Amicus Curiae Brief — Mount Lemmon Fire Dist. v. Guido, 138 S. Ct. 1165 (2018) (No. 17-587)

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No. 17-587

In THE

Supreme Court of the Hnited States

MOUNT LEMMON FIRE DISTRICT,

Petitioner,

Vv.

JOHN GULDO AND DENNIS RANKIN,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE AARP, AARP

FOUNDATION AND NELA SUPPORTING

RESPONDENTS AND URGING AFFIRMANCE

DANIEL B. KOHRMAN *

LAURIE A. MCCANN

DARA 8. SMITH

WILLIAM ALVARADO RIVERA

AARP FOUNDATION

601 E Street, NW

Washington, DC 20049

Tel.: (202) 434-2064

dkohrman@aarp.org

Counsel for Amici Curiae

*Counsel of Record

TABLE OF CONTENTS

I. UNDER SETTLED STATUTORY

CONTRUCTION PRINCIPLES,

SECTION 630(b) OF THE ADEA

APPLIES TO NON-FEDERAL

PUBLIC EMPLOYERS REGARDLESS

OF THE NUMBER OF EMPLOYEES

A. The plain text of Section 630(b)

unambiguously covers all non-

federal public employers...................... 7

B. The enactment history of the

ADEA, and of Section 630(b) in

particular, confirm that the

ADEA covers non—federal

public employers of all sizes ................. 9

C. No valid basis exists for the

assertion that Section 630(b)'s

first sentence covers state and

local political subdivisions and

that its second sentence merely

HAVING DECIDED THAT THE ADEA

IS A “HYBRID” OF THE FLSA AND

TITLE Vil, THE COURT SHOULD

CONSTRUE SECTION 630(b) BASED

ON THE FLSA’S CLOSELY RELATED

TEXT AND CONTEXT, NOT ON A

NOTION THAT THE ADEA AND

TITLE VII REQUIRE CONSISTENT

I ccnscientemicosvesnecincencensscs

A. This Court has repeatedly

rejected the notion that

corresponding provisions of the

ADEA and Title VII must have

identical meaning, especially

where, as here, parallels with

the FLSA are compelling .................

B. This case is like others where

the Court has diverged from Title

VII in construing the ADEA and,

further, is distinguishable from

instances where the Court has

adopted the same reading of both

HI.

ill

C. Contrary to the rigid theory of

consistent construction Petitioner

advances, the Court has

employed a nuanced approach

when interpreting divergent text

that serves like aims in the ADEA

ee iritrtctibctinishiesaieninsinitimsatictenins 25

D. The Court’s comparisons of the

ADEA’s public and private

sector provisions have not

embraced the rigid consistency

ee 27

CONGRESS'S CHOICE TO APPLY

THE ADEA’S PROTECTIONS TO

STATE AND LOCAL PUBLIC

ENTITIES OF ALL SIZES POSES NO

SERIOUS DANGER TO THE

SURVIVAL OF SMALL POLITICAL

AR EE a nT TEETER EE 29

A. The ADEA covers many small

public subdivisions due to their

agency relations with another

EE 30

B. Other major federal civil rights

laws establish liability for non-

federal public entities of all sizes ....... 31

C. Most state age discrimination

laws already permit monetary

awards in litigation involving

small state and local

TABLE OF AUTHORITIES

Page

Cases

Barnes v. Gorman,

Ee CI crernncecsccccczssecccnescecesssonsees 33

Burlington Indus., Inc. v. Ellerth,

, itecicescncsvececcsonspsnesnensansensese 30

Caminetti v. United States,

eee 8

Carcieri v. Salazar,

Scns csscntccnerndntwaiectuvetcnansainicens 7

Cink v. Grant Cty.,

635 Fed. App’x 470 (10th Cir. 2015)... 16, 30-31

Conrail v. Darrone,

a een 33

EEOC v. Monclova Twp.,

920 F.2d 360 (6th Cir. 1990)..................... 15-16

EEOC v. Wyoming,

I II siictncdancdncecessdaniisconnssanvuntins 27

Ex parte Young,

I SI saciiasscnstsccscticdetsenincveciinaiines 2

Federal Express Corp. v. Holowecki,

— ts Go | ee 21, 26

Franklin v. Gwinnett Cty. Pub. Sch.,

Se I rdcibcnenittatiseabsesbssciintdpicemieuphs 33

Gardner v. Collins,

27 U.S. 58, 2 Pet. 58, 7 L. Ed. 347 (1829)..... 15

General Dynamics Land Sys., Inc. v. Cline,

oo EE 24, 26

Gomez-Perez v. Potter,

553 U.S. 474 (2008).................. 4, 21, 27, 28, 29

Griggs v. Duke Power Co.,

ee i seiicsidnsininictinntentnidemeuietaiiinia 26

Gross v. FBL Fin. Servs. Inc.,

557 U.S. 167 (2009).... 10, 11, 12, 21, 24, 25, 26

Harpham v. City of Dublin,

No. 2:12-cv-01069 (S.D. Ohio) .....................00+ 2

Hartford Underwriters Ins. Co. v. Union Planters

Bank, N. A.,

SCE eae cere 7-8

Hoffman-LaRoche v. Sperling,

ee 2,19

Kelly v. Wauconda Park Dist.,

801 F.2d 269 (7th Cir.

Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2000)........ siatebisamtasinbaliabeliaiilis 4, 20, 34

Ky. Ret. Sys. v. EEOC,

NI as san cineca aecininichineticl 1,15

Lamie v. United States Tr.,

EN I obi scntdaccnicdubdenneiseaeetentonnes 7

Lehman v. Nakshian,

| a 27, 29

Lindh v. Murphy,

I os tasanenicenciiaibintnediaeniiiaiode 11

Lorillard v. Pons,

434 U.S. 575 (1978)................0000022. 4, 14, 19, 20

McDonnell Douglas Corp. v. Green,

eS ethescnsescctscsinnisnccncinnniencenicnn 23

McKennon v. Nashville Banner Publ. Corp.,

ge ere 4, 14, 20

Meacham v. Knolls Atomic Power Lab.,

554 U.S. 84 (2008).............0.....0000. 1-2, 9, 25, 26

Millbrook v. United States,

aii nsdictiniaensatadsemndsutindaile 7

O'Connor v. Consol. Coin Caterers Corp.,

eg 8 RS a 2, 23, 26

Oscar Mayer & Co. v. Evans,

gS ES ee 22, 23

viii

Owens v. Rush,

636 F.2d 283 (10th Cir. 1980)........................ 31

Palmer v. Ark. Council on Econ. Educ.,

154 F.3d 892 (8th Cir. 1998)..................... 15-16

Price Waterhouse v. Hopkins,

EIS RE SS seen ees 24

Reeves v. Sanderson Plumbing Products, Inc.,

Gs UE i cccicisicvescnsesvscsscsssesseess 22, 23

Schrader v. Fred A. Ray, M.D., P.C.,

296 F.3d 968 (10th Cir. 2002)........................ 32

Smith v. City of Jackson,

I a 25, 26

Taaffe v. Drake,

No. 2:15-cv-02870, 2016 U.S. Dist.

LEXIS 57397 (S.D. Ohio, Apr. 29, 2016)......... 2

Trans World Airlines, Inc. v. Thurston,

Be i iiietctetiitcerecensenscnssesiess 22, 23

United States v. Ron Pair Enterprises, Inc.,

ee Sa iecitrcraninnicnttanitenniictutentnensissnctet 8

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

B70 UB. SEB GROUT). .....cccccccccesceceeceseee 10, 12, 15

Ward’s Cove Packing Co. v. Atonio,

Ss inincisderdahncsieestekisiisiapiintinintipiais 26

Western Air Lines, Inc. v. Criswell,

TE ee i idicttenscenesscincenccsitscccssersees 23

STATUTES

Age Discrimination Act of 1975, 42 U.S.C.

