NUMBER: CC IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Case: 15-13552 Date Filed: 05/04/2016 Page: 1 of 35 NUMBER: 15-13552-CC IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CHRISTINE WILLIAMS, v. Plaintiff-Appellant, POARCH BAND OF CREEK INDIANS, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION Civil Action No. 1:14-CV-00594-CG-M ADDITIONAL PRINCIPAL BRIEF FOR PLAINTIFF-APPELLANT Date: May 4, 2016 Robert L. Wiggins, Jr. Candis A. McGowan L. William Smith Wiggins, Childs, Pantazis, Fisher & Goldfarb The Kress Building 301 19 th Street North Birmingham, Alabama 35203 (205) 314-0500 Counsel for Plaintiff-Appellant

Case: 15-13552 Date Filed: 05/04/2016 Page: 2 of 35 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Counsel for Plaintiff-Appellant certifies that the following is a complete list of the trial judges; attorneys involved in the case; and all persons, associations of persons, firms, partnerships, and corporations having an interest in the outcome of this case: 1. Honorable Callie V. S. Granade, United States District Judge; 2. Honorable Bert W. Milling, Jr., United States Magistrate Judge; 3. James C. Pennington, M. Tae Phillips, and the attorneys working for or with the firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Attorneys for Defendant-Appellee; 4. Poarch Band of Creek Indians, Defendant-Appellee; 5. Appointed Counsel: Robert L. Wiggins, Jr., Candis A. McGowan, L. William Smith, and the attorneys working for or with the firm of Wiggins, Childs, Pantazis, Fisher & Goldfarb, Attorneys for Plaintiff-Appellant; 6. Christine Williams, Plaintiff-Appellant. /s/candis A. McGowan Robert L. Wiggins, Jr. Candis A. McGowan L. William Smith Counsel for Plaintiff-Appellant C-1 of C-1

Case: 15-13552 Date Filed: 05/04/2016 Page: 3 of 35 STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested. The issues in this appeal require oral argument because: (l) the appeal is not frivolous and involves an issue of first impression in this Circuit; (2) the dispositive set of issues presented have not been recently authoritatively decided; and (3) the decisional process will be significantly aided by oral argument. CERTIFICATE OF TYPE SIZE AND STYLE Pursuant to Eleventh Circuit Rule 28.1 (d) the following is the type size and styled used in this brief: Times New Roman 14 pt. -i-

Case: 15-13552 Date Filed: 05/04/2016 Page: 4 of 35 TABLE OF CONTENTS PAGES: CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT..................... C-1 STATEMENT REGARDING ORAL ARGUMENT....................... CERTIFICATE OF TYPE SIZE AND STYLE........................... i i TABLE OF CONTENTS............................................ ii TABLE OF AUTHORITIES......................................... iv JURISDICTIONAL STATEMENT.................................... 1 STATEMENT OF ISSUE PRESENTED FOR REVIEW................... 1 STATEMENT OF CASE............................................ 1 A. Course Of Proceedings And Disposition Below................ 1 B. Statement Of Facts....................................... 4 STATEMENT OF STANDARD FOR REVIEW.......................... 4 SUMMARY OF ARGUMENT........................................ 5 ARGUMENT...................................................... 6 I. CONGRESS PROPERLY EXERCISED ITS AUTHORITY TO ABROGATE INDIAN TRIBES IMMUNITY FROM SUIT UNDER THE ADEA.......................................... 6 -ii-

Case: 15-13552 Date Filed: 05/04/2016 Page: 5 of 35 TABLE OF CONTENTS PAGES: A. Congress Clearly And Unmistakably Expressed Its Intent To Abrogate Tribal Immunity When It Affirmatively Deleted The Exemption From Suit For Indian Tribe(s) From The Definition Of Employer It Borrowed From Title VII............ 6 B. The Surrounding Circumstances And Legislative History Are Additional Evidence Of Congressional Intent To Abrogate The Exemption And Immunity For Indian Tribes............ 11 C. The Decisions Relied Upon Below Fail To Properly Address Whether Congress Abrogated Tribal Immunity From Suit For ADEA Violations........................... 16 CONCLUSION................................................... 23 CERTIFICATE OF COMPLIANCE................................... 24 CERTIFICATE OF SERVICE....................................... 25 -iii-

Case: 15-13552 Date Filed: 05/04/2016 Page: 6 of 35 TABLE OF AUTHORITIES PAGES: City of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310 (11th Cir. 2012).................................. 5 Edelman v. Jordan, 415 U.S. 651 (1974).................................... 19, 20, 21 EEOC v. The Cherokee Nation, 871 F.2d 937 (10 th Cir. 1989)................................... 18 EEOC v. Fond du Lac Heavy Equip. and Constr. Co., Inc., 986 F.2d 246 (8 th Cir. 1993).................................... 18 EEOC v. Forest County Potawatomi Community, 2014 U.S. Dist. LEXIS 62353 (E.D. Wis., May 6, 2014)....... 2, 3, 12, 13 EEOC v. Wyoming, 460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983)............... 13 Ex Parte Virginia, 100 U.S. 339 (1880).......................................... 22 Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008)........................................ 9, 10 * Federal Power Comm n v. Tuscarora Indian Nation, 362 U.S. 99 (1960)........................................ 11, 12 *Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)................................. 8, 15, 18, 19, 20, 21, 22 -iv-

