No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. SECRETARY OF DEFENSE ROBERT GATES, Defendant-Appellant.

Transcription

1 No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BETTY B. FULLER, Plaintiff-Appellee, v. SECRETARY OF DEFENSE ROBERT GATES, Defendant-Appellant. On Appeal from the United States District Court For the Eastern District of Texas Texarkana Division, No. 5:06-CV-91 BRIEF FOR AARP AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE SUPPORTING AFFIRMANCE Mary Ellen Signorille Melvin Radowitz AARP Foundation Litigation AARP 601 E Street, NW 601 E Street, NW Washington, DC Washington, DC (202) ATTORNEYS FOR AMICUS CURIAE AARP

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal. /s/ Mary Ellen Signorille Mary Ellen Signorille Attorney of Record for Amicus Curiae AARP Parties & Counsel: Defendant-Appellant: Secretary of Defense Robert B. Gates; Represented by John M. Bales, United States Attorney for the Eastern District of Texas Plaintiff-Appellee: Betty B. Fuller, Represented by William B. Harrell i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF AUTHORITIES... iv INTEREST OF AMICUS CURIAE... 1 INTRODUCTION... 2 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 6 I. ADEA MIXED-MOTIVES CLAIMS OF FEDERAL WORKERS ARISE UNDER STATUTORY LANGUAGE THAT IS MUCH BROADER THAN THE LANGUAGE CONSTRUED IN GROSS... 6 II. III. IV. THE LEGISLATIVE HISTORY OF 633A COMPELS THE CONCLUSION THAT IT IS IMPROPER TO REFER TO OTHER SECTIONS OF THE ADEA TO DETERMINE THE COVERAGE OF THIS SECTION THE EXCLUSIVITY PROVISION OF 633A FURTHER PRECLUDES RELIANCE ON GROSS ADEA 633A SHOULD BE CONSTRUED TO PERMIT MIXED-MOTIVES CLAIMS BECAUSE IT IS MODELED ON 2000E-16 OF TITLE VII AND CONTAINS IDENTICAL LANGUAGE THAT HAS BEEN CONSTRUED TO PERMIT MIXED-MOTIVES CLAIMS BY FEDERAL EMPLOYEES UNDER TITLE VII V. THIS COURT SHOULD FOLLOW THE DECISION OF THE D.C. CIRCUIT IN FORD V. MABUS BECAUSE THE CASE WAS CORRECTLY DECIDED AND IS NOT AS THE SECRETARY CLAIMS INCONSISTENT WITH PRIOR D.C. CIRCUIT OR FIFTH CIRCUIT DECISIONS CONCLUSION ii

4 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE iii

5 CASES TABLE OF AUTHORITIES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)... 9 Boehms v. Crowell, 139 F.3d 452 (5th Cir. 1998)... 21, 23 Bornholdt v. Brady, 869 F.2d 57 (2d Cir. 1989)... 13, 17 Brown v. J. KAZ, Inc., 581 F.3d 175 (3d Cir. 2009) Cuddy v. Carmen, 694 F.2d 853 (D.C. Cir. 1982), after remand, 762 F.2d 119 (D.C. Cir. 1985)... 21, 22, 23, 24 Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008) Fogg v. Gonzales, 492 F.3d 447 (D.C. Cir. 2007) Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010), reh. denied, No , Document No (D.C. Cir. April 18, , 6, 9, 19, 20, 21, 24 Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001), cert. denied, 536 U.S. 958 (2002)... 9, 10, 16, 17, 18, 21, 23, 24 Ginger v. District of Columbia, 527 F.3d 1340 (D.C. Cir. 2008)... 22, 23 Gomez-Perez v. Potter, 553 U.S 474 (2008)... 8, 9, 16, 20, 24 Gross v. FBL Financial Services, Inc., 129 S.Ct (2009)... 1, 2, 3, 6, 7, 11, 14, 25, 26 iv

6 Hopkins v. Price Waterhouse, 825 F.2d 458 (D.C. Cir. 1987), aff d in part and rev d in part by 490 U.S. 228 (1989) Ingalls Shipbldg. Div., Litton Sys., Inc. v. White, 681 F.2d 275 (5th Cir. 1982) Koslow v.hundt, 919 F. Supp. 18 (D.D.C. 1995) Krodel v. Young, 748 F.2d 701 (D.C. Cir. 1984)... 21, 23, 24 Lagerstrom v. Mineta, 408 F.Supp. 2d 1207 (D. Kan. 2006)... 13, 17 Lehman v. Nakshian, 453 U.S. 156 (1981)...10, 14, 15, 17, 18 Ligon v. LaHood, 614 F.3d 150 (5th Cir. 2010) McDonnell Douglas v. Green, 411 U.S. 792 (1973)... 2, 21, 22, 23, 24 McKennon v. Nashville Banner Publ g Co., 513 U.S. 352 (1995)... 9 Murthy v. Shinseki, No. 08-CV-2015, 2010 WL (C.D. Ill. May 28, 2010) Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979) Porter v. Adams, 639 F.2d 273 (5th Cir. 1981) Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989)... 2, 7, 25 Ratzlaf v. United States, 510 U.S. 135 (1994) v

