Amicus Curiae Brief — Astoria Fed. Sav. & Loan Assn. v. Solimino

QUESTION PRESENTED

Whether a judicially unreviewed determination of a

state administrative agency precludes an action in federal

court under the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 621 ef seq.

(i)

TABLE OF CONTENTS

Page

LL i

INTEREST OF AMICUS CURIAE .........................-.-.-. 1

STATEMENT OF THE CASE ...................................... 2

SUMMARY OF ARGUMENT ......... lt 2

EE 4

THE ADEA MANDATES THAT THE COURTS,

NOT ADMINISTRATIVE AGENCIES, ULTI-

MATELY DETERMINE THE FEDERAL RIGHTS

THAT CONGRESS GUARANTEED OLDER

WORKERS ..................... RS 4

EEE 4

A. The Purpose of State Agency Review Is to

Supplement, Not Supplant, the Judicial Reme-

dies Available to Victims of Discrimination ..... 6

1. Section 14(b) of the ADEA Provides for an

Action in Federal Court Following the Ter-

mination of State Proceedings ............... 6

2. Neither the State Administrative Proceed-

ings nor the Federal! EEOC Process Substi-

tutes for a Full Judicial Determination __. x

B. A Common Law Rule of Preclusion Is Incon-

sistent With ADEA Section 14(a), Which Pro-

vides That ADEA Actions — Any

a ecutueconecs 14

C. The Absence of a “Substantial Weight” Provi-

sion Does Not Compel Administrative Preclu-

rr ete a a 17

iv

TABLE OF AUTHORITIES

CASES Page

Chandler v. Roudebush, 425 U.S. 840 (1976) ..5, 17, 18, 19

Delgado v. Lockheed-Georgia Co., 815 F.2d 641

(11th Cir. 1987) ........ ccebieeiaildanaiidasthinteasiimiseteemtemdaiiaseniaas 6, 13

Duggan v. Board of Education, 818 F.2d 1291 (7th

Ss I caesceicehica aaaeceah 6,13

Dunlop v. Pan American World Airways Inc., 672

Se My snes 15

Gilmer v. Interstate/Johnson Lane Corp., No. 90-

18, cert. granted, 111 S. Ct. 41 (1990) ...... aoe 2

Gregory v. Ashcroft, No. 90-50, cert. granted, 111

S. Ct. 507 (1990) ............... Eee SUE re nee a 2

Harbison-Walker Refractories v. Brieck, cert. dis-

missed, 487 U.S. 1216 (1988) 2.000000... 2

Hoffman-LaRoche, Inc. v. Sperling, 110 8. Ct. 482

Aer ae mee re enema Oe ONT TTT Ne 2

Kremer v. Chemical Construction Corp., 456 U.S.

REESE REESE PCE oreo ne Sa A 6, 11, 17, 18

Lehman v. Nakshian, 453 U.S. 156 (1980) ............ 19

Louisiana Public Service Commission v. Federal

Communications Commission, 476 U.S. 355

ERR em Se ART ER aS ee SRA ee Rae 16

Love v. Pullman Co., 404 U.S. 522 (1972) ........... 14

Mack v. South Bay Beer Distributors, Inc., 798

ie 8... Le eer 17

Martinez v. United Automobile Aerospace & Agri-

cultural Implement Workers of America, 772

i £4 Ce ne 18

Nash v. Florida Industrial Commission, 389 U.S.

I eee 16

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979). 6, 8, 10,

11, 13

Public Employees Retirement System v. Betts,

109 S. Ct. 2854 (1989) . 2

Ray v. Atlantic Richfield Co., “435 U. S. 151 (1978). 16

Rosenfeld v. Department of the Army, 769 F.2d

I. GO 6

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) . 15

Solimino v. Astoria Federal Savings and Loan

Association, 901 F.2d 1148 (2d Cir. 1990)... 2

Vv

TABLE CF AUTHORITIES—Continued

Page

Stillians v. Iowa, 843 F.2d 276 (8th Cir. 1988)... 23

Sun Ship, Ine. v. Pennsylvania, 447 U.S. 715

RR RE ea Ts PS RE RR 17

ee steiernsnnnsvntiincsinicbnincionsisctnihitsilintaticiadieeaiiiestinis 3, 4, 5, 11

STATUTES

Age Discrimination in Employment Act (ADEA),

ETI ee

1

BO U.S.C. § GBC (e) (1) nnn cccccccccccececceeeees 7

29 U.S.C. § 626(c) (2)... (sineinacliapentesininasinetanialins 7

I i 13

29 U.S.C. § 626(d) 13

29 U.S.C. § 633 (a)... sbeisais ......B, 5, 14, 15, 16, 17

29 U.S.C. § 633 (b) 202 .. ...B, 6, 7, 8, 10, 11, 12, 17

Alaska Stat. § 18.80.220(a)(1).. 9

| SS eee 9

Cal. Gov’t Code §12941(a) Pe RAC 9

Colo. Rev. Stat. § 8-2-116.... 9

Conn. Gen. Stat. § 46a-60(a)(1). aa 9

D.C. Code Ann. § 1-2502(2)... 9

Del. Code Ann. tit.19,§710(7) 9

Employee Retirement Income Security Act of 1974

(ERISA), 29 U.S.C. § 1144(a)

Fla. Stat. § 760-01-10,112.0438-44 ss

Ga. Code Ann. §§ 34-1-2(a), 45-19-20. is

Haw. Rev. Stat.§ 878-2...

ER Se

Idaho Code § 67-5910(7)

Ill. Rev. Stat. ch. 68, para. 1-103 ( A) Ee avi

EE ee

Iowa Code § 601A.6(1) (2) ati

Kan. Stat. Ann. § 44-1115...