Case: 15-13552 Date Filed: 05/04/2016 Page: 7 of 35 TABLE OF AUTHORITIES PAGES: Florida Paraplegic Association Incorporated v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999)........................... 12, 17, 18 Garcia v. Akwesasne Housing Authority, 268 F.3d 76 (2 nd Cir.2001)..................................... 18 Green v. Mansour, 474 U.S. 64 (1985)........................................... 22 Gross v. FBL Fin. Servs., 557 U.S. 167 (2009)..................................... 9, 10, 19 Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013)................................ 4, 5 Kiowa Tribe v. Manufacturing Techs., Inc., 523 U.S. 751 (1998).......................................... 16 * Lorillard, Div. of Loew s Theatres, Inc. v. Pons, 434 U.S. 575 (1978)................................... 6, 9, 10, 19 McElmurray v. Consol. Gov t of Augusta Richmond Cty., 501 F.3d 1244 (11th Cir. 2007).................................. 5 Morton v. Mancari, 417 U.S. 535 (1974).......................................... 12 Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427 (1973) (per curiam)................................. 6 -v-

Case: 15-13552 Date Filed: 05/04/2016 Page: 8 of 35 TABLE OF AUTHORITIES PAGES: Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282 (11 th Cir. 2001).................................. 16 * Smith v. City of Jackson, 544 U.S. 228 (2005)......................................... 6, 9 Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032 (11 th Cir. 2001)......................... 15, 17, 18, 21 Tex. Dep t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015)....................................... 6, 9 * Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985).................................... 5, 6, 9, 18 Tremblay v. Mohegan Sun Casino, 599 Fed. Appx. 25 (2d Cir. 2015)................................ 19 * United States v. Dion, 476 U.S. 734, 738, 90 L. Ed. 2d 767, 106 S. Ct. 2216 (1986).......... 11 United States v. Lara, 541 U.S. 193 (U.S. 2004)................................... 15, 22 United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985).................................. 11 Statutes: 28 U.S.C. 1291................................................... 1 42 U.S.C. 1981............................................... 17, 18 -vi-

Case: 15-13552 Date Filed: 05/04/2016 Page: 9 of 35 TABLE OF AUTHORITIES PAGES: 42 U.S.C. 2000e(b)........................................... 7, 8, 21 78 Stat., Sec. 701(b), Public Law 88-352, p. 253, July 2, 1964......... 8, 13, 14 81 Stat., Sec. 11 (b), Public Law 90-202, p. 605, December 15, 1967, 29 U.S.C. 630(b)................................ 14 86 Stat., 701(2(b), Public Law 92-261 (March 24, 1972 (codified as 42 U.S.C. 2000e(b))...................................... 8 88 Stat., 28(a)(3), Public Law 93-259, April 8, 1974 (codified as 29 U.S.C. 630(b))...................................... 14 Age Discrimination In Employment Act of 1967 (ADEA).............. passim Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 11(b), 81 Stat. 602, 605............................................. 7 Americans With Disabilities Act ( ADA )........................... 17, 18 Civil Rights Act of 1964, Pub. L. No. 88-352, 715, 78 Stat. 241, 265 (superseded by Equal Employment Opportunity Act of 1972, 10, Pub. L. No. 92-261, 86 Stat. 103, 111)....................................... 13 Civil Rights Act of 1964, Pub. L. No. 88-352, 701(b)..................... 7 Eleventh Amendment............................... 15, 16, 19, 20, 21, 22 Fed. R. Civ. P. 12(b)(1).............................................. 4 Fed. R. Civ. P. 12(b)(6).............................................. 3 Fourteenth Amendment............................................. 22 -vii-

Case: 15-13552 Date Filed: 05/04/2016 Page: 10 of 35 TABLE OF AUTHORITIES PAGES: Title VII of Civil Rights Act of 1964.............................. passim Title VII, 2000e-2(m)............................................. 10 Title VII, 2000e-5(g)(2)(B)......................................... 10 OTHER AUTHORITIES: 2 H. Eglit, Age Discrimination 16.01 (1988)........................... 13 J. Kalet, Age Discrimination in Employment Law 1-2 (1986)............... 13 J. Kalet, Age Discrimination in Employment Law 2...................... 13 J. Kalet, Age Discrimination in Employment Law 1-3..................... 13 110 Cong. Rec. 2596-99 (1964) (amendment to include age as protected category under Title VII offered by Rep. Dowdy; amendment rejected by vote of 94 to 123)............................................... 13 110 Cong. Rec. 9911-16, 13,490-92 (amendment to include age as protected category under Title VII offered by Sen. Smathers; amendment rejected by vote of 28 to 63).................................................. 13 110 Cong. Rec. 13,701-03 (1964)..................................... 12 -viii-