7 Safeco Ins. Co. of Amer. v. Burr, 551 U.S. 47, 127 S. Ct. 2201, 167 L. Ed. 2d 1045 (2007) Smith v. City of Jackson, 544 U.S. 228 (2005) Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010)... 25, 26 Tomasello v. Rubin, 920 F. Supp. 4 (D.D.C. 1996) Torres v. McHugh, 701 F. Supp. 2d 1215 (D.N.M. 2010) United States v. Oregon, 366 U.S. 643 (1961) United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989) STATUTES Age Discrimination in Employment Act U.S.C , 14, 16, U.S.C. 623(a)...passim 29 U.S.C. 623(a)(1)...passim 29 U.S.C. 633a...passim 29 U.S.C. 633a(a)...passim 29 U.S.C. 633a(f)... 4, 5, 10, 15, U.S.C. 626(d)(3) U.S.C. 631(b) Civil Rights Act of 1986, 42 U.S.C Civil Rights Act of , 7 Title VII of the Civil Rigths Act of U.S.C. 2000e-2(a)(1) U.S.C. 2000e-2(m) vi

8 42 U.S.C. 2000e , 17, 18, U.S.C. 2000e-16 (a) Lily Ledbetter Fair Pay Act of 2009, P.L , 5(c)(3), 123 Stat Riegle Community Development and Regulatory Improvement Act of , Pub. L. No , 108 Stat. 2160, 2253 (codified as amended at 31 U.S.C. 5322(a)-(b), 5324(c)) OTHER AUTHORITIES 118 Cong. Rec Cong. Rec (1972) H.R. Rep. No , p. 11 (1977) S. Rep. No , pp (1972) vii

9 INTEREST OF AMICUS CURIAE 1 AARP is a nonpartisan, nonprofit membership organization of people age 50 or older dedicated to addressing the needs and interests of older Americans. AARP supports the rights of older workers and strives to preserve the legal means to enforce them. Approximately half of AARP s members are in the work force, including members who are federal employees, and are protected by the Age Discrimination in Employment Act (ADEA). Vigorous enforcement of the ADEA is of paramount importance to AARP, its working members, and the millions of older workers who rely on it to deter and remedy work place age discrimination. This appeal presents a question of vital importance to older employees of the federal government like Betty Fuller: Whether Section 15 of the ADEA, 29 U.S.C. 633a, often referred to as the federal-sector provision of the statute because it applies only to employees of the federal government and which mandates a work place free from any discrimination based on age, continues to mean what it says subsequent to the decision of the Supreme Court in Gross v. FBL Financial Services, Inc., 129 S.Ct (2009). In that case, in which the Court construed the meaning of Section 4 of the ADEA, 29 U.S.C. 623(a)(1), that prohibits discrimination because of age and that applies to private-sector and state 1 No party or party s counsel authored this brief in whole or in part. No party or party s counsel nor any person other than amicus curiae, its members, or its counsel contributed money that was intended to fund preparing or submitting this brief, which is filed with the consent of both parties. 1

10 government employees, but not to federal employees, the Court focus[ed] on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. Id. at AARP submits this brief amicus curiae to demonstrate that because the statutory language of 633a is sharply different from that of 633a, the Gross holding requiring but-for causation and its broadly worded dicta rejecting the mixed-motives analysis for ADEA claims of private sector employees cannot be applied to preclude or limit such claims for federal employees. Indeed, the federal work place cannot be made free from any discrimination based on age as required by 633a unless mixed-motives claims are included within its coverage. INTRODUCTION In this case, an employee of a federal government agency sought relief under the ADEA for the agency s failure to promote her and for retaliation. On February 19, 2009, the district court entered findings of fact and conclusions of law in which it denied her retaliation claim and found, pursuant to McDonnell Douglas v. Green, 411 U.S. 792 (1973), that the reasons for the denial of her promotion were not pretextual. Under the mixed-motives analysis, however, see Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the court found the government liable for age discrimination and awarded $10,000 in damages. On June 18, 2009, four months after the district court issued its findings, in a 5-4 decision the U.S. Supreme Court 2

11 held in Gross that the text of the ADEA, i.e., 29 U.S.C. 623(a)(1), which provides that individuals may not be discriminated against because of age, does not authorize a mixed-motives age discrimination claim. 129 S.Ct. at The Court further held the plaintiff s burden is to prove that age was the but-for cause of the challenged employment decision. Id. at In light of Gross, the Secretary moved for reconsideration of the court s decision in favor of Ms. Fuller, but on March 1, 2010, the court denied the government s motion. The court found that although Ms. Fuller had not shown that age was the but-for cause of the denial of her promotion, the [ free from any discrimination ] language of 633a compels the court to conclude that a mixedmotive [sic] analysis continues to apply in claims against the government. Memorandum Opinion and Order dated March 1, The issue addressed in this brief is whether subsequent to Gross a mixedmotives claim brought not under ADEA 623(a)(1) by a private sector employee like Jack Gross, but by an employee of a federal government agency pursuant to ADEA 633a, 29 U.S.C. 633a, remains viable. Based on the free from any discrimination language relied on by the district court, there are sound reasons for concluding that Gross is inapplicable to 633a. 3

