Ronnie Stilwell v. City of Williams

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RONNIE D. STILWELL; No. 14-15540
COURTNEY STILWELL,
husband and wife, D.C. No.
Plaintiffs-Appellants, 3:12-cv-08053-HRH

v.
OPINION
CITY OF WILLIAMS, an
Arizona Municipal
Corporation; JOSEPH DUFFY,
Interim City Manager of the
City of Williams; LYDA
DUFFY, husband and wife;
RAYMOND GLENN
CORNWELL, former Public
Works Director of the City
of Williams; ELSIE
CORNWELL, husband and
wife; BILLY PRUITT; BESSIE
PRUITT, husband and wife;
TRACY FULLER; KATHY
FULLER, husband and wife,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
H. Russel Holland, District Judge, Presiding
2 STILLWELL V. CITY OF WILLIAMS

Argued and Submitted March 14, 2016
San Francisco, California

Filed August 5, 2016

Before: Ferdinand F. Fernandez, Ronald M. Gould, and
Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland;
Dissent by Judge Fernandez

SUMMARY *

Civil Rights/Age Discrimination in Employment Act

The panel reversed the district court’s summary
judgment and remanded in an action brought by a City of
Williams employee who alleged that he was fired for
planning to testify against the City in a lawsuit relating to
age discrimination.

The panel first held that plaintiff was engaged in speech
as a citizen for First Amendment purposes because his sworn
statements and imminent testimony about the City’s
retaliatory conduct were outside the scope of his ordinary job
duties and were on a matter of public concern.

The panel held that the retaliation provision of the Age
Discrimination in Employment Act (ADEA), did not

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 STILLWELL V. CITY OF WILLIAMS 3

preclude plaintiff’s 42 U.S.C. § 1983 First Amendment
retaliation claim. The panel held that the disparities between
the rights and protections of the ADEA’s retaliation
provision and the First Amendment as enforced through
§ 1983 — including differences in who may sue and be sued,
the standards for liability, and the damages available —
which made the ADEA’s protections narrower than the First
Amendment’s in some respects, led the panel to conclude
that Congress did not intend to preclude § 1983 First
Amendment retaliation suits when it enacted the ADEA.

Dissenting, Judge Fernandez stated that this court was
bound by Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d
1051, 1057 (9th Cir. 2009), which held that “the ADEA
precludes the assertion of age discrimination in employment
claims, even those seeking to vindicate constitutional rights,
under § 1983.”

COUNSEL

Charles Anthony Shaw (argued), Law Offices of Charles
Anthony Shaw, PLLC, Prescott, Arizona, for Plaintiffs-
Appellants.

Kenneth H. Brendel (argued), Mangum, Wall, Stoops &
Warden, PLLC, Flagstaff, Arizona, for Defendants-
Appellees.
4 STILLWELL V. CITY OF WILLIAMS

OPINION

FRIEDLAND, Circuit Judge:

Plaintiff-Appellant Ronnie Stilwell sued his city
employer for retaliation, alleging that he was fired for
planning to testify against the City in a lawsuit relating to
age discrimination. Stilwell asserted that his termination
violated both the First Amendment and the retaliation
provision of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 623(d). The question we must
answer is whether the retaliation provision of the ADEA
precludes a plaintiff such as Stilwell from bringing a First
Amendment retaliation claim under 42 U.S.C. § 1983. We
hold that it does not.

I.

Stilwell became Superintendent of the Water
Department of the City of Williams, Arizona (the “City”), in
1991, and he served in that position until his termination in
January 2011. It is the events surrounding his termination
that gave rise to the instant lawsuit. 1 Those events began
when Stilwell became aware of a lawsuit against the City
filed by Carolyn Smith, the City’s former Human Resources
Director (the “Smith suit”). Smith alleged that the City
retaliated against her in violation of the retaliation provision
of the ADEA, after she complained about age discrimination
against a different city employee, Glen Cornwell. In August

1
Because this case comes to us on appeal from a grant of summary
judgment to Defendants, “[w]e view the facts in the light most favorable
to Stilwell, the non-moving party.” Stilwell v. Smith & Nephew, Inc.,
482 F.3d 1187, 1193 (9th Cir. 2007).
 STILLWELL V. CITY OF WILLIAMS 5

2009, Stilwell signed a sworn statement that supported
Smith’s ADEA retaliation claim, and agreed to testify in
Smith’s lawsuit. Later that month, a formal disclosure
regarding Stilwell’s involvement as a witness was served
upon the City as well as on then-Assistant City Manager Joe
Duffy.

Stilwell alleges that following this agreement to testify,
Duffy took numerous negative actions towards him that
constituted retaliation. Between August and December
2009, Duffy sent Stilwell emails with negative comments,
including emails attacking his job performance. In
December 2009, Duffy became Interim City Manager and
met with Stilwell to discourage him from testifying in the
Smith suit.

In June 2010, the judge in the Smith suit denied a motion
from the City Attorney to prevent Stilwell’s testimony.
Duffy then had another meeting with Stilwell, in which
Duffy stated that he wanted Stilwell to find a way out of
testifying.

In September 2010, at a meeting with another city
department head, the issue of Stilwell’s anticipated
testimony for the Smith suit arose again. Stilwell explained
that he would tell the truth if he was called to the stand,
including by describing how Duffy had retaliated against
Smith. Duffy and Stilwell subsequently had another
confrontation in which Duffy expressed displeasure about
Stilwell’s agreeing to testify. Following that confrontation,
Duffy began to express additional concerns about Stilwell’s
job performance.