Ky. Rev. Stat. Ann. §344.010(4) PPB 2S

La. Rev. Stat. Ann.§ 972 eet. Apes

Mass. Gen. Laws Ann. ch. 151B, § 1(8) bana

Md. Code Ann. art. 49B, § 16 (a) ola Pike ad SE,

Me. Rev. Stat. Ann. tit.5,$4572

Mich. Stat. Ann. § 3.548(202) aleensianiadialaonias

—

ovovvonu

—_

ovvovrvuvevevvvs ©

vi

TABLE OF AUTHORITIES—Continued

Minn. Stat. §§ 181.81, 363.08(1), (2)... a re ae

Miss. Code Ann. § 25-9-149 000 cen.

Mo. Rev. Stat. § 213.055(1) 00... een rs

Mont. Code Ann. § 49-2-303 (1) 0.

N.C. Gen. Stat. §§ 126-16, 143-416.2...... Ee

N.D. Cent. Code § 14-02.4-02(1) 2.0.0... cee

N.H. Rev. Stat. Ann. § 354-A:8(I)

N.J. Rev. Stat. § 10:5-2.1....... 2 ES ae me

A eo cccatsegnemanbensanionae

N.M. Stat. Ann. § 28-1-7(A) .00000000000000 eee. siete

N.M. Stat. Ann. §§ 28-1-13(A) and (C)....

N.Y. Exec. Law § 296 (3-a) (a) 0.000000... Son

Neb. Rev. Stat. § 48-1003 (1) 20.0.0...

Nev. Rev. Stat. § 613.330(a). ........ ich

Ohio Rev. Code Ann. § 4112.02 0. ‘hit

Okla. Stat. Ann. tit. 25, § 1802.(1) ................ siuaiisaie

Or. Rev. Stat. § 659.030(1) (a), (b) 00... anita

Pa. Cons. Stat. § 954(h) 00... ae a:

R.I. Gen. Laws § 28-5-6 (J) 0... aati aes

S.C. Code Ann. § 1-13-30(c)........ eee ee

S.D. Codified Laws Ann. § 3-6A-36.1 .......... so

Tenn. Code Ann. § 4-21-101............ ao. ae

Tex. Rev. Civ. Stat. Ann. art. 5221k, § 1.04(a)

Utah Code Ann. § 34-35-6(1) (a)...

es I co ccesctcnccsesscenovecseees

Vt. Stat. Ann. tit. 21, § 406 (e) .................0....00.-00000.-..

W. Va. Code § 5-11-3(q)

Wash. Rev. Code § 49.44.090(1) 00000000... oe

, 5 |: | rece ee eee

EE

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e................ eh ee I an

TE ;

42 U.S.C. § 2000e-16 _............... SE ne oe

29 C.F.R. § 1626.10(a) (1990) ..0000 nn...

ko BG 8 EL enoneneees

29 C.F.R. § 1626.10(c) (1990) ...................................

vii

TABLE OF AUTHORITIES—Continued

LEGISLATIVE HISTORY Page

en, Cn Cn ID... ..........-necnconnenstannocsoonnes 16

113 Cong. Rec. 31253 (1967) ...................................... 8

113 Cong. Rec. 31254 (1967) ............. ee. x

113 Cong. Rec. 34743 (1967) . * 9

113 Cong. Rec. 34752 (1967) SODA Wie 9

113 Cong. Rec. 7076 (1967) 0... DAT Ree tee en 16

118 Cong. Rec. 24397 (1972) ..................2.--c0..002-000000--- 19

Hearings Before the Senate Comm. on Labor and

Public Welfare, Subcomm. on Labor on S. 830

and 8S. 788, 90th Cong., Ist Sess. 113 (1967) 7

H.R. 13054, §14(a), H.R. Rep. No. 805, 90th

Cong., Ist Sess. (Leg. Hist. 103) oath 17

H.R. Rep. No. 805, 90th Cong., Ist Sess. 11

(1967) UE EL ERR ee eet anni k 15, 17

H.R. Rep. No. 913, 93d Cong., 2d Sess. 40-41

I seteditiantciciiecneeaes FES OR OT ee OS oe Te 19

S. Rep. No. 690, 93d Cong., 2d Sess. 56 (1974)... 19

S. Rep. No. 723, 90th Cong., Ist Sess. 2 (1967) 8, 15, 17

S. 830, as introduced, 90th Cong., Ist Sess. 14,

reprinted in 113 Cong. Rec. 2794-95 (1967) 16,17

MISCELLANEOUS

M. Schuster, The Age Discrimination in Employ-

ment Act: An Evaluation of Federal and State

Enforcement, Legal Processes and Employer

Compliance (School of Management Syracuse

SEER RR a IS ie 11

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1990

No. 89-1895

ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION,

. Petitioner,

ANGELO J. SOLIMINO,

Respondent.

On Writ of Certiorari from the

United States Court of Appeals

for the Second Circuit

BRIEF AMICUS CURIAE OF

AMERICAN ASSOCIATION OF RETIRED PERSONS

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The American Association of Retired Persons (AARP)

is a nonprofit membership organization of more than

thirty-three million persons age fifty and older. Approxi-

mately eleven million AARP members are employed, most

of whom are protected by the Age Discrimination in Em-

ployment Act of 1967 (ADEA}, 29 U.S.C. § 621 et seq.

