John Guido v. Mount Lemmon Fire District ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN GUIDO; DENNIS RANKIN, No. 15-15030
Plaintiffs-Appellants,
D.C. No.
v. 4:13-cv-00216-JAS
MOUNT LEMMON FIRE DISTRICT,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted December 15, 2016
San Francisco, California
Filed June 19, 2017
Before: Diarmuid F. O’Scannlain, Ronald M. Gould,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge O’Scannlain
2 GUIDO V. MOUNT LEMMON FIRE DISTRICT
SUMMARY*
Employment Discrimination
The panel reversed the district court’s summary judgment
in favor of the defendant fire district, a political subdivision
of Arizona, in an action brought by two firefighter captains
under the Age Discrimination in Employment Act.
Disagreeing with other circuits, the panel held that a
political subdivision of a State need not have twenty or more
employees in order to qualify as an employer subject to the
requirements of the ADEA. The panel remanded the case for
further proceedings.
COUNSEL
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.;
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GUIDO V. MOUNT LEMMON FIRE DISTRICT 3
for Amicus Curiae Equal Employment Opportunity
Commission.
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.
4 GUIDO V. MOUNT LEMMON FIRE DISTRICT
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.
GUIDO V. MOUNT LEMMON FIRE DISTRICT 5
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
1
Guido and Rankin contend that § 630(b) is not ambiguous
and applies to the Fire District. They assert that its plain
1
We “begin [our analysis] with the plain language of the statute.”
Negusie v. Holder, 555 U.S. 511, 542 (2009). If the “statutory text is plain
and unambiguous[,]” we “must apply the statute according to its terms.”
Carcieri v. Salazar, 555 U.S. 379, 387 (2009). “Only when statutes are
ambiguous may courts look to legislative history.” In re Del Biaggio,
834 F.3d 1003, 1010 (9th Cir. 2016) (citing Nakano v. United States,
742 F.3d 1208, 1214 (9th Cir. 2014)).
2
The 1974 ADEA Amendment also lowered the employee minimum
from twenty-five to twenty.
6 GUIDO V. MOUNT LEMMON FIRE DISTRICT
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 (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 (2009). We agree. The word “also” is a
term of enhancement; it means “in addition; besides” and
3
Agents of persons and political subdivisions are not defined as
persons in § 630(a), thus explaining why they have to be included as
separate definitions of employers in § 630(b).
GUIDO V. MOUNT LEMMON FIRE DISTRICT 7
“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
(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
4
If someone said “a password can be any even number,” the ordinary
meaning of this sentence would be that an odd number cannot be a
password. See, e.g., Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000) (concluding that a statute that states a
bankruptcy trustee has the right to recover but is silent regarding an
administrative claimant should be read as not giving such claimant the
same right); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 107 (discussing the expressio unius est
exclusio alterius canon) (2012).
5
I.e., “The password can be an odd number greater than one hundred.
It can also be an even number.”
8 GUIDO V. MOUNT LEMMON FIRE DISTRICT
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
co mp ani es , t rusts, unincorporated
organizations, trustees, trustees in cases under
Title 11, or receivers.
GUIDO V. MOUNT LEMMON FIRE DISTRICT 9
(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
6
Congress could have made the second sentence of § 630(b) the
second sentence of § 630(a), not changed a word, and the twenty-
employee minimum would clearly apply to political subdivisions. It would
then have read as follows:
(a) The term “person” means one or more individuals,
partnerships, associations, labor organization,
corporations, business trusts, legal representatives, or
any organized group of persons. 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.
(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 . . . .
7
Section 630(a)–(b) does such for private sector employers, defining
“person” broadly—including labor organizations, partnerships, and
business trusts—then defining the term employer to mean a person with
at least twenty employees. That structure ensures that the twenty-
10 GUIDO V. MOUNT LEMMON FIRE DISTRICT
2
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 F. App’x 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]
employee minimum limitation applies to all definitions of the term
“person.” § 630(b).
8
Further, every circuit to consider the question of whether the twenty-
employee minimum applies to the “agent” category has concluded that
§ 630(b) is ambiguous. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583,
587 (9th Cir. 1993) (concluding Congress just intended “to incorporate
respondeat superior liability into the statute”); Stults v. Conoco,
Inc.,76 F.3d 651, 655 (5th Cir. 1996); Birkbeck v. Marvel Lighting Corp.,
30 F.3d 507, 510 (4th Cir. 1994).
9
Cink analyzes the entire interpretation question in two sentences,
adopting the reasoning of Kelly and the other circuits. 635 F. App’x at 474
n.5. Palmer concludes § 630(b) is ambiguous with one sentence of
analysis, adopting the reasoning of Schaefer v. Transportation Media,
Inc., which itself had adopted the reasoning of Kelly. 859 F.2d 1251, 1254
(7th Cir. 1988) (citing Kelly, 801 F.2d 269). Monclova Township also
adopts Kelly’s reasoning about the provision being ambiguous without
adding anything to the analysis. 920 F.2d at 362–63.
GUIDO V. MOUNT LEMMON FIRE DISTRICT 11
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 reasonable alternative
construction:
More significantly, the Park District
enunciates another fair and reasonable
interpretation of section 630(b)—that
Congress, in amending section 630(b), merely
intended to make it clear that states and their
political subdivisions are to be included in the
definition of ‘employer,’ as opposed to being
a separate definition of employer.
Id. at 270–71. Since the alternative reading was also deemed
reasonable, the court concluded the statute was ambiguous.
Id. at 270.