In October 2010, Duffy continued to find problems with
Stilwell’s job performance, including criticizing Stilwell’s
6 STILLWELL V. CITY OF WILLIAMS

handling of a situation in which the City’s water turned
brown. Duffy also sent the City Council a memo accusing
Stilwell of neglecting security concerns at the City’s water
plant. Stilwell asserted that these issues were not his fault.

In December 2010, Stilwell was placed on paid
administrative leave, pending an investigation into Duffy’s
allegations. In January 2011, the City terminated Stilwell’s
employment based on the results of that investigation.

Stilwell sued the City and Duffy, among others, in the
United States District Court for the District of Arizona. The
suit asserted sixteen claims, including retaliation in violation
of the ADEA and the First Amendment. 2 Stilwell moved for
partial summary judgment, and Defendants cross-moved for
summary judgment as to all claims. The district court
granted Defendants’ motion, and Stilwell appealed the
rulings on eight claims. 3

II.

The district court granted summary judgment in favor of
Defendants on Stilwell’s § 1983 First Amendment claim on
the sole ground that the retaliation provision of the ADEA,
29 U.S.C. § 623(d), precluded a § 1983 First Amendment
retaliation claim such as Stilwell’s. We review the district
court’s decision de novo. In re Oracle Corp. Sec. Litig.,
627 F.3d 376, 387 (9th Cir. 2010). Applying the framework

2
Stilwell sued along with his wife. Because the Complaint does not
allege any claims individual to Stilwell’s wife, we have referred to the
claims as Stilwell’s claims.
3
Stilwell’s appellate arguments relating to claims other than his § 1983
First Amendment retaliation claim are addressed in a concurrently-filed
memorandum disposition.
 STILLWELL V. CITY OF WILLIAMS 7

set forth in Fitzgerald v. Barnstable School Committee,
555 U.S. 246 (2009), for determining the preclusive effect of
a statute on § 1983 actions to remedy constitutional
violations, we hold that Stilwell’s § 1983 First Amendment
lawsuit is not precluded.

A.

As a threshold matter, before turning to the preclusion
question, we reject the City’s argument that Stilwell’s
speech was not “speech as a citizen on a matter of public
concern” and so fell outside the First Amendment’s
protections. Lane v. Franks, 134 S. Ct. 2369, 2378 (2014).
Stilwell’s sworn statement and imminent testimony were
“outside the scope of his ordinary job duties,” which means
that he was engaged in “speech as a citizen for First
Amendment purposes.” Id. (explaining that an employee’s
testimony in response to a subpoena about his employer’s
practices was “outside the scope of his ordinary job duties”
and thus “speech as a citizen”). And Stilwell’s sworn
statement and planned testimony about the City’s retaliatory
conduct were on a matter of public concern. See Alpha
Energy Savers, Inc. v. Hansen, 381 F.3d 917, 927 (9th Cir.
2004) (“[W]e hold that a public employee’s testimony
addresses a matter of public concern if it contributes in some
way to the resolution of a judicial or administrative
proceeding in which discrimination or other significant
government misconduct is at issue.”).

Moreover, contrary to the City’s argument, the fact that
Stilwell had submitted only an affidavit and did not
ultimately testify in court does not foreclose First
Amendment protection. In Alpha Energy Savers, we held
that although the plaintiff, a city contractor, never actually
testified in a former associate’s federal discrimination
8 STILLWELL V. CITY OF WILLIAMS

lawsuit because the suit settled, the conduct that occurred
prior to the settlement was protected under the First
Amendment. 381 F.3d at 922, 923–24. That conduct
included “not only the affidavit that [the contractor] filed on
[the associate’s] behalf and his testimony at [the associate’s]
grievance hearing but also [the contractor’s] agreement to be
listed as a witness in the judicial proceedings.” Id. at 923–
24. Similarly, Stilwell’s sworn statement on a matter of
public concern and his express plan to testify in court along
the same lines, fall within the purview of the First
Amendment. Cf. Heffernan v. City of Paterson, N.J., 136 S.
Ct. 1412, 1418 (2016) (holding that whether the protected
speech was actually engaged in by the employee is not
determinative because it is the perception of the employer as
to whether that protected activity occurred that matters to a
First Amendment retaliation claim).

B.

Congress enacted the ADEA in order to “to promote
employment of older persons based on their ability rather
than age; to prohibit arbitrary age discrimination in
employment; [and] to help employers and workers find ways
of meeting problems arising from the impact of age on
employment.” 29 U.S.C. § 621(b). Although nearly all of
the ADEA focuses on direct age discrimination, it contains
a retaliation provision as well:

It shall be unlawful for an employer to
discriminate against any of his employees or
applicants for employment, for an
employment agency to discriminate against
any individual, or for a labor organization to
discriminate against any member thereof or
applicant for membership, because such
individual, member or applicant for
 STILLWELL V. CITY OF WILLIAMS 9

membership has opposed any practice made
unlawful by this section, or because such
individual, member or applicant for
membership has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or litigation under
this chapter.

29 U.S.C.A. § 623(d).

Section 1983, in contrast, is not itself a source of
substantive rights, but is a mechanism for vindicating federal
statutory or constitutional rights. Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979). Specifically, § 1983 provides
that “[e]very person who, under color of [State law] . . .
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured.” 42 U.S.C. § 1983.

