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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0793%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

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

iv

C. Most state age discrimination
laws already permit monetary
awards in litigation involving
small state and local

v

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

vi

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

ix

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

x

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

1

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.

2

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.

3

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

4

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)).

5

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:

6

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.

7

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.

8

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.

9

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:

10

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

11

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.

12

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).

13

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.

14

. .. 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.

15

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

16

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.

17

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

18

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.

19

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

20

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.'°

© In still other circumstances, the Court has looked beyond
both the FLSA and Title VII to discern the proper meaning of the

21

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).

22

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.

23

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.

24

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,

25

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

26

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.

27

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

28

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

29

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.”).

30

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

31

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

32

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

33

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

34

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]}”).

35

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.

36

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,

DANIEL B. KOHRMAN *
LAURIE A. MCCANN

DARA S. SMITH

WILLIAM ALVARADO RIVERA
*Counsel of Record

AARP FOUNDATION

601 E Street, NW
Washington, DC 20049
Tel. (202) 434-2064
dkohrman@aarp.org

Counsel for Amici Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0793%3A09. Public record. Not legal advice.