WELA ALERT: Case Update

Stillwell v. City of Williams, — F.3d —- (9th?Cir. 8/5/16) (Friedland, Gould, Fernandez)

ADEA Does Not Provide Exclusive Remedy for Age-Based Retaliation Claim by Public Employee; First Amendment Claim Still Available

Plaintiff became Superintendent of the Water Department of the City of Williams, Arizona (the ?City?), in 1991, and he served in that position until his termination in January 2011.? During his employment he became aware that a different employee was alleging that the City retaliated against her because she complained about age discrimination toward a different employee.? Plaintiff signed a sworn statement that supported his coworker?s claim, and agreed to testify in her lawsuit.? Following the disclosure of his involvement, he was subjected to numerous adverse actions, and on several occasions was explicitly discouraged from testifying in the underlying age retaliation lawsuit.? The City continued to find fault with plaintiff?s performance and eventually terminated his employment.

Plaintiff sued his city employer for retaliation, alleging that he was fired for planning to testify against the City in a lawsuit relating to age discrimination. Stillwell asserted that his termination violated both the First Amendment and the retaliation provision of the Age Discrimination in Employment Act (?ADEA?), 29 U.S.C. ? 623(d). The district court granted summary judgment in favor of defendants on plaintiff?s ? 1983 First Amendment claim on the sole ground that the retaliation provision of the ADEA, 29 U.S.C. ? 623(d), precluded a ? 1983 First Amendment retaliation claim.? Plaintiff appealed.

The Ninth Circuit first rejected the City?s argument that plaintiff?s speech ?was not ?speech as a citizen on a matter of public concern? and so fell outside the First Amendment?s protections.?? ?Plaintiff?s sworn statement and imminent testimony were ?outside the scope of his ordinary job duties,? which means that he was engaged in ?speech as a citizen for First Amendment purposes.?? The fact that [plaintiff] had submitted only an affidavit and did not ultimately testify in court does not foreclose First Amendment protection.?

Relying principally upon the analysis of Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009), the Court concluded that the retaliation provision of the ADEA does not preclude a plaintiff such as Stillwell from bringing a First Amendment retaliation claim under 42 U.S.C. ? 1983.? ?In cases in which the ? 1983 claim alleges a constitutional violation,? the presence of significant differences in the ?rights and protections? offered by the Constitution and the statute in question make it unlikely ?that Congress intended to displace ? 1983 suits enforcing constitutional rights by enacting the statute.? Fitzgerald, 555 U.S. at 252?53.? Comparing the ADEA retaliation provision and ? 1983 reveals differences in who may sue and be sued. First,? the ADEA does not allow suits against individuals.? Second, state employees cannot bring suit under the ADEA but can sue state officials acting in their individual capacity under ? 1983.? See Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000). ?Third, the ADEA is generally applicable to private and public (but not state) employers.? In contrast, ? 1983 is inapplicable to private employers.? Finally, independent contractors can sue under ? 1983, but may not bring suit under the ADEA.

The Court also found significant differences in establishing liability.? The ADEA plaintiff bears a greater burden of proof as to causation than a plaintiff bringing a First Amendment retaliation claim.? Plaintiff in a First Amendment claim must only establish that the protected conduct was a ?motivating factor? in the decision to take adverse employment action.? But under the ADEA, the plaintiff must prove ?but for? causation.? In addition, the burden of proof differs when the defendant is a municipality.? Under ? 1983, plaintiff must prove an official municipal policy or custom that caused the constitutional violation.? But under the ADEA, a plaintiff may prevail against a municipal employer based on the actions of its employees and no policy or practice is required.

Finally, the remedies under the two statutes differ.? Employees under the ADEA may recover lost wages and liquidated damages, but may not recover damages for emotional distress.? In ? 1983, however, the plaintiff can recover damages for emotional distress.

The Court concluded that ?these distinctions demonstrate that the ADEA?s retaliation protections diverge significantly from those available under ? 1983 First Amendment lawsuits.??? More importantly, the Court reasoned that because of the these distinctions ?the ADEA?s retaliation provision provides less protection to an alleged victim of retaliation than does the First Amendment.?? In addition, First Amendment retaliation claims are entitled to ?strict scrutiny? as opposed to a rational basis review required for age discrimination claims.? Therefore, while ? 1983 does not state a claim for age discrimination, it does state a claim for retaliation even though the retaliation is actionable under the ADEA.? ?Given the substantial difference between the level of scrutiny afforded age discrimination equal protection claims and First Amendment retaliation claims, we cannot assume that Congress intended the ADEA to affect the availability of ? 1983 claims in the same manner in both subject areas.?

Judge Fernandez dissented.? Judge Fernandez declined to distinguish between age equal protection claims and retaliation claims.? He concluded that Congress intended the ADEA to be the exclusive remedy for both.