Despite § 1983’s broad wording, that section’s
availability as a remedy for violations of federal statutory or
constitutional rights may be foreclosed in the event that
Congress enacts a statutory scheme indicating an intent to
preclude § 1983 suits. In a line of cases beginning with
Middlesex County Sewerage Authority v. National Sea
Clammers Association, 453 U.S. 1 (1981), the Supreme
Court has set forth principles for determining when a § 1983
cause of action is precluded. Because this line of cases, and
particularly Fitzgerald, 555 U.S. 246, the most recent of
them, provides the framework for our analysis here, we
describe the cases in some detail.
10 STILLWELL V. CITY OF WILLIAMS

In Sea Clammers, the Court addressed whether the
Federal Water Pollution Control Act and the Marine
Protection, Research, and Sanctuaries Act precluded § 1983
suits to remedy violations of those Acts. To divine
Congress’s intent, the Court examined “the remedial devices
provided in [each] particular Act,” to determine if they were
“sufficiently comprehensive” to indicate a “congressional
intent to preclude the remedy of suits under § 1983.” Sea
Clammers, 453 U.S. at 20. The Court observed the
“unusually elaborate enforcement provisions” in each Act—
which provided for civil as well as criminal penalties that
could be assessed by the Environmental Protection Agency,
and included citizen suit provisions that required private
plaintiffs to “comply with specified procedures” before
filing in court. Id. at 13–14. The Court held that these
comprehensive remedial provisions demonstrated that
Congress intended to preclude § 1983 lawsuits to remedy a
violation of the statutory rights created in those same Acts.
Thus, the Court held that a plaintiff could not bring a § 1983
suit to remedy a violation of either the Federal Water
Pollution Control Act or the Marine Protection, Research,
and Sanctuaries Act.

In Smith v. Robinson, 468 U.S. 992, 1013 (1984),
superseded on other grounds by Handicapped Children’s
Protection Act, Pub. L. No. 99-372, § 2, 100 Stat. 796 (1986)
(codified at 20 U.S.C. § 1415(1)), the Supreme Court
considered a related, but distinct question—whether a statute
precluded a § 1983 suit to enforce a constitutional right. In
Smith, the Court examined whether the Education of the
Handicapped Act (the “EHA”) precluded § 1983 suits
alleging Fourteenth Amendment equal protection violations
based on disability discrimination in education. 468 U.S. at
 STILLWELL V. CITY OF WILLIAMS 11

1013. 4 In holding that such suits were precluded, the Court
first explained that constitutional equal protection rights and
the rights protected by the EHA were essentially co-
extensive. See id. at 1009. Such congruence was
unsurprising given that the EHA was enacted as a response
to a series of court cases that established the “right to an
equal education opportunity for handicapped children,” id.
at 1010, and that “Congress perceived the EHA as the most
effective vehicle for protecting the constitutional right of a
handicapped child to a public education” recognized in those
cases. Id. at 1013. Indeed, the Senate Report on the EHA
described the statute as having “incorporated the major
principles of th[ose] right to education cases.” Bd. of Educ.
of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 194 n.18 (1982). After concluding that the statutory
and constitutional claims were “virtually identical,” Smith,
468 U.S. at 1009, the Supreme Court turned to the EHA’s
remedial scheme, explaining that “the Act establishes an
elaborate procedural mechanism to protect the rights of
handicapped children,” that “begins on the local level and
includes ongoing parental involvement, detailed procedural
safeguards, and a right to judicial review.” Id. at 1010–11.
Ultimately, the Court held that “[a]llowing a plaintiff to
circumvent the EHA administrative remedies” through a
§ 1983 action “would be inconsistent with Congress’

4
In City of Rancho Palos Verdes, California v. Abrams, 544 U.S. 113
(2005), the Court appears to have mischaracterized Smith as involving
the question of whether § 1983 suits could enforce statutory rights.
Compare Rancho Palos Verdes, 544 U.S. at 121 (“We have found § 1983
unavailable to remedy violations of federal statutory rights in two cases:
Sea Clammers and Smith.”), with Smith, 468 U.S. at 1008–09 (“As
petitioners emphasize, their § 1983 claims were not based on alleged
violations of the EHA, but on independent claims of constitutional
deprivations.” (footnote omitted)).
12 STILLWELL V. CITY OF WILLIAMS

carefully tailored scheme,” id. at 1012, and that because
Congress gave no indication in the EHA’s legislative history
that it intended to allow such § 1983 suits, the alternative
§ 1983 remedy was precluded.

The Supreme Court again confronted the question of
preclusion of § 1983 actions in City of Rancho Palos Verdes,
California v. Abrams, 544 U.S. 113, 127 (2005). The Court
there asked whether the Telecommunications Act of 1996
precluded § 1983 suits alleging violations of that Act—a
question of enforcement of a statutory right akin to that in
Sea Clammers. To answer that question, the Court
contrasted Sea Clammers and Smith with other cases that had
held § 1983 actions to be available to enforce federal statutes
that “did not provide a private judicial remedy (or, in most
of the cases, even a private administrative remedy) for the
rights violated.” 544 U.S. at 121 (citing Livadas v.
Bradshaw, 512 U.S. 107, 133–34 (1994) and Golden State
Transit Corp. v. City of Los Angeles, 493 U.S. 103, 108–09
(1989), among other cases). 5 Because the

5
In Gonzaga University v. Doe, 536 U.S. 273, 281–83 (2002), the
Supreme Court made it much more difficult to infer privately
enforceable rights in federal statutes that lack private rights of action.
This decision had the effect of cabining the line of cases that had held
§ 1983 actions to be available to enforce such statutes. Post-Gonzaga,
“‘[t]he question whether Congress . . . intended to create a private right
of action [is] definitively answered in the negative’ where a ‘statute by
its terms grants no private rights to any identifiable class.’” Id. at 283–
84 (alterations in original) (quoting Touche Ross & Co. v. Redington,
442 U.S. 560, 576 (1979)); see Sanchez v. Johnson, 416 F.3d 1051, 1057
(9th Cir. 2005) (explaining that Gonzaga clarified that it is only
“Congress’s use of explicit, individually focused, rights-creating
language that reveals congressional intent to create an individually
enforceable right in a spending statute”). And, where there was no
private right to enforce, there could be no § 1983 action to enforce it.
See Sanchez, 416 F.3d at 1062 (“After Gonzaga, . . . a plaintiff seeking
 STILLWELL V. CITY OF WILLIAMS 13

Telecommunications Act created a private right of action—
and, particularly, a limited one with a 30-day statute of
limitations and no provision for attorney fees or costs—the
Court held that allowing § 1983 suits that would not have
those limitations “would distort the scheme of expedited
judicial review and limited remedies created by [the Act].”
Id. at 127. The Act thus “precluded resort to § 1983.” Id.

