PHOENIX — The nation’s high court agreed Monday to decide whether the Mount Lemmon Fire District — and any other small government employer — is exempt from age-discrimination laws.
In a brief order, the U.S. Supreme Court said it wants to hear arguments by the district why it cannot be sued by two firefighters who were let go by the district in 2009. At the time they were the department’s two oldest employees.
Monday’s order is at least an interim victory for the fire district, which had failed to convince the 9th Circuit Court of Appeals that the federal Age Discrimination Employment Act applies only to employers who have 20 or more workers. The district had 13 at the time.
But what the high court eventually rules will have implications beyond Mount Lemmon. It will govern whether employees of all sorts of small government operations — those with fewer than 20 workers — have the same legal protections against age discrimination as those working for larger ones
According to court records, John Guido and Dennis Rankin were hired in 2000, serving as full-time fire captains. When they were fired, they were the district’s oldest employees, Guido at 45 and Rankin at 54.
The district contends the two were let go in a cost-cutting move and were chosen because they had not volunteered for wildland fire fighting.
Don Awerkamp, representing the two firefighters, said that argument holds no water.
“One of the employees that the fire district tapped to replace Mr. Guido and Mr. Rankin as a ranking captain had gone on no such assignments in the preceding two years,” he told the justices.
A district court judge in Arizona threw out the pair’s claim, accepting the district’s claim it was too small to be subject to the federal law. But that ruling was reversed by the 9th Circuit Court of Appeals which concluded that, at least when it comes to public employers, the federal law has no minimum.
Judge Diarmuid O’Scannlain, writing for the three-judge panel, said the restrictions on the minimum number of employees clearly applies to private employers. But he and his colleagues do not read the statute as placing that same limit when it comes to government employers.
O’Scannlain said if Congress had wanted to include that 20-person language in the sentence dealing with public employers it could easily have done so.
The decision of the justices to review the 9th Circuit ruling does not necessarily mean they intend to overturn it. Instead, it could simply be that they want a clear national standard.
In seeking Supreme Court review, Joshua Rosenkranz, attorney for the fire district, argued to the justices that what the 9th Circuit decided about the applicability of the law is different than rulings from four other appellate courts.
“Only this court can resolve the real and consequential fissure in federal age discrimination law,” he told the justices.
Awerkamp, however, told the justices there is no reason for them to intercede in this case.
He said one of the federal appellate court decisions cited by Rosenkranz is an “unpublished” decision that cannot be cited as precedent. As to the other four, Awerkamp said they “were all decided decades ago.”
In agreeing to hear the case, the justices rejected Awerkamp’s argument there is no reason for them to take the time on such a minor issue. He said there have been only four such cases involving small government employers since the federal law was amended in 1974.
No date has been set for the justices to hear arguments.
