PHOENIX — The ability of the Mount Lemmon Fire District to fire its two oldest employees will take center stage in Washington with the legal case scheduled to be heard by the U.S. Supreme Court in October.
In a brief order Monday, the court put the case of John Guido and Dennis Rankin and their lawsuit against the fire district in the Catalina Mountains north of Tucson on the Oct. 1 agenda, the first day of its new session and possibly the first with a new justice.
What the justices rule will most immediately affect whether the pair, the district’s two oldest employees before they were let go, have a right to sue under federal age discrimination law.
But whatever the high court decides clearly has broader implications, to the point that an alphabet soup of state and local government organizations and their allies filed their own legal brief telling the justices they should side with the fire district and block the ability of the two fired workers to sue.
That argument is getting a fight from Tucson attorney Don Awerkamp who hopes to convince the justices that his clients’ rights were violated and they deserve their day in court.
The whole case turns on a single legal point: can government employers be too small to have to comply with federal anti-discrimination laws.
Court records show the pair were hired in 2000, eventually rising to the rank of full-time fire captains.
In 2009, with the district facing a financial shortfall, it terminated the pair. At the time, they were the district’s oldest employees, with Guido at 45 and Rankin at 54.
Awerkamp said they were replaced as captains with two younger employees, one them 28 with six years experience as a firefighter.
The district argued the two were laid off because they had not participated in recent years in voluntary shifts fighting wildland fires. The pair then sued.
A trial judge threw out the claim, concluding the federal Age Discrimination Employment Act covers public employers only if they have 20 or more workers. But a federal appeals court reversed, saying while that’s true of private companies, it finds no such minimum number in statutes governing public employers.
That brought the case to the Supreme Court — and the attention of public employers nationwide who want the appellate ruling overturned.
“Small public sector employers are particularly vulnerable, sometimes operating with only a handful of staff,” wrote attorney Collin O. Udell. Among the groups he is representing are the National Conference of State Legislatures, the National Association of Counties, the National League of Cities and the U.S. Conference of Mayors.
The issue is particularly acute, he said, in rural special districts like this one.
“There are fewer alternatives to layoffs and terminations when budget cuts must be made,” Udell wrote.
“Small, rural special districts may not have other positions or locations to which they can transfer an employee in lieu or termination or layoffs,” he continued. “When resources are strained, already-leanly staffed special districts encountering employment discrimination lawsuits may find it impossible to remain financially viable.”
Awerkamp called those arguments “incorrect and overblown.”
He said most states have requirements that political subdivisions pay monetary damages if they discriminate on the basis of age. Awerkamp said that even includes rural and sparsely-populated places like Alaska and Wyoming which grant no exceptions to small public employers from their own age-discrimination laws.
“The fire district identifies no adverse consequences on those statutes,” he wrote. And Awerkamp said public employers can participate in insurance pools that cover the cost of discrimination lawsuits, so the burden does not fall on any one particular district.
But Awerkamp urged the justices not to be swayed by arguments by the district and its legal allies of financial hardship.
“It is important not to lose sight of what it actually seeks here — a free pass under federal law to discriminate on the basis of age,” he said. “No matter how blatant or unjustified its reliance on age, the first direct seeks immunity for inflicting on individual workers the economic and psychological injury accompanying the loss of opportunity to engage in productive and satisfying occupations.”
Even if the court hears the case in early October, it is likely to be sometime in 2019 before there is a ruling.