12 SUMMARY OF THE ARGUMENT The holding in Gross does not extinguish the mixed-motives claim in this case because 633a is a separate, self-contained section of the ADEA, the language of which is completely different from the statutory text construed in Gross. Unlike 623(a)(1), which prohibits discrimination because of age, and which the 5-4 Gross majority, over a vehement dissent authored by Justice Stevens, struggled to narrowly construe to require proof that age was the but-for cause of the alleged discrimination, the text of 633a is much broader and, consequently, cannot be similarly limited. It provides that the federal work place must be made free from any discrimination based on age. 29 U.S.C. 633a. Given the completely different language of the two provisions, the application of Gross to 633a is unjustifiable. Moreover, interpreting 633a based on precedents involving ADEA claims of private-sector employees like Jack Gross is precluded by 633a s exclusivity clause, 633a(f), which declares that 633a is to be construed solely by reference to its own text. In 633a Congress created a free-standing federal sector provision whose implementation is not constrained by experience under 623, the ADEA s private sector provision. For this same reason, the contrast that Gross drew between Title VII and the ADEA, to forbid mixed-motives claims under 623, does not apply to 633a. 4

13 To be sure, a modified mixed-motives scheme was amended into Title VII, but not into the ADEA, and the Gross majority relied on that fact in concluding that Congress intended to impose on claimants under 623(a)(1) the burden of proving that age was the but-for cause rather than simply proving that it was a motivating factor. But even if Congress had amended 623(a)(1) to include the identical mixed-motives language amended into Title VII by the Civil Rights Act of 1991, the exclusivity clause of the federal sector provision, 633a(f), would preclude reliance on the language of those amendments to inform the construction of 633a. Additionally, the operative language of 633a is modeled on the federal sector provision of Title VII, 42 U.S.C. 2000e-16. The two sections contain the identical free from any discrimination language that in the Title VII context has been held to permit mixed-motives claims by federal employees. Finally, this Court should follow the decision of the D.C. Circuit last year in Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010), reh. denied, No , Document No (D.C. Cir. April 18, 2011), a federal sector ADEA case in which the court held that mixed-motives claims under 633a remain viable subsequent to and notwithstanding the reasoning in Gross. The Secretary s arguments that Ford was wrongly decided are manifestly incorrect. In particular, 5

14 there is no basis for the Secretary s suggestions that Ford conflicts with earlier decisions of the D.C. Circuit and with precedent in this Circuit. ARGUMENT I. ADEA MIXED-MOTIVES CLAIMS OF FEDERAL WORKERS ARISE UNDER STATUTORY LANGUAGE THAT IS MUCH BROADER THAN THE LANGUAGE CONSTRUED IN GROSS. In Gross, the question on which the Supreme Court granted the Petition for a Writ of Certiorari was whether a private sector plaintiff in an ADEA case, which was brought under Section 4(a)(1) of the statute, 29 U.S.C. 623(a)(1), must present direct evidence of discrimination in order to obtain a mixed-motives jury instruction. The Court addressed instead the question whether a mixed-motives instruction is ever appropriate in an ADEA case, holding that such a jury instruction is never proper in an ADEA case. Gross, 129 S.Ct. at The Court further held that Id. at a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the but-for cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. In Gross, the Court s holding was based primarily on the materially different burden of persuasion, id. at 2348, in Title VII and the ADEA resulting 6

15 from Congress inclusion of language in the Civil Rights Act of 1991 (CRA) amending Title VII to explicitly include mixed-motives claims, but failing to so amend the ADEA even though the CRA amended the ADEA in other respects. Id. at Thus, the Court could not ignore Congress decision to amend Title VII s relevant provisions but not make similar changes to the ADEA. Id. The Court, therefore, concluded that the ordinary meaning of the ADEA s requirement set forth in 29 U.S.C. 623(a)(1) that an employer took adverse action because of age is that age was the reason that the employer decided to act. Id. at It follows, then, that under 623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the but-for cause of the employer s adverse action. Id. at The Gross majority reached this conclusion despite the fact that the Court has never similarly construed the identically worded privatesector provision of Title VII prohibiting discrimination because of race, color, religion, sex, or national origin, 42 U.S.C. 2000e-2(a)(1), to require proof of butfor causation. 2 2 The most natural reading of [ 623(a)(1)] prohibits adverse employment actions motivated in whole or in part by the age the employee. The "but-for" causation standard endorsed by the Court today was advanced in Justice Kennedy's dissenting opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 279, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), a case construing identical language in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e- 2(a)(1). Not only did the Court reject the but-for standard in that case, but so too did Congress when it amended Title VII in Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2353 (Stevens, J., dissenting) (emphasis added). 7

16 Neither the holding in Gross nor the reasoning supporting it apply to the present case, however, since plaintiff is not a private-sector employee like Jack Gross whose claim was required to be brought under 623(a)(1), but an employee of the federal government whose mixed-motives claim arises under 633a. This section, captioned Nondiscrimination on account of age in Federal Government employment, was added to the ADEA in Subsection (a) of 633a, 29 U.S.C. 633a(a), provides that [a]ll personnel actions affecting employees... who are at least 40 years of age... in executive agencies... shall be made free from any discrimination based on age. (Emphasis added). This prohibitory language in the ADEA s federal sector provision, the Supreme Court pointed out in Gomez-Perez v. Potter, 553 U.S 474, 486 (2008), differs sharply from that in the corresponding ADEA provision relating to private-sector employment. Neither does it contain the 623(a)(1) because of age language construed in Gross to bar mixed-motives claims by non-federally employed litigants. The ADEA federal-sector provision... is couched in very different terms than those sections of the statute that apply to private-sector claims. Gomez-Perez at 487. Moreover, Gomez-Perez declared the ADEA s federal - and private-sector provisions to be fundamentally distinct: Congress decided not to pattern 29 U.S.C. 633a(a) after 623(a) but instead to enact a broad, general ban on discrimination based on age.... Id. at

