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Captain M.A. Gitt

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Under the New York law (Section 297(3)), proceedings must be commenced "within one year after the alleged unlawful discriminatory practice."

If the alleged violation occurred in Florida, on the other hand, where no parallel state law is available, the 60 day notice to the Secretary under Section 7(d)(1) of the federal statute must be filed within 180 days after the alleged violation occurred.

The foregoing discussion relates only to the time within which the 60 day notice must be filled. Once a timely filing of that notice has occurred, the lawsuit itself need only be commenced within 2 years from the date of the unlawful act.

Applying the foregoing provisions to the present situation, I submit that we should be guided by the following conclusions:

1. If we wish to assert that the FAA age 60 rule is violative of P.L. 90-202, and to argue that the termination of an individual airline pilot at age 60 was a discriminatory discharge under the Act, then the base date from which computations of time should be made is the date when active airline pilot status was terminated, probably the same date in which age 60 was attained.

I do not recommend that such a position be asserted under P.L. 90-202 at this time. This opinion is based upon my view that (1) the Department of Labor has publicly stated its view that age is in fact a bona fide occupational qualification for the position of airline pilot, (2) the Department has therefore probably made its decision on this issue before hearing the evidence, and success before the Department would therefore be unlikely, and (3) a setback before the Department of Labor on this issue in the first instance would seriously prejudice our chances for success in the impartial evidentiary hearing which, we hope, will ensue. In addition, P.L. 90-202 contains no guarantee that an evidentiary hearing will be held, and, even if such a hearing were obtained, it would not likely offer a meaningful opportunity to test the evidentiary basis for the FAA rule.