Guido v. Mount Lemmon Fire Dist.

• Decision Date: 19 June 2017
• Docket Number: No. 15-15030,15-15030
• Citation: 859 F.3d 1168
• Parties: John GUIDO; Dennis Rankin, Plaintiffs-Appellants, v. MOUNT LEMMON FIRE DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

859 F.3d 1168

John GUIDO; Dennis Rankin, Plaintiffs-Appellants,

v.MOUNT LEMMON FIRE DISTRICT, Defendant-Appellee.

No. 15-15030

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 15, 2016, San Francisco, California

Filed June 19, 2017

Shannon Giles (argued) and Don Awerkamp, Awerkamp & Bonilla P.L.C., Tucson, Arizona, for Plaintiffs-Appellants.

Jeffrey C. Matura (argued) and Amanda J. Taylor, Graif Barrett & Matura P.C., Phoenix, Arizona, for Defendant-Appellee.

Anne Noel Occhialino (argued), Attorney; Jennifer S. Goldstein, Associate General Counsel; P. David Lopez, General Counsel; Office of General Counsel, Equal Employment Opportunity Commission, Washington, D.C.; for Amicus Curiae Equal Employment Opportunity Commission.

Before: Diarmuid F. O'Scannlain, Ronald M. Gould, and Milan D. Smith, Jr., Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether the Age Discrimination in Employment Act of 1967 applies to a political subdivision of Arizona.

I

John Guido and Dennis Rankin were both hired in 2000 by Mount Lemmon Fire District, a political subdivision of the State of Arizona. Guido and Rankin served as full-time firefighter Captains. They were the two oldest full-time employees at the Fire District when they were terminated on June 15, 2009, Guido at forty-six years of age and Rankin at fifty-four.

Guido and Rankin subsequently filed charges of age discrimination against the Fire District with the Equal Employment Opportunity Commission ("EEOC"), which issued separate favorable rulings for each, finding reasonable cause to believe the Fire District violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 –34 ("ADEA"). They then filed this suit for age discrimination against the Fire District in April 2013.

The district court granted the Fire District's motion for summary judgment, concluding that it was not an "employer" within the meaning of the ADEA.

Guido and Rankin timely appealed.

II

Guido and Rankin challenge the district court's conclusion that the Fire District was not an "employer" within the meaning of the ADEA.

A

The ADEA applies only to an "employer." Under 29 U.S.C. § 630(b) :

The term "employer" 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 agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

Under § 630(a) :

The term "person" means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.

The parties agree that the twenty-employee minimum applies to "a person engaged in an industry affecting commerce" and that the term "person" does not include a political subdivision of a State. However, they dispute whether the twenty-employee minimum also applies to a "political subdivision of a State." § 630(b).

B

Congress passed the ADEA to protect older workers from "arbitrary age discrimination in employment."¹ 29 U.S.C. § 621(b). The statute originally applied only to private-sector employers. See Special Committee on Aging, U.S. Senate, Improving the Age Discrimination Law 11 (1973) (the "Senate Age Discrimination Report"). Congress amended the ADEA in 1974 to extend coverage to States, political subdivisions of States, and other State-related entities by adding a second sentence to § 630(b). Pub. L. No. 93-259, § 28, 88 Stat. 55 (1974) (the "1974 ADEA Amendment").²

Guido and Rankin contend that § 630(b) is not ambiguous and applies to the Fire District. They assert that its plain meaning creates distinct categories of "employers" and that the Fire District fits within one of them. See Young v. Sedgwick County , 660 F.Supp. 918, 924 (D. Kan. 1987) ; see also EEOC v. Wyoming , 460 U.S. 226, 233, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) ("In 1974, Congress extended the substantive prohibitions of the [ADEA] to employers having at least 20 workers, and to the Federal and State Governments." (emphasis added)). Section 630(b), they argue, is deconstructed as follows: The term "employer" means [A—person] and also means (1) [B—agent of person] and (2) [C—State-affiliated entities].

