No. 08-6046 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DONALD ALDRIDGE, et al., Plaintiffs/Appellants, v. CITY OF MEMPHIS and LARRY GODWIN, Defendants/Appellees. _______________________________________________________ On Appeal from the United States District Court for the Western District of Tennessee No. 2:05-cv-02966 _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS/APPELLANTS AND IN FAVOR OF REVERSAL OF THE DISTRICT COURT'S DISMISSAL OF THE DISPARATE IMPACT AGE DISCRIMINATION CLAIM _______________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4718 julie.gantz@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court's Decision. . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. THE PLAINTIFFS' CHALLENGE TO THE MPD'S DECISION TO ABOLISH THE CAPTAIN RANK WAS PROPERLY BROUGHT AS A DISPARATE IMPACT CLAIM UNDER § 4(A)(2) OF THE ADEA. . . . . . . . 7 II. THE PLAINTIFFS ESTABLISHED THAT THE ABOLISHMENT OF THE CAPTAIN RANK HAD A DISPARATE IMPACT ON THE BASIS OF AGE WHERE ALL OF THE CAPTAINS WERE OVER FORTY AND, ON AVERAGE, SIGNIFICANTLY OLDER THAN THE REST OF THE WORKFORCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 14 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . 15 TABLE OF AUTHORITIES CASES Dothard v. Rawlinson, 433 U.S. 321, 332 (1977). . . . . . . . . . . . . . 12 EEOC v. Allstate Ins. Co., 528 F.3d 1042 (8th Cir. 2007). . . 5, 8, 9, 10 EEOC v. Allstate Ins. Co., 458 F. Supp. 2d 980, 991 (E.D. Mo. 2006).8, 9, 11 Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 690 (8th Cir. 1983). .11 Smith v. City of Jackson, 544 U.S. 228, 240 (2005). . . . . . . . . 7, 11 STATUTES Age Discrimination in Employment Act 29 U.S.C. § 623(a)(2). . . . . . . . . . . . . . . . . . . . . 4, 7, 10 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. In this case, the plaintiffs have appealed from a district court judgment dismissing their challenge to the defendants' decision to abolish the rank of Captain in its police department. The district court held that the plaintiffs could not challenge the abolishment of the Captain rank under a disparate impact theory because the decision to abolish the rank applied only to one group of employees. The district court also held, for the same reason, that the statistics offered by the plaintiffs did not establish that the abolishment of the Captain rank had a disparate impact on the basis of age. These rulings are inconsistent with the position the Commission took in EEOC v. Allstate Insurance Co., 528 F.3d 1042 (8th Cir. 2007), which was accepted by the Eighth Circuit. Because resolution of this issue will affect the EEOC's enforcement of the ADEA, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF ISSUES 1. Whether the district court erred in holding that the abolishment of the Captain rank could not be challenged using the disparate impact theory because it applied only to one group of employees. 2. Whether the district court erred in holding that the plaintiffs' evidence that all the Captains were over forty and that they were, on average, significantly older than the other officers in the police department was insufficient to establish a disparate impact based on age. STATEMENT OF THE CASE A. Statement of the Facts For more than fifty years, pursuant to a 1927 city charter, police officers with the Memphis Police Department ("MPD") who served with the department for thirty years were automatically promoted to the rank of Captain. R.72, #2 (Plaintiffs' Aff. at ¶ 3); R.72, #3 at 13-14 (Charter § 67).<2> On February 18, 2005, Larry Godwin, the Director of Police Services, announced that he was abolishing the Captain rank. R.72, #2 (Plaintiffs' Aff. ¶ 11). Captains were informed that they could retire immediately at the rank of Captain or continue to serve at the rank they held before they became Captains. Id. According to Godwin, the Captain rank, which does not have defined duties or responsibilities, was not "operationally necessary." R.106, #3 (Godwin Dep. at 37-38). Ninety-three Captains were affected by the decision. R.182, #6 (Gutman Aff. ¶ 5). Twenty-six former Captains are plaintiffs in this action. Seven of the plaintiffs were demoted to the rank of lieutenant, eight were demoted to the rank of sergeant, and eleven were demoted to patrol officer. R.72, #7 (Phillips Aff. ¶ 11). All of the individuals adversely affected by the abolishment of the Captain rank were over 40 years of age, and the average age of the Captains was 56.52, while the average age of the other officers in the police department was 37.81. R.182, #6 (Gutman Aff. ¶¶ 5, 6, 12). The plaintiffs allege in this action that the abolishment of the Captain position violated the ADEA because it had a disparate impact based on age and was not based on a reasonable factor other than age. R.163 (Amended Complaint ¶ 70.1). The plaintiffs also allege that the city's action constituted intentional age, race and sex discrimination under Title VII, that it violated the plaintiffs' constitutional