17 Nevertheless, the Secretary disingenuously insists not only that the text of the two provisions is only slightly different, Secretary s brief at 15 and 18, but also that in reality the two provisions are essentially the same, Secretary s brief at 23, directly contradicting the Supreme Court s conclusion that the language of the ADEA s federal sector provision differs sharply from the statute s private sector provision. Gomez-Perez, 553 U.S. at 486. It is precisely because this textual difference is sharp not slight, much less essentially non-existent that Gross s requirement of proof of but-for causation, which actually would permit some amount of age bias to taint employment decisions, simply cannot be reconciled with 633a(a) s broad prohibition of any discrimination based on age. Indeed, [l]imiting plaintiffs to proving liability only by establishing that consideration of age was the but-for cause of the personnel action, as the Secretary urges, would thus divorce the phrase free from any discrimination from its plain meaning. Ford, 629 F.3d at In Forman v. Small, 271 F.3d 285, 296 (D.C. Cir. 2001), cert. denied, 536 U.S. 958 (2002), a federal sector ADEA case presaging the Ford decision, the D.C. Circuit emphasized the difference between 623 and 633a: 3 Neither can the Secretary s proposed reading out of the public sector provision the phrase free from any in order to conform with Gross be reconciled with the purpose of the ADEA, which is to eliminate, so far as possible, the last vestiges of discrimination. McKennon v. Nashville Banner Publ g Co., 513 U.S. 352, 358 (1995) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, (1975)). 9

18 Unlike 623, which is narrowly drawn and sets forth specific prohibited forms of age discrimination in private employment, Congress used sweeping language when it subsequently extended the ADEA to cover federal agency employees. Congress required no less than that all personnel actions affecting employees... who are at least 40 years of age... shall be made free from any discrimination based on age. 29 U.S.C. 633a(a). Significantly, the Court also concluded in Forman, id. at 297, that [n]othing in the plain language of 633a suggests that Congress intended the federal workplace to be less free of age discrimination than the private workplace. To the contrary, Congress s actions show that it intended its mandate to reach more broadly in the federal sector than in the private sector. Moreover, nothing in the legislative history of 633a(f) [the exclusivity provision discussed in section C below], which was added to 633a in 1978, suggests that it was intended to limit the broad coverage of 633a that was originally intended. Id. at 298 (citation omitted). The Secretary cites Justice Brennan s dissent in Lehman v. Nakshian, 453 U.S. 156 (1981), in support of his claim that Congress meant for the two provisions to be interpreted alike. The majority in Lehman concluded, however, that it is unnecessary to go beyond the language of the statute itself [i.e., 633a] to determine its meaning. Id. at 165. Indeed, the principles of statutory interpretation require that the inquiry begin with the language of the statute itself. United States v. Ron Pair Enters., Inc., 489 U.S. 235, (1989). When statutory 10

19 provisions are clear and unequivocal on their face, there is no need to resort to the legislative history of the Act. United States v. Oregon, 366 U.S. 643, 648 (1961); see also Ratzlaf v. United States, 510 U.S. 135, (1994) ( But we do not resort to legislative history to cloud a statutory text that is clear. ), superseded by statute, Riegle Community Development and Regulatory Improvement Act of , Pub. L. No , 108 Stat. 2160, 2253 (codified as amended at 31 U.S.C. 5322(a)-(b), 5324(c)). Similarly, this Court has concluded that [g]enerally when there is no ambiguity in the words of a statute, a court may not consider legislative history or other rules of construction. Ingalls Shipbldg. Div., Litton Sys., Inc. v. White, 681 F.2d 275, 289 (5th Cir. 1982). Since the meaning of free from any discrimination could not be clearer, the legislative history is irrelevant. The but-for causation requirement of Gross is, therefore, incompatible with the congressional mandate of 633a that the federal work place must be made free from any discrimination based on age. (Emphasis added). This conclusion is self-evident, since even if the plaintiff proves that age was one motivating factor in the employer s decision, Gross, 129 S.Ct. at in other words, even if plaintiff has proved that age bias was one of the reasons for the employer s decision - unless the plaintiff is also able to exclude other factors, i.e., to show that age was the reason that the employer decided to act, id. at 2350, then under 11

20 Gross the employer is not liable. Therefore, instead of expunging age discrimination from the work place as required by the text of 633a(a), the but-for causation requirement would actually exacerbate and perpetuate the problem of work place discrimination by permitting some age bias to infect federal employers personnel actions affecting employees. The Third Circuit reached a similar conclusion in Brown v. J. KAZ, Inc., 581 F.3d 175 (3d Cir. 2009), in the context of a claim under the Civil Rights Act of 1866, 42 U.S.C Like 633a(a), Section 1981 does not include the because of language so narrowly construed in Gross. Instead, section 1981 more broadly provides that all persons... shall have the same right... to make and enforce contracts... as enjoyed by white citizens. Indeed, use of the Price Waterhouse framework makes sense in light of section 1981 s text. If race plays any role in a challenged decision by a defendant, the plain terms of the statutory text suggest the plaintiff has made out a prima facie case that section 1981 was violated because the plaintiff has not enjoyed the same right as other similarly situated persons. Brown at 182 (citation omitted). Likewise, if age plays any role in a federal employer s decision, that federal work place is not free from any discrimination based on age, and the 633a(a) standard is not satisfied. The sweeping language that Congress used to describe protection against age discrimination for federal workers mandates that 12