Most recently, in Fitzgerald v. Barnstable School
Committee, 555 U.S. 246 (2009), the Supreme Court
considered again, as it had in Smith, whether a statute
precluded use of § 1983 to remedy an alleged constitutional
violation. Specifically, the Court evaluated whether Title
IX, which prohibits gender discrimination in educational
programs receiving Federal financial assistance, 20 U.S.C.
§ 1681(a), was “meant to be an exclusive mechanism for
addressing gender discrimination in schools,” or whether
plaintiffs alleging gender discrimination could also bring
equal protection claims under § 1983. 555 U.S. at 258.
Looking to Sea Clammers, Smith, and Rancho Palos Verdes
as guiding precedent, the Court emphasized that those “cases
establish that ‘the crucial consideration is what Congress
intended.’” Fitzgerald, 555 U.S. at 252 (alteration omitted)
(quoting Smith, 468 U.S. at 1012).

The Court then summarized different approaches for
determining Congress’s intent with respect to preclusion of
§ 1983 suits, depending on whether the § 1983 suits would
enforce statutory or constitutional rights. “In those cases in
which the § 1983 claim is based on a statutory right,

redress under § 1983 must assert the violation of an individually
enforceable right conferred specifically upon him, not merely a violation
of federal law or the denial of a benefit or interest, no matter how
unambiguously conferred.”).
14 STILLWELL V. CITY OF WILLIAMS

‘evidence of such congressional intent [to preclude the
§ 1983 remedy] may be found directly in the statute creating
the right, or inferred from the statute’s creation of a
comprehensive enforcement scheme that is incompatible
with individual enforcement under § 1983.’” Id. (quoting
Rancho Palos Verdes, 544 U.S. at 120 (emphasis added)).
With respect to constitutional claims, however, the Court
explained:

In cases in which the § 1983 claim alleges a
constitutional violation, lack of
congressional intent may be inferred from a
comparison of the rights and protections of
the statute and those existing under the
Constitution. Where the contours of such
rights and protections diverge in significant
ways, it is not likely that Congress intended
to displace § 1983 suits enforcing
constitutional rights. Our conclusions
regarding congressional intent can be
confirmed by a statute’s context.

Id. at 252–53 (emphasis added).

After setting forth these inquiries, the Court first
observed that, in contrast to the statutes at issue in Sea
Clammers, Smith, and Rancho Palos Verdes, “Title IX has
no administrative exhaustion requirement and no notice
provisions.” Id. at 255. Rather, Title IX’s implied right of
action allows plaintiffs to “file directly in court,” and to
“obtain the full range of remedies.” Id. The Court stated
that, “[a]s a result, parallel and concurrent § 1983 claims will
neither circumvent required procedures, nor allow access to
new remedies.” Id. at 255–56.
 STILLWELL V. CITY OF WILLIAMS 15

The Court then compared the “substantive rights and
protections” provided by Title IX to those afforded under
§ 1983 suits to remedy violations of the Equal Protection
Clause. The Court examined the mismatch in which entities
may be sued and which entities are exempted, id. at 256–57,
the differences in what conduct is prohibited, id. at 257, and
the disparate standards of liability and burdens of proof
required to prevail under each provision, id. at 257–58. With
respect to which entities may be sued under Title IX and
§ 1983 equal protection causes of action, respectively, the
Court explained that “Title IX reaches institutions and
programs that receive federal funds, which may include
nonpublic institutions,” but does not “authoriz[e] suit against
school officials, teachers, and other individuals.” 555 U.S.
at 257 (citations omitted). In contrast, “[t]he Equal
Protection Clause reaches only state actors, [and] § 1983
equal protection claims may be brought against individuals
as well as municipalities and certain other state entities.” Id.

In its comparison of the “substantive rights and
protections,” the Court also underscored the differences
between the types of conduct prohibited under each of the
schemes. The Court explained that “Title IX exempts
elementary and secondary schools from its prohibition
against discrimination in admissions, § 1681(a)(1); it
exempts military service schools and traditionally single-sex
public colleges from all of its provisions, §§ 1681(a)(4)–
(5).” Fitzgerald, 555 U.S. at 257. But, the Court noted,
some of what is exempted under Title IX “may form the
basis of equal protection claims” for gender discrimination
under § 1983. Id.

Finally, the Court observed that “[e]ven where particular
activities and particular defendants are subject to both Title
IX and the Equal Protection Clause, the standards for
16 STILLWELL V. CITY OF WILLIAMS

establishing liability may not be wholly congruent.” Id. at
257. It explained that “a Title IX plaintiff can establish
school district liability by showing that a single school
administrator with authority to take corrective action
responded to harassment with deliberate indifference,”
whereas “[a] plaintiff stating a similar claim via § 1983 for
violation of the Equal Protection Clause by a school district
or other municipal entity must show that the harassment was
the result of municipal custom, policy, or practice.” Id. at
257–58 (citing Monell v. N.Y. City Dept. of Soc. Servs.,
436 U.S. 658, 694 (1978)).