AARP represents the interests of older persons through

legislative, judicial and administrative advocacy. The

Worker Equity Initiative of AARP was created in 1985

to study and address issues affecting the employment of

older workers, particularly age discrimination. Proper

and full enforcement of the federal and state age dis-

2

crimination laws is of paramount importance to AARP

and its members. To this end, AARP has been a strong

advocate of legislation to strengthen the protections and

procedures of the ADEA and state laws. In addition,

AARP has filed numerous amicus curiae briefs in this

Court and the United States Courts of Appeals concerning

the interpretation of the ADEA to insure that the law

safeguards the interests of older workers.’

The most significant right and remedy Congress pro-

vided older workers in the ADEA is the right to their

day in court, particularly before a jury of their peers.

Whether Congress intended to close the courthouse door

to older workers who first seek relief through a state

administrative agency, is an issue of significant concern

to AARP members and other older persons who have been

victims of age discrimination. For this reason, AARP

respectfully submits this brief amicus curiae.

STATEMENT OF THE CASE

AARP adopts the statement of Respondent, Angelo

Solimino.

SUMMARY OF ARGUMENT

The question before this Court is who shall be the final

judge in an ADEA case—a state administrative agency

or a federal court. A court should craft a common law

rule of preclusion that gives a state agency the last word

1 See, e.g., Gregory v. Ashcroft, No. 90-50, cert. granted, ‘11

S. Ct. 507 (1990); Gilmer v. Interstate Johnson Lane Corp., No.

90-18, cert. granted, 111 S. Ct. 41 (1990); Hoffman-LaRoche, Inc.

v. Sperling, 110 S. Ct. 482 (1989); Public Employees Retirement

System v. Betts, 109 S. Ct. 2854 (1989): Harbison-Walker Refrac-

tories v. Brieck, cert. dismissed, 487 U.S. 1216 (1988). AARP also

filed a brief amicus curiae in this case before the Second Circuit.

Solimino v. Astoria Federal Savings and Loan Association, 901 F.2d

1148 (2d Cir. 1990).

* The written consents of the parties to AARP’s participation as

amicus curiae have been fi'ed with the Clerk of the Court.

3

in an ADEA case only if such a rule is consistent with

congressional intent. University of Tennessee v. Elliott,

478 U.S. 788 (1986). This Court need only look to the

language and legislative history of the ADEA to discern

that Congress intended for the courts, not administrative

agencies, to make the ultimate determination of age dis-

crimination.

The plain language of the ADEA evidences Congress’

intent to preserve the individual’s right to a de novo court

proceeding following a state administrative determina-

tion. Section 14‘b) of the ADEA permits aggrieved per-

sons to bring a civil action in court to adjudicate their

claims either during or after the state a!ministrative

process. Congress specified that the civil action under the

ADEA would be a jury trial. Surely, Congress would not

have authorized the right to a jury trial after state pro-

ceedings had terminated if it viewed the state administra-

tive determination as precluding a federal court action.

The language of section 14(a) of the ADEA also re-

flects Congress’ intent that a federal court action takes

precedence over state proceedings. In section 14(a), Con-

gress mandated that the filing of a civil action under the

ADEA “shall supersede any State action in Section

I4(a}.” 29 U.S.C. $ 633(a). At a minimum, the plain

meaning of “supersede” is that the court action under

the ADEA ultimately sets aside or takes the place of the

state action. Applying a rule of preclusion would turn

section 14/a) on its head, as the state administrative

proceedings would, in essence, replace the ADEA civil

action.

Allowing the decisions of various state agencies to pre-

clude federa] court actions under the ADEA would lead

to uneven and scattered enforcement of the federal law.

It is well established that determinations by the federal

enforcement agency, the Equal Employment Opportunity

Commission (EEOC), do not preclude a de novo proceed-

ing in court. Thus, individuals who proceed through the

d

EEOC retain their right to a jury trial regardless of an

adverse determination by the federal agency.

If the Court creates a rule of administrative preclu-

sion for ADEA cases, individuals who receive an adverse

determination by a state agency would lose their day in

court, even when they only sought to pursue their rights

and claims under federal law. The right to a de novo

proceeding in federal court would depend on which

agency, federal or state, investigated the charge. The

result would also differ between state agencies as a num-

ber of state laws provide for a de novo court proceeding,

vet others do not. Such a result conflicts with Congress’

vision of a national policy to eliminate age discrimination

from society and to have that policy uniformly enforcec

through the courts. °

Congress encouraged prompt administrative resolution

of claims to benefit older workers, not to prevent older

workers from seeking relief in the courts. Allowing state

agency determinations to deprive older workers of the

right to have a court hear and decide their claims con-

flicts with Congress’ decision to give the courts the last

word in remedying age discrimination.

ARGU MENT

THE ADEA MANDATES THAT THE COURTS, NOT

ADMINISTRATIVE AGENCIES, ULTIMATELY DE-

TERMINE THE FEDERAL RIGHTS THAT CONGRESS

GUARANTEED OLDER WORKERS.

INTRODUCTION

The Second Circuit below held that it is inappropriate

for the federal courts to fashion a common law rule that

gives preclusive effect to determinations of state admin-

istrative agencies in an ADEA action in federal court,

relying on University of Tennessee v, Elliott, 478 U.S.

788, 795-796 (1986). In Elliott, this Court held that a

5

common law rule of preclusion is inconsistent with Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

In reaching this conclusion, the Court examined the lan-

guage and legislative history of Title VII and relied on

precedent that federal employees have a right to de novo

court proceedings. Elliott, 478 U.S. at 795.

In Elliott, the Court focused on section 706(b) of Title

VII, which outlines in part the relationship between

state administrative agencies and the federal enforce-

ment agency, the Equal Employment Opportunity Com-

mission (EEOC). The Court held that since the lan-

guage of section 706(b) requires the EEOC to give “sub-

stantial weight” to the determinations of state agencies,

it would be inconsistent with the statute to accord pre-

clusive effect in federal court to such findings.

