914 F.3d 480 (7th Cir. 2019), 17-1206, Kleber v. CareFusion Corp.

Docket Nº:17-1206
Citation:914 F.3d 480
Opinion Judge:Scudder, Circuit Judge.
Party Name:Dale E. KLEBER, Plaintiff-Appellant, v. CAREFUSION CORPORATION, Defendant-Appellee.
Attorney:Daniel B. Kohrman, William Alvarado Rivera, Dara Smith, Laurie A. McCann, Attorneys, AARP FOUNDATION LITIGATION, Washington, DC, Paul Strauss, Chicago, IL, for Plaintiff-Appellant. David Lawrence Schenberg, Attorney, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., St. Louis, MO, Tobias E. Schluet...
Judge Panel:Before Wood, Chief Judge, and Bauer, Flaum, Easterbrook, Kanne, Rovner, Sykes, Hamilton, Barrett, Brennan, Scudder, and St. Eve, Circuit Judges. Easterbrook, Circuit Judge, dissenting. Hamilton, Circuit Judge, dissenting, joined by Wood, Chief Judge, and Rovner, Circuit Judge, and joined as to Pa...
Case Date:January 23, 2019
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 480

914 F.3d 480 (7th Cir. 2019)

Dale E. KLEBER, Plaintiff-Appellant,

v.

CAREFUSION CORPORATION, Defendant-Appellee.

No. 17-1206

United States Court of Appeals, Seventh Circuit

January 23, 2019

Argued September 6, 2018

Page 481

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-1994 — Sharon Johnson Coleman, Judge .

Daniel B. Kohrman, William Alvarado Rivera, Dara Smith, Laurie A. McCann, Attorneys, AARP FOUNDATION LITIGATION, Washington, DC, Paul Strauss, Chicago, IL, for Plaintiff-Appellant.

David Lawrence Schenberg, Attorney, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., St. Louis, MO, Tobias E. Schlueter, Colleen Grace DeRosa, Attorneys, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Chicago, IL, for Defendant-Appellee.

Z. W. Julius Chen, Attorney, AKIN, GUMP, STRAUSS, HAUER & FELD LLP, Washington, DC, for Amicus Curiae CHAMBERS OF COMMERCE OF THE UNITED STATES OF AMERICA.

Before Wood, Chief Judge, and Bauer, Flaum, Easterbrook, Kanne, Rovner, Sykes, Hamilton, Barrett, Brennan, Scudder, and St. Eve, Circuit Judges.

OPINION

Scudder, Circuit Judge.

After Dale Kleber unsuccessfully applied for a job at CareFusion Corporation, he sued for age discrimination on a theory of disparate impact liability. The district court dismissed his claim, concluding that § 4(a)(2) of the Age Discrimination in Employment Act did not authorize job applicants like Kleber to bring a disparate impact claim against a prospective employer. A divided panel of this court reversed. We granted en banc review and, affirming the district court, now hold that the plain language of § 4(a)(2) makes clear that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants. While our conclusion is grounded in § 4(a)(2)’s plain language, it is reinforced by the ADEA’s broader structure and history.

I

In March 2014, Kleber, an attorney, applied for a senior in-house position in CareFusion’s law department. The job description required applicants to have "3 to 7 years (no more than 7 years) of relevant

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legal experience." Kleber was 58 at the time he applied and had more than seven years of pertinent experience. CareFusion passed over Kleber and instead hired a 29-year-old applicant who met but did not exceed the prescribed experience requirement.

Kleber responded by bringing this action and pursuing claims for both disparate treatment and disparate impact under § 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior decision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994), the district court granted CareFusion’s motion to dismiss Kleber’s disparate impact claim, reasoning that the text of § 4(a)(2) did not extend to outside job applicants. Kleber then voluntarily dismissed his separate claim for disparate treatment liability under § 4(a)(1). This appeal followed.

II

A

We begin with the plain language of § 4(a)(2). "If the statutory language is plain, we must enforce it according to its terms." King v. Burwell, __ U.S. __, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015). This precept reinforces the constitutional principle of separation of powers, for our role is to interpret the words Congress enacts into law without altering a statute’s clear limits. See Puerto Rico v. Franklin Cal. Tax-Free Trust, __ U.S. __, 136 S.Ct. 1938, 1949, 195 L.Ed.2d 298 (2016).

