Age Law Shield for State Workers Doesn’t Turn on Unit Size

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By Kevin McGowan

A federal statute prohibiting age bias in employment applies to an Arizona state fire district regardless of whether it had 20 employees, a federal appeals court ruled ( Guido v. Mount Lemmon Fire Dist. , 2017 BL 208360, 9th Cir., No. 15-15030, 6/19/17 ).

The U.S. Court of Appeals for the Ninth Circuit’s June 19 decision creates a split among the federal appeals courts by ruling the Age Discrimination in Employment Act’s 20-employee threshold for coverage applies only to private employers.

A petition for U.S. Supreme Court review is “likely,” said Jeffrey Matura of Graif Barrett & Matura PC in Phoenix, who represented the fire district.

The act’s “plain language” establishes that a state’s political subdivisions, such as the Mount Lemmon Fire District in Arizona, are covered by the ADEA regardless of how many workers they employ, the Ninth Circuit said.

Four other federal appeals courts have ruled state political subdivisions must employ at least 20 workers to fall within the act’s purview. The Ninth Circuit is the only federal circuit to “interpret the relevant language differently,” Matura told Bloomberg BNA June 19.

“It’s the classic circuit split,” Matura said. The fire district hasn’t made a final decision, but it likely will ask the Supreme Court to provide “clarity once and for all” on the ADEA coverage issue, he said.

It’s “been a long road” for John Guido and Dennis Rankin, two captains who were terminated by the fire district in 2009 at ages 46 and 54, respectively, said Shannon Giles of Awerkamp, Bonilla & Giles PLC in Tucson, Ariz., who represented them.

Discovery in the lower court was completed before a district judge summarily ruled for Mount Lemmon based on his reading of the ADEA employee threshold, Giles told Bloomberg BNA June 19.

Guido and Rankin hope the Ninth Circuit’s decision means a trial soon on their bias claims, she said.

ADEA’s Meaning Is Clear, Court Says

Three other federal appeals courts have followed the Seventh Circuit’s lead in Kelly v. Wauconda Park District, finding that the ADEA is “ambiguous.” Those courts said the better reading of the act is that Congress intended the 20-employee threshold to apply to all employers, public as well as private.

The Ninth Circuit, however, said there’s no ambiguity. The ADEA’s 1974 amendment can only be read as extending the act’s protections to all state government workers, regardless of the size of the unit in which they work, Judge Diarmuid F. O’Scannlain wrote in an opinion joined by Judges Ronald M. Gould and Milan D. Smith Jr.

The Equal Employment Opportunity Commission, which filed an amicus brief supporting the fired firefighters, is “gratified” the court agreed with the commission that the ADEA covers all political subdivisions, even if they don’t have 20 employees, Anne Noel Occhialino, an EEOC senior appellate attorney, said in an email June 19.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Chris Opfer at

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