In ruling against administrative preclusion, the Court

also ‘ied on its decision in Chandler v. Roudebush, 425

U.S. 480 (1976). Chandler held that a federal employee

was entitled to de novo review in federal court on her

Title VII claims even after an administrative hearing.

While no specific language in the federal employee pro-

vision of Title VII, § 717, 42 U.S.C. § 2000e-16, spoke to

the weight of administrative determinations, the Court

found that the overall language of the statute coupled

with the legislative history, “confirm[ed] that Congress

intended to accord federal employees the same right to a

trial de novo {following administrative proceedings] as

is enjoyed by private-sector employees. .. .” Elliott, 478

U.S. at 795, quoting Chandler, 425 U.S. at 848.

Applying the Court’s analysis in Elliott to the ADEA

compels the same result—a state administrative deter-

mination does not preclude a de novo action in court.

Sections 14/a) and (b) of the ADEA manifest Con-

gress’ intent to make the courts the ultimate adjudica-

tors and enforcers of rights under the federal law. Con-

gress made the ADEA civil action supersede any state

action and granted individuals the right to a de novo

6

hearing in federal court following the termination of

state proceedings. The decision of the Second Circuit in

this case, along with decisions of the Fourth and Seventh

Circuits,’ properly conclude that the language, structure,

and legislative history of the ADEA make the ruling in

Elliott applicable to ADEA cases.

A. The Purpose of State Agency Review Is to Supplement,

Not Supplant, the Judicial Remedies Available to

Victims of Discrimination.

1. Section 14(b) of the ADEA Provides for an Action

in Federal Court Following the Termination of

State Proceedings.

The language of ADEA section 14(b) demonstrates

that administrative preclusion is not consistent with

congressional intent in designing the ADEA. ADEA

section 14(b! provides that no suit may be brought

under section 7 of the ADEA until “sixty days after

proceedings have been commenced under the State law, un-

less such proceedings have been earlier terminated. . . .”

29 U.S.C. § 633 (1b).

* Duggan v. Board of Education, 818 F.2d 1291 (7th Cir. 1987):

Rosenfeld v. Department of the Army, 769 F.2d 237 (4th Cir.

1985). See also Delgado v. Lockheed-Georgia Co., 815 F 2d 641,

646 (llth Cir. 1987) (dicta that unreviewed state agency findings

should not be given preclusive effect ).

* As this Court has recognized, Congress patterned ADEA sec-

tion 14(b), the provision for referring charges to the states,

after Title VII section 706(c), 42 U.S.C. § 2000e-5(¢). Oscar Mayer

& Co. v. Evans, 441 U.S. 750, 755 (1979). In Kremer v. Chemical

Construction Corp., 456 U.S. 461, 469 (1982), the Court viewed

Title VII section 706(c), along with the substantial weight provi-

sion in Title VII section 706(b), as indicative of congressional

intent to preserve a trial de novo following the determinations of

federal or state agencies. The ADEA should be similarly construed

given the parallel language and purpose between ADEA section

14(b) and Title VII section 706(c). Oscar Mayer, 441 U.S. at 756.

7

The statutory language plainly authorizes the filing of

a civil action after the termination of state proceedings.

By expressly permitting a civ'l action to be brought after

state proceedings have concluded, Congress made clear

its intent to preserve the right to bring suit granted by

ADEA section 7 following a final state action. A com-

mon law rule of administrative preclusion would make

the language in section 14(b) meaningless, since such a

rule would preclude the civil action itself.*

Moreover, Congress expressly provided that the civil

action guaranteed by section 7 is a jury trial in a court

of competent jurisdiction. 29 U.S.C. § 626(e) (1), (2).

This reference to section 7 makes clear that Congress

intended to secure a de novo hearing after the state

agency had concluded its proceedings.*

Congress used language similar to section 14(b) in

another provision of the ADEA to demonstrate that the

determination of the state agency is not binding on the

courts or the EEOC, Section 7(d)}‘2) expressly pro-

vides for subsequent federal action by the EEOC fol-

lowing the termination of state proceedings. Congress

authorized EEOC to seek elimination of the discrimina-

tory practice even after the state had rendered its de-

® Petitioner and its amici argue that this language in section

14(b) means the employee must be bound by the agency determina-

tion even if it cecurs before the employee is first permitted to with-

draw from the administrative process and file an action in court.

The harshness of such a result demonstrates that petitioner's con-

struction is wholly inconsistent with the statutory scheme.

“Even the business community acknowledged the fairness of

de nove review as essential to a discrimination statute. As the

representative of the Chamber of Commerce testified at the hear-

ings on the ADEA:

A hearing de nove in court is the fairer approach. Each man

feels he would like to have his day in court.

Hearings Before the Senate Committee on Labor and Public Wel-

fare, Subcomm. on Labor on S. 830 and S. 788, 90th Cong., Ist Sess.

113 (1967).

8

cision. This provision would be totally meaningless if

the state agency’s determination had preclusive effect.

By specifically authorizing EEOC to remedy the discrim-

ination regardless of the state agency's action, Congress

decided that the state agency would not have the last

word in determining the employee’s claim or his rights.

2. Neither the State Administrative Proceedings, nor

the Federal EEOC Process Substitutes for a Full

Judicial Determination.

Allowing a state agency determination to preclude a

federal court action not only conflicts with the language

of section 14(b), it contravenes the purposes underlying

section 14(b:. When Congress enacted the ADEA, it

crafted a delicate scheme in which the states’ efforts

would supplement, not replace, federal enforcement and

federal remedies. See Oscar Mayer, 441 U.S. at 764-65.