Case: 15-13552 Date Filed: 05/04/2016 Page: 11 of 35 JURISDICTIONAL STATEMENT The Court has jurisdiction of this appeal under 28 U.S.C. 1291. The district court wrongly concluded that it lacked subject matter jurisdiction due to tribal immunity. STATEMENT OF THE ISSUE PRESENTED FOR REVIEW Did Congress sufficiently indicate its intent to abrogate exemption or immunity from suit under the Age Discrimination In Employment Act ( ADEA ) when it adopted the definition of employer from Title VII of the Civil Rights Act of 1964 but deleted the exemption for Indian tribe(s) contained in such definition, as well as when it enacted a statute of general application that applies to all employers except those specifically exempted by the explicit terms of such statute? STATEMENT OF THE CASE A. Course Of Proceedings And Disposition Below The plaintiff, Christine Williams, filed her complaint and prosecuted her claim against the Poarch Band of Creek Indians without a lawyer. Doc. 1. Plaintiff s complaint alleged wrongful termination in violation of the Age Discrimination in Employment Act of 1967 (ADEA). Doc. 1. The Poarch Band filed a Motion to Dismiss the pro se complaint, arguing that the court lacked subject matter jurisdiction based on an alleged tribal immunity from suit. Docs. 10, 11. The defendant argued 1

Case: 15-13552 Date Filed: 05/04/2016 Page: 12 of 35 that Congress had not exercised its authority to abrogate the alleged immunity because the ADEA is allegedly silent on the issue of whether an Indian tribe is subject to suit under the ADEA. It failed, however, to cite to or acknowledge the fact that Congress acted to explicitly delete the exemption of Indian tribe(s) from its list of entities immune from suit when it borrowed the definition of employer from Title VII of the Civil Rights Act of 1964 which contained such exemption. Docs. 10, 11. The pro se plaintiff initially made the same mistake and others, such as arguing that the motion to dismiss was based on abstention rather than immunity. Doc. 14 at 6-9. The plaintiff, however, corrected her error by submitting supplemental authorities with the District Court s approval (Docs. 21 & 22), and by requesting the Court to take note [that] Title VII... explicitly exempts Indian tribes, but the ADEA does not. Doc. 26 at p. 3. Among other supplemental authority submitted, the plaintiff submitted the decision in EEOC v. Forest County Potawatomi Community, 2014 U.S. Dist. LEXIS 62353, ** 3-14 (E.D. Wis., May 6, 2014), which held that Congress authorized ADEA suits against Indian tribes by adopting a statute of general application without expressly excluding such tribes from its coverage. See Doc. 21 at p. 2 & Exh. 2. Based on that decision and others, the plaintiff argued pro se that the ADEA authorizes suits against Indian tribes for age discrimination. Doc. 2

Case: 15-13552 Date Filed: 05/04/2016 Page: 13 of 35 21. The district court considered the Potawatomi decision and the general issue of whether Congress abrogated tribal immunity in either the ADEA itself or its legislative history. See Report and Recommendation at 8 & 16, Doc. 25. That question is one of first impression in this Circuit. The magistrate judge recommended that Defendant s motion to dismiss be granted, rejecting Plaintiff s argument that the ADEA does authorize private lawsuits against federally recognized Indian tribes... Doc. 25 at 6. In support of the recommendation for dismissal, the magistrate addressed whether Congress has expressly abrogated such immunity as may be applied under the ADEA. Doc. 25 at 14. The magistrate erroneously concluded, however, that Congress has not abrogated tribal immunity from ADEA suits. Doc. 25 at 15-17. The District Court adopted the Report and Recommendation and ordered that Defendant s motion to dismiss for lack of subject matter jurisdiction be granted and that Plaintiff s complaint be dismissed. Doc. 28. The Court did not reach the question of whether dismissal was independently warranted under Fed. R. Civ. P. 12(b)(6). Doc. 25. On appeal, the Court appointed counsel for the plaintiff-appellant to brief the issue of whether Congress authorized suits against Indian tribes for age discrimination or otherwise abrogated any exemption or immunity from such claims. 3

Case: 15-13552 Date Filed: 05/04/2016 Page: 14 of 35 B. Statement Of Facts The plaintiff, Christine Williams, was employed by the Poarch Band of Creek Indians as the Lab Manager of its Health Department. Docs. 1, 5. Plaintiff is over the age of 55. (Docs. 1, 5). Prior to her termination on or around June 17, 2014, she had been employed by Defendant for more than 21 years. Docs. 1, 5. Plaintiff alleges that she was terminated in violation of Poarch Creek s Employee Personnel Policies, that the reasons advanced for her termination by Defendant are false and a ploy to justify the termination, and that the basis for her termination was age discrimination. Docs. 1, 5. Plaintiff further contends that Health Administrator Ginger Bergeron and Tribal Administrator Edie Jackson conspired to replace Plaintiff with a twenty-eight year old female medical laboratory scientist but that the position was not filled because of Plaintiff s legal action. Docs. 1, 5. Plaintiff s complaint further alleges that she was told that if she did not resign, she would not be able to find a job as a lab administrator due to her age. Docs. 1, 5. The District Court stated that it did not consider the merits of plaintiff s claim and limited its decision to the question of tribal immunity from suit. STATEMENT OF STANDARD FOR REVIEW This Court reviews de novo a district court s dismissal of a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. Houston v. Marod Supermarkets, 4

Case: 15-13552 Date Filed: 05/04/2016 Page: 15 of 35 Inc., 733 F.3d 1323, 1328 (11th Cir. 2013). When determining whether the plaintiff has sufficiently alleged a basis for subject matter jurisdiction, the Court of Appeals is to take the allegations in the complaint as true. McElmurray v. Consol. Gov t of Augusta Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). This Court reviews the district court s findings of jurisdictional facts for clear error. City of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012). SUMMARY OF ARGUMENT The lower Court erred in granting the defendant s motion to dismiss the plaintiff s complaint on the basis that the tribe allegedly was immune from suit under the ADEA. Given that the ADEA was derived in haec verba from Title VII, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985), Congress s decision in 1967 to affirmatively delete the exemption of Indian tribes from the definition of an employer that it borrowed from Title VII was sufficient to clearly and unmistakably express Congress s intent to abrogate tribal immunity from age discrimination suits brought under the ADEA. 5