A serious problem with the alternative interpretation
argument, however; is that the court in Kelly never explained
how it is a “fair and reasonable interpretation” of the statute’s
actual language. A statute must be “susceptible to more than
one reasonable interpretation” to be ambiguous. Alaska
Wilderness League v. E.P.A., 727 F.3d 934, 938 (9th Cir.
12 GUIDO V. MOUNT LEMMON FIRE DISTRICT
2013). But, declaring that multiple reasonable interpretations
exist does not make it so. None of the cases cited by the Fire
District elaborate on how and why this alternative
interpretation is a reasonable one—they simply declare it so.
As a matter of plain meaning, the argument that § 630(b)
can be reasonably interpreted to include its second sentence
definitions within its first is underwhelming. If Congress had
wanted to include the second sentence definitions of
employer in the first sentence, it could have used the word
“include” or utilized one of the other alternative constructions
described above. The word “also” is not used in common
speech to mean “includes.” Webster’s New Collegiate
Dictionary 34 (1973). As previously described, the use of
separate sentences and the word “also” combine to create
distinct categories, in which clarifying language for one
category does not apply to other categories. See United States
v. Rentz, 777 F.3d 1105, 1109 (10th Cir. 2015) (“[U]ntil a
clue emerges suggesting otherwise, it’s not unreasonable to
think that Congress used the English language according to
its conventions.”). Even the Supreme Court defaults into the
categorical approach when discussing the statute. E.g.,
Wyoming, 460 U.S. at 233; Johnson, 472 U.S. at 356.
3
We are persuaded that the meaning of § 630(b) is not
ambiguous. The twenty-employee minimum does not apply
to definitions in the second sentence and there is no reason to
depart from the statute’s plain meaning. See Lamie v. U.S.
Tr., 540 U.S. 526, 534 (2004) (“It is well established 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.”). We are
GUIDO V. MOUNT LEMMON FIRE DISTRICT 13
satisfied that our reading comports with Lamie and certainly
does not threaten to destroy the entire statutory scheme. See
King v. Burwell, 135 S. Ct. 2480, 2495 (2015) (preventing the
destruction of the statutory scheme may justify departing
from “the most natural reading of the pertinent statutory
phrase”). Courts should rarely depart from a statute’s clear
meaning because it risks creating a perception that they are
inserting their own policy preferences into a law. See id. at
2495–96 (citing Palmer v. Massachusetts, 308 U.S. 79, 83
(1939)). Here, there is no valid justification to depart from the
plain meaning of the language and to adopt another
interpretation.
C
Even if we agreed with the Fire District and concluded
that the statute is ambiguous—which we do not—the
outcome would not change. The best reading of the statute
would be that the twenty-employee minimum does not apply
to a political subdivision of a State. We reject the Fire
District’s contention that considering the legislative history
Kelly reviewed should lead us to an alternative interpretation.
After concluding that the statute is ambiguous, Kelly
relied on “the parallel [1972] amendment of Title VII” and
the legislative history around the 1974 Amendment to
conclude “that Congress intended section 630(b) to apply the
same coverage to both public and private employees.”
801 F.2d at 271–72. Kelly’s focus on divining congressional
intent, rather than determining the ordinary meaning of the
text, led it astray. See Meacham v. Knolls Atomic Power Lab.,
554 U.S. 84, 102 (2008) (“We have to read [the ADEA] the
way Congress wrote it.”); Scalia & Garner, Reading Law:
The Interpretation of Legal Texts 391 (critiquing those who
14 GUIDO V. MOUNT LEMMON FIRE DISTRICT
think “that the purpose of interpretation is to discover
intent”). We need not read minds to read text.
Both parties argue that the 1972 Title VII Amendment
supports their position. But, critically, Congress used
different language than it used 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, 133 S. Ct. 2517,
2528–29 (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.
Nor does the legislative history Kelly relies on address the
specific question before us. Kelly, 801 F.2d at 271–72. It
references a Senate report written a year before the bill was
passed discussing how the same set of rules should apply to
the private sector and the government. Id. (citing Senate Age
Discrimination Report at 17). The Senate report never states
that the twenty-employee minimum should apply to political
subdivisions, but it does “urge that the law be extended . . . to
include (1) Federal, State, and local governmental employees,
and (2) employers with 20 or more employees.” Senate Age
Discrimination Report at 18 (emphasis added). It also cites a
House report containing the same vague language about
ensuring the same rules apply and two floor statements by
Senator Bentsen, one of which occurred in 1972, arguing that
the amendment is needed so that government employees
receive the “same protection.” Id. (citing H.R. Rep. No. 93-
913 (1974); 118 Cong. Rec. 15,895 (1972); 120 Cong. Rec.
8768 (1974)).
Eventually, the Kelly court resorted to arguing that given
its perception of Congressional intent, Congress could not
GUIDO V. MOUNT LEMMON FIRE DISTRICT 15
have intended what it said. 801 F.2d at 273 (“We also believe
that applying the ADEA to government employers with less
than twenty employees would lead to some anomalous results
which we do not believe Congress would have intended.”).
However, there are plenty of perfectly valid reasons why
Congress could have structured the statute the way it did.10 In
any event, it is not our role to choose what we think is the
best policy outcome and to override the plain meaning of a
statute, apparent anomalies or not. See Michigan v. Bay Mills
Indian Cmty., 134 S. Ct. 2024, 2033 (2014).
III
The district court erred in concluding that the twenty-
employee minimum applies to political subdivisions; it does
not. Therefore, the order granting summary judgment is
reversed and the case is remanded for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
10
One can imagine policy reasons for all these choices. Perhaps
Congress thinks that government agencies, even very small ones like the
Fire District, can better bear the costs of lawsuits than small private-sector
businesses or that government should be a model of non-discrimination.