Be I, OO GE eeccccccnnsssccnsccacevcncnepereconsecenoansens 32

ee iiteteresinececeincesinienccnsessaccsnsvenenet 32

aires nientncsnsnriniseonnsiccnenates 33

gg ee 32

Age Discrimination in Employment Act, 29

U.S.C. §§ 621-34 (“ADEA”).................... passim

le I icicicnscseneccscntsenccusincensstnseten 24

Ee icciticccessccscnsienssctsescenesessentetns 28

4 | keer 9, 23

29 U.S.C. § 626(b) (ADEA, § 7(b)) ................. 19

So Ee 3, 10, 11, 15

IE ccnrcnccsencenessccunesansivehetiti passim

ee nicrcccsncessvsnssinemcscsssensate 16, 17

| Eee 21, 28, 29

29 U.S.C. § 633(b) (ADEA, § 14(b))............... 22

Americans with Disabilities Act, Pub. L.

No. 101-336, 104 Stat. 327 (1990),

42 U.S.C. §§ 12101, et seq.

ae 14, 16, 31, 32, 34

Civil Rights Act of 1991, Pub. L. No. 102-66,

105 Stat. 1079 (1991)..............0c0ccccesereees 10, 24

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, 86 Stat. 103 (1972)

gf Mies canbe 22: 9, 10, 11, 12, 13, 15

Fair Labor Standards Act of 1938, 29 U.S.C.

§§ 201, et seq.

> Se 3, 12, 13, 14, 18, 19, 20, 26

SOP ING el ininctecintnestisininicnsianinniidind ge ee 13

Fair Labor Standards Amendments of 1974,

Pub. L. No. 93-259, 88 Stat. 55

| eas RACES Ae Sa Le 4, 12, 13, 20

Section 28 of the Fair Labor Standards

Amendments of 1974 (“1974

SUT Wiiditisnntacilidiniendcicguiceeceai ns 4, 9-14, 20, 27, 28

Section 504 of the Rehabilitation Act of 1973,

29 U.S.C. § 794 (“Section 504”) ............... 32, 33

SE rR ORE Pee NY 32

Title VI of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000d, et seq. ........00..cccccccceeeeeee 32

I iibitininidentisnntiniieesiee eerie 32

Serre ters-.9 33

42 U.S.C. § 2000d-4a(1) ooo... cccccecceccecseeseeseeees 32

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e, et seq. (Title VID)... passim

ee 10

eR 10

42 U.S.C. § 2OOD]-2(e)(1) 2... eccccceeeeecceeeeees 23

42 U.S.C. § 2000e-5(c) (Title VII, § 706(c)) ... 22

Title [IX of the Higher Education Act

Amendments of 1972, 20 U.S.C.

nn sich dieritaeetaniantnntnniianseminnastiunemncees 21, 33

Te 21

LEGISLATIVE HISTORY

H.R. Rep. No. 93-913 (1974)..........cccccccecseeeeeeeeees 13, 14

S. Rep. No. 93-690 (1974) .................cccccccecseeseeees 13, 14

S. 2747, Fair Labor Standards Amendments,

93rd Cong., introduced Nov. 27, 1973............ 13

OTHER AUTHORITIES

Harpham v. City of Dublin, No. 2:12-cv-

01069 (S.D. Ohio, Nov. 20, 2012)

EET 2

xii

David Neumark, lan Burns, Patrick Button

& Nanneh Chehras, Do State Laws

Protecting Older Workers from

Dissrienination Redues Ag:

Dtenstenieattemn bn Miia

Experimental (and Nonexperimental)

Evidence, Working Paper 2017-360

(Michigan Retirement Research

Center, Mar. 2017), www.mrrc.isr.

eee

Pls. Rule 56.1 Statement of Facts............................ 15

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal

ee ccinniiiouniccictinseeniahhenninaiiniansibiateneeedesensionsnn 12

ies ei Sy Se trinastensnrnnisnesietnsnentitienmasiamanenaiiniinibianiidesns l

Be Ga i Se aecrtenncsiennceseenensnenensnnsonnvemsmiesnsneentnenenssnns l

U.S. Census Bureau, Special District

Government Employment and Payrolis

by Employment-Size Group and State,

(Mar. 2002), https://www.census.gov/

prod/2005pubs/gc024x2. pdf. .......................... 35

U.S. Census Bureau, Special District

Governments by Function and State:

2012 (initial data release, Sept. 26,

2013), https//tinyurl.com/y8bdha3h. ............ 35

STATEMENTS OF INTEREST'

AARP is the nation’s largest nonprofit,

nonpartisan organization dedicated to empowering

Americans 50 and older to choose how they live as they

age. With nearly 38 million members and offices in

every state, the District of Columbia, Puerto Rico, and

the U.S. Virgin Islands, AARP works to strengthen

communities and advocate for what matters most to

families, with a focus on financial stability, health

security, and personal fulfillment. AARP’s charitable

affiliate, AARP Foundation, works to end senior

poverty by helping vulnerable older adults build

economic opportunity and social connectedness.

AARP and AARP Foundation litigate and file

amicus briefs to address employment practices and

other conduct that threaten the financial security and

well-being of older Americans. In particular, they are

active in trial and appellate matters nationwide

seeking vigorous enforcement and _ proper

interpretation of the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621-34 ADEA”). See,

e.g., Ky. Ret. Sys. v. EEOC, 554 U.S. 135 (2008) (AARP

amicus brief supporting respondent and affirmance);

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84

(2008) (AARP amicus brief supporting petitioners and

| Pursuant to the Court’s Rule 37.6, amici state that this brief was

not authored in whole or in part by any party or their counsel,

and that no person other than amici, their members, or their

counsel contributed any money that was intended to fund the

preparation and submission of this brief. Pursuant to this Court's

Rule 37.2{a), letters by both parties consenting to the filing of

amicus briefs are on file with the Court.

reversal); O'Connor v. Consol. Coin Caterers Corp.,

517 U.S. 308 (1996) (same); Hoffmann-La Roche v.

Sperling, 493 U.S. 165 (1989) (AARP amicus brief

supporting respondents and affirmance); Taaffe v

Drake, No. 2:15-cv-02870, 2016 U.S. Dist. LEXIS

57397 (S.D. Ohio, Apr. 29, 2016) (denying motion to

dismiss ADEA action under Ex parte Young, 209 U.S.

123 (1908), seeking injunctive relief against state

education administrators acting in their official

capacity); Harpham v. City of Dublin, No. 2:12-cv-

01069 (S.D. Ohio, Nov. 20, 2012) (complaint against

municipality alleging violation of ADEA in the

provision of health-related employment benefits).

The National Employment Lawyers Association

(“NELA”) is the largest professional membership

organization in the country comprising lawyers who

represent workers in labor, employment, and civil

rights disputes. Founded in 1985, NELA advances

employee rights and serves lawyers who advocate for

equality and justice in the American workplace. NELA

and its 69 circuit, state, and local affiliates have a

membership of over 4,000 attorneys who are

committed to working on behalf of those who have

been treated unlawfully in the workplace. NELA's

members litigate daily in every circuit, affording

NELA a unique perspective on how the principles

announced by the courts in employment cases actually

play out on the ground. NELA strives to protect the

rights of its members’ clients, and regularly supports

precedent-setting litigation affecting the rights of

individuals in the workplace.

This case addresses several issues of

tremendous importance to amici and older workers

they routinely represent. First, Petitioner Mt.

Lemmon Fire District “MLFD”), in seeking reversal

of the Ninth Circuit’s construction of Sections 630(a)

and (b) of the ADEA, which define “employers” and

“persons” covered by the Act, distorts settled

principles of statutory construction articulated in this

Court’s prior decisions. Second, Petitioner, in trying to

persuade this Court to adopt an identical reading of

provisions of the ADEA and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title

VII"), mischaracterizes the Court’s careful efforts,

over more than five decades, to navigate similarities

and differences between the texts, contexts, and

histories of the ADEA, Title VII, and the Fair Labor

Standards Act of 1938, 29 U.S.C. §§ 201, et seq.