21 the narrow Gross decision not be applied to preclude their ADEA mixed-motives claims. II. THE LEGISLATIVE HISTORY OF 633A COMPELS THE CONCLUSION THAT IT IS IMPROPER TO REFER TO OTHER SECTIONS OF THE ADEA TO DETERMINE THE COVERAGE OF THIS SECTION. As originally introduced by Senator Bentsen in 1972, the bill that ultimately became 633a did not propose a new section for claims against government employers; it simply proposed to expand the definition of employer, which would have made existing provisions of the [ADEA] applicable to claims against the government. The bill was later restructured by Senator Bentsen to remove the federal government from the general definition of employer and to place appropriate substantive provisions in a separate section similar to 633a. Bornholdt v. Brady, 869 F.2d 57, 66 (2d Cir. 1989), quoted in Lagerstrom v. Mineta, 408 F.Supp. 2d 1207, (D. Kan. 2006) (citations omitted). As further described in Lagerstrom, id. at 1210: Senator Bentsen submitted the restructured bill as an amendment to pending amendments under the Fair Labor Standards Act ( FLSA ). See 118 Cong. Rec The amendment proposed an expansion of the term employer to include both state and local governments, while a separate section proposed coverage for federal employment. The FLSA bill reported by the Committee on Labor and Public Welfare, S. Rep. No , pp (1972), included Senator Bentsen s amendment. 13

22 As explained by the Supreme Court in Lehman v. Nakshian, 453 U.S. 156, (1981), in which the issue was whether, like private-sector employees, an ADEA plaintiff who was an employee of the federal government suing the government for age discrimination had a right to a jury trial: The ADEA originally applied only to actions against private employers.... Congress expanded the scope of ADEA in 1974 to include state and local governments and Federal Government employers. State and local governments were added as potential defendants by a simple expansion of the term employer in the ADEA. The existing substantive and procedural provisions of the Act, including 7(c) [the jury trial provision at issue in Lehman], were thereby extended to cover state and local government employees. In contrast, Congress added an entirely new section, 15 [codified as 29 U.S.C. 633a], to address the problems of age discrimination in federal employment. Here Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector.... Indeed, because the legislative history confirms that [s]ection is complete in itself, Lehman at 168 (quoting H.R. Rep. No , p.11 (1977)), the Supreme Court concluded in that case that federal personnel actions covered by [29 U.S.C. 633a] are not subject to any other section of the ADEA.... Id. The legislative history of 633a compels the conclusion that it is improper to refer to 623 and cases construing it, such as Gross, to ascertain if the former, unlike the latter, permits mixed-motives claims. 14

23 III. THE EXCLUSIVITY PROVISION OF 633A FURTHER PRECLUDES RELIANCE ON GROSS. While 633a does not contain the because of age language of 623(a)(1), it does contain an exclusivity provision that precludes reference to other sections of the statute to establish its scope. Thus, 633a(f), Applicability of statutory provisions to personnel action of Federal departments, etc., provides: Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section [i.e., 633a(a)] shall not be subject to, or affected by, any provision of this Act, other than the provisions of sections 7(d)(3) [which incorporates the Lily Ledbetter Fair Pay Act of 2009, P.L (c)(3), 123 Stat. 7, into the ADEA] and 12(b) of this Act [29 U.S.C. 626(d)(3) and 631(b) [which provides that the prohibitions established in section 633a of this title shall be limited to individuals who are at least 40 years of age ] and the provisions of this section. 29 U.S.C. 633a(f) (internal alteration omitted). The Supreme Court has concluded that this provision means what it says, i.e., that 633a is self-contained and unaffected by other sections of the ADEA. Lehman, 453 U.S. at 168. More specifically, federal personnel actions covered by [ 633a] are not subject to any other section of the ADEA. Id. Thus, the viability of an ADEA mixed-motives claim asserted by a federal employee is determined solely by the text of 633a without reference to other sections applicable to private employees, such as 623(a)(1). 15