The Court concluded that “[i]n light of the divergent
coverage of Title IX and the Equal Protection Clause, as well
as the absence of a comprehensive remedial scheme
comparable to those at issue in Sea Clammers, Smith, and
Rancho Palos Verdes, . . . Title IX was not meant to be an
exclusive mechanism for addressing gender discrimination
in schools.” Fitzgerald, 555 U.S. at 258. Because Title IX
was not intended as a “substitute for § 1983 suits as a means
of enforcing constitutional rights,” the Court held “that
§ 1983 suits based on the Equal Protection Clause remain
available to plaintiffs alleging unconstitutional gender
discrimination in schools.” Id.

The Supreme Court then reasoned that its “conclusion
[was] consistent with Title IX’s context and history.” Id.
The Court explained that “Congress modeled Title IX after
Title VI of the Civil Rights Act of 1964,” and “[a]t the time
of Title IX’s enactment . . . Title VI was routinely interpreted
to allow for parallel and concurrent § 1983 claims.” Id.
Given “the absence of any contrary evidence, it follows that
Congress intended Title IX to be interpreted similarly to
allow for parallel and concurrent § 1983 claims.” Id. at 259.
The Court noted that “the relevant question is not whether
 STILLWELL V. CITY OF WILLIAMS 17

Congress envisioned that the two types of claims would
proceed together in addressing gender discrimination in
schools; it is whether Congress affirmatively intended to
preclude this result,” id. at 259 n.2, and the Court found no
such intent reflected in the legislative history, id. at 259.

The Sea Clammers line of cases teaches that when
Congress creates a right by enacting a statute but at the same
time limits enforcement of that right through a specific
remedial scheme that is narrower than § 1983, a § 1983
remedy is precluded. This makes sense because the limits
on enforcement of the right were part and parcel to its
creation. When a right is created by the Constitution,
however, and a statute merely recognizes it or adds
enforcement options, the analysis differs. Fitzgerald teaches
that, in that situation, if the statute’s rights and protections
diverge in “significant ways” from those provided by the
Constitution, a § 1983 remedy is not precluded. 555 U.S. at
252–53.

C.

Following Fitzgerald, to determine whether the ADEA’s
retaliation provision precludes § 1983 First Amendment
retaliation suits, we must determine whether the “contours
of such rights and protections” provided by the two “diverge
in significant ways.” Fitzgerald, 555 U.S. at 252–53. The
ADEA provides an express private right of action, which
weighs in favor of finding preclusion under Sea Clammers
and its progeny. But the disparities between the rights and
protections of the ADEA’s retaliation provision and the First
Amendment as enforced through § 1983—including
differences in who may sue and be sued, the standards for
liability, and the damages available—which make the
ADEA’s protections narrower than the First Amendment’s
18 STILLWELL V. CITY OF WILLIAMS

in some important respects, cause us to conclude that
Congress did not intend to preclude § 1983 First
Amendment retaliation suits.

1.

The ADEA provides both an express private right of
action, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67
(2000), and an administrative exhaustion requirement to file
a complaint with the EEOC. 29 U.S.C. § 626(c)–(d).

If we were evaluating the preclusion of § 1983 suits as a
mechanism to enforce a statutory right created by the
ADEA, the detailed nature of its remedial scheme might be
dispositive. But, under Fitzgerald, it is not. Fitzgerald
instructed that, “[i]n cases in which the § 1983 claim alleges
a constitutional violation,” the presence of significant
differences in the “rights and protections” offered by the
Constitution and the statute in question make it unlikely
“that Congress intended to displace § 1983 suits enforcing
constitutional rights” by enacting the statute. 555 U.S. at
252–53. 6 Accordingly, the Supreme Court in Fitzgerald
looked not only to whether Title IX had an express cause of
action; it also engaged in a detailed comparison of Title IX’s
implied right of action and § 1983 equal protection claims.
Following this guidance from Fitzgerald, we turn to
comparing the substantive rights and protections afforded by
the ADEA’s retaliation provision and those provided under
the First Amendment, as enforced through § 1983.

6
Of course, because Fitzgerald was discussing a statute that lacked an
express private right of action, the Supreme Court was not confronted
with the question of how important the comprehensiveness of the
remedial scheme is vis-à-vis the significant divergence of “the contours
of . . . rights and protections.” 555 U.S. at 252–53. Nor did it attempt to
answer that question.
 STILLWELL V. CITY OF WILLIAMS 19

2.

a.

Like the disparities identified in Fitzgerald, our
examination of the ADEA’s retaliation provision and First
Amendment retaliation claims brought under § 1983 reveals
differences in who may sue and be sued. First, the ADEA
does not allow for suit against individuals, whereas § 1983
does. See Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587–
88 (9th Cir. 1993) (holding that individual defendants cannot
be held liable for damages under the ADEA); Hafer v. Melo,
502 U.S. 21, 31 (1991) (“We hold that state officials, sued in
their individual capacities, are ‘persons’ within the meaning
of § 1983.”); see also Levin v. Madigan, 692 F.3d 607, 621
(7th Cir. 2012) (“In contrast [to an ADEA plaintiff], a § 1983
plaintiff may file suit against an individual, so long as that
individual caused or participated in the alleged deprivation
of the plaintiff’s constitutional rights.” (citation omitted)).

