far there have only been a few objective studies to establish cut-off points on an experimental basis, and to provide criteria to aid in advising persons with certain physical conditions or the safety of driving." pg. 78. On page 75 of the same article the author made the following statement: "The role of the medical profession in appraising fitness to drive an automobile has been based on clinical judgment and experience, rather than on experimental data involving the application of broader principles.

*** The use of clinical judgment may be effective in extreme cases, but limited information has been developed for minimum standards relating to physical and mental fitness. Furthermore, until very recently, no empirical findings have been reported which indicate that persons suffering from any diseases, with the exception of alcoholism, have higher accident rates than persons free from disease."

Dr. McFarland goes on to write of a series of studies begun in 1963 in California in which accident rates per mile were compared for drivers known to the California Department of Motor Vehicles to have medical defects and drivers known not to have medical defects. The drivers with organic medical conditions fell into tree categories; those with epilepsy, diabetes and cardio-vascular diseases, However, I should like to note that a thorough medical examination including he use of an electroencephalograph, and electrocardiogram and other diagnostic sts would immediately make any of these illnesses apparent.

Thus, having read and listened to the various witresses and drawn upon my own Experience and knowledge I find one common thread throughout: there is no zreement as to the reliability of the proper weight that ought be placed on hysical examinations. I find, that a physical examination is no more valid a test f driving ability for a 25 year old than for a 45 year old. Therefore, I cannot tize defendant's second reason as a criterion for deciding that a man of 25 ould, merely by virtue of being 25, be a safer driver than the man of 45. I cannot Tate with definitive certainty that such physical examinations as are given would capable or incapable of discovering the physical and sensory changes common to men nor that those changes are necessarily caused only by the aging process Prychological and Behavioral Aspects of Automobile Accidents. Reprinted from Traffic Safety Revach Leview, Volume 12, Number 3, pages 71-80, September 1968.

nor that such changes in and of themselves make an interstate bus operator less safe in the normal operation of defendant's business.

The third argument tendered by defendant in defense of its policy concerns itself with the "extra board" system. Within Greyhound's organization there are two general classifications of drivers; those who perform "regular runs" and those who perform "extra board". A regular run is one which is performed regularly and is a scheduled service between two given points. On the other hand, "extra board" runs vary and are performed on the basis of passenger demand and consist of special operations, tours, charters and extra sections of regular runs if there is a call for more than one bus on a regular run. Extra board drivers do not have scheduled routes and work off of the board on a first in, first out basis. On the average an extra board driver is called to perform about four driving runs in a seven day period. (pltf, ex, 29, pp. 43, 55).

Extra board work and regular runs are assigned on the basis of seniority. A driver may go from a regular run to the extra board and back to a regular run (tr. 1176-77) or if he has the necessary seniority, a driver may select a regular run in the winter months which are not as busy as the summer months and then work the extra board in the summer in order to make more money. (tr. 1417-19; 1433).

Neither regular run drivers nor extra board drivers are permitted to drive more than ten hours and cannot be on duty, including driving, for more than fifteen hours, without at least eight consecutive hours off. (pltf. ex. 29, pp. 33-4; Fed. Reg. pltf. ex. 4, 5A, 5B).

It is defendant's strong contention that the rigors of the extra board are such as to necessitate the imposition of an age limitation. Defendant asserts that persons between the ages of 40 and 65 simply do not have the stamina for the irregular work schedule of the extra board. Five of defendant's drivers appeared as witnesses and each testified that being an extra board driver is demanding and physically exhausting work.

However, after listening to the testimony concerning extra board vis a vis regular run driving, I am not convinced that the irregular hours and possible adverse driving condition are any more difficult for those applicants over 40 years of age than for those under 40. I cannot accede to a contention which flatly states that all applicants over 40 are inflexible, unadaptable and untrainable and, in effect, that is what I am called upon to do. The defendant has not tendered the necessary statistical evidence to allow for such a finding. The defendant's policy is not based on personal experience or observations of new applicants age 40

or over.

"Speculation cannot supply the place of proof."

Galloway v. U.S., 319 U.S. 372, 395; Moore v. Chesapeake Ry. Co., 340 U.S. 573, 578.

In Weeks v. Southern Bell Telephone and Telegraph Co., 408 F.2d 228, 235 (5th Cir. 1969), plaintiff's application for the position of switchman was refused consideration solely because of her sex. The court held in refusing to accept defendant's contention that the job was too strenuous for women:

"We conclude that the principle of nondiscrimination requires that we hold that in order to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved."