Case: 15-13552 Date Filed: 05/04/2016 Page: 16 of 35 ARGUMENT I. CONGRESS PROPERLY EXERCISED ITS AUTHORITY TO ABROGATE INDIAN TRIBES IMMUNITY FROM SUIT UNDER THE ADEA A. Congress Clearly And Unmistakably Expressed Its Intent To Abrogate Tribal Immunity When It Affirmatively Deleted The Exemption From Suit For Indian Tribe(s) From The Definition Of Employer It Borrowed From Title VII Congress adopted a clear and unmistakable abrogation of tribal immunity from suits under the ADEA when it deleted the exemption of Indian tribe(s) from the definition of employer that it borrowed in haec verba from Title VII of the Civil Rights Act of 1964. 1 Rather than exempting Indian tribe(s) from the definition of employers who could be sued under the ADEA as Title VII did four years earlier, 1 The Supreme Court has held several times that the ADEA adopted the statutory terms of Title VII in haec verba with few exceptions. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (Holding that the provisions of the ADEA were derived in haec verba from Title VII. ) (quoting Lorillard v. Pons, 434 U.S. 575, 584, (1978)). See generally Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428 (1973) (per curiam). In interpreting the ADEA, the Supreme Court looks to prior interpretations of similar provisions in the Civil Rights Act of 1964, beginning with the premise 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. Smith v. City of Jackson, 544 U.S. 228, 233 (2005). See also Tex. Dep t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015) ( This similarity in text and structure is all the more compelling given that Congress passed the FHA in 1968 only four years after passing Title VII and only four months after enacting the ADEA. ). 6

Case: 15-13552 Date Filed: 05/04/2016 Page: 17 of 35 Congress chose to eliminate that exemption in the ADEA when it adopted Title VII s definition of employer but deleted the following words: The term employer... does not include... an Indian tribe. 42 U.S.C. 2000e(b). 2 The deletion of those words was an affirmative act of Congress, not passive silence or a failure to act or indicate its intent. 2 The definition of employer in the ADEA is taken verbatim from the original definition in Title VII except for deleting the exemption of Indian tribe(s) from suit. The relevant language from 701(b) of Title VII as originally enacted in 1964 reads as follows: The term employer means a person engaged in an industry affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year... but such term does not include the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or a State or political subdivision thereof.... Civil Rights Act of 1964, Pub. L. No. 88-352, 701(b), 78 Stat. 241, 253 (emphasis added). Congress lifted these same terms into 11(b) of the ADEA, as shown on the face of such section which reads: The term employer means a person engaged in an industry affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year... but such term does not include the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof. Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 11(b), 81 Stat. 602, 605 (emphasis added). 7

Case: 15-13552 Date Filed: 05/04/2016 Page: 18 of 35 Congress can express its will by actions which delete words as much as adding them. Its decision to delete the words Indian tribe from the definition of employer that it borrowed from Title VII was no different from the equivalent deletion of state governments from that same definition which the Supreme Court held to be sufficient to abrogate the state s immunity from Title VII claims in Fitzpatrick v. Bitzer, 427 U.S. 445, 452 (1976). 3 There was no explicit declaration of abrogation in that instance other than the deletion of the following words: The term employer... does not include... a state or political subdivision. 4 Congress used that same means of abrogating tribal immunity in the ADEA by deleting the following words from the definition of employer it adopted from Title VII: The term employer... does not include... an Indian tribe. 42 U.S.C. 2000e(b). By deciding to include those words in Title VII in 1964 but to delete them three years later when it enacted the 3 The Supreme Court treated the definition of employer as the correct place in the statute for Congress to abrogate the State s immunity from Title VII claims. Fitzpatrick, 427 U.S. at 449 & n.2. The Court also determined that deleting the exception for state governments from Title VII s definition of employer was the correct means for Congress to exercise its authority to abrogate the state s sovereign immunity. Id. That was done by deleting the following words from Title VII s definition of employer in 1972: The term employer... does not include... a state or political subdivision thereof. Fitzpatrick v. Bitzer, 427 U.S. 445, 449 (1976). 4 Compare 78 Stat., 701(b), Public Law 88-352, p. 253, July 2, 1964 with 86 Stat., 701(2(b), Public Law 92-261 (March 24, 1972, codified as 42 U.S.C. 2000e(b)). 8

Case: 15-13552 Date Filed: 05/04/2016 Page: 19 of 35 ADEA on the basis of Title VII, Congress expressed its clear and unmistakable intent to abrogate tribal immunity from suits for age discrimination. That was a deliberate choice by Congress. The Supreme Court has held that most of the ADEA was derived in haec verba from Title VII, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985), and for that reason that differences between the two statutes are particularly important in determining Congressional intent. Gross v. FBL Fin. Servs., 557 U.S. 167, 174 (2009) (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008); Lorillard v. Pons, 434 U.S. 575, 585 n. 14 (1978). For this reason, the Supreme Court, in interpreting the ADEA, has frequently looked to prior interpretations of similar provisions in the Civil Rights Act, beginning with the premise 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. Smith v. City of Jackson, 544 U.S. 228, 233 (2005). 5 But when the texts of two interdependent statutes differ, the Supreme Court has not hesitated to conclude that such 5 See also Tex. Dep t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015) ( This similarity in text and structure is all the more compelling given that Congress passed the FHA in 1968 only four years after passing Title VII and only four months after enacting the ADEA. ). 9

