ADEA Didn't Bar State Worker's First Amendment Claim

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By Patrick Dorrian

Aug. 5 — A former city water department superintendent in Arizona who claims he was fired because he planned to testify in a co-worker's age discrimination case can pursue a First Amendment-based retaliation claim, a divided U.S. Court of Appeals for the Ninth Circuit held ( Stilwell v. City of Williams , 2016 BL 253758, 9th Cir., No. 14-15540, 8/5/16 ).

In an apparently novel ruling, a 2-1 majority rejected a lower court's finding that Ronnie Stilwell's retaliation claim under the Civil Rights Act of 1871 (42 U.S.C. § 1983) was barred by the Age Discrimination in Employment Act. The ADEA provides narrower protections than the First Amendment rights available through Section 1983 and can't be read as barring First Amendment claims, the court said Aug. 5.

The dissenting judge said the issue was already decided in a prior Ninth Circuit decision holding that the ADEA is the exclusive remedy for age-based employment claims. The majority's distinction between the ADEA's discrimination and retaliation provisions was without support and didn't provide a basis for reviving Stilwell's retaliation claim against interim City of Williams Manager Joseph Duffy in his official capacity, the dissent said.

The ruling is important because the U.S. Supreme Court has held that state employers can't be sued under the ADEA, and without the First Amendment protections available through Section 1983, a worker such as Stilwell could be left without a remedy for employer retaliation spurred by testimony in a co-worker's age bias case.

Protections ‘Diverge in Significant Ways.'

Writing for the majority, Judge Michelle T. Friedland said the framework for evaluating whether the ADEA precludes Stilwell's First Amendment retaliation claim was derived from a line of Supreme Court cases culminating in Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 105 FEP Cases 358 (2009).

“Following Fitzgerald,” Friedland wrote, “we must determine whether the ‘contours' ” of the rights and protections provided by the ADEA and the First Amendment via Section 1983 “ ‘diverge in significant ways.' ” She found that they do.

First, the ADEA doesn't permit individuals to be sued, while Section 1983 does, she said. Second, because Congress didn't validly abrogate states' sovereign immunity when it passed the ADEA, state employers can't be sued by state employees under that statute, Friedland said.

In addition, Section 1983 generally isn't applicable to private employers while the ADEA generally is, Friedland said. “Finally, the Supreme Court has held that independent contractors may sue under § 1983 for First Amendment retaliation,” while the ADEA only protects employees, she wrote.

There are also differences in how liability is established under the two laws, the court found. For example, ADEA plaintiffs bear a heavier burden of proof than workers bringing First Amendment retaliation claims under Section 1983, and the statutes employ different tests for assessing the liability of a municipal employer, Friedland said.

Further, the remedies available for ADEA retaliation and First Amendment retaliation are different, she said. First Amendment plaintiffs may recover damages for mental suffering caused by an employer's retaliation, for example, while workers suing under the ADEA can only collect lost wages and potentially liquidated damages, Friedland said.

The disparities between the two laws are enough to conclude that the ADEA doesn't preclude First Amendment retaliation claims absent an expression of congressional intent to the contrary, the majority decided. “And there is no express statement of preclusion in the text of the ADEA that would cause us to conclude that Congress did in fact affirmatively intend to preclude § 1983 First Amendment retaliation suits relating to speech about age discrimination,” Friedland wrote.

The House and Senate reports on the ADEA also support that conclusion, she said.

Judge Ronald M. Gould joined the majority opinion.

Dissent: Issue Already Decided in Ahlmeyer

Judge Ferdinand F. Fernandez dissented. He said the issue of whether First Amendment retaliation claims premised on complaints of age discrimination in the workplace are barred by the ADEA was already determined by the Ninth Circuit in Ahlmeyer v. Nevada System of Higher Education, 555 F.3d 1051, 105 FEP Cases 865 (9th Cir. 2009).

Ahlmeyer held that the ADEA provides the exclusive remedy for age discrimination in employment even when the source of a worker's claims is the U.S. Constitution, Fernandez said.

To conclude—as the majority did—that the outcome should vary because Ahlmeyer involved claims under the ADEA's discrimination provisions while the ADEA's retaliation protections are implicated in Stilwell's case essentially requires a finding that Congress had two different intents regarding how workers should be protected under the ADEA, he said.

“I do not believe that in creating this relatively simple piece of legislation Congress” intended that workers suing for age discrimination—the primary issue the ADEA was designed to address—must rely for relief on the ADEA alone, while workers suing for retaliation—a right created only to make the ADEA's anti-discrimination provisions “more effective”—could also “spell out a § 1983 claim,” Fernandez said.

Law Offices of Charles Anthony Shaw represented Stilwell. Mangum, Wall, Stoops & Warden PLLC represented the city and Duffy.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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