rights to equal protection and due process, as well as state civil service and anti-discrimination laws, and that it constituted a breach of contract and interference with contract rights. R.163 (Amended Complaint at pp. 15-27). The district court granted the city's motion for summary judgment. R.196 (July 31, 2008, Order Granting Defendant City of Memphis's Motion for Summary Judgment). B. District Court's Decision The district court rejected the plaintiffs' ADEA disparate impact challenge to the abolishment of the Captain rank. See R.196 (Order Granting Defendant City of Memphis's Motion for Summary Judgment at 17). According to the court, to establish a prima facie case of disparate impact, "a plaintiff must identify a facially neutral employment policy or practice that has a disparate impact on the protected group." Id. (Order at 12). The court stated that the abolishment of a specific rank-the practice identified by the plaintiffs in this case-"does not fit the typical mold of an employment 'policy or practice' because it only affects one group of employees-here, the Captains." Id. The court noted that ADEA disparate impact claims are available only under § 4(a)(2), which, by its terms, applies only to practices and policies that "'limit, segregate, or classify . . . employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee . . . .'" R.196 (Order at 11) (quoting 29 U.S.C. § 623(a)(2)). Because "the abolishment of the rank of Captain was not part of an employment plan that applied to all employees," the court concluded, it does not fall within the scope of § 4(a)(2). Id. (Order at 13). The court based this conclusion on its reading of the Eighth Circuit's decision in EEOC v. Allstate Insurance Co., 528 F.3d 1042 (8th Cir. 2008). See R.196 (Order at 13). As the district court noted, the Eighth Circuit in Allstate affirmed a ruling that a moratorium on rehiring former employee-agents could be the subject of an ADEA disparate impact challenge. According to the district court, the Allstate court "did not find that the elimination of the employee-agent position was a disparate impact violation." Id. Based on this reading of Allstate, the court held that "[j]ust as the elimination of the position of employee-agent in Allstate could not be challenged under a disparate impact theory, likewise the elimination of the Captain rank does not create a disparate impact violation." Id. In the district court's view, because the abolishment of the Captain rank "affected the [plaintiffs'] compensation, terms, conditions, and privileges of employment," it "more properly falls under § 623(a)(1) which does not permit disparate impact claims." Id. (Order at 14). The court went on to hold that, even if the plaintiffs' challenge to the abolishment of the Captain rank could be brought under § 4(a)(2), their claim still fails because their "statistical evidence is not relevant to show an adverse impact." R.196 (Order at 14). The court stated that, "by necessity," all the Captains adversely affected by the abolishment of their rank were over 40 given that the City Charter required thirty years of service to be promoted to Captain, thus "this statistical difference is expected and does not lead to an inference of discrimination." R.196 (Order at 14-15). The court also found evidence comparing the ages of the Captains with the ages of officers in other ranks irrelevant because "the decision [to abolish the rank of Captain] did not apply across the board to all ranks." Id. (Order at 15). Accordingly, the court held, the plaintiffs "have not shown that Defendant implemented a facially neutral policy or practice that had a statistically significant disparate impact on older employees." Id. ARGUMENT I. THE PLAINTIFFS' CHALLENGE TO THE MPD'S DECISION TO ABOLISH THE CAPTAIN RANK WAS PROPERLY BROUGHT AS A DISPARATE IMPACT CLAIM UNDER § 4(A)(2) OF THE ADEA. Section 4(a)(2) of the ADEA makes it unlawful for an employer "to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. § 623(a)(2). The Supreme Court held in Smith v. City of Jackson, 544 U.S. 228, 240 (2005), that this provision outlaws neutral practices with a disparate impact based on age. A challenge to the abolishment of the rank of Captain states a claim under § 4(a)(2). In abolishing that rank, the city classified its police officers into two categories-those who would lose their rank (the Captains) and those who would retain their rank (all other officers). Because it is undisputed that the Captains were significantly older, on average, than the other officers, this classification adversely affected the plaintiffs' employment opportunities because of their age. The district court erroneously believed that the Eighth Circuit's subsequently vacated decision in Allstate supports its view that a disparate impact claim is not available where the challenged practice affects only a portion of the employer's workforce. R.196 (Order at 13). On the contrary, the court of appeals in Allstate affirmed the district court's decision holding that a practice that only applied to a portion of the defendant's workforce could be challenged under a disparate impact theory. See Allstate, 528 F.3d at 1048-49 (noting that "the rehire policy only applied to employee-agents discharged as a result of the Reorganization Program" and holding that, because the policy "deprived Allstate's employee-agents of employment opportunities with Allstate," "the EEOC may challenge the rehire policy under § 623(a)(2) on a disparate impact theory"). In Allstate, as in this case, the employer singled out a particular job category with incumbents who were significantly older than the rest of its workforce for adverse action. 