They note that each of the three "employer" categories is then further defined. For example, the "person" category is elaborated upon in § 630(a), which provides multiple definitions of the term "person" and then narrows the category to those persons "engaged in an industry affecting commerce who has twenty or more employees for each working day."³ The "State-affiliated entities" category lists the various types of State-affiliated entities covered, such as a "political subdivision of a State," and also contains clarifying language.

a

They argue that the ordinary meaning of "also" supports the notion that there are three distinct categories. See Crawford v. Metro. Gov't of Nashville & Davidson Cty. , 555 U.S. 271, 276, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009). We agree. The word "also" is a term of enhancement; it means "in addition; besides" and "likewise; too." E.g. , Webster's New Collegiate Dictionary 34 (1973). As used in this context, "also" adds another definition to a previous definition of a term—it does not clarify the previous definition. See Holloway v. Water Works & Sewer Bd. of Town of Vernon , 24 F.Supp.3d 1112, 1117 (N.D. Ala. 2014) (concluding the twenty-employee limitation should not be imported into the definition of employer covering political subdivisions of a state); see also Johnson v. Mayor & City Council of Baltimore , 472 U.S. 353, 356, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985) ("[I]n 1974 Congress extended coverage to Federal, State, and local Governments, and to employers with at least 20 workers." (emphasis added)).

For example, imagine someone saying: "The password can be an even number. The password can also be an odd number greater than one hundred."⁴ These are two separate definitions of what an acceptable password can be, and the clarifying language does not apply to both definitions. If the sentences are reversed,⁵ the "greater than one hundred" limiting language would still not carry over to the second sentence discussing even numbers. See Holloway , 24 F.Supp.3d at 1117. This becomes more obvious when it would be illogical to carry clarifying language over. If a statute said "The word bank means ‘the rising ground bordering a lake, river, or sea’ and the word also means ‘a place where something is held available,’ " the second definition would not be describing a place that must border a lake, river, or sea. Merriam-Webster, https://www.merriam-webster.com/dictionary/bank. The phrase "also means" indicates that a second, additional definition is being described. See § 630(b) (using the phrase "also means").

b

The EEOC, as amicus curiae, expressing its views in support of Guido and Rankin, contends that the English language provided Congress many ways to apply clarifying language across multiple definitions of a term, had it wanted to. The EEOC cites the 1972 amendment to Title VII of the Civil Rights Act of 1964 as an example (the "1972 Title VII Amendment"). This amendment extended Title VII protections to States and State-related entities, including political subdivisions of a State. Pub. L. 92-261, § 2, 86 Stat. 103 (codified as 42 U.S.C. § 2000e ). The EEOC emphasizes that the 1972 Title VII Amendment used language making clear that the twenty-employee minimum applied to political subdivisions, stating:

(a) The term "person" includes one or more individuals, governments, governmental agencies, political subdivisions , labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, or receivers.

(b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees....

42 U.S.C. § 2000e (emphasis added). The EEOC argues that Congress knew how to use language to ensure that an employee minimum applied to political subdivisions when it wanted.⁶ Congress could have also added the limiting language to each definition discussed in § 630(b), or at least to the definition covering political subdivisions, but it chose not to.⁷

In the face of such a strong textual argument, the Fire District has a powerful rebuttal: four other circuits have considered this issue and all have declared § 630(b) to be ambiguous. Cink v. Grant County , 635 Fed.Appx. 470, 474 n.5 (10th Cir. 2015) ; Palmer v. Ark. Council on Econ. Educ. , 154 F.3d 892, 896 (8th Cir. 1998) ; E.E.O.C. v. Monclova Twp. , 920 F.2d 360, 363 (6th Cir. 1990) ; Kelly v. Wauconda Park Dist. , 801 F.2d 269, 270 (7th Cir. 1986).⁸ Cink , Palmer , and Monclova Township all rely entirely on Kelly 's reasoning regarding the statute's ambiguity.⁹

The Seventh Circuit in Kelly concluded the statute was ambiguous. While acknowledging that the categorical reading was a reasonable one, it concluded the plaintiff "weaken[ed] his argument that the statute is unambiguous by arguing that we should look at ‘common sense’ and congressional intent in deciding that the statute is unambiguous." 801 F.2d at 270. It is not clear to us why an appeal to "common sense" undermines this argument. Further, any appeal to congressional intent is a non-sequitur; it is not a factor that should affect the determination of whether a statute's plain meaning is ambiguous. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 391 (2012).

The Kelly opinion further supports its conclusion by stating that the defendant presented a...