(“FLSA”). Amici submit that principles stated in these

diverse rulings, not a simplistic rule of conformity,

should determine whether the two statutes’ coverage-

related definitions should be interpreted alike or not.

Third, Petitioner greatly exaggerates potential

adverse effects on small state and local public entities

of having to comply with the ADEA.

Amici respectfully submit that this case

presents an opportunity to correct a significant,

longstanding error in the application of Sections

630(a) and (b) of the ADEA. Several circuit courts,

following Kelly v. Wauconda Park Dist., 801 F.2d 269

(7th Cir. 1986), have failed to recognize key differences

between the text of the ADEA and Title VII and, thus,

in their coverage of small public entities. This unduly

restrictive reading of the ADEA has for decades denied

redress under federal age discrimination law for many

thousands of employees of small political subdivisions

in those jurisdictions.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This Court frequently has had occasion to

discuss the 1974 amendment to the ADEA, enacted as

Section 28 of the Fair Labor Standards Amendments

of 1974, Pub. L. No. 93-259, 88 Stat. 55 (1974) (“1974

Act”). See, e.g., Gomez-Perez v. Potter, 553 U.S. 474,

489 (2008) (upholding retaliation claims under the

broad prohibition of “discrimination” in the ADEA’s

federal sector provision, § 633a, added by the 1974

Act); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 68

(2000) (recognizing 11th Amendment limits to the

ADEA’s application to state employers, another

feature of the 1974 Act). Yet, this case addresses, for

the first time, the precise question of the size of state

and local government “employers,” in terms of

numbers of employees, covered by the 1974 Act.

Petitioner MLFD_ displays considerable

creativity in construing the 1974 Act not to cover small

state and local government entities. But in doing so,

MLFD sacrifices fidelity to this Court’s careful parsing

of the ADEA over the past half century, consistent

with settled principles of statutory construction and

with indicia of the ADEA’s status as “a hybrid” of the

FLSA and Title VII. McKennon v. Nashville Banner

Publ. Corp., 513 U.S. 352, 357 (1995) (quoting

Lorillard v. Pons, 434 U.S. 575, 578 (1978)).

Respondents John Guido and Dennis Rankin

secured from the Equal Employment Opportunity

Commission (“EEOC”) rare findings of “reasonable

cause to believe the Fire District violated the [ADEA],”

Pet. App. 3a, by terminating them in 2009, at ages 46

and 54, id. 20a n.3, respectively, and replacing them

with younger employees, including a 28-year-old. Pls.

Rule 56.1 Statement of Facts 4 33. Guido and Rankin

had worked for MLFD since 2000, “served as full-time

firefighter Captains,” Pet. App. 3a, and established

favorable work records, Pls. Rule 56.1 Statement of

Facts, 44 6-11, 13-14, 24.

An Arizona federal district court declined to

consider the former firefighters’ claims of age bias on

their merits. Instead, the court dismissed the suit on

summary judgment because the MLFD had fewer

than twenty employees during the relevant years

(2008 and 2009) and, thus, the court concluded, MLFD

was not an “employer” covered by § 630(b) of the

ADEA. Pet. App. 26a. The Ninth Circuit reversed,

ruling that § 630(b) does not impose a minimum-

employee threshold for non-federal public entities, but

covers such entities of all sizes. Id. 17a. This Court

granted certiorari to resolve the Ninth Circuit's

disagreement with other Courts of Appeals that have

addressed whether the ADEA has a minimum-

employee threshold for covered state and local public

employers.

apply:

ARGUMENT

UNDER SETTLED STATUTORY

CONTRUCTION PRINCIPLES, SECTION

630(b) OF THE ADEA APPLIES TO NON-

FEDERAL PUBLIC EMPLOYERS

REGARDLESS OF THE NUMBER OF

EMPLOYEES THEY HAVE.

An “employer” to whom ADEA prohibitions

means a person engaged in an industry

affecting commerce who has twenty or more

employees for each working day in each of

twenty or more calendar weeks in the current

or preceding calendar year .... The term also

means (1) any agent of such a person, and (2) a

State or political subdivision of a State, and any

interstate agency, but such term does not

include th» United States, or a corporation

wholly owned by the Government of the United

States.

29 U.S.C. § 630(b). The question before the Court is

whether the “twenty-employee minimum” identified

in §630(b)’s first sentence, which encompasses

private-sector employers, “also applies to a ‘political

subdivision of a State,” Pet. App. 5a, the subject of the

latter

numbered clause of § 630(b)’s second sentence.

The Court of Appeals held it unambiguously does not.

Id. 17a. MLFD contends otherwise. Amici submit that

the Ninth Circuit was right and MLFD is in error.”

A. The plain text of Section 630(b)

unambiguously covers all non-

federal public employers.

It is well-settled that “when the statutory

language is plain,” this Court “must enforce it

according to its terms.” Millbrook v. United States, 569

U.S. 50, 57 (2013). See also Pet. App. 5a n.1 (“If the

‘statutory text is plain and unambiguous|,|’ we ‘must

apply the statute according to its terms.”) (quoting

Carcieri v. Salazar, 555 U.S. 379, 387 (2009)). Indeed,

for over a century this Court has reaffirmed that

“when the statute’s language is plain, the sole function

of the courts—at least where the disposition required

by the text is not absurd—is to enforce it according to

its terms,” Lamie v. United States Tr., 540 U.S. 526,

534 (2009) (quoting Hartford Underwriters Ins. Co. v.

Union Planters Bank, N. A., 530 U.S. 1, 6 (2000)

(internal quotation marks omitted) (in turn quoting

2 MLFOD also claims that failing to read a minimum-employee

coverage criterion for non-federal public entities implies: (i) that

such entities are not subject to the “agent” clause of the second

sentence and, thus, are not subject to respondeat superior

liability for misconduct of their agents; and (ii) that they are not

subject to the “affecting commerce” language of the first sentence

and, thus, may be constitutionally barred from ADEA liability.

Amici agree with Respondents that these claims are unfounded,

but do not address them further. In addition, the parties suggest

that personal liability for certain individual “agents” of covered

“employers” is consistent with Respondents’ reading of § 630(b).

Amici concur. However, such questions were not addressed below

and, thus, should not be decided in this case.

United States v. Ron Pair Enterprises, Inc., 489 U.S.

235, 241 (1989) (and in turn quoting Caminetti v.

United States, 242 U.S. 470, 485 (1917)).

The admonition to honor the plain meaning of

unambiguous statutory text is particularly relevant

where, as here, a court is invited “to read [a specific]

limitation [appearing in “neighboring provisions”] into

unambiguous text” that does not contain the desired

limiting language. Millbrook v. United States, 569

U.S. at 57. MLFD asks this Court to conclude that the

text of § 630(b) is ambiguous and, accordingly, to reach

far beyond “its terms”—to examine alleged implicit

meanings and vaguely stated legislative intentions—

and then to read into its second sentence a non-

existent twenty-employee limitation appearing in the

first. The Court should reject this request to construe

§ 630(b) contrary to its terms and unambiguous

meaning.

For the reasons set forth above and in

Respondents’ opening brief, the Court should affirm

the Ninth Circuit’s holdings that “the meaning of

§ 630(b) is not ambiguous,” and that “there is no valid

justification to depart from the plain meaning” of

§ 630(b). Pet App. 14a.

B. The enactment history of the ADEA,

and of Section 630(b) in particular,

confirm that the ADEA covers non-—

federal public employers of all

sizes.

Given the indicia that § 630(b)’s meaning is

unambiguous, Petitioner has a heavy burden to justify

a wider inquiry. In such circumstances, restraint is

required: “We have to read [the ADEA] the way

Congress wrote it.” Meacham v. Knolls Atomic Power

Lab., 554 U.S. 84, 102 (2008) (rejecting policy-based

arguments purporting to trump clear textual evidence

that the ADEA’s “reasonable factors other than age”

provision, 29 U.S.C. § 623(f)(1), creates an affirmative

defense to disparate impact liability, for which

employers bear the burden of proof). See Pet. App. 15a

(citing Meacham, 554 U.S. at 102).