Second, state employees, in practice, cannot sue under
the ADEA but can sue under § 1983. In Kimel, the Supreme
Court held that “in the ADEA, Congress did not validly
abrogate the States’ sovereign immunity to suits by private
individuals,” and thus, state employers could not be sued by
state employees under the ADEA. 528 U.S. at 91. This
holding, combined with the fact that the ADEA does not
allow suits against individuals (and thus does not allow suits
against state officials or supervisors), means that state
employees may not bring claims under the ADEA. See
Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1060
(9th Cir. 2009) (explaining that “[i]f the ADEA is the
exclusive remedy for age discrimination in the workplace,
then plaintiffs are left without a federal forum for age
discrimination claims against state actors.”). Although
20 STILLWELL V. CITY OF WILLIAMS

§ 1983 likewise did not abrogate States’ Eleventh
Amendment immunity and therefore does not allow suits
against States themselves or individuals in their official
capacities, Will v. Mich. Dep’t of State Police, 491 U.S. 58,
71 (1989), § 1983 does provide a remedy to state employees
by allowing suits against state officials in their individual
capacities, see Hafer, 502 U.S. at 31.

Third, the ADEA is generally applicable to private and
public (but not state) employers with twenty or more
employees. 29 U.S.C. § 630(b) (defining “employer”). 7 In
contrast, § 1983 is generally inapplicable to private
employers. 8 See Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49–50 (1999) (“[T]he under-color-of-state-law
element of § 1983 excludes from its reach ‘merely private
conduct, no matter how discriminatory or wrongful.’”
(quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982))).

Finally, the Supreme Court has held that independent
contractors may sue under § 1983 for First Amendment
retaliation. Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v.
Umbehr, 518 U.S. 668, 686 (1996) (“[W]e recognize the
right of independent government contractors not to be
terminated for exercising their First Amendment rights.”).
In contrast, “[a] claimant under . . . the ADEA must establish
himself as an ‘employee,’” thus excluding independent

7
The 1974 Amendments to the ADEA extended the protections of the
ADEA to federal employees. Bunch v. United States, 548 F.2d 336, 338
(9th Cir. 1977); 29 U.S.C. § 633a (setting forth ADEA requirements for
federal employers).

8
In certain circumstances a private employer could be considered a
state actor. In such circumstances, an employee plaintiff could sue such
an employer under § 1983 as well as under the ADEA. See Dennis v.
Sparks, 449 U.S. 24, 27–28 (1980).
 STILLWELL V. CITY OF WILLIAMS 21

contractors. Barnhart v. N.Y. Life Ins. Co., 141 F.3d 1310,
1312 (9th Cir. 1998).

b.

Also similar to the differences identified in Fitzgerald,
there is a difference between ADEA retaliation suits and
§ 1983 First Amendment retaliation suits in how liability is
established under each. See Fitzgerald, 555 U.S. at 257
(examining different standards of liability for Title IX and
§ 1983 claims).

First, an ADEA plaintiff bears a greater burden of proof
as to causation than a plaintiff bringing a First Amendment
retaliation claim. Once the plaintiff bringing a First
Amendment retaliation claim via § 1983 has demonstrated
that the protected conduct was a “motivating factor” in the
retaliatory action, “the burden shifts to the government to
show that it ‘would have taken the same action even in the
absence of the protected conduct.’” O’Brien v. Welty,
818 F.3d 920, 932 (9th Cir. 2016) (quoting Pinard v.
Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir.2006));
see also Thomas v. County of Riverside, 763 F.3d 1167, 1169
(9th Cir. 2014) (per curiam) (explaining that First
Amendment retaliation cases are governed by Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S.
274 (1977), under which, once a plaintiff makes a showing
that protected speech was a substantial or motivating factor
in the employer’s taking a non-trivial adverse employment
action, a defendant can escape liability only by meeting the
burden of proving by a preponderance of the evidence that it
would have reached the same decision even absent the
plaintiff’s protected speech).
22 STILLWELL V. CITY OF WILLIAMS

In contrast, in University of Texas Southwestern Medical
Center v. Nassar, 133 S. Ct. 2517 (2013), the Supreme Court
outlined a different framework in the context of Title VII
retaliation claims—which is relevant to ADEA retaliation
claims because we have long considered the ADEA
retaliation provision to be the “equivalent of the anti-
retaliation provision of Title VII,” O’Day v. McDonnell
Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996).
In Nassar, the Court held that a plaintiff alleging retaliation
under Title VII must prove “that the unlawful retaliation
would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” 133 S. Ct. at
2533. The Court explained that this burden on the plaintiff
to “establish that his or her protected activity was a but-for
cause of the alleged adverse action by the employer” is
“more demanding than the motivating-factor standard.” Id.
at 2534.

Second, exactly as in Fitzgerald, 555 U.S. at 257, there
is a difference in the requirements for establishing liability
between the ADEA retaliation clause and § 1983 when the
defendant is a municipality. Under § 1983, “municipalities
[may not] be held liable unless action pursuant to official
municipal policy of some nature caused a constitutional
tort.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.
658, 691 (1978). In contrast, no such requirement exists for
ADEA claims brought against municipalities. See Hill v.
Borough of Kutztown, 455 F.3d 225, 245, 247 (3d Cir. 2006)
(explaining that “a municipality may be held liable for the
conduct of an individual employee or officer only when that
conduct implements an official policy or practice” in § 1983
actions, but that “a plaintiff may bring an ADEA claim
against a political subdivision of a state based on the actions
of its employee(s)” (footnotes omitted)); see also Spengler
v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir. 2010)
 STILLWELL V. CITY OF WILLIAMS 23

(explaining in the context of an ADEA retaliation claim that
“[a]n employer will be strictly liable for a supervisor’s
proven discrimination where such discrimination results in
an adverse employment action”).

c.