Case: 15-13552 Date Filed: 05/04/2016 Page: 20 of 35 differences are especially significant, cautioning that we must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Gross v. FBL Fin. Servs., 557 U.S. 167, 174 (2009) (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008). The reasoning of Gross v. FBL Fin. Servs. is especially instructive. The Supreme Court concluded, [w]e cannot ignore Congress decision to amend Title VII s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. Id. at 168. 6 Similarly, in Lorillard, Div. of Loew s Theatres, Inc. v. Pons, 434 U.S. 575, 585 fn. 14 (1978) the Court held that to the extent petitioner correctly interprets congressional intent with respect to jury trials under Title VII, the very different remedial and procedural provisions under the ADEA suggest that Congress had a very different intent in mind in drafting the later law. Id. (emphasis added) (finding right to jury trial under the ADEA but not necessarily under Title VII prior to the 1991 amendments). 6 In Gross, the Court concluded that Congress s decision to add motivating factor language to Title VII but not to the ADEA in 1991 clearly expressed Congress s intent to require but for causation under the ADEA but not Title VII, pointing out that Congress neglected to add such a provision to the ADEA when it amended Title VII to add 2000e-2(m) and 2000e-5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways. 557 U.S. at 174. 10

Case: 15-13552 Date Filed: 05/04/2016 Page: 21 of 35 B. The Surrounding Circumstances And Legislative History Are Additional Evidence Of Congressional Intent To Abrogate The Exemption And Immunity For Indian Tribes The Supreme Court has held that a clear and unmistakable intent to abrogate tribal immunity can be determined from the actions of Congress, from surrounding circumstances and from the legislative history, not just from an express declaration of its intent to abrogate. United States v. Dion, 476 U.S. 734, 739 (1986). When interpreting a statute, Congress s intent as expressed in that statute is determinative, and we must presume that Congress acts with deliberation, rather than by inadvertence, when it drafts a statute. United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). What is essential is clear evidence that Congress actually considered the issue, Dion. at 476 U.S. at 739-740, of whether Indian tribe(s) should be exempt from suit under the Act. That clear evidence is established here by the affirmative act of Congress that deleted the words Indian tribe from the list of exempt employers it borrowed in haec verba from Title VII. See fn. 3 supra at p. 6. Congressional intent was also shown by the fact that the deletion of the exemption from suit for Indian tribe(s) was enacted against the background of the Supreme Court s decision that it is now well settled by many decisions of this court that a general statute in terms applying to all persons includes Indians. Fed. Power Comm n v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960); see also id. at 120 11

Case: 15-13552 Date Filed: 05/04/2016 Page: 22 of 35 ( [G]eneral acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary. ). 7 The ADEA s definition of employer is such a statute of general application which applies to all employers engaged in interstate commerce, including Indian tribe(s). EEOC v. Forest County Potawatomi Community, 2014 U.S. Dist. LEXIS 62353, ** 3-14 (E.D. Wis., May 6, 2014). 8 The ADEA s legislative history confirms Congress s intent to abrogate such exemption and immunity of employers exempt from suit. Age discrimination was originally part of the deliberations of Title VII in 1964 but was not enacted at that time. 9 Instead, Congress chose to direct the Secretary of Labor to study whether age 7 A Congressional statute of general applicability presumptively applies to Indian tribes absent some clear indication that Congress did not intend for tribes to be subject to the legislation. Florida Paraplegic Association Incorporated v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999) (citing Federal Power Comm n v. Tuscarora Indian Nation, 362 U.S. 99 (1960)). 8 The Supreme Court has recognized that there is a reason for the exclusion of Indian tribes from the definition of employer under Title VII -- to enable Indian tribes to continue to be free to give preference to Indians in tribal government employment which would run afoul of the prohibition on racial discrimination without such immunity. Morton v. Mancari, 417 U.S. 535, 548, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974); see 110 Cong. Rec. 13,701-03 (1964) (comments by Sen. Mundt regarding amendment to exclude Indian tribes from compliance with Title VII). There is no comparable reason for Congress to carve out an exception for Indian tribes under ADEA. 9 There is considerable evidence indicating that Congress had an acute awareness of Title VII s provisions when promulgating the ADEA. During consideration of Title VII there were unsuccessful efforts to include age as one of the 12