24 Congress has made clear that in interpreting section 633a, the Court may not borrow provisions from elsewhere in the ADEA. Koslow v.hundt, 919 F. Supp. 18, 20 (D.D.C. 1995); see Tomasello v. Rubin, 920 F. Supp. 4, 6 (D.D.C. 1996). Citing Koslow and Tomasello, the D.C. Circuit in Forman, 271 F.3d at 298 (D.C. Cir. 2001), found within the broad language of 633a (without reference to 623 or any other section of the ADEA) congressional intent to permit retaliation claims by federal employees eight years before the Supreme Court reached the same conclusion in Gomez-Perez. In Forman, id., the Court declared that its analysis is consistent both with 633a(f) and Lehman s interpretation of it because we do not borrow provisions from elsewhere in the ADEA; rather, we rely on Congress s use of sweeping language in 633a(a) itself to make unlawful any discrimination based on age, as age is defined in the ADEA. The only proper source for construing the scope of 633a is rel[iance] on the plain language of 633a(a), id., because it is the language that Congress used in 633a(a) alone that determines the scope of that provision. Id. at 296. IV. ADEA 633A SHOULD BE CONSTRUED TO PERMIT MIXED-MOTIVES CLAIMS BECAUSE IT IS MODELED ON 2000E-16 OF TITLE VII AND CONTAINS IDENTICAL LANGUAGE THAT HAS BEEN CONSTRUED TO PERMIT MIXED-MOTIVES CLAIMS BY FEDERAL EMPLOYEES UNDER TITLE VII. The ADEA provision at issue in this case, 633a, is modeled directly on and contains language that is identical to the Title VII provision applicable to the 16

25 claims of federal employees. Title VII, at 42 U.S.C. 2000e-16 (a), provides that [a]ll personnel actions affecting employees... in military departments... shall be made free from any discrimination based on race, color, religion sex, or national origin. The ADEA provides, in identical language in 633a(a), that such personnel actions shall be made free from any discrimination based on age. In Lehman, the Supreme Court declared that 633a, enacted in 1974, is patterned directly after [ 2000e-16] of the Civil Rights Act of which extended Title VII protections to federal employees. 453 U.S. at 167 n.15 (citation omitted). See Lagerstrom, 408 F. Supp. 2d at 1210 ( As enacted, Section 633a was patterned directly after 717 (a) and (b) of the Civil Rights Act of 1964 [codified at 42 U.S.C. 2000e-16], as amended in March 1972, which similarly extended Title VII protections to federal employees. (quoting Bornholdt v. Brady, 869 F.2d 57, 66 (2d Cir. 1989))). In Smith v. City of Jackson, 544 U.S. 228, 233 (2005), the Supreme Court declared that when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, (1979) (concluding that when a section of the ADEA can be traced to a similar section of Title VII, the two provisions should be construed consistently); Forman v. Small, 271 F.3d 285, 297 (D.C. Cir. 2001) ( Sections 17

26 633a and 2000e-16 use identical language in creating a cause of action for federal employees under the ADEA and Title VII, respectively, and thus should be interpreted consistently. ) Indeed, as pointed out in Forman, this Court explained long ago in Porter v. Adams, 639 F.2d 273, (5th Cir. 1981), that 2000e-16 differs from the private sector provisions of Title VII, which are narrowly drawn and prohibit only specific forms of discrimination, because 2000e-16 is drafted broadly to prohibit any discrimination based on race, color, religion, sex, or national origin. Forman, 271 F.3d at 297. The Porter Court then declared that the reasonable conclusion, therefore, is that by drafting [ 2000e-16] to prohibit any discrimination, Congress intended to bar the federal government from engaging in all those forms of discrimination identified in [the private sector provisions], and others as well. Porter, 639 F.2d at (internal alterations omitted). The Supreme Court has pointed out that in enacting 633a Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector that is based... on Title VII. Lehman, 453 U.S. at In fact, Senator Bentsen acknowledged that [the] measures used to protect Federal employees [from age discrimination] would be substantially similar to those incorporated in recently enacted amendments [i.e., 2000e-16] to Title VII. Lehman, 453 U.S. at 167 n.15 (quoting 118 Cong. Rec (1972)). 18

27 In Fogg v. Gonzales, 492 F.3d 447, 451 (D.C. Cir. 2007), the Court held that 2000e-16 permits mixed-motives claims by federal employees without proving that an impermissible consideration was the sole or but-for motive for the employment action. Given that 2000e-16 and 633a are identical, it would be inconsistent to hold that mixed-motives claims are permitted by the federal sector provision of Title VII and not by the federal sector provision of the ADEA. V. THIS COURT SHOULD FOLLOW THE DECISION OF THE D.C. CIRCUIT IN FORD V. MABUS BECAUSE THE CASE WAS CORRECTLY DECIDED AND IS NOT AS THE SECRETARY CLAIMS INCONSISTENT WITH PRIOR D.C. CIRCUIT OR FIFTH CIRCUIT DECISIONS. In Ford v. Mabus, 629 F.3d 198, (D.C. Cir. 2010), reh. denied, No , Document No (D.C. Cir. April 18, 2011), the Court unanimously rejected the application of the Gross 623(a)(1) but-for causation standard to 633a, holding instead that based on 633a s more sweeping language... plaintiffs may establish liability by showing that age was a factor in the challenged personnel action. Contrary to the Secretary s assertions, the D.C. Circuit s reasoning in Ford is not flawed seriously, as the Secretary claims, or otherwise. Neither is the decision inconsistent with prior D.C. Circuit or Fifth Circuit cases. Even assuming, arguendo, that the free from any discrimination based on age language of 633a is only slightly different from the because of age text 19