Putting aside for the moment Petitioner’s novel

approaches to construing the ADEA’s text (see Section

1.C. below), it is instructive to examine the Court of

Appeals’ approach to extra-textual sources. The Ninth

Circuit focused on text, rather than less definitive

evidence of Congress’s intent in crafting § 630(b). That

is, the Court of Appeals looked to “the parallel [1972]

amendment to Title VII,” Pet App. 15a, which

amended Title VII to extend its coverage to federal and

non-federal public entities. See Equal Employment

Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat.

103 (1972) (“1972 Act”). Comparing the 1972 Act to the

1974 Act, the Ninth Circuit sensibly observed:

Congress used different language in the 1974

ADEA Amendment, which changes the ADEA’s

meaning relative to Title VII, and such

Congressional choice must be respected. See

Univ. of Tex. Sw. Med. Ctr. v. Nassar, [570 U.S.

338, 353] (2013). If Congress had wanted the

1974 ADEA Amendment to achieve the same

result as the 1972 Title VII Amendment, it

could have used the same language.

Pet. App. 15a.’ The Court of Appeals’ citation to

Nassar references this Court’s decree therein that

“{j}ust as Congress’ choice of words is presumed to be

deliberate, so too are its structural choices. See [Gross

v. FBL Fin. Servs. Inc.|, 557 U.S. [167,] 177 n.3

[(2009)].” 570 U.S. at 353. Nassar thereby relied on

Gross’s reasoning, equally applicable here, that

“giv[ing] effect to Congress’[s] choice” is the proper

course when “Congress [has] amended Title VII. . . but

did not similarly amend the ADEA.” 557 U.S. at 177

n.3.4

8 In the 1972 Act amending Title VII, Congress defined “[t}he

term ‘person” expressly to “include[{] one or more individuals,

governments, governmental agencies, political subdivisions .

and in the next subsection, defined “[t]he term ‘employer’ to]

mean|[] a person engaged in an industry affecting commerce who

has fifteen or more employees .. . .” 42 U.S.C. § 2000e(a), (b)

(emphasis supplied). In contrast, the ADEA’s definition of

“person” contains no reference to governmental entities. See 29

U.S.C. § 630(a).

* In Gross and Nassar, the Court also spoke of the Civil Rights

Act of 1991, Pub. L. No. 102-66, 105 Stat. 1079 (1991), in which

Congress amended both the ADEA and Title VII to different

effect. And “as the Court has explained, ‘negative implications

In contrast, the Court of Appeals properly gave

much less credence to bits and pieces of legislative

history that “did not address the specific question

before us” and “never state[d] that the twenty-

employee minimum should apply to political

subdivisions.” Pet. App. 16a. (discussing “a Senate

report written a year before the bill was passed,” a

later “House report,” and “two floor statements,” one

of them from 1972, purporting to convey Congress’s

intent in 1974 that “the same rules apply” to public

and non-public employers). The Ninth Circuit

concluded that such “vague language” was inadequate

to “override the plain meaning of [§ 630(b)}.” Jd.

The same reasons caused the Court of Appeals

to appropriately criticize the Seventh Circuit in Kelly

v. Wauconda Park Dist., 801 F.2d 269 (7th Cir. 1986),

for being “led . . . astray” by a “focus on divining

congressional intent, rather than determining the

ordinary meaning of the text” and, as a result,

concluding that § 630(b) is ambiguous and susceptible

to a reading whereby all employers with fewer than 20

employees are exempt from coverage. Pet. App. 15a.

This Court likewise should determine that in this

instance, it “need not read minds to read text.” Jd.

raised by disparate provisions are strongest’ when the provisions

were ‘considered simultaneously when the language raising the

implication was inserted.’ Lindh v. Murphy, 521 U.S. 320, 330

(1997).” Gross, 557 U.S. at 168. But it is surely also compelling

evidence of § 630(a)’s meaning that in 1974 Congress amended

the ADEA to extend coverage to federal and non-federal public

entities, quite like it did in 1972 to Title VII, yet only in Title VII

did Congress specifically limit coverage of state and local public

entities to employers with a minimum number of employees.

Kelly's superficial analysis of the 1972 Act,

which Petitioner wisely does not champion,

undermines the notion that four circuit court decisions

“rely|ing] entirely on Kelly's reasoning” amounts to “a

powerful rebuttal” to the plain text of § 630(b). Pet.

App. 11a. For instance, the Kelly court was utterly at

odds with this Court’s statutory construction

jurisprudence when it mused that “[jjust because the

language of a subsequent statute [the 1974 Act] is not

identical to the earlier statute on which it was

modeled [the 1972 Act], we do not necessarily assume

that Congress intended to change the meaning.” 801

F.2d at 272. On the contrary, as Nassar and Gross

testify, such differences in text, particularly in regard

to provisions in related statutes having a similar

overall purpose, should be presumed intentional.°

Kelly also stumbled in finding the history of the

Fair Labor Standards Amendments of 1974 to be

barren of “any reason for the different language” in

§ 28, amending the ADEA, in contrast to the 1972 Act,

amending Title VII. Jd. On its own, the title of the law

including and giving life to § 28 is highly suggestive.

And the fact that in 1974, Congress

contemporaneously extended to all public entities the

FLSA protections that previously applied to private

employers of all sizes is still more powerful evidence

that Congress had the same goal in mind when it

5 Moreover, “a change in the language of a prior statute

presumably connotes a change in meaning.” Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts,

256 (2012).

adopted “different language” in amending the ADEA,

than it did in 1972, in amending Title VII.

The Seventh Circuit also failed to discuss the

report of the House Committee on Education and

Labor accompanying the text that, with minimal

changes, President Nixon ultimately signed into law

as the 1974 FLSA (and ADEA) amendments. H.R.

Rep. No. 93-913 (1974). That report described the

extension of ADEA coverage to public entities as a

“logical extension of the . . . decision to extend FLSA

coverage to Federal, state and local governmental

employees.” Jd. at 40.° And it is undisputed that the

1974 Act extended the FLSA to cover public employers

of all sizes. See 29 U.S.C. § 203.

Petitioner likewise ignores the FLSA, while

selectively addressing the supposed statutory context

in which the ADEA has evolved, as “part of a trio of

*® The report of the Senate Committee on Labor and Public

Welfare, 5. Rep. No. 93-690, at 55 (Feb. 22, 1974) (to accompany

S. 2747, the Fair Labor Standards Amendments, 93rd Cong.

introduced Nov. 27, 1973), contains identical language. The

Senate committee report further cemented the connection

between the FLSA and the 1974 Act's extension of coverage to

public employers in § 630(b), stating: “The Committee recognizes

that the omission of government workers from the [ADEA] did

not represent a conscious decision by the Congress to limit the

ADEA to employment in the private sector. It reflects the fact

that in 1967, when ADEA was enacted, most government

employees were outside the scope of the FLSA and the Wage

Hour and Public Contracts Divisions of the Department of Labor,

which enforces the [FLSA], were assigned responsibility for

enforcing the [ADEA].” Id.

. .. Statutes,” including Title VII and the Americans

with Disabilities Act, Pub. L. No. 101-336, 104 Stat.

327, 42 U.S.C. §§ 12101, et seq. (1990) (“ADA”). Pet.

Br. at 44. Petitioner’s presentation cites passages from

McKennon and Lorillard, conveniently ignoring that

both describe the ADEA as “something of a hybrid”

between Title VII and the FLSA. McKennon, 513 U.S.

at 357 (citing Lorillard, 434 U.S. at 578).’ Certainly

the FLSA is a better reference point than the ADA,

which Congress did not enact until sixteen years after

the 1974 amendment to the ADEA.

Cc. No valid basis exists for the

assertion that Section 630(b)’s first

sentence covers local political

subdivisions and that its second

sentence merely clarifies the first.