528 F.3d at 1052 ("[T]he EEOC established a prima facie case of disparate-impact by demonstrating that the rehire policy served to deprive more older workers than younger workers of employment opportunities with Allstate."); see also EEOC v. Allstate Ins. Co., 458 F. Supp. 2d 980, 992 (E.D. Mo. 2006) ("The Plaintiff has provided evidence that over 90% of the employees that were subject to the Reorganization Plan, and subsequently disqualified from rehire, were over age 40."). The only difference is that Allstate not only fired the employee-agents, it also imposed a moratorium on rehiring them into other positions. 458 F. Supp. 2d at 990 ("[T]he effect of that reorganization was to require the former agents to either become independent contractors, or to seek other employment. The Defendants then implemented a rehire policy which barred this same group from reapplying for positions within the company."). In its lawsuit, the Commission challenged only the moratorium. Id. ("The legality of the Reorganization Plan is not before this court."). The Eighth Circuit affirmed the district court's ruling that the imposition of the moratorium had an unlawful disparate impact under the ADEA unless it could be justified as based on a reasonable factor other than age. Allstate, 528 F.3d at 1052. Both courts agreed with our argument that Allstate's decision to single out a specific job category for adverse treatment may be challenged under a disparate impact analysis. See 528 F.3d at 1052; 458 F. Supp. 2d at 993. The district court in this case erroneously believed that the Allstate court, while upholding EEOC's disparate impact challenge to the moratorium, rejected a disparate impact challenge to Allstate's elimination of the employee-agent position. See R.196 (Order at 13). But no such claim was before the court in Allstate because the EEOC confined its challenge to the moratorium on rehire. Furthermore, in upholding the challenge to the moratorium, the Eighth Circuit clearly rejected the premise of the district court's ruling in this case-that a practice that applies only to a single job category may not be subject to a disparate impact challenge. The moratorium on rehire applied only to former employee- agents, yet it was held to be subject to disparate impact challenge. Allstate, 528 F.3d at 1048 ("[T]he rehire policy served to deprive a specific group of Allstate employees of employment opportunities with Allstate, a practice § 623(a)(2) specifically proscribes.") (emphasis in original). The district court also erred in stating that the abolishment of the rank of Captain is more properly viewed as an adverse action affecting compensation and therefore subject to challenge under § 4(a)(1) of the ADEA and not under § 4(a)(2). See R.196 (Order at 13-14). While § 4(a)(1) expressly prohibits discrimination in compensation, the plaintiffs' challenge to their loss of rank and corresponding reduction in compensation is also clearly encompassed by the language of § 4(a)(2), which makes it unlawful for an employer "to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. § 623(a)(2) (emphasis added). The MPD's abolishment of the Captain rank adversely affected the plaintiffs' status as employees and, therefore, it is subject to challenge under § 4(a)(2). Furthermore, contrary to the district court's view, the two provisions of the ADEA are not mutually exclusive-the same adverse employment action could be subject to challenge under both § 4(a)(1), which covers adverse actions based directly on age, and § 4(a)(2), which covers adverse actions based on a neutral factor correlated to age. See, e.g., Smith, 544 U.S. at 230 (plaintiffs challenged city's pay plan under both disparate treatment and disparate impact theories). II. THE PLAINTIFFS ESTABLISHED THAT THE ABOLISHMENT OF THE CAPTAIN RANK HAD A DISPARATE IMPACT ON THE BASIS OF AGE WHERE ALL OF THE CAPTAINS WERE OVER FORTY AND, ON AVERAGE, SIGNIFICANTLY OLDER THAN THE REST OF THE WORKFORCE. The disparate impact of the abolishment of the Captain rank on the basis of age is manifest. It is undisputed that the employee-agents were significantly older than the MPD's other officers. All the Captains were over forty. The average age of the Captains was over 56, while the average age of the rest of the MPD workforce was