Case: 15-13552 Date Filed: 05/04/2016 Page: 23 of 35 discrimination should be outlawed on the same basis as the other forms of discrimination in Title VII. Id. Based on that study, Congress enacted the ADEA in 1967 by borrowing most of the language from Title VII in haec verba, including the definition of employer without the deleted exemption for Indian tribe(s). See fn. 2 at p. 7, supra. The 1964 definition of employer in Title VII that Congress started from in deliberating the ADEA in 1967 was as follows: Title VII in 1964: The term employer means a person engaged in an industry affecting commerce... but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or a State or political subdivision protected categories in that legislation. 110 Cong. Rec. 2596-99 (1964) (amendment to include age as protected category under Title VII offered by Rep. Dowdy; amendment rejected by vote of 94 to 123); 110 Cong. Rec. 9911-16, 13,490-92 (amendment to include age as protected category under Title VII offered by Sen. Smathers; amendment rejected by vote of 28 to 63); see also EEOC v. Wyoming, 460 U.S. 226, 229, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983) (noting that amendments to include age in Title VII were rejected). Title VII instead included a provision directing the Secretary of Labor to study potential age discrimination in the workplace and to make recommendations for combating the problem if it existed. Civil Rights Act of 1964, Pub. L. No. 88-352, 715, 78 Stat. 241, 265 (superseded by Equal Employment Opportunity Act of 1972, 10, Pub. L. No. 92-261, 86 Stat. 103, 111). The Secretary's report led to the enactment of the ADEA. See J. Kalet, Age Discrimination in Employment Law 1-2 (1986). Commentators have noted that the ADEA is effectively a hybrid of Title VII's general scheme and the Fair Labor Standards Act s remedial devices. J. Kalet, Age Discrimination in Employment Law 1-3. See generally 2 H. Eglit, Age Discrimination 16.01 (1988). Because Title VII had already established a framework within which the ban on employment discrimination could be enforced, the Title VII enforcement scheme and proof considerations were followed extensively in the drafting of the ADEA. J. Kalet, Age Discrimination in Employment Law 2. 13

Case: 15-13552 Date Filed: 05/04/2016 Page: 24 of 35 thereof. 10 Congress, however, elected to make two critical changes to that definition, first deleting the words exempting an Indian tribe in 1967 11 and then deleting the words exempting a State or political subdivision thereof in 1974. The two changes were as follows: ADEA in 1967: The term employer means a person engaged in an industry affecting commerce... but such term does not include the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof. 12 ADEA in 1974: The term employer means a person engaged in an industry affecting commerce.... but such term does not include the United States, or a corporation wholly owned by the Government of the United States. 13 Those two changes to the definition of employer that the ADEA adopted from Title VII are indistinguishable from the deletion of the exemption for a State or political subdivision that was held sufficient to allow Congress to abrogate the state s 10 78 Stat., Sec. 701 (b), Public Law 88-352, p. 253, July 2, 1964, 42 U.S.C., 42 U.S.C. 2000e(b) (emphasis added). 11 81 Stat., Sec. 11 (b), Public Law 90-202, p. 605, December 15, 1967, 29 U.S.C. 630(b). 12 81 Stat., Sec. 11 (b), Public Law 90-202, p. 605, December 15, 1967, 29 U.S.C. 630(b). 13 Compare 81 Stat., 11(b), Public Law 90-202, p. 605, December 15, 1967 with 88 Stat., 28(a)(3), Public Law 93-259, April 8, 1974 (codified as 29 U.S.C. 630(b)). 14

Case: 15-13552 Date Filed: 05/04/2016 Page: 25 of 35 sovereign immunity from Title VII suits in Fitzpatrick v. Bitzer, 427 U.S. at 452. The deleted exemption from suit for Indian tribe(s) in the ADEA has continued to the present. Congress did not restore the words Indian tribe to the list of exempt employers when it revisited the ADEA s definition of employer in 1974. See fn. 14 supra. As shown by the definitions of employer quoted above, the term Indian tribe remained deleted from the ADEA s definition of exempt employers from 1974 forward, but the exemption for Indian tribes has never been deleted from Title VII s parallel definition of employer to this date. Congress has removed sovereign immunity for state and local governments in both Title VII and the ADEA, but retained tribal immunity only in Title VII. Each of these deletions of exemptions for Indian tribes and state governments was a clear and unmistakable expression of Congressional intent to abrogate tribal and state immunity from suit under the ADEA for the same reasons the Supreme Court set forth in Fitzpatrick v. Bitzer. This reasoning applies even more strongly to Congress s abrogation of tribal immunity under the ADEA because, unlike Congress s limited authority to abrogate state Eleventh Amendment immunity, Fitzpatrick, 427 U.S. at 455, Congress s power to limit tribal immunity is plenary and exclusive. United States v. Lara, 541 U.S. 193, 200 (U.S. 2004). Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1034 (11 th Cir. 2001) 15

Case: 15-13552 Date Filed: 05/04/2016 Page: 26 of 35 ( Indian sovereign immunity is a unique legal concept and, unlike state Eleventh Amendment immunity, it can be more freely limited by Congressional enactment. ) ( (citing Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1285 (11 th Cir. 2001)). The Supreme Court has also observed that the doctrine of tribal immunity developed almost by accident, and that the rationale for the doctrine can be challenged as inapposite to modern, wide-ranging tribal enterprises extending well beyond traditional tribal customs and activities such that [t]here are reasons to doubt the wisdom of perpetuating [it]. Kiowa Tribe v. Mfg. Techs., 523 U.S. 751, 756-758 (1998). For all the foregoing reasons, the district court erred in holding that the ADEA is silent about authorizing suits against Indian tribes. Rept. & Rec. at 15-16, Doc. 25. Congress authorized age discrimination claims to be brought against Indian tribes when it adopted a definition of employer which applies generally to all employers except those who are expressly excluded by the plain words of the statute. C. The Decisions Relied Upon Below Fail To Properly Address Whether Congress Abrogated Tribal Immunity From Suit For ADEA Violations The question of whether Congress abrogated tribal immunity from suits under the ADEA is an issue of first impression in this Circuit. The two Eleventh Circuit cases relied upon below were not ADEA cases and did not consider Congress s 16