The question thus arises as to whether or not Greyhound has established a "factual basis" for its belief that applicants between the ages of 40 and 65 would be unable to perform safely the duties of an extra board driver. I find it has not established such a basis. It is true as the plaintiff has asserted that the defendant is in a position to obtain the pertinent objective data simply by comparing the accident records of its extra board drivers who are over 39 years of age with the accident records of its extra board drivers who are under that age. (pltf, post tr. brief, pg. 34). Nor has the defendant compared the relationship between age and applicant failures at the training stages. (tr. 491). It is also true as plaintiff states that the defendant instead combined its statistics for extra board drivers and regular run drivers. These statistics actually show that its drivers over age 40 have a better safety record than those under 40. (deft. exs. 7, 8). Thus it may be assumed that the better safety record of Greyhound drivers over age 40 applies to those on

There is no requirement that older drivers may not bid for extra board work (tr. 546) and there are drivers, as in Indianapolis, Indiana who after 20 years on the extra board still do not hold regular runs. (tr. 1283-4). Plaintiff submits and I agree that such practices belie any claim that the extra board work is so 'rigorous' that a 40 year old age limit is necessary.

Defendant's fourth argument for continuation of its policy is that an interstate bus driver is most safe after acquiring 16 years of interstate bus driving experience and such experience could not be acquired by newly-employed drivers between age 40 and 65. Numerous charts tendered by the defendant as evidence purported to show statistics which would support defendant's contention. For instance, during 1968-71 drivers between the ages of 24-40 had the highest number of accidents per driver, whereas drivers 41-60 had about the same low accident experience (the drivers between 56-60 showed a slight increase in accidents over the safest age group of 51-55 but substantially below the age group 24-40). Defendant also purported to show that during the same period drivers with up to 5 years' experience had higher accident rates than those with more than 5 years' experience. Defendant asserted that the safest period for drivers occurs from 11 to 25 years after initial employment and that this safe period would be lost if applicants were hired after age 40. (Deft. exs. 7, 8).

Dr. John Eberhardt, a research psychologist with the National Highway Traffic Safety Administration, United States Department of Transportation, stated that he had tested the significance of the points on defendant's exhibits 7 and 8 and had found that the alleged "upswings" for the age group 56-60 and for the group with 26-30 years of experience were not significantly different from chance and were insignificant. (tr. 1754-55).

It is most important to note that exhibits 7 and 8 do not take into consideration the number of miles driven by drivers in each age group. (tr. 624). Defendant has stated that older drivers usually hold regular runs. Defendant's exhibit 5 is a chart showing that the average regular run driver drives more than twice as many miles monthly than does the average extra board driver. Since there is no way to know how many miles were driven per driver in each age and experience group in defendant's exhibits 7 and 8 it is not possible to duly compare accidents per mile driven in relation to the age of the driver. In other words, the question is unanswered as to whether a person over age 40 is less safe than one under 40 per mile driven.

One might even conjecture that it is not the fact of experience so much as the maturity of the individual that allows for the safety record of those with 11-25 years of experience. Defendant has admitted that certain causes of accidents, such as emotional immaturity and lack of stability are found more frequently in those inder age 35. (tr. 1187). However, we are not in the realm of conjecture and I find hat defendant has not satisfactorily proved that the safety record of those drivers th 16 years of interstate bus driving experience is due to the fact that these individuals were hired before reaching the age of 40.

Nor has defendant impressed me with a cogent reason for its refusal to hire drivers over the age of 40 even though those drivers have had other interstate bus riving experience including driving extra board runs for other companies. Dendant contends that applicants over the age of 40 cannot be "untrained" if they have had prior experience and that

"it has been our experience that it is easier to take someone who has never driven a large vehicle and teach him to drive it than to take someone who has learned to drive a large vehicle some place else and then teach him to drive the way we want and expect him to drive our large vehicle." (tr. 645). Yet, all five of defendant's driver-witnesses had previous commercial driving perience driving buses or large trucks before being employed by Greyhound. tr. 1290-1; 1296-1300; 1342; 1385; 1440).

It is, I believe, inconsistent to maintain that those who have driven large hicles and are under age 40 are able to be "untrained" whereas those over age 40 cannot be "untrained". Defendant has offered no evidence that would satis actorily prove such a contention.

Unable to find merit in defendant's four arguments for its age limitation policy should, at this juncture, like to mention a number of other factors, that I have 20 borne in mind in reaching my final decision.

During certain peak periods the defendant leases equipment and drivers from ther bus companies and during those periods the drivers become part of defendat's operations. Such drivers, however, are not subjected to defendant's screening