No. 10-16216 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CLARK COUNTY, NEVADA, Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Nevada Hon. James C. Mahan, Judge _________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT P. DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, NE, Room 5SW24L Acting Associate General Counsel Washington, DC 20507 (202) 663-4055 GAIL S. COLEMAN gail.coleman@eeoc.gov Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . ii Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. Whether Clark County's volunteer firefighters receive sufficient employee benefits to be considered employees is a mixed question of law and fact that should be resolved by a jury. . . . . . . . . . . . 2 II. This Court should not affirm based on any of the alternative grounds suggested by Clark County. . . . . . . . . . . . . . . . . . . . .9 A. The ADEA prohibits age discrimination in the provision of workers' compensation. . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Federal law trumps state law. . . . . . . . . . . . . . . . . . . . .12 C. Clark County wrongly failed to ensure that its workers' compensation benefits were distributed in a non-discriminatory manner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 D. Whether the denial of workers' compensation to Vannozzi and Schneiderman can be justified by a legitimate, nondiscriminatory reason is a question of fact for the district court to consider in the first instance. . . . . . . . . . . . . . . . . . . . . . . . . . 15 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Bryson v. Middlefield Volunteer Fire Dep't, Inc., ___ F.3d ___, 2011 WL 3873789 (6th Cir. Sept. 2, 2011) . . . . . . 2-3, 5 Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831 (9th Cir. 2004) . .12-13 Daggitt v. United Food & Comm. Workers Int'l Union, Local 304A, 245 F.3d 981 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 3-4, 5 EEOC v. Santa Barbara County, 666 F.2d 373 (9th Cir. 1982) . . . . . . . 12 Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008) . . . . . . . . . 5 Fichman v. Media Ctr., 512 F.3d 1157 (9th Cir. 2008) . . . . . . . . . . 8 Forester v. Chertoff, 500 F.3d 920 (9th Cir. 2007) . . . . . . . . . . . 11 Haavistola v. Comm'y Fire Co. of Rising Sun, 6 F.3d 211 (4th Cir. 1993).3,5 Hawaii Newspaper Agency v. Bronster, 103 F.3d 742 (9th Cir. 1996) . . . 13 Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651 (2006).9-11 Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) . . . 12 O'Connor v. Davis, 126 F.3d 112 (2d Cir. 1997) . . . . . . . . . . . . . . 8 Pietras v. Bd. of Fire Comm'rs, 180 F.3d 468 (2d Cir. 1999) . . . . .3, 5, 9 Shawmut Bank, N.A. v. Kress Assocs., 33 F.3d 1477 (9th Cir. 1994) . . . 15 Skidmore v. Swift & Co., 323 U.S. 134 (1944) . . . . . . . . . . . . . . . 5 U.S. v. City of New York, 359 F.3d 83 (2d Cir. 2004) . . . . . . . . . . .11 Waisgerber v. City of Los Angeles, 406 Fed. Appx. 150 (9th Cir. 2010) . . .2 Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980) . . . . . . . . . 12 Statutes ADEA 29 U.S.C. § 623(a)(1)-(2) . . . . . . . . . . . . . . . . . . . . . . . . 9 29 U.S.C. § 630(l). . . . . . . . . . . . . . . . . . . . . . . . . . .9, 10 Davis-Bacon Act 40 U.S.C. § 3141(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . 10 ERISA 29 U.S.C. § 1002(l). . . . . . . . . . . . . . . . . . . . . . . . . . . 10 29 U.S.C. § 1003(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . 10 Rules and Regulations 29 C.F.R. § 1625.10(b). . . . . . . . . . . . . . . . . . . . . . . . 10-11 Labor Standards for Federal Service Contracts Bona Fide Fringe Benefits, 4 C.F.R. § 4.171(c). . . . . . . . . . . . . . 10 Miscellaneous Mitchell H. Rubenstein, Our Nation's Forgotten Workers: The Unprotected Volunteers," 9 U. Pa. J. Lab. & Empl. L. 147 (Fall 2006). . . 8 Restatement (Third) of Employment Law § 1.02(b) (T.D. No. 2, rev. 2009). . . . . . . . . . . . . . . . . . . . . . . . 5-6 Section 2, Threshold Issues, EEOC Compl. Man. 2-III(A)(1)(c) (2009), http://www.eeoc.gov/policy/docs/threshold.html#2-III-A-1-c, reprinted at 2009 WL 2966744 (Aug. 6, 2009). . . . . . . . . . . . 4-5, 6, 7 ARGUMENT In its opening brief, the EEOC urged this Court to reverse the district court's award of summary judgment and to remand for further proceedings. The EEOC argued that Clark County wrongly relied on age in violation of the ADEA to deny workers' compensation to several older volunteer firefighters.