UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2092
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellee,
v.
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Pierce O'Cray, Assistant Attorney General, Government Bureau,
with whom Scott Harshbarger, Attorney General, was on briefs for
appellants.
Samuel A. Marcosson, with whom C. Gregory Stewart, General
Counsel, Gwendolyn Young Reams, Associate General Counsel, and Vincent
J. Blackwood, Assistant General Counsel, were on brief for appellee.
March 11, 1996
Per Curiam. Chapter 32 of the Massachusetts General
Laws establishes the Commonwealth's statutory retirement
benefit plan for its state and local employees. Section
3(2)(f) of that chapter provides that "[n]o person who enters
or who re-enters the service of any governmental unit as an
employee after attaining age sixty-five, and after the date
when a system becomes operative therein, shall become a
member except as otherwise provided for in this section."
This provision generally prevents state and local employees
hired after age 65 from participating in any public employee
retirement system in Massachusetts. Francis C. Coolidge, a
part-time employee of the Town of Tewksbury who was denied
membership in the Middlesex County Retirement System, filed
charges challenging section 3(2)(f) before the Equal
Employment Opportunity Commission ("EEOC").
In due course the EEOC itself sued the Commonwealth and
the Middlesex County Retirement System in the district court,
claiming that section 3(2)(f) violates and is preempted by
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
623(a)(1) et. seq. Both sides moved for summary judgment;
the district court granted the EEOC's motion, ruling that
section 3(2)(f) ran afoul of 29 U.S.C. 623(a)(1), which
makes it illegal for an employer to "discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
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individual's age." The Commonwealth now appeals.
Although the state statute plainly discriminates on the basis
of age regarding benefits of employment, the Commonwealth
argues that the Massachusetts statute is shielded by 29
U.S.C. 623(f)(2)(B)(i), which permits an employer to
differentiate on the basis of age "where for each benefit or
benefit package, the actual amount of payment made or cost
incurred on behalf of an older worker is no less than that
made or incurred on behalf of a younger worker as permissible
under section 1625.10, title 29, Code of Federal Regulations
(as in effect June 22, 1989)." The Commonwealth claims that
this provision effectively codifies a subsection of the cited
regulation, 29 C.F.R. 1625.10(f)(1)(iii)(A) (1989), which
allowed an employer to exclude from a retirement plan an
employee who begins work after normal retirement age.
As a matter of ordinary grammar, the statutory exception
relied on by the Commonwealth does not protect section
3(2)(f) because the Commonwealth concededly does not incur
costs on behalf of workers excluded from the pension system
at least equal to the costs incurred on behalf of younger
workers. The plain language of section 623(f)(2)(B)(i) makes
clear that it incorporates only those elements of the cited
regulation that conform to this equal cost/equal benefit
principle. The Commonwealth's argument that the statutory
provision incorporates the regulation wholesale, even
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portions of it--like 29 C.F.R. 16256.10(f)(1)(iii)(a)--that
are plainly inconsistent with the equal cost/equal benefit
principle, simply cannot be squared with the statutory
language.
If legislative history is consulted, it too supports the
EEOC and not the Commonwealth. As the district court
observed, Congress enacted the current version of section
623(f) in response to the Supreme Court's decision in Public
Employees Retirement Sys. v. Betts, 492 U.S. 158 (1989),
which determined that the ADEA did not apply to fringe
benefits. Congress then amended the statute to reinstate the
equal cost/equal benefit rule and to ensure that the ADEA
applied to age-based discrimination in benefit plans. S.
Rep. No. 263, 101st Cong., 2d Sess. 18 (1990), reprinted in
1990 U.S.C.C.A.N. 1509, 1523. This Senate report said
explicitly that Congress intended to incorporate only those
portions of the regulation consistent with the amended
statute. Id.
The Commonwealth argues that because the ADEA here would
preempt a state statute, we must apply a "clear statement"
rule of interpretation, e.g., Gregory v. Ashcroft, 501 U.S.
452 (1991), and resolve in favor of the Commonwealth any
doubts about whether Congress intended to incorporate 29
C.F.R. 1625.10(f)(1)(iii)(a). The EEOC plausibly responds
that the clear statement rule applies only in deciding
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whether the state is governed by the ADEA and not to
questions concerning the substantive reach of the ADEA,
questions whose answer affects public and private employers
alike. Although this precise question may not have been
decided, we have been very hesitant in closely related
contexts to extend the clear statement rule beyond its core
application. See Gately v. Commonwealth of Massachusetts, 2
F.3d 1221, 1230 (1st Cir. 1993); see EEOC v. Commonwealth of
Massachusetts, 987 F.2d 64, 68-70 (1st Cir. 1993).
In all events, the meaning of the provision in this case
is clear enough once the technical jargon is unraveled. The
statute adopts an equal cost/equal benefit test for
differentiations "as permissible" under the cited regulation,
and no one claims that the Commonwealth's flat bar conforms
to any equal cost/equal benefit test. Thus, whether a
particular equal cost/equal benefit differential would be
"permissible" under the regulation does not even arise. The
subject matter is complex but complexity is not the same
thing as ambiguity. Affirmed.
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