Kleber v. Carefusion Corp.
Decision Date | 23 January 2019 |
Docket Number | No. 17-1206,17-1206 |
Citation | 914 F.3d 480 |
Parties | Dale E. KLEBER, Plaintiff-Appellant, v. CAREFUSION CORPORATION, Defendant-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
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.
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.
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 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.
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).
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," 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 ) ( ).
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) ( ); see also K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) ( ); Trustees of Chicago Truck Drivers v. Leaseway Transp. Corp. , 76 F.3d 824, 828 (7th Cir. 1996) ( ).
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) (). 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) ( ). 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."
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) ( ). 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 conspicuously absent from the latter. Section 4(a)(2) says nothing about an employer’s decision "to fail or refuse to hire ... any individual" and instead speaks only in terms of an employer’s actions that "adversely affect his status as an employee." We cannot conclude this difference means nothing: "when ‘Congress includes particular language in one section of a statute but omits it in another’—let alone in the very next provision—the Court presumes that Congress intended a...
To continue reading
Request your trial-
Lovelace ex rel. Lovelace v. Gibson
... ... Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). No genuine issue of material fact exists if a reasonable ... ...
-
Raymond v. Spirit Aerosystems Holdings, Inc.
...impact claims based on an employer's failure to hire outside (i.e. not current employee) job applicants.5 See Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc), petition for cert. docketed, No. 18-1346 (U.S. Apr. 26, 2019); Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d ......
- Lewis v. City of Chi.
-
Raymond v. Spirit Aerosystems Holdings, Inc.
...are ultimately unpersuasive. For reasons discussed at length by the court in its prior orders - and discussed in Kleber v. Carefusion Corp., 914 F.3d 480 (7th Cir.) (en banc), cert. denied, 140 S. Ct. 306 (Oct. 7, 2019), and Villarreal v. R. J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. ......
-
The law
...disparate impact claims when employers set limits on years of experience in their recruitment and jobs ads. In Kleber v. CareFu- sion , 914 F.3d 480, 480-81 (7th Cir. 2019), the job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.” K......
-
Disparate Impact Under the Adea: Applicants Need Not Apply
...e.g., Villarreal, 806 F.3d at 1288 (2015).14. See, e.g., Kleber v. CareFusion Corp., 888 F.3d 868 (7th Cir. 2018), aff'd on reh'g en banc, 914 F.3d 480 (7th Cir. 2019).15. See, e.g., Rabin v. PricewaterhouseCoopers LLP, 236 F. Supp. 3d 1126 (N.D. Cal. 2017).16. See infra Part II.17. Villarr......
-
Chapter 4 - § 4.2 • PROHIBITED CONDUCT AND PROOF OF SAME
...employees, not job applicants. Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 963 (11th Cir. 2016); Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc). In disparate impact cases, there is a circuit split on whether a plaintiff may prevail by showing a disparate impac......
-
Chapter 4 - § 4.2 • PROHIBITED CONDUCT AND PROOF OF SAME
...employees, not job applicants. Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 963 (11th Cir. 2016); Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc). In disparate impact cases, there is a circuit split on whether a plaintiff may prevail by showing a disparate impac......