<1> The EEOC explained that, contrary to the district court's holding that the volunteers could not be considered "employees" covered under the ADEA, a reasonable jury could find that they qualified as employees because they received significant economic benefits in exchange for their service. (Opening Br. at 5-11.) In its responsive brief, Clark County agrees with the EEOC that a volunteer qualifies as an employee if he receives sufficient employee benefits. (Clark County Br. at 37.) Clark County argues, however, that the benefits in this case are insufficient. (Id. at 22, 24-45.) Clark County also offers four alternative grounds for this Court to affirm the award of summary judgment. (Id. at 23-24, 45-67.) For the reasons stated here and in the EEOC's opening brief, the EEOC asks this Court to reject Clark County's arguments, reverse the award of summary judgment, and remand for further proceedings. I. Whether Clark County's volunteer firefighters receive sufficient employee benefits to be considered employees is a mixed question of law and fact that should be resolved by a jury. Clark County concedes that "as benefits are accumulated by a non-salaried worker, at some point the benefits become so numerous and significant that the non-salaried worker is considered to be an employee." (Clark County Br. at 37.) See Waisgerber v. City of Los Angeles, 406 Fed. Appx. 150, 152 (9th Cir. 2010) ("substantial benefits" would make a volunteer an employee under Title VII). The county claims, however, that the benefits at issue in the instant case are insufficient for its volunteer firefighters to be protected as employees under the ADEA. (Clark County Br. at 22, 24-45.) As discussed in the EEOC's opening brief, Clark County's volunteer firefighters receive free medical exams, workers' compensation, the promise of a free college education for their children if they are killed in the line of duty, and federal benefits if they are killed in the line of duty. (Opening Br. at 3-4.) Courts have permitted juries to consider whether volunteers may qualify as employees when they have received benefits similar to the ones at issue here. In Bryson v. Middlefield Volunteer Fire Department, Inc., ___ F.3d __, 2011 WL 3873789 (6th Cir. Sept. 2, 2011), for instance, the Sixth Circuit reversed an award of summary judgment where the volunteer firefighters received workers' compensation, insurance, gift cards, personal use of the Department's facilities and assets, training, and access to an emergency fund. Id. at *5 (reversing district court decision upon which Clark County relies (Clark County Br. at 27-28)). The Fourth Circuit likewise reversed an award of summary judgment where the volunteer firefighters received - similar to here -- a state-funded disability pension, survivors' benefits for dependents, scholarships for dependents upon disability or death, benefits under the Federal Public Safety Officers' Benefits Act when on duty, and group life insurance. Haavistola v. Comm'y Fire Co. of Rising Sun, 6 F.3d 211, 221-22 (4th Cir. 1993)<2>; see also Pietras v. Bd. of Fire Comm'rs, 180 F.3d 468, 473 (2d Cir. 1999) (affirming a ruling that volunteers qualified as employees where benefits included a retirement pension, life insurance, death benefits, disability insurance, and some medical benefits). The Eighth Circuit has even affirmed a ruling that volunteers received sufficient benefits to qualify as employees where those benefits simply restored them to the economic position they would have been in had they not volunteered. See Daggitt v. United Food & Comm. Workers Int'l Union, Local 304A, 245 F.3d 981, 986-87 (8th Cir. 2001) (benefits to volunteer union stewards included reimbursement for the full amount of union dues withheld from paychecks during the preceding quarter, payment for "lost time" to compensate for reduced wages for regular work due to time spent on union business, and contributions to 401(k) plans to compensate for the amount lost from attending to union affairs during work hours).