Section 4(a)(2) makes it unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

29 U.S.C. § 623(a)(2).

By its terms, § 4(a)(2) proscribes certain conduct by employers and limits its protection to employees. The prohibited conduct entails an employer acting in any way to limit, segregate, or classify its employees based on age. The language of § 4(a)(2) then goes on to make clear that its proscriptions apply only if an employer’s actions have a particular impact— "depriv[ing] or tend[ing] to deprive any individual of employment opportunities or otherwise adversely affect[ing] his status as an employee." This language plainly demonstrates that the requisite impact must befall an individual with "status as an employee." Put most simply, the reach of § 4(a)(2) does not extend to applicants for employment, as common dictionary definitions confirm that an applicant has no "status as an employee." See Merriam-Webster’s Collegiate Dictionary 60, 408 (11th ed. 2003) (defining "applicant" as "one who applies," including, for example, "a job [applicant]," while defining "employee" as "one employed by another usu[ally] for wages or salary and in a position below the executive level").

Subjecting the language of § 4(a)(2) to even closer scrutiny reinforces our conclusion. Congress did not prohibit just conduct that "would deprive or tend to deprive any individual of employment opportunities." It went further. Section 4(a)(2) employs a catchall formulation— "or otherwise adversely affect his status as an employee"— to extend the proscribed conduct. Congress’s word choice is significant and has a unifying effect: the use of "or otherwise" serves to stitch the prohibitions and scope of § 4(a)(2) into a whole, first by making clear that the proscribed acts cover all conduct "otherwise affect[ing] his status as an employee,"

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and, second, by limiting the reach of the statutory protection to an individual with "status as an employee." See Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 964 (11th Cir. 2016) (en banc ) (interpreting § 4(a)(2) the same way and explaining that the "or otherwise" language "operates as a catchall: the specific items that precede it are meant to be subsumed by what comes after the ‘or otherwise’ ").

Kleber begs to differ, arguing that § 4(a)(2)’s coverage extends beyond employees to applicants for employment. He gets there by focusing on the language in the middle of § 4(a)(2)— "deprive or tend to deprive any individual of employment opportunities"— and contends that the use of the expansive term "any individual" shows that Congress wished to cover outside job applicants. If the only question were whether a job applicant counts as "any individual," Kleber would be right. But time and again the Supreme Court has instructed that statutory interpretation requires reading a text as a whole, and here that requires that we refrain from isolating two words when the language surrounding those two words supplies essential meaning and resolves the question before us. See, e.g., United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (describing statutory construction as a "holistic endeavor"); see also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) (directing courts to consider "the language and design of the statute as a whole"); Trustees of Chicago Truck Drivers v. Leaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996) (emphasizing the same points and explaining that the meaning of statutory text comes from reading language in context and not words in insolation).

Reading § 4(a)(2) in its entirety shows that Congress employed the term "any individual" as a shorthand reference to someone with "status as an employee." This construction is clear from Congress’s use of language telling us that the provision covers "any individual" deprived of an employment opportunity because such conduct "adversely affects his status as an employee." Put differently, ordinary principles of grammatical construction require connecting "any individual" (the antecedent) with the subsequent personal possessive pronoun "his," and upon doing so we naturally read "any individual" as referring and limited to someone with "status as an employee." See Flora v. United States, 362 U.S. 145, 150, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960) ("This Court naturally does not review congressional enactments as a panel of grammarians; but neither do we regard ordinary principles of English prose as irrelevant to a construction of those enactments."). The clear takeaway is that a covered individual must be an employee.

Our conclusion becomes ironclad the moment we look beyond § 4(a)(2) and ask whether other provisions of the ADEA distinguish between employees and applicants. See Mount Lemmon Fire Dist. v. Guido, __ U.S. __, 139 S.Ct. 22, 24, 202 L.Ed.2d 262 (2018) (endorsing this same approach when interpreting the ADEA’s various definitions of "employer"). We do not have to look far to see that the answer is yes.

Right next door to § 4(a)(2) is § 4(a)(1), the ADEA’s disparate treatment provision. In § 4(a)(1), Congress made it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age."

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29 U.S.C. § 623(a)(1) (emphasis added). All agree that § 4(a)(1), by its terms, covers both employees and applicants. See, e.g., Kralman v. Ill. Dep’t of Veterans’ Affairs, 23 F.3d 150, 152-53 (7th Cir. 1994) (treating an applicant’s right to bring a claim under § 4(a)(1) as unquestioned). Compelling this consensus is § 4(a)(1)’s use of the words "to fail or refuse to hire or to discharge," which make clear that "any individual" includes someone seeking to be hired. 29 U.S.C. § 623(a)(1).

Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2) shows that the language in the former plainly covering applicants is...

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