Finally, the remedies available to those individuals
bringing suit under the ADEA’s retaliation provision and
§ 1983 are different. For example, ADEA plaintiffs may
recover lost wages and liquidated damages from employers
but may not recover damages for emotional pain and
suffering. See C.I.R. v. Schleier, 515 U.S. 323, 326 (1995)
(“[T]he Courts of Appeals have unanimously held, and
respondent does not contest, that the ADEA does not permit
a separate recovery of compensatory damages for pain and
suffering or emotional distress.”). In contrast, the Supreme
Court has explained that “compensatory damages [in § 1983
suits] may include not only out-of-pocket loss and other
monetary harms, but also such injuries as ‘impairment of
reputation . . . , personal humiliation, and mental anguish
and suffering.’” Memphis Cmty. Sch. Dist. v. Stachura,
477 U.S. 299, 307 (1986) (second alteration in original)
(quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350
(1974)).

3.

These distinctions demonstrate that the ADEA’s
retaliation protections diverge significantly from those
available under § 1983 First Amendment lawsuits. 9 Most

9
The list of differences between ADEA retaliation actions and § 1983
First Amendment retaliation actions discussed herein is not necessarily
exhaustive.
24 STILLWELL V. CITY OF WILLIAMS

significantly in our view, the ADEA’s retaliation provision
provides less protection to an alleged victim of retaliation
than does the First Amendment in several important ways—
the ADEA’s protections exclude independent contractors
and state employees, do not allow for suit against
individuals, require plaintiffs to bear a heavier burden of
proof as to causation, and exclude certain types of remedies
like damages for mental suffering. And although the ADEA
affords greater protection to some individuals that would not
normally be covered by § 1983 because it subjects private
employers to suits and it does not require proof of a
municipal policy for those suing municipalities, this does not
negate the fact that the ADEA provides less protection in the
important ways discussed above.

If we were evaluating a purely statutory right, as in Sea
Clammers or Rancho Palos Verdes, the fact that some
aspects of the ADEA’s protections are narrower would
suggest preclusion. That is because, if a statute creating a
right also creates a mechanism for enforcement that is more
limited than § 1983, we assume Congress intended those
limits to apply to that right. See Rancho Palos Verdes,
544 U.S. at 121 (“[T]he existence of a more restrictive
private remedy for statutory violations has been the dividing
line between those cases in which we have held that an action
would lie under § 1983 and those in which we have held that
it would not.”).

When considering “substantial” constitutional rights,
however, we are “[m]indful that we should ‘not lightly
conclude that Congress intended to preclude reliance on
§ 1983 as a remedy.’” Fitzgerald, 555 U.S. at 256 (quoting
Smith, 468 U.S. at 1012). Thus, if there are differences in
the protections offered by the statute as compared to those
provided by the Constitution, particularly if the protections
 STILLWELL V. CITY OF WILLIAMS 25

granted by the statute are narrower, we will not hold § 1983
suits to be precluded unless Congress manifested an intent to
preclude. See id. at 259 n.2 (explaining that the relevant
inquiry is not whether “Congress envisioned that the two
types of claims would proceed together,” but whether
“Congress affirmatively intended to preclude,” § 1983 suits
to vindicate constitutional rights) (emphasis added)). Here,
as in Fitzgerald, the disparities—in particular those that
demonstrate the ADEA’s protections are narrower than
those guaranteed by the Constitution—are sufficient to cause
us to conclude that, unless Congress manifested a clear intent
to do so, § 1983 First Amendment retaliation suits are not
precluded. And there is no express statement of preclusion
in the text of the ADEA that would cause us to conclude that
Congress did in fact affirmatively intend to preclude § 1983
First Amendment retaliation suits relating to speech about
age discrimination.

D.

The Senate and House Reports on the ADEA also offer
no reason to believe that Congress intended through the
ADEA to preclude § 1983 First Amendment retaliation
claims related to allegations of age discrimination. “Speech
by citizens on matters of public concern lies at the heart of
the First Amendment, which ‘was fashioned to assure
unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.’” Lane v.
Franks, 134 S. Ct. 2369, 2377 (2014) (quoting Roth v.
United States, 354 U.S. 476, 484 (1957)). Given the
importance of speech in our democracy, it seems unlikely
that Congress would narrow First Amendment protections
without serious consideration. At a minimum, we would
expect to find some discussion of such a significant change
in the official Reports on the ADEA. Yet we find nothing in
26 STILLWELL V. CITY OF WILLIAMS

those Reports suggesting that Congress even considered
preclusion of First Amendment claims, let alone intended
such a result. 10

Unlike in Smith where the legislative history made clear
that the EHA was specifically designed to “protect[] the
constitutional right of a handicapped child to a public
education,” Smith, 468 U.S. at 1013, the Senate Committee
Report accompanying the original ADEA legislation says
nothing about the purpose of the retaliation provision, and it
never mentions the First Amendment. With respect to the
retaliation provision, the full statement in the “section by
section” analysis portion of the Report provides:

[This subsection] makes it unlawful for
employers, employment agencies and labor
unions to discriminate against a person
because he has opposed a practice made
unlawful by this act, or because he has made
a charge, testified, or assisted or participated
in any manner in an investigation,
proceeding, or litigation under this act.

S. Rep. No. 90-723, at 8 (1967). This statement is essentially
a recitation of the language of the retaliation provision and
sheds no additional light on its purpose.