<3> Without disputing that the benefits at issue here are much like those described in the EEOC's Compliance Manual, Clark County argues that this Court should disregard the EEOC's consistent and long-standing position on statutory coverage of volunteers. (Clark County Br. at 34-38.) The Compliance Manual is not entitled to deference, Clark County says, because it does not specify that benefits should be considered "in their totality, not piecemeal." (Id. at 37.) Ironically, immediately after making this criticism, Clark County proceeds to look at the benefits in this case in piecemeal fashion. (Id. at 38-43.) More to the point, both the Compliance Manual and the EEOC's Opening Brief look at the range of benefits provided to volunteers in their totality. As described supra, other courts of appeals take the same position as the EEOC's Compliance Manual on the question of volunteer coverage and all consider the totality of the benefits offered in concluding they are sufficiently numerous or substantial to confer employee status. E.g., Bryson, 2011 WL 3873789 at *4; Daggitt, 245 F.3d at 986-87; Pietras, 180 F.3d at 473; Haavistola, 6 F.3d at 221-22. Contrary to Clark County's assertion, therefore, the EEOC's Compliance Manual is entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). See Federal Express Corp. v. Holowecki, 552 U.S. 389, 399-400 (2008). Clark County erroneously proposes that benefits must be paid by the employer, and not by a third party, to have any effect on whether a volunteer may be considered an employee. (Clark County Br. at 43.) The county observes that the federal government, not Clark County, provides benefits for the survivors of volunteers who are killed in the line of duty, and the Nevada State Firefighters Association, not Clark County, promises a free college education to the children of such volunteers. (Clark County Br. at 41.) While true, these facts are insignificant. As the Restatement (Third) of Employment Law explains, "so long as the employer makes some kind of economic commitment to the employee, the employee's compensation need not come directly from the employer; it may come from a third party, such as a tipping customer or another business, whose economic relationship with the employer is advanced by the employee's work." Restatement (Third) of Employment Law § 1.02(b) (T.D. No. 2, rev. 2009).<4> Here, Clark County makes an economic commitment to its volunteer firefighters by paying into the workers' compensation fund for them. The benefits that the federal government and the Nevada State Firefighters' Association provide are similar to the tips that customers pay to wait staff; by making it more likely that individuals will volunteer to be firefighters, these benefits further the relationship that the federal government and the Nevada State Firefighters' Association have with Clark County. Clark County also dismisses the relevance of free medical exams and workers' compensation, claiming that neither is an employee benefit. "The physical exams are not free healthcare," Clark County says, "[because] they are purely for the benefit of Clark County." (Clark County Br. at 38.) In fact, whether or not Clark County also benefits from the free medical exams, for the volunteer firefighters they do amount to free healthcare. The same is true of workers' compensation. Clark County emphasizes the financial savings that employers experience through workers' compensation (id. at 39-40), but it is also true that these benefits are valuable to the recipients. Because they pay for work-related medical expenses, workers' compensation benefits are just as valuable as any other type of medical insurance. And because they give volunteer firefighters disability payments based on a "deemed wage" of $2,000 per month, they provide actual income. For workers who are permanently disabled, workers' compensation benefits include a permanent partial disability award at the time the claim is closed. For individuals who cannot return to gainful employment, workers' compensation grants them consideration for retraining. (See R.73, Ex.A, Verre Dep. at 37-39 (EEOC Supp. R.E. at 1-3).) Finally, workers' compensation eliminates the need for recipients to sue their employers - an expensive, time- consuming, and unsure means of recovery. More generally, Clark County wrongly suggests that in order to give a volunteer "employee" status, benefits must be so significant and numerous that they would essentially constitute a salary. (Clark County Br. at 31, 37.) This is not so. As long as the benefits "constitute 'significant remuneration' rather