Petitioner's construction of § 630(b) is novel and

untethered to precedent or traditional methods of

statutory analysis. Respondents present compelling

rebuttals to many of Petitioner’s theories. Yet a few

other significant defects in the case against applying

the ADEA to MLFD are worthy of the Court’s

attention.

The crux of Petitioner’s case is that “statutory

context can overcome the ordinary . . . meaning” of the

' This is a sufficient basis, together with the House and Senate

report passages noted above, to ignore the Seventh Circuit's

misguided conclusion, which Petitioner also does not endorse,

that “Congress's intent in amending the FLSA has no bearing on

the interpretation of section 630(b).” Kelly, 801 F.2d at 271 n.2.

ADEA. Pet. Br at 34. Petitioner builds an elaborate

superstructure of “context” founded on the proposition

that the words “organized groups of persons” within

the term “person” in § 630(a) has always included

governmental entities, to whom § 630(b)’s employee-

minimum, in the definition of “employer,” applies.

Section 630(b)’s remaining text, referring to agents

and non-federal public entities, Petitioner continues,

is merely “clarifying.”

One appropriate response to this contorted

reading of the plain text of § 630(a) and (b)—especially

given Congress's straightforward expansion of Title

VII in 1972 by adding words describing public entities

to the definition of “person”—is to recall the Court’s

conclusion in analogous circumstances that “[gliven

this clear language, it would be improper to conclude

that what Congress omitted from the statute is

nevertheless within its scope.” Nassar, 570 U.S. at 353

(citing Gardner v. Collins, 27 U.S. 58, 2 Pet. 58, 93, 7

L. Ed. 347 (1829) (“What the legislative intention was,

can be derived only from the words they have used;

and we cannot speculate beyond the reasonable import

of these words”)); see also Ky. Ret. Sys. v. EEOC, 554

U.S. at 151 (“the most straight forward reading of the

[ADEA] is the correct one”) (Kennedy, J. dissenting).

Petitioner’s counterintuitive interpretation of

the term “person” is not actually consistent with any

of the circuit decisions MLFD invokes. Kelly and the

two circuit decisions relying on it do not discuss this

theory at all.* And Cink v. Grant Cty., 635 Fed. App’x

470 (10th Cir. 2015), is at best opaque on this point.

Petitioner misleads by citing Cink, 635 Fed.

App’x at 472 n.4, as “explicitly hfojldjijng that

‘persons must be read to ‘include political

subdivisions.” Pet. Br. 25. Yet, Cink merely asserts,

incorrectly, without analysis or explanation, that as

“to employer status under the ADA, ADEA and Title

VII [,] [t}here are no material differences in these

statutes for our purposes. All refer broadly to a

‘person’ (specified, or judicially interpreted, to include

political subdivisions) .. . .” Id. Neither Cink nor

Petitioner provides any such “judicial interpret[ation|”

of the term “person” as encompassing state and local

subdivisions under the ADEA.”

Petitioner also misfires in trying to enlist the

text of § 630(c) in its cause. See Pet. Br. at 22-23.

Section 630(c) defines “employment agenclies]” subject

to ADEA liability. These are “persons” recruiting

potential employees for “employers.” Petitioner

fastens on § 630(c)’s exclusion of federal entities; to

require exclusion, they must otherwise be included in

“persons” and, what's more, state and local

governments also must be within the definition. Yet,

§ 630(c) establishes such ADEA-covered entities

* Palmer v. Ark. Council on Econ. Educ., 154 F.3d 892 (8th Cir.

1998); EEOC v. Monclova Twp., 920 F.2d 360 (6th Cir. 1990).

* Petitioner also misrepresents brief discussions of the term

“employer” in Palmer, Monclova and Kelly as endorsing its

elaborate theory, simply because the “definition [of “employer”}

centers on ‘persons.” Pet. Br. at 25.

without imposing a minimum employee limit. Hence,

if anything, § 630(c) supports Respondents’ reading of

§ 630(b), because § 630(c) creates a class of ADEA-

covered “persons” that can be liable in that capacity,

regardless of how many employees they have.

Petitioner's attempt to draw a meaningful parallel

between § 630(b) and (c) falls flat. Even if Petitioner is

right that non-federal government employment

agencies are “persons,” Pet Br. at 23, this does

Petitioner no good. The only “employers” subject to a

twenty-employee minimum by § 630(b) are described

in a different sentence than the sentence describing

non-federal public employers. And there is no

reference in § 630(c) to non-federal entities at all.

Il. HAVING DECIDED THAT THE ADEA IS

A “HYBRID” OF THE FLSA AND TITLE

VIL, THE COURT SHOULD CONSTRUE

SECTION 630(b) BASED ON THE FLSA’S

CLOSELY RELATED TEXT AND

CONTEXT, NOT ON A NOTION THAT

THE ADEA AND TITLE VII REQUIRE

CONSISTENT INTERPRETATION.

A central, errant theme of Petitioner's

argument is that special rules of presumptive

conformity and consistency envelop federal

employment discrimination laws and dictate this

case’s outcome. MFLD contends that were this Court

to ascribe meaning to an ADEA “employer” that differs

from the meaning of that term under Title VII's

plainly differing text, it would create troubling

“tension with comparable antidiscrimination laws,”

Pet. Br. at 5-6, “inexplicable disparities in the ADEA’s

treatment of public and private employers,” id. at 16,

and, indeed, would cause the ADEA to “bear no

resemblance to” other federal employment bias laws’

treatment of employers “in the public sector—even as

it closely tracks them in the private sector,” id.

This recitation of horribles sounds a false

alarm. It wholly mischaracterizes the nuanced nature

of the Court’s exegesis of ADEA provisions over the

past half century. Rather than mechanically applying

rigid presumptions, this Court has carefully parsed

the two principal influences on the ADEA’s text, i.e.,

the FLSA and Title VII. The diverse results of these

assessments favor a similar approach here. No

artificial rule of thumb should divert the Court from

recognizing what statutory construction canons and

the 1974 Act’s context show: strong parallels between

FLSA and ADEA coverage of public entities and

distinct ADEA and Title VII meanings of the term

“employer.”

A. This Court has repeatedly rejected

the notion that corresponding

provisions of the ADEA and Title

VII must have identical meaning,

especially where, as here, parallels

with the FLSA are compelling.

The ADEA’s FLSA origins are a critical motif in

this Court’s ADEA decisions over the years. That

theme is highly relevant here, yet, decidedly

inconsistent with Petitioner's objections to deviating

from Title VII's model.

While Lorillard states that the ADEA and Title

Vil share similar “aims—the elimination of

discrimination”"—and, further, that the ADEA’s

prohibitions “were derived in haec verba from Title

VII,” 434 U.S. at 584, the overwhelming focus of

Lorillard is that, with respect to jury trials, the ADEA

must be construed like the FLSA, not Title VII. Jd. at

585. In reaching that result, this Court stressed that

the ADEA explicitly declares that it “be enforced in

accordance with the ‘powers, remedies, and

procedures” of the FLSA. /d. at 580 (citing § 7(b) of the

Act, 29 U.S.C. § 626(b)); see also Hoffman-LaRoche v.

Sperling, 493 U.S. 165, 167 (1989) (same). Further,

the Court observed that in 1967, “Congress exhibited

... a detailed knowledge of the FLSA provisions and

their judicial interpretation,” id. at 581, and also

“selectivity . . . in incorporating . . . FLSA practices

[that] strongly suggests that but for those changes

Congress expressly made, it intended to incorporate

fully the remedies and procedures of the FLSA.” Jd. at

582.

Hence, in Lorillard, this Court refused to

preclude a right to a jury trial in private civil actions

for lost wages under the ADEA simply because Title

VII did not provide such a right. Jd. at 577, 582, 585.

Rather, the Court found “[flollowing the model of the

FLSA’|s]” enforcement mechanisms to be the logical

course. Jd. at 579. The Court expressed no regret about

causing “tension” between “sister” statutes, or

reducing their “resemblance” to one another. See Pet.