Given the ineffectiveness of the state laws and agencies

at the time the ADEA was passed, Congress provided

“formal remedial procedures to compel compliance with

the law ... through suits, either by the Secretary of

Labor or the aggrieved individual, in the Federal or

State courts.” 113 Cong. Rec. 31254 ‘Remarks of Sen.

Javits’.

The legislative history of section 14 of the ADEA

makes clear that Congress sought to create a “clear-cut

and implemented Federal policy * * * [that] would pro-

vide a foundation for a much-needed vigorous, nation-

wide campaign to promote hiring without discrimination

on the basis of age.” S. Rep. No. 723, 90th Cong., Ist

Sess. 2 (1967).

Congress carefully structured the relationship between

federal and state enforcement of age discrimination

claims in the ADEA in light of various problems with

civil rights enforcement at the time the ADEA was en-

acted. A “national policy to stop invidious distinctions

in employment because of age,” 113 Cong. Rec. 31253

9

(1967) (Remarks of Sen. Yarborough), was needed, in

part, because of the lack of uniformity’ and the ineffec-

tiveness * of the twenty-four state laws prohibiting age

discrimination that existed at that time.’ Indeed, even

officials in states with age discrimination laws favored

federal legislation that would establish a national! policy.

S. Rep. No. 723, 90th Cong., Ist Sess. 3 (1967).

Given the inadequacy of the state laws, Congress re-

quired a state to not only have a law prohibiting age

diserimination like the ADEA in order to participate in

ADEA enforcement, but to establish a “State authority

to grant or seek relief from such discriminatory prac-

tice .. .” 29 U.S.C. § 633(b)."" In making such a re-

7“Although age discrimination in employment laws are found in

about one-half of our States, such laws generally are not considered

to be very effective.” 113 Cong. Ree. 34743 (1967) (Remarks of

Rep. Matsunza). There were exceptions, but “the principal reason

was the lack of uniformity.” Jd.

*“'Mjany of the [state] laws have not been implemented and

most of the states lack the resources to assure compliance.” 113%

Cong. Ree. 34752 (1967) (Remarks of Rep. Dwyer).

% See The Older American Worker: Age Discrimination in Em-

ployment, Report of the Secretary of Labor to the Congress Under

Section 715 of the Civil Rights Act of 1964, p. 10, reprinted in

Legislative History of the Ave Discrimination in Employment Act

of 1967, U.S. Equal Employment Opportunity Commission, p. 27

(hereinafter “Leg. Hist.”’).

™ Forty-six states plus the District of Columbia currently have

laws prohibiting age discrimination against private and public

employees. See Alaska Stat. § 18.80.220(a)(1); Cal. Gov’t Code

§12941(a); Colo. Rev. Stat. § 8-2-116; Conn. Gen. Stat. § 46a-

60(a)(1); Del. Code Ann. tit. 19, § 710(7); D.C. Code Ann. § I-

2502(2); Fla. Stat. § 760-01-10, 112.043-44; Ga. Code Ann. &§ 24-

1-2\a), 45-19-20 to 42; Haw. Rev. Stat. § 378-2; Idaho Code § 67-

5910(7); Ill. Rev. Stat. ch. 68, para. 1-1023(A); Ind. Code § 22-

9-2-1; lowa Code § 601A.6(1)(2); Kan. Stat. Ann. § 44-1115; Ky.

Rev. Stat. Ann. § 344.010(4); La. Rev. Stat. Ann. § 972; Me. Rev.

Stat. Ann. tit. 5, § 4572; Md. Code Ann. art. 49B, £ 16(a); Mass.

Gen. Laws Ann. ch. 151B, £1(8); Mich. Stat. Ann. § 3.548(202);

Minn. Stat. §§ 181.81, 363.03/1), (2); Mo. Rev. Stat. 213.055(1);

10

quirement, Congress established minimum rights, pro-

tections, and procedures in the ADEA. While the states

may provide greater rights and protections, they may

not diminish the protections afforded under the federal

law.

Section 14(b) grants a state agency an opportunity to

promptly resolve the employment dispute. As this Court

has recognized, the purpose of referring charges to the

states for at least sixty days was “to screen from the

federal courts those discrimination complaints that might

be settled to the satisfaction of the grievant in state pro-

ceedings.” Oscar Mayer & Co. v. Evans, 441 U.S. at 756.

The state agency’s role in enforcement of the ADEA

parallels the role of the federal agency, the EEOC, to

promptly conciliate and resolve charges of discrimina-

tion. When EEOC refers charges to the state agencies

for investigation and resolution, the state administrative

process substitutes for the federal administrative process.

Indeed, EEOC’s regulations defining the processing and

investigation of charges make the state agencies the

agents or proxies of the EEOC. See 29 C.F.R. § 1626.10

(ec) (1990). State agencies are authorized to “act on cer-

tain charges and the Commission will promptly process

charges which the State agency does not pursue.” 29

Mont. Code Ann. § 49-2-303(1); Neb. Rev. Stat. § 48-1003(1); Nev.

Rev. Stat. 613.330(a); N.H. Rev. Stat. Ann. § 354-A:8(1); NJ.

Rev. Stat. § 10:5-2.1: N.M. Stat. Ann. § 28-1-7(A); N.Y. Exec. Law

§ 296(3-a) (a); N.C. Gen. Stat. §§ 126-16, 143-416.2; N.D. Cent.

Code § 14-02.4-02(1); Ohio Rev. Code Ann. § 4112.02; Okla. Stat.

Ann. tit. 25, § 1302.(1); Or. Rev. Stat. § 659.030(1)(a), (b); 43

Pa. Cons. Stat. § 954(h); R.I. Gen. Laws 28-5-6(J); S.C. Code Ann.