than merely the 'inconsequential incidents of an otherwise gratuitous relationship,'" they are enough to make a volunteer an "employee" under the ADEA. Section 2, Threshold Issues, EEOC Compl. Man. 2-III(A)(1)(c) (2009). Such benefits make an individual more than an "ordinary or pure volunteer" - he or she becomes a "volunteer plus." Mitchell H. Rubenstein, Our Nation's Forgotten Workers: The Unprotected Volunteers, 9 U. Pa. J. Lab. & Empl. L. 147, 153 (Fall 2006). This "volunteers plus" status does not change if an individual also has a separate, full- time job. (But see Clark County Br. at 32-33 (describing full-time, outside employment of two class members).)<5> Finally, Clark County suggests that a volunteer must "actually receive[ ]" employee benefits in order to be considered an employee. (Clark County Br. at 44.) This is not true. As the EEOC observed in its opening brief, benefits have real economic value even if they become available only upon a volunteer's injury or death. See O'Connor v. Davis, 126 F.3d 112, 116 (2d Cir. 1997) (in determining whether volunteer may qualify as an "employee," court should consider existence of "direct or indirect economic remuneration or the promise thereof") (emphasis added). For all of these reasons, the district court erred by holding that no reasonable jury could find Clark County's volunteer firefighters to be employees under the ADEA. This Court should remand and allow a jury to consider the firefighters' status in detail. See Fichman v. Media Ctr., 512 F.3d 1157, 1160 (9th Cir. 2008) (enumerating some factors relevant to employment status); see also Pietras, 180 F.3d at 473 ("non-salaried volunteer firefighter's employment status . . . is a fact question when that firefighter is entitled to significant benefits"). II. This Court should not affirm based on any of the alternative grounds suggested by Clark County. Legally, Clark County's alternate grounds for affirmance are flawed. Factually, they fall within the province of the jury. For the following reasons, this Court should reject Clark County's invitation to affirm on other grounds. A. The ADEA prohibits age discrimination in the provision of workers' compensation. Clark County argues that even though the ADEA bars discrimination in the provision of employee benefits, 29 U.S.C. §§ 623(a)(1)-(2), 630(l), workers' compensation falls into a category of its own and is exempt from this prohibition. (Clark County Br. at 45-49.) Its sole support for this argument is a bankruptcy case acknowledging that, while the Bankruptcy Code does not consider workers' compensation to be a form of fringe benefit entitled to priority status, other statutes treat workers' compensation differently. See Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651, 661-62 & n.5 (2006) (contrasting Bankruptcy Code with ERISA and Davis-Bacon Act). Clark County's reliance on Howard Delivery Service is misplaced. Outside the bankruptcy context, workers' compensation is considered a fringe benefit unless a statute specifically says otherwise. See ERISA, 29 U.S.C. § 1002(1) (defining "employee welfare benefit plan" to include "any plan, fund, or program . . . maintained for the purpose of providing its receipients . . . through the purchase of insurance or otherwise . . . benefits in the event of sickness, accident, disability, death, or unemployment"), § 1003(b)(3) (excluding workers' compensation from general definition); Davis-Bacon Act, 40 U.S.C. § 3141(2)(B) (defining "wages" to include "compensation for injuries or illness resulting from occupational activity" but excluding workers' compensation that is required by federal, state, or local law); Labor Standards for Federal Service Contracts, "Bona Fide Fringe Benefits," 4 C.F.R. § 4.171(c) (specifying that workers compensation that is required by federal, state, or local law is not a fringe benefit for purposes of the Act). In light of the ADEA's self-proclaimed intention to "encompass all employee benefits," 29 U.S.C. § 630(l) (emphasis added), the statute can only be read to prohibit age discrimination in the provision of workers' compensation. The ADEA provides no exclusion for workers' compensation and thus, like the omnibus definition of "employee welfare benefit plan" in ERISA, can and should be construed to include workers' compensation. See Howard Delivery Serv., 547 