Br. at 5-6, 16. On the contrary, the Court described the

“petitioner's argument by analogy to Title VII

unavailing” and its reflexive “reliance on Title VII .. .

misplaced.” 434 at 584, 585.

In extending ADEA coverage to public entities

as part of the 1974 FLSA amendments, Congress was

just as mindful of the FLSA’s text and its implications,

and just as selective in incorporating FLSA practices

as in 1967. See Kimel v. Fla. Bd. of Regents, 528 U.S.

at 68, 76-78 (describing the 1974 Act as “a statute

consisting primarily of amendments to the FLSA” and

discussing in detail related provisions of the 1974 Act

amending both the ADEA and FLSA and “mak{ing] it

more than clear that Congress understood the

consequences of its actions” in doing so). Hence, the

same conclusion as in Lorillard is warranted here.

That is, absent any specific, explicit textual or other

evidence that Congress intended to deviate from FLSA

coverage practices—i.e., including public employers of

all sizes—such intent should not be imputed.

Finally, in considering how to construe ADEA

text that, as here, does not fall neatly into either the

category of the Act’s “prohibitions” or, rather, its

“powers, remedies, and procedures,” this Court has

looked to both the FLSA and Title VII. Thus, in

McKennon v. Nashville Banner Publ. Corp., the Court

noted, in assessing proper remedies for after-acquired

evidence of wrongdoing under the ADEA, that a

private right of action is a “vital element found in both

Title VII and the Fair Labor Standards Act.” 513 U.S.

at 358.'°

both the FLSA and Title VII to discern the proper meaning of the

B. This case is like others where the

Court has diverged from Title VII in

construing the ADEA and, further,

is distinguishable from instances

where the Court has adopted the

same reading of both laws.

This Court has construed the ADEA and Title

VII in parallel in some appropriate instances, but

more often than not, it has declined to do so, stressing

the importance of subtle distinctions between these

and other employment discrimination laws. See, e.z.,

Federal Express Corp. v. Holowecki, 552 U.S. 389, 393

(2008) (noting that “EEOC enforcement mechanisms

and statutory waiting periods for ADEA claims differ

in some respects from those pertaining to other

statutes the EEOC enforces, such as Title VII ... and

the [ADA]” and, hence, “[w|hile there may be areas of

common definition, ... counsel must be careful not to

apply rules applicable under one statute to a different

statute without careful and critical examination.”);

accord Gross, 557 U.S. at 174 (“when conducting

statutory interpretation,” the Court must exercise the

same kind and degree of care).

Petitioner ignores the fact that the Court’s

decisions construing the ADEA and Title VII in

tandem have addressed situations quite unlike this

ADEA. See, e.g., Gomez-Perez v. Potter, 553 U.S. 474, 479-88

(2008) (considering decisions of the Court under Title [IX of the

Higher Education Amendments of 1972, 20 U.S.C. §§ 1681-88,

and 42 U.S.C. § 1981 in determining whether retaliation claims

are encompassed within the prohibition of “discrimination” in the

ADEA’s federal sector provision, 29 U.S.C. § 633a).

case. For instance, in Oscar Mayer & Co. v. Evans, 441

U.S. 750 (1979), the Court held that in at least two

respects, § 14(b) of the ADEA, 29 U.S.C. § 633(b), and

§ 706(c) of Title VII, 42 U.S.C. §2003e-5(c), should be

read in pari materia, since the former “is almost in

haec verba with” the latter and “since the legislative

history of § 14(b) indicates that its source was

§ 706(c).” Id. at 756.'' The Court dismissed the

respondents’ pleas to recognize minor differences in

language in the two provisions, and another minor

difference suggested by § 14(a) of the ADEA, 29 U.S.C.

§ 633(a), “for which Title VII has no counterpart.” Jd.

at 757. But Evans is of no help to Petitioner, given the

nearly identical language of the provisions at issue in

that case, and also because, in regard to the second

issue in Evans, the EEOC, unlike here, favored

parallel readings of the ADEA and Title VII to which

the Court declared “great deference” was due. Id. at

761.

The Fire District’s challenge also is distinctly at

odds with other instances in which the Court has

favored parallel readings of the ADEA and Title VII.

In particular, in Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111 (1985), and Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133

(2000), the Court treated the task of “mak[ing] out a

prima facie case of age discrimination” under

‘t On this basis, the Court held that “prior resort to appropriate

state proceedings is required” under these provisions in both

Title VII and the ADEA order “to screen from the federal! courts

. .. complaints that might be settled . . . in state proceedings.”

Id.

McDonnell Douglas Corp. v. Green, 411, U.S. 792

(1973) as indistinguishable from doing so in a Title VII

case. Thurston, 469 U.S. at 121; Reeves, 530 U.S. at

140-41; see also Western Air Lines, Inc. v. Criswell, 472

U.S. 400, 416-17 (1985) (considering, in construing the

ADEA’s “bona fide occupational qualification” defense,

29 U.S.C. § 623(f)(1), “the parallel treatment of such

questions under Title VII,” see 42 U.S.C. § 2000e-

2(e)(1)). In these cases, as in Evans, the identical or

nearly identical language in the ADEA and Title VII

justified parallel treatment. This case, however,

presents no such identicality.

In a further striking contrast to this case, the

Court in several instances has construed nearly

identical language in the ADEA and Title VII quite

differently. Over two decades ago, in O'Connor v.

Consol. Coin Caterers Corp., 517 U.S. 308 (1996),

Justice Scalia announced, for a unanimous Court, that

Title VII's prima facie case framework— insofar as it

requires replacement of a claimant in a protected class

by someone outside that class—was too rigid for the

ADEA, whose protected class consists of persons at or

over age 40. Id. at 312-13 (“Because it lacks probative

value, the fact that an ADEA plaintiff was replaced by

someone outside the protected class is not a proper

element of the McDonnell Douglas prima facie case.”).

By allowing ADEA cases to go forward in

circumstances such as a 56-year-old claimant replaced

by a 40-year-old, rather than only by someone 39 or

under, O’Connor, like the Ninth Circuit decision here,

recognized broader ADEA coverage than is afforded by

Title VII.

The Court also rejected a simplistic rule of

conformity with Title VII in General Dynamics Land

Sys., Inc. v. Cline, 540 U.S. 581 (2004). There “the

Court declined to interpret the phrase ‘because of . . .

age’ in 29 U.S.C. § 623(a) to bar discrimination

against people of all ages, even though the Court had

previously interpreted ‘because of ... race [or] sex’ in

Title VII to bar discrimination against people of all

races and both sexes.” Gross, 557 U.S. at 175 n.2.

In 2009 Gross cited Cline as a chief example of

the principle, directly contrary to Petitioner’s theory

of this case, that “the Court’s approach to interpreting

the ADEA in light of Title VII has not been uniform.”

Id. Gross also construed the nearly-identical “because

of” wording in both laws differently. It endorsed “but-

for” causation under the ADEA, as opposed to a

“motivating factor” standard in Title VII disparate

treatment cases. Jd. at 167-168. Critical to this

judgment was the fact that non-conforming

amendments to both statutes (in the Civil Rights Act

of 1991) resulted, as here, in significant “textual

differences between Title VII and the ADEA.” /d. at

175 n.2. Still further, Gross declined to apply to the

ADEA the Court’s prior reading—in Price Waterhouse

v. Hopkins, 490 U.S. 228 (1989)—of parallel text in

Title VII pre-dating the 1991 amendment. Gross, 557

U.S. at 178 (“rejectiing] petitioner’s contention that

our interpretation of the ADEA is controlled by Price

Waterhouse’).

This Court’s ADEA decisions interpreting

similar language in the ADEA and Title VIl—not to

mention those interpreting significantly different text,

as here—alleviate any concerns that construing

§ 630(b) according to its terms would “put the ADEA

out of sync with other anti-discrimination statutes.”

Pet. Br. at 43.

C. Contrary to the rigid theory of

consistent construction Petitioner

advances, the Court has employed a

nuanced approach when

interpreting divergent text that

serves like aims in the ADEA and

Title VII.