§ 1-13-30(c); Tenn. Code Ann. § 4-21-101; Tex. Rev. Civ. Stat. Ann.

art. 5221k, § 1.04(a); Utah Code Ann. § 34-35-6(1) (a); Vt. Stat.

Ann. tit. 21, § 495(c); Va. Code Ann. § 2.1-116.10; Wash. Rev. Code

$ 49.44.090(1); W. Va. Code § 5-11-3(q); Wis. Stat. Ann. § 111.33

(1); Wyo. Stat. § 27-9-105(b). Three states only cover public em-

ployees in their state laws. See Ark. Stat. Ann. § 12-3502; Miss.

Code Ann. § 25-9-149; S.D. Codified Laws Ann. § 3-6A-36.1. Ala-

bama has no age discrimination in employment law.

11

C.F.R. § 1626.10(c) (1990). A charge received by the

State agency is deemed to have been received by the

EEOC, and vice versa. Id.

It is well-established that the civil action following an

EEOC investigation and determination is de novo. See,

e.g., Elliott, 478 U.S at 795; Kremer, 456 U.S. at 469-70.

Where the state agency acts as EEOC’s agent for the

processing of charges, the determination of the state

agency should have no greater effect than the EEOC’s de-

termination would have on a court action. Moreover,

given Congress’ dissatisfaction with the ineffectiveness

of state agencies at the time the ADEA was passed, it

would be anomalous to accord greater power and preclu-

sive effect to the determinations of state agencies."

The state administrative process does not substitute

for a de novo court action. The Court emphasized this

aspect of section 14(b) in Oscar Mayer, reasoning that:

Prior resort to the state remedy would not impair

the availability of the federal remedy, for the two

are supplementary, not mutually exclusive.

Oscar Mayer & Co. v. Evans, 441 U.S. at 764. More-

over, EEOC reguiations emphasize that the referral and

processing of charges by state agencies must “safeguard

| | the federal rights of aggrieved persons.” 29 C.F.R.

S$ 1626.10(a) (1990). Since the state agency action is

intended to supplement, not replace, the remedy pro-

vided by a federal court, permitting the state admini-

trative decision to preclude a court action is not con-

sistent with the scheme carefully crafted by Congress.

'! The ineffectiveness of the state agencies continues to be a con-

cern even twenty years after passage of the ADEA. Attorneys rep-

resenting businesses express great dissatisfaction with the ineffec-

tiveness of state agencies. See M. Schuster, The Age Discrimination

in Employment Act: An Evaluation of Federal and State Enforce-

ment, Legal Processes and Employer Compliance 29 (School of

Management Syracuse University 1989).

12

Applying a common law rule of preclusion to ADEA

cases would make federal rights and remedies depend on

the state law and agency where the employee worked and

brought suit. Such a result would mean uneven and hap-

hazard enforcement of the ADEA and would deny indi-

viduals in certain states their full rights under the

ADEA.

Frequently, as in this case,’* an individual files his

charge only with the EEOC and seeks to exercise his

rights only under the federal law. Even when the indi-

vidual does not raise a state law claim, EEOC may refer

the ADEA charge to the state agency to satisfy section

14(b!) and thereby protect the individual’s right to sue

under the ADEA. EEOC may also have the state agency

investigate and conciliate the charge on behalf of EEOC,

pursuant to its worksharing agreement with the state

agency. 29 C.F.R. § 1626.10(b) (1990).

The individual who files a charge with the EEOC does

not control whether the state agency or the EEOC wil!

investigate his charge. Yet petitioner’s theory defines

the employee’s rights based on which agency, the state or

federal, decides the claim. For example, petitioner

argues that since under New York age discrimination

law, the state court would give preclusive effect to the

state agency’s determination of a state law claim, the

federal court should give similar effect to the state

agency determination in a suit brought under the federal

law.

Petitioner’s theory not only denies the employee his

federal rights, it leads to inconsistent results among the

state laws. For instance, a number of state age discrim-

ination laws provide for jury trials or de novo court

12 Respondent filed a charge of discrimination with the EEOC

only. EEOC referred the charge to the New York Department of

Human Rights not only to protect Respondent’s federal rights, but

also for investigation and conciliation. Petitioner’s Brief at 4.

13

proceedings,’ which would mean the state agency deter-

minations in those states have no preclusive effect. Ob-

viously in states without age discrimination laws or en-

forcement authorities,"* employees would be entitled to a

jury trial under the ADEA, since the federal agency

determination has no preclusive effect. See Duggan, 818

F.2d at 1295, n. 10.

The extent of the federal right and remedy under the

ADEA clearly cannot depend on the procedures of the

State age discrimination laws. See, e.g., Oscar Mayer &

Co., 441 U.S. at 763. To the contrary, Congress sought

to safeguard the federal rights and remedies under the

ADEA by insuring that the state laws and procedures

not impair the federal right. /d.

Petitioner’s construction of the ADEA not only mini-

mizes the federal rights and remedies, it disregards

Congress’ intent to provide both an administrative and a

judicial forum to victims of discrimination. Petitioner

argues that individuals should be bound by the state

agency determination unless they abandon the state

process before a hearing and decision. Petitioner’s theory

compels the employee to choose between administrative

resolution by the state agency and a jury trial in federal

court. This argument makes administrative relief and

judicial relief mutually exclusive, a premise at odds with

the statutory scheme designed by Congress. Congress ex-

pressly granted employees an administrative forum and

a judicial forum for redress of their rights under the

ADEA. See 29 U.S.C. §§ 626(c), (d). Yet petitioner’s

8 See, Idaho Code § 67-5908 (right to a jury trial); NJ. Stat.

Ann. § 10-5-13 (right to a jury trial); N.M. Stat. Ann. §§ 28-1-

13(A) and (C) rights to a de novo review in court and to a jury

trial).