28 of 623(a)(1) as the Secretary contends, 4 the whole point of Gross was that different wording even slightly different wording - matters. Here, the Secretary of Defense makes precisely the same argument that the Secretary of the Navy made unsuccessfully in Ford, 629 F.3d at 205, i.e., that section 633a s language is sufficiently similar to section 623 s that it too should be interpreted as requiring a but-for test. In support, the Secretary relies on section 633a s use of the phrase based on, pointing out that the Supreme Court has equated it with because of or but for. Safeco Ins. Co. of Amer. v. Burr, 551 U.S. 47, 63-64, 127 S. Ct. 2201, 167 L. Ed. 2d 1045 (2007). See Secretary s brief at Ford rejected this argument because it ignores the very different functions the parallel phrases because of and based on play in the two provisions. In section 623, because of modifies to fail or refuse to hire.... By contrast, in section 633a based on modifies discrimination. So while a section 623 plaintiff must, as Gross holds, show that the challenged personnel action was taken because of age, a section 633a plaintiff must show that the personnel action involved any discrimination based on age. Ford at 205. This analysis is unassailable and the Secretary s unsupported assertion that it is a trap for both the magistrate judge and this Court should be rejected as it was in Ford. The Secretary s further speculation that Congress s 4 The Supreme Court s conclusion that the two provisions are couched in very different terms, Gomez-Perez, 553 U.S at 487, should cause the Court to reject out of hand the Secretary s more extreme contention that they are essentially the same. Secretary s brief at

29 use of the phrase free from any in 633a(a) is most likely a grammatical consequence of its decision to express the federal-sector provision in positive terms, Secretary s brief at 29, for which no support at all is offered, should be similarly rejected. The Secretary additionally contends without foundation that Ford conflicts with earlier D.C. Circuit federal-sector ADEA decisions in Cuddy v. Carmen, 694 F.2d 853 (D.C. Cir. 1982), after remand, 762 F.2d 119 (D.C. Cir. 1985), Krodel v. Young, 748 F.2d 701 (D.C. Cir. 1984), and Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001), as well as with the decision of this Court in Boehms v. Crowell, 139 F.3d 452 (5th Cir. 1998). See Secretary s brief at Again, the Secretary is simply incorrect. The Secretary singles out one sentence from Cuddy 5 stating that 633a did not change the standard for establishing an ADEA violation. Secretary s brief at 31. In Ford, however, the D.C. Circuit considered and rejected this very argument: To be sure, in Cuddy v. Carmen (Cuddy I), this court did suggest, as the Secretary emphasizes, that the standard for proving violations under the two provisions is the same, but that statement related to the application of the McDonnell Douglas test, which operates identically under both provisions. 694 F.2d 853, 856, 224 U.S. App. D.C. 287 (D.C. Cir. 1982). In any event, the sentence in Cuddy I that the Secretary cites is dictum, and the case predates both Forman and Gomez-Perez. 5 Krodel v. Young relied on Cuddy so the analysis discussed in the text is the same regardless of which case is being discussed. 21

30 629 F.3d at 205. The Secretary confuses the issue before the Court in Cuddy. Cuddy was tried as a classic McDonnell Douglas case, i.e., but for causation needed to be shown. It does not follow, however, that since the plaintiff in Cuddy relied on the McDonnell Douglas analysis the but for standard of liability must be the only acceptable liability standard under the federal-sector provision. Ginger v. District of Columbia, 527 F.3d 1340, 1345 (D.C. Cir. 2008), illustrates the error of the Secretary s insistence upon applying the but-for analysis exclusively. In that case the Court refused to analyze the plaintiff s case under the mixed motive standard even though he might have succeeded in that event simply because the plaintiff had not advanced that theory. The Court pointed out that: The officers might have had a compelling case had they argued race was one of multiple motivating factors behind the reorganization, but they did not. Rather, they brought a single-motive case: According to the officers, race was the sole reason for the reorganization, and the MPD s nondiscriminatory justifications were mere pretexts. That simply cannot be correct F.3d at In sum, the officers never contended this was a mixed-motive case, and no reasonable jury could conclude the District s justifications were pretextual, leaving race as the sole motivation for reorganizing the Unit; therefore, the district court properly entered summary judgment for the District. 22

31 Thus, the plaintiff s choice of proof schemes did not define the liability standard in Ginger. Yet this is essentially what the Secretary mistakenly is arguing in his discussion of Cuddy. Similarly, Boehms v. Crowell, 139 F.3d 452 (5th Cir. 1998) a pre-gross decision the Secretary cites for the proposition that the same determinative factor standard must be applied to both private-and public-sector ADEA claims was tried as a McDonnell Douglas case. Thus, in Boehms this Court did not confront the issue of the burden of proof for federal sector mixedmotives ADEA claims. It also bears mentioning that Cuddy and Krodel were decided many years before mixed-motives analysis came into use in Title VII cases. See, e.g. Hopkins v. Price Waterhouse, 825 F.2d 458 (D.C. Cir. 1987), aff d in part and rev d in part by 490 U.S. 228 (1989). It follows that the Cuddy court did not consider a mixedmotives analysis because, in addition to the fact that plaintiff did not advance that theory, it was not, at that time, being used by the courts even in Title VII cases. Similarly, Forman was tried as a pure McDonnell Douglas but for case. The issue in Forman relevant to this appeal was whether retaliation, which is expressly prohibited by 623(a)(1), also was forbidden by 633a, even though it is not mentioned in the text of that section. The case did not deal with the question whether there was an alternative to but-for causation to prove liability. Nevertheless, the D.C. Circuit in Forman concluded, as did the Supreme Court 23