U.S. at 661. The regulations do not say otherwise, as the examples provided in their explanation of "employee benefit plans" are non-exclusive. See 29 C.F.R. § 1625.10(b) ("an 'employee benefit plan' is a plan, such as a retirement, pension, or insurance plan, which provides employees with what are frequently referred to as 'fringe benefits'") (emphasis added). Moreover, reading "employee benefits" under the ADEA to include workers' compensation is consistent with this Court's instruction that "the ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment." Forester v. Chertoff, 500 F.3d 920, 929 (9th Cir. 2007). As Justice Kennedy explained in his dissent from Howard Delivery Service, whether workers' compensation is a form of fringe benefit "depends on whether workers' compensation plans provide benefits to employees. It is clear that they do," he added, "as the employer's contributions enable the insurer to give out substantial payments to employees." 547 U.S. 651, 671 (Kennedy, J., dissenting). "Even where an employee might have received greater damages in a tort suit," he said, "the greater speed and certainty of payments in workers' compensation is often worth the tradeoff." Id. at 671-72; see also U.S. v. City of New York, 359 F.3d 83, 92 n.3 (2d Cir. 2004) ("workers['] compensation is a significant benefit to the worker and particularly to the worker who may not be able to establish negligence"). This Court should reject Clark County's effort to deny statutory coverage for an important type of employee benefit. B. Federal law trumps state law. Clark County argues, disingenuously, that it disregarded the ADEA because of its "mandatory obligation to obey Nevada State law." (Clark County Br. at 50.) Even if Clark County believed that state law controlled, an employer's benign motives cannot relieve it of liability for a facially discriminatory policy. Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199-200 (1991) ("Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.") Compliance with state law, of course, is no defense to a violation of federal law. See Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980) (employer and insurer violated Equal Protection Clause by following state workers' compensation law which provided different benefits based on sex); EEOC v. Santa Barbara County, 666 F.2d 373, 378 (9th Cir. 1982) ("To the extent that there is a conflict between California's mandatory retirement statute and the ADEA, the federal law prevails."). Compliance with federal law, on the other hand, is a complete defense to a violation of state law. See Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 852 (9th Cir. 2004) (state's lawsuits against wholesale electricity suppliers for violations of state unfair business practice law are preempted by federal law). Clark County's plea that it had no choice but to obey state law is absurd. See Hawaii Newspaper Agency v. Bronster, 103 F.3d 742, 746-47 (9th Cir. 1996) (Declaratory Judgment Act permits plaintiff faced with questionable state law to obtain judicial ruling on whether federal law "occupies the field" and therefore preempts state law). C. Clark County wrongly failed to ensure that its workers' compensation benefits were distributed in a non-discriminatory manner. Clark County next seeks to absolve itself from all responsibility for the operation of its workers' compensation plan, arguing that any discrimination in the provision of benefits is solely attributable to Sierra Nevada Administrators (the third-party administrator) and the Nevada Department of Administration. (Clark County Br. at 52-64.) This argument ignores Clark County's role as the employer. It is true that Sierra, not Clark County, made the initial denials of coverage, and that the Department of Administration ultimately ratified at least one of those decisions. (Id. at 55-56.) However, Clark County could and should have intervened before the decisions got that far. As the employer, Clark County should have directed Sierra not to administer its workers' compensation plan in a discriminatory way. Elizabeth Ayers, Clark County's Workers' Compensation Coordinator, testified that Sierra sent the county its preliminary recommendations to approve or reject claims before it finalized a decision. (R.78-6, Ayers Dep. Vol. 1 at 20 (EEOC Supp. R.E. at 23); R.78-7, Ayers Dep. Vol. 2 at 83 (EEOC Supp. R.E. at 26).) Ayers's division, she testified, "can have involvement regarding denial or approval of the initial claim." (R.76-6, Ayers Dep. Vol. 1 at 20 (EEOC Supp. R.E. at 23).) This is when Clark County should have insisted that Sierra comply with federal law. However, Ayers said, "I try not to overturn the initial claims examiner's decision to grant or deny benefits. There would have to be a very good reason to disagree with them." (Id. at 21 (EEOC Supp. R.E. at 24).) As Clark County notes (Br. at 57), it permitted Sierra to grant or deny a request for workers' compensation even without any written acknowledgement from the county. (R.78-6, Ayers Dep. Vol. 1 at 22 (EEOC Supp. R.E. at 25).) This authorization was another missed opportunity for Clark County to insist that its workers' compensation program be administered in compliance with federal law. Clark County's decision not to exercise authority over its workers' compensation program is, itself, the employer action that the EEOC challenges. No agency analysis is required. (But see Clark County Br. at 59-62.) It is curious that Clark County relies on this very inaction to distance itself from the discriminatory manner in which its workers' compensation benefits were distributed. D. Whether the denial of workers' compensation to Vannozzi and Schneiderman can be justified by a legitimate, nondiscrimatory reason is a question of fact for the district court to consider in the first instance. Clark County asks this Court to comb through the vast summary judgment record, which the district court has not yet done, and rule that Vannozzi and Schneiderman were denied workers' compensation for legitimate, nondiscriminatory reasons. (Clark County Br. at 64-67.) This Court should decline that invitation. See Shawmut Bank, N.A. v. Kress Assocs., 33 F.3d 1477, 1504 (9th Cir. 1994) ("we must avoid finding facts in the first instance"). Clark County omits important facts in its description of Vannozzi's and Schneiderman's heart attacks. (Clark County Br. at 15-16.) A reasonable factfinder could reject Clark County's implication that the heart attacks were wholly unrelated to the men's firefighting duties. Vannozzi testified that whenever he was paged to fight a fire or respond to a medical call, he received an "instant shot of adrenaline that takes your heart from normal to extremely accelerated from the second the toner goes off." (R.78-3, Vannozzi Dep. Vol. 2 at 160-61 (EEOC Supp. R.E. at 14-15).) He noted that "there is probably a cumulative effect of all the stress." (Id. at 164 (EEOC Supp. R.E. at 16).) With respect to the fire he fought on the Saturday evening immediately before his heart attack, not only did he serve as incident commander, he also helped pull a fire hose filled with water up a hill against "a tremendous amount of drag." (R.78-2, Vannozzi Dep. Vol. 1 at 40-43 (EEOC Supp. R.E. at 4- 7).) When the fire was extinguished, he helped to pull the hose back. (Id. at 48 (EEOC Supp. R.E. at 10).) He did this while wearing a firefighting outfit that weighed 40-50 pounds. (Id. at 46-47, 51 (EEOC Supp. R.E. at 8-9, 11).) Although he did not report to the hospital until early Monday morning (Id. at 84 (EEOC Supp. R.E. at 12)), he was "uncomfortable all day" the day after the fire. (R.78-3, Vannozzi Dep. Vol. 2 at 109 (EEOC Supp. R.E. at 13).) Schneiderman, too, testified that the stress of his volunteer duties contributed to his heart attack. When he came upon a motorcycle accident in April 2008, another firefighter was already there. Schneiderman stopped to render assistance. Although it was freezing that day, with a temperature of 32-36 degrees, Schneiderman lay flat on his stomach, rested on his elbows, and held the victim's head still for 20-25 minutes. He stopped only when the victim was put on a backboard and his head was secured. (R.78-4, Schneiderman Dep. at 37-38, 42-43, 93, 96 (EEOC Supp. R.E. at 17-18, 22).) Schneiderman's chest pain began the next day. (Id. at 40, 55 (EEOC Supp. R.E. at 17, 19).) Clark County wrongly says that Schneiderman chose not to appeal from his denial of workers' compensation. (Clark County Br. at 16.) To the contrary, Schneiderman testified that he mailed an appeal to the Nevada Department of Administration. (R.78-4, Schneiderman Dep. at 59-60 (EEOC Supp. R.E. at 20).) When he learned in litigation that the