™ See Delgado v. Lockheed-Georgia Co., 815 F.2d 641, 647 n. 9

(llth Cir. 1987) (Georgia not a referral state since it “has not

established a state authority “to grant or seek relief from such

discriminatory practice.” )

14

theory eliminates the possibility of prompt and informal

conciliation without litigation, which is one of the essen-

tial responsibilities of the EEOC and the state agencies.

The individual who files a charge is unlikely to under-

stand the purpose or effect or the worksharing arrange-

ment between EEOC and the state agency. The victim

of discrimination merely seeks an investigation of his

claim and an attempt at informal conciliation or admin-

istrative resolution. The individual is typically not rep-

resented by counsel when he initiates or proceeds through

the administrative process. No notice is given to him of

the consequences of exercising his right to administra-

tive relief." Yet, the petitioner would impose a require-

ment that the individual must quickly withdraw from

the administrative system or risk losing his day in court.

Such a result is particularly inappropriate “in a statu-

tory scheme in which laymen, unassisted by trained

lawyers, initiate the process.” Oscar Mayer, 441 U.S.

at 761 quoting Love v. Pullman Co., 404 U.S. 522, 527

(1972).

B. A Common Law Rule of Preclusion Is Inconsistent

With ADEA Section 11(a), Which Provides That ADEA

Actions “Supersede Any State Action.”

The relationship between federal and state enforcement

in the ADEA is defined by section 14‘a) of the ADEA,

as well as by section 14‘b!. Section 14‘a) provides:

Nothing in this Act shall affect the jurisdiction of

any agency of any State performing like functions

with regard to discriminatory employment practices

on account of age except that upon commencement of

action under this Act such action shall supersede any

State action.

29 U.S.C. § 633/a! ‘emphasis added).

1 See J.A. 89-90, 92-93.

15

While state actions are not preempted under the

ADEA," the supersede language of section 14(a) makes

the federal action take precedence over “any State ac-

tion.” The plain meaning of the supersede clause is that

the federal action causes the state action to be set aside."

The phrase “any State action” clearly includes adminis-

trative actions, as section 14(a) specifically mentions “the

jurisdiction of any agency.” 29 U.S.C. § 633(a)." Con-

gress did not qualify the phrase “any State action” as

limited to pending or completed actions, and the phrase

can reasonably be interpreted to encompass either pend-

ing or completed actions."”

Administrative preclusion would not only be inconsist-

ent with the language of ADEA section 14(a), it would

stand the language on its head. Giving preclusive effect

to a state agency determination would, in essence, make

™ See H.R. Rep. No. 805, 90th Cong., Ist Sess. 11 (Leg. Hist. 84) ;

S. Rep. No. 723, 90th Cong., Ist Sess. 11 (Leg. Hist. 115).

'? The plain meaning of “supersede” is te “cause to be set aside

or dropped from use as inferior or obsolete and replaced by some-

thing else; to take the place of in function; to replace.” Webster's

New World Dictionary, Third College Edison (1988), 1344.

'* See, e.g., Dunlop v. Pan American World Airways Inc., 672

F.2d 1044 (2d Cir. 1982).

™ Petitioner contends that the phrase only applies to pending ac-

tions and relies on a reference in the committee reports, which

states that commencement of an action under the Act shall stay

any state action previously commenced. H.R. Rep. No. 805, at 11;

S. Rep. No. 723 at 11. Neither the language of the statute nor

the legislative history state that section 14(a) shall have only that

effect. Congress could have used language which would have limited

the reach of section 14(a) to pending actions were that its sole

purpose. Instead, Congress used far broader language.

For example, Congress used the word “supersede” seven years

later in section 514(a) of the Employee Retirement Income Security

Act of 1974 (ERISA), 29 U.S.C. § 1144(a), when it wanted to indi-

cate an intent to broadly prevent state laws from interfering with

the operation of the federal pension law. Shaw v. Delta Air Lines,

Inc., 463 U.S. 85 (1983).

16

the state administrative process replace or substitute for

federal court adjudication. The findings of fact of the

state agency official would replace those of a federal court,

a result at odds with the plain meaning of the supersede

clause in section 14/a).

The legislative history of section 14‘a) also supports a

construction of the statute in which the ADEA civil ac-

tion takes precedence over state action. As initially pro-

posed by the Johnson Administration, the ADEA was to

be enforced by administrative proceedings brought by the

Secretary of Labor, similar to the enforcement machinery

of the National Labor Relations Act.” Section 14 of the

Administration bill only contained what is now the first

clause in section 14/2) and did not include the supersede

clause or what is now section 14(b). With enforce-

ment limited to action by a federal agency, there was no

need to explicitly prohibit state actions from displacing

the Secretary’s authority to enforce the Act, as federal

actions took priority under the Constitution’s Supremacy

Clause. See Ray v. Atlantic Richfield Co., 435 U.S. 151,

163 (1978); Nash v. Florida Industrial Commission, 389

U.S. 235 (1967). See generally Louisiana Public Service

Commission v. Federal Communications Commission, 476

U.S. 355, 369 (1986).

The initial proposal for exclusive enforcement by the

Secretary was changed by an amendment providing that

the Act be enforced through civil actions brought by ag-

grieved persons or the Secretary of Labor." The con-

gressional committees adopted the amendments and

changed the enforcement machinery from primarily ad-

ministrative hearings to an administrative process plus

civil actions in court. At the same time, the committees

2» S. 830, as introduced, 90th Cong., Ist Sess. 14, reprinted in 113

Cong. Rec. 2794-95 (1967) (Leg. Hist. 69).