under 40. R.182, #6 (Gutman Aff. ¶¶ 5, 6, 12). This evidence demonstrates a disparate impact on the basis of age. See Allstate, 458 F. Supp. 2d at 992 (holding that evidence that over 90% of the adversely affected employees were over age forty and that the average age of those subjected to the challenged policy was 51 compared to 39.4, the age of Allstate's workforce, established a disparate impact on the basis of age); Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 690 (8th Cir. 1983) (in case challenging a policy where, in implementing a RIF, the employer disqualified tenured faculty whose jobs had been eliminated from competing for some available positions, the plaintiff's evidence that the tenured faculty were on average more than ten years older than the defendant's non-tenured faculty who were not similarly restricted was found "clearly an appropriate method to establish disparate impact"). The district court's observation that the Captains are necessarily older than other MPD employees by virtue of the requirement that they worked for the city for thirty years in order to qualify for that rank is beside the point. A disparate impact claim does not require proof that the employer acted for a discriminatory reason. Accordingly, the fact that the age disparity between the Captains and other officers may be a benign consequence of the defendants' job structure does not mean that the decision to attach adverse consequences to the incumbents in that rank did not have an unlawful disparate impact. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 332 (1977) (an Alabama law requiring that prison guards must be at least five feet two inches tall and weigh at least 120 pounds had an unlawful disparate impact on women, notwithstanding the fact that the state was not responsible for the fact that women are on average smaller than men). CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed insofar as it holds that the plaintiffs have not established that the abolishment of the Captain rank had a disparate impact based on age. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel /s/ Julie L. Gantz JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Appellate Services 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4718 julie.gantz@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 2,845 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. /s/ Julie L. Gantz Julie L. Gantz Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Appellate Services 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4718 julie.gantz@eeoc.gov Dated: March 30, 2009 CERTIFICATE OF SERVICE I, Julie L. Gantz, hereby certify pursuant to 6th Cir. R. 25(f) that on March 30, 2009, I electronically filed the foregoing amicus brief with the Clerk of Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that the following participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system: Counsel for Plaintiffs/Appellants: David M. Sullivan Attorney at Law 3251 Poplar Avenue, Suite 130 Memphis, TN 38111 Counsel for Defendant/Appellee: Louis Britt Attorney at Law 795 Ridge Lake, Suite 300 Memphis, TN 38120 Michael Richards Attorney at Law 165 Madison, Suite 2000 Memphis, TN 38103 /s/ Julie L. Gantz Julie L. Gantz Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Appellate Services 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4718 julie.gantz@eeoc.gov *********************************************************************** <> <1> We take no position with respect to any other issue presented in this appeal. <2> This section was repealed by voters in 1978 and does not apply to individuals hired after January 31, 1979. <3> Thirty-five additional former Captains brought a separate lawsuit alleging similar claims. See Balee v. City of Memphis, No. 06-2062 (W.D. Tenn.). The City's motion for summary judgment is currently pending in that action. <4> The Eighth Circuit's decision in Allstate was vacated on September 8, 2008, when the Court granted rehearing en banc and, on the Court's own motion, dismissed Allstate's interlocutory appeal. See 528 F.3d 1042. <5> The court also determined that, even if the plaintiffs had offered statistical evidence establishing a disparate impact based on age, the MPD has shown that the abolishment of the Captain rank was based on a reasonable factor other than age. See R.196 (Order at 16). The court held that the MPD's stated reasons-that it had no need for a management level rank achieved solely by length of service; that Godwin felt the Captain position was not operationally necessary; and that Godwin estimated the elimination of the rank would save $1,400,000-"are plainly reasonable." R.196 (Order at 16-17). We do not address this aspect of the court's ruling. <6> As noted, supra at 5 n.4, the Eighth Circuit later vacated this order and dismissed Allstate's appeal from the district court's finding of disparate impact. The question of whether the moratorium was justified remains pending in the district court.