Case: 15-13552 Date Filed: 05/04/2016 Page: 27 of 35 explicit deletion of the exemption for Indian tribes from the definition of employer it borrowed from Title VII. The magistrate supported the recommendation for dismissal with a citation to Taylor v. Ala. Intertribal Council, an Eleventh Circuit case finding that Congress had not waived the tribes sovereign immunity under 42 U.S.C. 1981 a statute that preceded Title VII and did not delete Title VII s exemption from suit for Indian tribe(s). Doc. 25 at 17 (citing Taylor v. Ala. Intertribal Council, 261 F.3d 1032, 1036 (11th Cir. 2001). As the Court noted in Taylor, Section 1981 was passed in 1870, in the aftermath of the Civil War; therefore, it does not address the conception of Indian sovereign immunity that is recognized in modern precedent. Taylor v. Ala. Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1035 (11th Cir. 2001). The ADEA, by contrast, borrowed heavily from Title VII just three years after it was enacted. The Court s decision in Florida Paraplegic Assoc., Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11 th Cir. 1999), is similarly distinguishable and not controlling here because the Americans With Disabilities Act ( ADA ) at issue in that case, unlike the ADEA, was not derived in haec verba from Title VII. See generally 166 F.3d 1126. Moreover, the ADA expressly exempts Indian Tribes from its definition of employer in Title I of the ADA, which prohibits discrimination against disabled individuals in employment, suggesting that immunity is preserved. 17

Case: 15-13552 Date Filed: 05/04/2016 Page: 28 of 35 Id. The ADEA, by contrast, deletes Indian tribes from Title VII s otherwise identical list of entities exempt from the definition of employer, thereby showing Congress s intent to abrogate tribal immunity in a way that is not applicable to non-adea cases like Taylor and Florida Paraplegic. Unlike Section 1981 or the ADA, the substantive provisions of the Age Discrimination in Employment Act of 1967 were derived in haec verba from Title VII, Thurston, 469 U.S. at 121. Thus any differences between the statutory language of ADEA and Title VII, either as originally enacted or as subsequently amended, are significant, and express Congress s intent that the statutes be interpreted in differing ways. As noted by the Eleventh Circuit in Taylor, two other Circuits, the Second and the Tenth, have considered the issue of tribal immunity under the ADEA and concluded that immunity does apply. See EEOC v. Fond du Lac Heavy Equipment & Construction Co., 986 F.2d 246 (8th Cir. 1993); EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989). However, both of such decisions included strongly reasoned dissents and did not consider the Supreme Court s leading abrogation case of Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), for cases based on Title VII. That is also true of the Second Circuit s decision in Garcia v. Akwesasne Housing Authority, 268 F.3d 76, 86 (2 nd Cir.2001), which does not consider the sources of Congressional intent to abrogate tribal immunity from suit under the ADEA that are set forth here. 18

Case: 15-13552 Date Filed: 05/04/2016 Page: 29 of 35 Nor is the unreported decision in Tremblay v. Mohegan Sun Casino, 599 Fed. Appx. 25 (2d Cir. 2015), a well reasoned decision on this issue of first impression in this Circuit. Under the Supreme Court s decision in Gross and Lorillard, Congress s decision to delete an Indian tribe from the list of entities excluded from the ADEA s definition of employer is sufficient to establish Congress s intent to abrogate and brings this case squarely within the Supreme Court s abrogation ruling in Fitzpatrick v. Bitzer, as explained below. In Fitzpatrick v. Bitzer, the Court considered whether Congress had validly waived the states sovereign immunity in enacting the 1972 amendments to Title VII. 427 U.S. 445, 447 (1976). The question presented in Fitzpatrick was whether, as against the shield of sovereign immunity afforded the State by the Eleventh Amendment... Congress has the power to authorize federal courts to enter such an award against the state as a means of enforcing the substantive guarantees of the Fourteenth Amendment. 427 U.S. at 448. Justice Rehnquist, writing for the Court, first cited Edelman v. Jordan for the background rule that, absent a valid authorization by Congress to join a state as a Defendant, sovereign immunity generally shields a State from suit by virtue of the Eleventh Amendment. 427 U.S. at 448, 452 (citing Edelman v. Jordan, 415 U.S. 651 (1974)). Under Edelman, the Court observed, the necessary predicate to finding waiver was congressional intent 19

Case: 15-13552 Date Filed: 05/04/2016 Page: 30 of 35 to abrogate the immunity conferred by the Eleventh Amendment. 427 U.S. at 451-52. The Court observed that Title VII, as originally passed in 1964, had excluded a state or political subdivision thereof from its definition of employer. Id. at 449 fn. 2 (cites omitted). However, the 1972 amendments struck that exclusion from its definition of entities that an employee might sue. Id. Before reaching the question presented, the Fitzpatrick Court thus was required to answer the threshold question of whether Congress s 1972 decision to remove states as entities excluded from Title VII s definition of employer sufficiently expressed Congress s intent to waive the states immunity under the Eleventh Amendment. Only if Congress s intent was sufficiently clear could the question of Congress s power to enforce that intent be reached. Justice Rehnquist, writing the majority opinion in support of the Supreme Court s unanimous judgment, easily disposed of the preliminary question, holding that the 1972 Amendments striking states from Title VII s list of excluded entities clearly constituted a valid waiver of the states sovereign immunity, observing that [o]ur analysis begins where Edelman ended, for in this Title VII case the threshold fact of congressional authorization... to sue the State as an employer is clearly present. Id. at 452 (emphasis added). The Court concluded that Congress properly expressed its intent to abrogate the state s immunity from Title VII suits by the act of 20