2! Proposed Amendments 123-129 to S. 830, reprinted in 113

Cong. Rec. 7076 (1967) (Leg. Hist. 71-73).

17

changed section 14 to section 14/a), added the supersede

clause, and also added a new section 14(b).”

By eliminating the federal government as the exclusive

enforcer of the ADEA, Congress removed the protective

cloak of the Supremacy Clause. However, by adding the

supersede clause, the same result was achieved. This

legislative sequence raises the inference that at least one

purpese in providing that ADEA civil actions supersede

state action was to insure the same protection against

state interference previously provided by the Supremacy

Clause. Cf. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715,

725 n. 6 (1980). Thus, by explicitly providing that an

ADEA action in federal court supersedes any state ac-

tion, Congress indicated its intent that determinations

by state agencies would have no preclusive effect in ADEA

cases.

C. The Absence of a “Substantial Weight” Provision Does

Not Compel Administrative Preclusion.

Nothing in this Court’s decisions compels the conclu-

sion that express statutory language, such as the “sub-

stantial weight” provision in Titie VII,” is required for

finding that administrative preclusion is inconsistent with

the ADEA. To the contrary, the Court’s decisions in

Kremer v. Chemical Construction Corp., 456 U.S. 461

(1982) and Chandler v. Roudebush, 425 U.S. 840 (1976),

acknowledge the right to a de novo court proceeding even

in the absence of an explicit statutory mandate. More-

228. 830, § 14(a), S. Rep. No. 723, 90th Cong., Ist Sess. (Leg.

Hist. 136); H.R. 13054, § 14(a), H.R. Rep. No. 805, 90th Cong.,

ist Sess. ( Leg. Hist. 103).

* The circuit courts finding that administrative preclusion is

required in ADEA cases erroneously interpret Ellicott as mandating

explicit statutory language prohibiting preclusion or specifying the

weight to be accorded state administrative determinations. See

Stillians v. lowa, 843 F 2d 276, 281 (8th Cir. 1988) (“We believe

that the absence of a similar provision from the ADEA goes far

toward resolving the issue before us.”); Mack v. Sowth Bay Beer

Distributors, Inc., T98 F 2d 1279 (9th Cir. 1986) (without analysis).

18

over, the Court’s conclusions in Kremer and Chandler rest

on analyses of Title VII provisions and legislative his-

tory that parallel the ADEA, which make them even more

relevant to the Court's consideration of this case.

In Kremer, the Court recognized that prior to the addi-

tion of the “substantial weight” language in Title VII

$706(b), “EEOC was free to ignore state administra-

tive decisions.” Jd. The Kremer holding implies that even

absent a “substantial weight” provision, state agency

determinations do not preclude federal action. Kremer,

456 U.S. at 474-75 n. 16.

Since the purpose of adding the “substantial weight”

language to Title VII was to increase the deference ac-

corded state findings, Kremer, 456 U.S. at 474-75 and

n. 16, it would be anomalous to conclude that the absence

of a “substantial weight” provision in the ADEA compels

absolute deference to administrative determinations.*' To

the contrary, the language of sections 14/a) and ‘b) of

the ADEA demonstrate Congress’ intent that state pro-

ceedings would have no effect on an ADEA action.

Similarly, in Chandler v. Roudebush, 425 U.S. 840

(1976), the Court found a right to de novo federal court

review despite the ahsence of express language in section

717 of Title VII mandating a de novo proceeding or a

provision according “substantial weight” to the adminis-

trative determination. Chandler held that

[t}he legislative history of the 1972 [Title VII]

amendments reinforces the plain meaning of the

statute and confirms that Congress intended to ac-

cord federal employees the same right to a trial de

nove [following administrative proceedings] as is

enjoyed by private-sector employees. . . .

425 U.S. at 848.

2 See Martinez v. United Automobile Aerospace & Agricultural

Implement Workers of America, T72 F.2d 348, 351 (7th Cir. 1985)

(“The policy of deference te state authority .. . is weaker |in the

ADEA| than in Title VII. ..”).

19

The reasoning and result of Chandler apply to the

ADEA, as this Court has held that the federal employee

provisions of the ADEA, section 15, were modeled after

Title VII section 717, Lehman v. Nakshian, 453 U.S. 156,

167 n. 15 (1980). Senator Bentsen, the sponsor of section

15 of the ADEA, emphasized that “|t)he measures used

to protect federal employees from [age discrimination]

would be substantially similar to those incorporated in

recently enacted amendments to Title VII.” 118 Cong.

Ree. 24397 (1972).” Lehman v. Nakshian, 453 U.S. at

167 n. 15. Moreover, the legislative history of the ADEA

federal employee provision makes clear that federal em-

ployees would be entitled to the same protections as pri-

vate employees. S. Rep. No. 690, 93d Cong., 2d Sess. 56

(1974); H.R. Rep. No. 913, 93d Cong., 2d Sess. 40-41

(1974). Given the parallelism between the ADEA and

Title VII, Chandler also provides support for finding that

administrative preclusion is inconsistent with the ADEA.

CONCLUSION

For the foregoing reasons, AARP respectfully submits

that the Court affirm the judgment of the Second Circuit.

Respectfully submitted,

STEVEN S. ZALEZNICK

CATHY VENTRELL-MONSEES *

AMERICAN ASSOCIATION OF

RETIRED PERSONS

1909 K Street, N.W

Washington, D.C. 20049

(202) 662-4957

Attorneys for Amicus Curiae

American Association of

Retired Persons

Dated: March 25, 1991 * Counsel of Record