The decisions in Smith v. City of Jackson, 544

U.S. 228 (2005), and Meacham v. Knolls Atomic Power

Lab., 554 U.S. 84 (2008), provide a template for the

critical challenge posed in this case: reconciling, on the

one hand, reasons to interpret the ADEA in light of

similar purposes and prohibitions in Title VII, and on

the other hand, divergent statutory text and statutory

history.

Above all, Smith and Meacham reflect this

Court’s commitment to “careful and critical

examination” of statutory parallels. Gross, 557 U.S. at

174. Thus, both decisions honor relevant ADEA

linkages to Title VII, while avoiding the rigid

consistency Petitioner here espouses.

Smith upheld a “presum|ption] that Congress

intended . . . text to have the same meaning in both

statutes” when “Congress uses the same text in two

statutes having similar purposes.” 544 U.S. at 233.

On this basis, the Court declared that the “unanimous

interpretation of . . . Title VII in Griggs |v. Duke

Power Co., 401 U.S. 424 (1971)],” as authorizing a

disparate impact claim, was “therefore a precedent of

compelling importance” in establishing disparate

impact as a theory of liability under the ADEA. Id. at

234. The Smith Court also “giojt help from [the

Court’s] prior reading of . . . Ward’s Cove |Packing Co.

v. Atonio, 490 U.S. 642 (1989)] . . . that a[m ADEA]

plaintiff [likewise] falls short by merely alleging a

disparate impact, or ‘point[ing] to a generalized policy

that leads to such impact.” Meacham, 554 U.S. at 100

(citing Smith, 544 U.S. at 241).

Yet Smith focused as well on the key textual

disparities between Title VII and the ADEA: the

“reasonable factors other than age” clause, 29 U.S.C.

§ 623(H(1), and the amendment to Title VII (but not

the ADEA) vitiating Ward’s Cove. 544 U.S. at 240.

Furthermore, Meacham applied “FLSA default rules

placing the burden of proving an exemption on the

party claiming it,” 554 U.S. at 93, and rejected further

application of Ward’s Cove to override the FLSA’s

relevance to construction of the ADEA, id. at 98-99.

The Court’s attention to details of statutory

history and context in both Smith and Meacham

likewise clash with Petitioner’s claim, at the end of its

brief, that “[iJf anything, one would expect Title VII's

coverage to be uniformly broader than coverage under

the ADEA.” Pet. Br. at 48. The Court’s reasoning in

O’Connor, Cline, Gross and Holowecki reflect a far

more nuanced approach.

Petitioner also alleges that since “Title VII's

coverage in the private sector is broader than the

ADEA’s”—presumably referencing the Acts’ different

employee minimums, 15 versus 20—it follows that

“the problems addressed by Title VII’ are ‘more

serious than the problem of age discrimination,” and,

accordingly, that it would be “puzzling” for the ADEA

to afford more protection than Title VII “in the public

sector.” Pet. Br. at 49 (citing Kelly, 801 F.2d at 273, in

turn citing EEOC v. Wyoming, 460 U.S. 226, 231

(1983)). Yet, no ruling of this Court has made such a

crude comparison of the “serious[ness|” of age and

other bias. To be sure, Wyoming said that age bias

usually has a different source, as it “rarely |ijs based

on” sheer animus and, rather, usually stems from

stereotypes (also no doubt a rich source of race and sex

bias). Jd. at 230-231. But Wyoming also said that age

bias is “profoundly harmful” as “it inflict[s} on

individual workers the economic and psychological

injury accompanying the loss of the opportunity to

engage in productive and satisfying occupations.” /d.

This is so despite the ADEA’s omission, thus far, of a

specific remedy for psychological harm, unlike Title

VII and most other federal civil rights laws.

D. The Court’s comparisons of the

ADEA’S public and private sector

provisions have not embraced the

rigid consistency urged by

Petitioner.

The Court’s decisions in Gomez-Perez and

Lehman v. Nakshian, 453 U.S. 156 (1981), offer

another lens for assessing Petitioner's claim that the

ADEA’s different treatment of public and private

employer coverage, in terms of applying an employee-

minimum, violates the principle of equal treatment of

public and private employers. Both decisions rejected

comparisons with the ADEA’s private sector

provisions as a basis for a more _ restrictive

interpretation of the Act’s federal sector provisions.

The same approach is warranted in regard to the

ADEA’s state and local government coverage

provisions enacted in 1974.

When U.S. postal worker Myrna Gomez-Perez

sought to bring an ADEA retaliation claim, the Court

rejected her employer's argument that the Act's

federal sector provision, 29 U.S.C. § 633a, contained

no specific reference to a prohibition against

retaliation, unlike the Act’s private sector provision,

29 U.S.C. § 623(d). 553 U.S. at 486. The Court ruled

that the term “discrimination” in the Act’s federal

sector provision encompassed a retaliation claim. /d.

at 488. Gomez-Perez also rejected Petitioner's

suggestion that an abstract principle of parallel

construction should trump concrete evidence of

statutory meaning, including specific evidence of

statutory history. See Pet. Br. at 46 (“The Ninth

Circuit’s reading creates disparities in the ADEA’s

treatment of public and private employers that

Congress could not possibly have intended.”). That is,

the Court declared, “because §§ 623(d) and 633a were

enacted separately and are couched in very different

terms, the absence of a federal sector provision similar

to § 623(d) does not provide a sufficient reason to”

impute congressional purpose to exclude coverage of

retaliation from § 633a. Gomez-Perez, 553 U.S. at

488.'?

Congress also enacted the first and second

sentences of § 630(b) separately, in 1967 and 1974.

And in the former it included an express employee

minimum, while in the latter it did not. It follows,

based on Gomez-Perez, that there is no basis for

inferring a congressional purpose to similarly limit

ADEA coverage of small non-federal public entities.

Iii. CONGRESS’S CHOICE TO APPLY THE

ADEA’S PROTECTIONS TO STATE AND

LOCAL PUBLIC ENTITIES OF ALL SIZES

POSES NO SERIOUS DANGER TO THE

SURVIVAL OF SMALL POLITICAL

SUBDIVISIONS.

Petitioner grossly overstates the likely impact

on small public agencies, including “special districts”

like MLFD, of reading § 630(b) according to its terms.

The ADEA applies to many such entities in any case

‘2 Lehman further undermines Petition »r's prayer for identical!

interpretation of differently worded amendments to the ADEA

and Title VII enacted two years apart. The Lehman Court ruled

that contemporaneous, different textual treatment of public- and

private-sector entities required such differences to be honored,

not ignored. Gomez-Perez, 553 U.S. at 486 n.2 (“The situation

here is quite different from that .. . in Lehman . . . where both

the private and federal-sector provisions of the ADEA already

existed and a single piece of legisiation—the 1978 Amendments

to the ADEA— added a provision conferring a jury-trial right for

private-sector . . . suits but [not] for federal sector suits.”).

due to agency principles which align the liability of

small public agencies with larger entities like counties

in which they operate. Moreover, the history of other

major federal civil rights laws that cover public

entities of all sizes gives no cause for concern about

“devastating effects” or “crushing” legal expenses. Pet.

Br. at 54. Further, however this case resolves, the vast

majority of small public subdivisions already are

subject to state age discrimination laws, most of which

provide complainants with much more robust

monetary remedies than does the ADEA. In short,

exposure to ADEA liability for small public entities is

a valid concern, but is not a sound basis for ignoring

§ 630(b)’s plain text and indicia of Congress's intent to

cover public employers of all sizes.

A. The ADEA covers many small public

subdivisions due to their agency

relations with another public

entity.

The definition of an “employer” in federal anti-

discrimination statutes including the ADEA is not

limited to entities in a direct employment relationship

with employees, but also incorporates “agency

principles.” Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 754-55 (1998). Accordingly, many small public

subdivisions with fewer than twenty employees

themselves are actually ADEA-covered employers by

virtue of their agency relationship with other

“superior” public entities.