Department of Administration had not received his appeal, he expressed surprise. "I had no idea that the form was not received . . .," he said. "I presumed they were just backlogged, and I'm not going to call and start bugging them. It doesn't get you anywhere." (Id. at 60-61 (EEOC Supp. R.E. at 20-21).) Taken as a whole, the evidence raises a genuine issue of material fact precluding summary judgment. Whether Clark County had a legitimate, nondiscriminatory reason to deny workers' compensation to Vannozzi and Schneiderman can only be decided by a jury. CONCLUSION The benefits that Clark County's volunteer firefighters receive are similar to those which other federal courts of appeals have considered sufficient to make volunteers "employees" within the meaning of the ADEA. The district court erred by holding otherwise. Because Clark County's alternative arguments for affirmance are not legally or factually sustainable, this Court should reverse the award of summary judgment and remand for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel /s/ Gail S. Coleman _________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 3,691 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 Office Word 2003 and 14 point Times New Roman. /s/ Gail S. Coleman ________________________________ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed the foregoing brief electronically in PDF format with the Court via the ECF system on this 3rd day of October, 2011. I further certify that I served the foregoing brief electronically in PDF format through the ECF system this 3rd day of October, 2011, to all counsel of record. /s/ Gail S. Coleman ________________________________ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov ********************************************************************************** <> <1> The EEOC specified in its complaint that it sought relief for "Patrick Vannozzi and others similarly situated." (R.1, Complaint at 2 (R.E. at 57).) The EEOC identified three claimants at the hearing on the motion for summary judgment. (R.97, Hearing Tr. at 18 (R.E. at 22).) However, because the third claimant was an employee of Washoe County, not Clark County, Clark County is correct that, in its current posture, this lawsuit now seeks relief only for two individuals. (See Clark County Br. at 19.) <2> Clark County observes that the Haavistola jury took only two hours to conclude that Haavistola did not qualify as an "employee." (Clark County Br. at 36-37.) The relevant point, however, is that the Fourth Circuit remanded for this question to be decided by a jury, and not by the judge as a matter of law. <3> Clark County cites to numerous district court cases in support of the proposition that an employee must receive compensation in exchange for services. (Clark County Br. at 27-31.) The EEOC does not dispute this point. At issue is the intensely factual question of whether the benefits received by Clark County's volunteer firefighters are sufficient to qualify as compensation. The district court cases that Clark County cites do not permit this Court to resolve that question as a matter of law. <4> Clark County wrongly contends that the EEOC has waived this argument. (Clark County Br. at 42.) The EEOC's Compliance Manual states that "an individual may be considered an employee of a particular entity if, as a result of volunteer service, s/he receives benefits such as a pension, group life insurance, workers' compensation, and access to professional certification, even if the benefits are provided by a third party." EEOC Compl. Man. 2-III(A)(1)(c) (2009) (emphasis added). Consistent with this position, the EEOC included benefits provided by third parties in its description of relevant facts in its opposition to the motion for summary judgment. (R.85, Opp. at 18 (EEOC Supp. R.E. at 27).) Clark County did not argue in its motion for summary judgment that benefits provided by third parties are irrelevant to employee status, and the EEOC was under no obligation to anticipate that Clark County would make this argument on appeal. <5> Clark County observes that Patrick Vannozzi and Wade Schneiderman had medical insurance through their full-time employers. (Clark County Br. at 32-33.) This fact has no bearing on Clark County's liability for violating the ADEA, although it may be relevant to a distribution of damages.