32 seven years later in Gomez-Perez, that the federal sector provision must be given a broader interpretation than the private sector ban and it, therefore, bars retaliation despite the silence of the statutory language. See Forman, 271 F.3d at 297 ( Congress s actions show that it intended its mandate to reach more broadly in the federal sector than in the private sector. ). It is on this latter point that Ford found Gomez-Perez and Forman relevant to its analysis of the statutory text of 623(a)(1) and 633a: Indeed, it is section 633a s more sweeping language that requires us to interpret it differently than section 623. Were the Secretary correct that section 633a requires a but-for test then a plaintiff who fails to demonstrate that age was a determining factor but nonetheless shows that it was one of several factors would lose even though the challenged personnel action in that scenario was not free from any discrimination.... Limiting plaintiffs to proving liability only by establishing that consideration of age was the but-for cause of the personnel action, as the Secretary urges, would thus divorce the phrase free from any discrimination from its plain meaning. To be faithful to that sweeping language, we hold that plaintiffs may also prevail by proving that age was a factor in the employer s decision. Ford, 629 F.3d 198, (D.C. Cir. 2010). While most district courts since Gross have required but for causation in federal-sector ADEA cases, they have done so as in Cuddy, Krodel, and Forman pursuant to McDonnell Douglas. Thus, none of the cases cited in the Secretary s brief at 26 n.7 have held, based on Gross or otherwise, that a mixed-motives 24

33 analysis never applies to federal-sector ADEA cases. And while the court in Murthy v. Shinseki, No. 08-CV-2015, 2010 WL (C.D. Ill. May 28, 2010), concluded that Gross should apply to all federal-sector ADEA claims, id. at *5, it held that there was no evidence of age discrimination to be analyzed under either standard, id. at *8. On the other hand, in Torres v. McHugh, 701 F. Supp. 2d 1215, (D.N.M. 2010), the court concluded that Gross does not apply to federalsector ADEA claims, but felt compelled to apply but-for causation based on pre- Gross Tenth Circuit precedent. Additionally, in Ligon v. LaHood, 614 F.3d 150, 157 n.3 (5th Cir. 2010), see Secretary s brief at 26, while this Court did cite Gross for the proposition that the ADEA does not authorize a mixed-motive age discrimination claim, the Court held that the federal-sector ADEA claim was not properly before it because the district court lacked jurisdiction to hear the claim, which was inescapably intertwined with a claim against the Federal Aviation Administration that could be brought only in a federal Circuit Court of Appeals. 614 F.3d at 157. Recently, in Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010), a privatesector Title VII case, this Court rejected the but-for causation requirement for mixed-motives retaliation claims, despite considerations that are, of course similar to the Supreme Court s reasoning in Gross, id. at 328, holding instead that Price Waterhouse continues to apply to such claims. Those considerations were 25

34 that the text of 2000e-2(m)... does not state that retaliation may be shown to be a motivating factor and although Congress amended Title VII to add 2000e- 2(m) in 1991, it did not include retaliation in that provision. Id. at 329. In Smith, this Court concluded that Gross did not control its analysis since the Supreme Court was not presented in Gross with the question of how to construe the standard for causation and the shifting burdens in a Title VII retaliation case. Id. at 330. Similarly, neither was the Gross Court presented with the question of how to construe the standard of causation and the shifting burdens in an ADEA federalsector mixed-motives case. Smith, therefore, compels the conclusion that Gross does not control the analysis in this case. It is, indeed, ironic that in arguing that the decision below is somehow inconsistent with Gross, the Secretary ignores Justice Thomas admonition in that case that [w]hen conducting statutory interpretation, we must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Gross, 129 S. Ct. at 2349 (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008)). Justice Thomas further wrote that [s]tatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. Id. at Mechanically applying Gross to the federal sector provision of the ADEA would be contrary to Gross s admonition against 26

35 intermingling interpretations of... two statutory schemes. Smith, 602 F.3d at 330. Nevertheless the Secretary would have this Court do what Justice Thomas says should not be done simply disregard the ordinary meaning of the distinctly different language of the two sections and construe them as if they were identical. CONCLUSION For the foregoing reasons this Court should affirm the decision below. Dated: June 1, 2011 Respectfully submitted, s/ Mary Ellen Signorille Mary Ellen Signorille AARP Foundation Litigation Melvin Radowitz AARP 601 E Street, NW Washington, D.C Telephone (202) msignorille@aarp.org Attorney for Amicus Curiae AARP 27

36 CERTIFICATE OF SERVICE I hereby certify that two copies of a Brief Amicus Curiae of AARP in Support of Plaintiff-Appellee Supporting Affirmance were served by First Class mail and via this Court s electronic filing system this 1 st day of June, 2011 on counsel of record listed below. John M. Bales United States Attorney Eastern District of Texas 350 Magnolia Avenue, Suite 150 Beaumont, TX Bradley Visosky Assistant US Attorney 101 E. Park Blvd., Suite 500 Plano, TX Thomas E. Gibson Assistant US Attorney 110 N. College, Suite 700 Tyler, TX William B. Harrell 803 Pine Street Texarkana, TX s/ Mary Ellen Signorille Mary Ellen Signorille 28

37 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,729 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(A)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2007 in Times New Roman in 14-point size. Dated: June 1, 2011 Respectfully Submitted, s/ Mary Ellen Signorille Mary Ellen Signorille 29