For example, in Cink v. Grant Cty., the County

Sheriffs Office fired a jailer/dispatcher after thirty

years of service. 635 Fed. App’x 470, 471 (10th Cir.

2015). Cink sued the County under the ADEA (and

ADA), but lost on summary judgment. The district

court concluded that the Sheriffs Office, not the

County, employed Cink. The Tenth Circuit reversed,

concluding that the Sheriffs office, like the County

Board, was an agent of the County; it was not distinct

from the County, though it was distinct from, and not

controlled by, the County Board. Id. at 472-474.

While Cink assumed that § 630(b) did not cover

public entities of all sizes, id. at 474 n.5, its case-by-

case analytical approach would often result in a

finding not to exempt from the ADEA “a political

subdivision with many employees. . . on grounds that

the immediate employing agent has fewer than fifteen

employees.” Jd. at 473 (quoting Owens v. Rush, 636

F.2d 283, 286 (10th Cir. 1980)).

In weighing the alleged harm attributable to

the reading of § 630(b) Petitioner challenges, it must

be acknowledged that many “small” employers on

whose behalf Petitioner pleads have nothing at stake

in this case. They are qualified employers under the

ADEA by virtue of agency principles and the Act's

twenty-employee minimum, however the Court rules.

B. Other major federal civil rights

laws establish liability for non-

federal public entities of all sizes.

Petitioner does not explain why, if ADEA

liability for small public employers is likely to be so

dire, Congress has not uniformly exempted public

entities of all sizes from the reach of other major

federal civil rights laws. For example, § 504 of the

Rehabilitation Act of 1973—which was enacted one

year prior to the statute here at issue, and which bars

disability-based discrimination in employment and

other operations by virtually all local and state public

entities based on their receipt of “Federal financial

assistance”—provides no such exemption. 29 U.S.C.

§ 794; see Schrader v. Fred A. Ray, M.D., P.C., 296

F.3d 968, 969-75 (10th Cir. 2002) (concluding “[t)here

is no suggestion that § 504 .. . as originally enacted,

was limited to employers with fifteen or more

employees”; and also ruling that § 504 does not

incorporate the ADA’s minimum employee coverage

provision pursuant to an ADA amendment

coordinating provisions of the two laws).

Nor does a small entity exemption exist in Title

VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d,

et seq., which prohibits discrimination on grounds of

“race, color, or national origin . . . under any program

or activity receiving Federal financial assistance,” id.,

§ 2000d, or in the Age Discrimination Act of 1975, 42

U.S.C. §§ 6101, et seq., which declares that “no

persons in the United States shall, on the basis of age,

be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under,

any program or activity receiving Federal financial

assistance.” Jd. at 6102. Title VI and the ADA of 1975,

like § 504, apply to state and local government

entities, without regard to size, 42 U.S.C. §§ 2000d-

4a(1), 6107(4); 29 U.S.C. §794(b) (all defining

“program or activity” as, inter alia, “all of the

operations of” every “department, agency, special

purpose district, or other instrumentality of a State or

local government” receiving Federal financial

assistance), albeit not in their capacity as employers.

See 42 U.S.C. §§ 2000d-3, 6103(c).

In § 504, Congress acted, as in § 630(b), “to

prohibit employment discrimination” by state and

local subdivisions generally—i.e., “by all recipients of

federal financial aid.” Conrail v. Darrone, 465 U.S.

624, 634 (1984) (emphasis supplied). In Darrone this

Court also ruled that § 504 authorized monetary relief

in the form of backpay. 465 U.S. at 630 n.9. And the

Court has since consistently found a “damages remedy

available in private suits under Spending Clause

legislation” that Congress modeled on Title VI, albeit

within limits. Barnes v. Gorman, 536 U.S. 181, 185-90

(2002) (approving compensatory, but not punitive,

damages under § 504) Franklin v. Gwinnett Cty. Pub.

Sch., 503 U.S. 60, 76 (1992) (approving damages

remedy under Title [IX of the Higher Education Act

Amendments of 1972, 20 U. S. C. §§ 1681-88, in

accordance with Title VI).

Cc. Most state age discrimination laws

already permit monetary awards in

litigation involving small state and

local governments.

Not only do most states have laws against age

discrimination affecting all employers (public and

private) or at least all public employers, whatever the

size of their workforce, see Resp. Br. at 26, but in more

than half of all states, potential monetary relief for

small public entities is markedly better under state

law than under the ADEA. Such remedies include

compensatory and/or punitive damages, as under Title

VII and the ADA, not just backpay, as under the

ADEA." Thus, however this case is decided, small

public subdivisions face the prospect of monetary

liability if they engage in age discrimination.

Moreover, in most states, financial recovery for age

discrimination against small state employers under

state law is possible. Kimel, 528 U.S. at 91 and n.1

(“[s]tate employees may recover money damages from

their state employers, in almost every State of the

union.”). However, state employers of all sizes are

immune from any monetary relief under the ADEA.

Id. Hence, regardless of the outcome of this case, state

law age bias litigation likely will be a far greater

source of financial concern for most public employers

than the ADEA.

Together, jurisdictions with age discrimination

laws but no employee-minimum for public employers,

see Resp. Br. at 28-29 n.6 (identifying thirty states and

the District of Columbia), cover over three-quarters of

‘8 David Neumark, lan Burns, Patrick Button & Nanneh

Chehras, Do State Laws Protecting Older Workers from

Discrimination Reduce Age Discrimination in Hiring?

Experimental (and Nonexperimental) Evidence, Working Paper

2017-360 16-17 & n.26, 33-34 (Table 2) (Michigan Retirement

Research Center, Mar. 2017), www.mrrc.isr.umich.edu/

publications/papers/pdf/wp360.pdf (as of 2016, 29 state.

authorize compensatory or punitive damages under their age

discrimination law, which “clearly entails stronger remedies that

the [ADEA]}”).

all “special districts” nationwide.'* This leaves just

9,358 special districts across 22 remaining states as

potentially affected only by § 630(b). And in those 22

states with state law employee-minimums, at least

another 1,256 districts employ over twenty employees

and, hence, are already covered by the ADEA." This

is also true of the likely hundreds of districts covered

by state laws exempting entities with smaller

numbers of employees, see, e.g., Connecticut (3

employee minimum), and New York and New Mexico

(4 employee minimum), as well as others in states with

slightly higher minimums, see Pet. Br. at 39.

Petitioner's estimate of affected public agencies

“4 This figure (28,967 districts in 31 states and DC, of a total of

38,266 special districts nationwide) is based on data relied on by

Petitioner. See Pet. Br. 11 (citing U.S. Census Bureau, Special

District Governments by Function and State: 2012 (initial data

release, Sept. 26, 2013), https//tinyurl.com/y8bdha3h). Petitioner

specifically cites special districts in Illinois, as “over 60% of them

havie] fewer than 20 employees.” Pet Br. at 56. Yet, the relevant

statute, Ill. Comp. Stat. 5/2-101(1)(c), has no numerosity

requirement for public employers.

‘8 This estimate is based on 2002 Census data, the most recent

on special districts by state and size of workforce. See U.S.

Census Bureau, Special District Government Employment and

Payrolls by Employment-Size Group and State, Table 17,

Governments-Public Employment, Special Districts, 138 (Mar.

2002), https://www.census.gov/prod/2005pubs/gc024x2.pdf. The

estimate is conservative, as there were more special districts

overall in 2012 than in 2002 and because the estimate includes

only entities in the “50 or more full-time employees” and “24 to

49” categories. Plainly, many other entities in the “10 to 24”

category are large enough to be covered even if the ADEA only

applies to public employers with at least twenty employees.

plummets to perhaps 6,000 or even fewer. Surely, the

reading of § 630(b) amici favor portends no disaster.

CONCLUSION

For all these reasons, amici urge the Court to

affirm the decision of the Ninth Circuit in this case.

July 12, 2018

Respectfully Submitted,