Case: 15-13552 Date Filed: 05/04/2016 Page: 31 of 35 deleting the state s exemption from suit in the statutory definition of employer. Fitzpatrick, 427 U.S. 445. Fitzpatrick thus established that Congress, in enacting the 1972 amendments to Title VII, had clearly satisfied Edelman s threshold for waiver of the states sovereign immunity by revising Title VII to omit States from 2000e(b) s list of entities to be excluded from the definition of employer. Id. Because Congress s power to waive tribal immunity is broader than its power to waive state immunity under the Eleventh Amendment, the holding of Fitzpatrick is controlling on the question of whether Congress, in omitting tribes from the list of excluded entities under the ADEA, sufficiently expressed its intent to waive tribal sovereign immunity against the recent legislative backdrop of Congress s passage of Title VII. Fitzpatrick dealt with the sovereign immunity of the states under the Eleventh Amendment. 14 The sovereign immunity of Native American tribes, by contrast, is narrower than the States immunity because Congress s power to curtail it is not subject to the Eleventh Amendment s limitations. See, e.g., Taylor v. Ala. Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 2001) ( Indian 14 The Eleventh Amendment states that [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. 21

Case: 15-13552 Date Filed: 05/04/2016 Page: 32 of 35 sovereign immunity is a unique legal concept and, unlike state Eleventh Amendment immunity, it can be more freely limited by Congressional enactment. ) Congress may only abrogate state sovereign immunity when it acts pursuant to the power ceded it by the states pursuant to the Civil War Amendments. 15 Congress s power to abrogate the tribes sovereign immunity, by contrast, is plenary and exclusive. Lara, 541 U.S. at 200. However, the test to determine whether Congress has sufficiently expressed a waiver of sovereign immunity is the same as the test to determine whether Congress has waived state immunity, establishing that Eleventh Amendment cases such as Fitzpatrick are fully controlling regarding the tribal immunity at issue here. 16 Here, likewise, Congress, when it passed the ADEA in 1967, looked to Title VII as a drafting model and was therefore aware that, just three years earlier, it had expressly excluded tribes from Title VII s definition of employer. It necessarily 15 The waiver of sovereign immunity permitting states to be sued under Title VII, for instance, was authorized by Section 5 of the Fourteenth Amendment, which states Congress shall have power to enforce this article by appropriate legislation. an authorization the Supreme Court has described as but a limited authority... extending only to a single class of cases. 427 U.S. at 455 (quoting Ex Parte Virginia, 100 U.S. 339, 346-348 (1880). 16 See, e.g., Green v. Mansour, 474 U.S. 64, 68 (1985) ( States may not be sued in federal court unless they consent to it in unequivocal terms or unless Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate the immunity. ) 22

Case: 15-13552 Date Filed: 05/04/2016 Page: 33 of 35 follows that Congress, in importing that definition to the ADEA but deleting tribes from the list of excluded entities under that statute, intended to treat Native American tribes differently under the ADEA from how it had treated them under Title VII. Because the ADEA, read against the backdrop of Title VII, sufficiently expresses Congress s intent to abrogate tribal sovereign immunity, the lower court s judgment should be reversed. CONCLUSION Based on the above authorities and reasoning, the trial court s judgment should be reversed, and this case should be remanded for further proceedings. Respectfully submitted, s/candis A. McGowan Robert L. Wiggins, Jr. Candis A. McGowan L. William Smith Wiggins, Childs, Pantazis, Fisher & Goldfarb The Kress Building 301 19 th Street North Birmingham, Alabama 35203 (205) 314-0500 Counsel for Plaintiff-Appellant 23

Case: 15-13552 Date Filed: 05/04/2016 Page: 34 of 35 CERTIFICATE OF COMPLIANCE Counsel for the Appellants certify that the Additional Principal Brief For Plaintiff-Appellant complies with the type-volume limitation as it contains 5,760 words according to the word-count function of the word-processing system used to prepare the brief. s/candis A. McGowan Robert L. Wiggins, Jr. Candis A. McGowan L. William Smith Wiggins, Childs, Pantazis, Fisher & Goldfarb The Kress Building 301 19 th Street North Birmingham, Alabama 35203 (205) 314-0500 Counsel for Plaintiff-Appellant 24

Case: 15-13552 Date Filed: 05/04/2016 Page: 35 of 35 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Additional Principal Brief For Plaintiff-Appellant has been served upon the following by Electronic Filing and U.S. First Class Mail, Postage Prepaid, this day, May 4, 2016: James C. Pennington M. Tae Phillips Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Suite 1900 420 20 th Street North Birmingham, Alabama 35203 Christine Williams 1662 Woods Road Atmore, Alabama 36502 /s/candis A. McGowan Counsel for Plaintiff-Appellant 25