The House Report accompanying the original legislation
is similarly devoid of any indication that Congress
considered the preclusive effect of the retaliation provision

10
We “rel[y] on official committee reports when considering
legislative history.” Hertzberg v. Dignity Partners, Inc., 191 F.3d 1076,
1082 (9th Cir. 1999). The parties have not pointed us to any other
legislative history, beyond the Committee Reports, describing the
purpose or intent of the retaliation provision of the ADEA.
 STILLWELL V. CITY OF WILLIAMS 27

of the ADEA on § 1983 First Amendment retaliation claims.
See H.R. Rep. No. 90-805, at 9 (1967). The House Report
offered essentially the same recitation of the statutory
language as the Senate Report, with no additional analysis
that would shed light upon Congress’s intent. Id. (“[This
subsection] makes it unlawful for employers, employment
agencies and labor unions to discriminate against a person
because he has opposed a practice made unlawful by this act,
or because he has made a charge, testified, or assisted or
participated in any manner in an investigation, proceeding,
or litigation under this act.”). 11

E.

The result that the retaliation provision of the ADEA
does not preclude § 1983 First Amendment retaliation suits
makes sense in light of the heightened level of protection that
the Constitution affords First Amendment rights. Rights
subject to heightened scrutiny are much more likely to be the
basis of a successful constitutional claim than are those
subject to rational basis review. See, e.g., Kimel v. Fla. Bd.
of Regents, 528 U.S. 62, 84 (2000) (explaining the greater
difficulty in prevailing on an equal protection claim subject

11
This lack of comment on the retaliation provision’s relationship to
the First Amendment is unsurprising because as originally enacted, the
ADEA did not apply to states or the federal government. See Kimel v.
Florida Bd. of Regents, 528 U.S. 62, 68 (2000) (“In 1974, in a statute
consisting primarily of amendments to the FLSA, Congress extended
application of the ADEA’s substantive requirements to the States.”).
The focus of the Reports accompanying those amendments was on the
expansion of coverage, and there is no indication that Congress re-
considered the retaliation provision in light of the expansion of coverage.
See S. Rep. No. 93-690, at 55–56 (1974) (discussing the amendments to
the definition of employer to expand coverage, but not mentioning the
retaliation provision); H.R. Rep. No. 93-913, at 40–41 (1974) (same).
28 STILLWELL V. CITY OF WILLIAMS

to rational basis review than on one subject to heightened
scrutiny).

When a statute creates a cause of action to enforce a right
that would only be subject to rational basis review under the
Constitution, it is very unlikely as a practical matter that the
statute will provide less protection than the Constitution. For
example, as the Supreme Court explained in Kimel, “[t]he
[ADEA], through its broad restriction on the use of age as a
discriminating factor, prohibits substantially more state
employment decisions and practices than would likely be
held unconstitutional under the applicable equal protection,
rational basis standard.” Id. at 86. As a consequence, we
look to such a statute for the substance of the right, just as
we do with a right created entirely by statute. And as with
situations in which the right is entirely created by statute, see
Rancho Palos Verdes, 544 U.S. at 121, if Congress has also
limited enforcement through the provisions in the statute,
those limits indicate an intent to preclude recourse to § 1983
as a remedy.

In contrast, where a constitutional right is protected by
heightened scrutiny, neither the substance nor the
enforcement of the right will typically depend on any statute
further defining the right. We do not assume that when a
statute merely touches upon conduct that would violate the
Constitution, the statute precludes the enforcement of that
constitutional right unless there is a clear indication of
Congressional intent that it do so. See Fitzgerald, 555 U.S.
at 256, 259 n.2 (declining to preclude § 1983 suits alleging
constitutional equal protection claims for gender
discrimination in the absence of an indication that Congress
affirmatively intended such preclusion).

Consistent with this, courts have allowed § 1983
constitutional claims and statutory claims to coexist when
 STILLWELL V. CITY OF WILLIAMS 29

the constitutional claim gets heightened scrutiny, but not
when the constitutional claim gets rational basis review. For
instance, in Fitzgerald, as discussed above, the Supreme
Court held that Title IX does not preclude § 1983 suits
alleging equal protection violations based on gender
discrimination, 555 U.S. at 258, which are subject to
heightened scrutiny, J.E.B. v. Alabama ex rel. T.B., 511 U.S.
127, 135 (1994). Similarly, we have explained that Title VII
of the Civil Rights Act of 1964, which prohibits employers
from discriminating on the basis of “race, color, religion,
sex, or national origin,” 42 U.S.C. § 2000e–2, does not
preclude suits under § 1983 alleging constitutional equal
protection violations for discrimination on the basis of race
or sex, both of which receive heightened scrutiny under the
Equal Protection Clause. Ahlmeyer v. Nev. Sys. of Higher
Educ., 555 F.3d 1051, 1058 (9th Cir. 2009) (explaining that
Title VII does not deprive plaintiffs of other avenues for
asserting claims of race and sex discrimination) (citing
Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459
(1975)); City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432, 440 (1985) (explaining that classifications
based on race, alienage, national origin, and gender all
receive heightened scrutiny).

In contrast, in Smith, the Supreme Court held that the
EHA precluded § 1983 equal protection claims regarding
disability discrimination in education. Smith, 468 U.S. at
1009. Disability, like age, is subject to rational basis review,
not heightened scrutiny, under the Equal Protection Clause.
See City of Cleburne, 473 U.S. at 446.

It is well established that First Amendment claims like
Stilwell’s, that allege retaliation following speech on a
matter of public concern, are reviewed with heightened
scrutiny. Lane v. Franks, 134 S. Ct. 2369, 2381 (2014)
30 STILLWELL V. CITY OF WILLIAMS

(explaining that “a stronger showing [than legitimate
government interests] may be necessary if the employee’s
speech . . . involve[s] matters of public concern” (last
alteration in original) (quoting Connick v. Myers, 461 U.S.
138, 151–52 (1983))). Our holding today that § 1983 suits
alleging retaliation in violation of the First Amendment are
not precluded by the ADEA’s retaliation provision is thus
consistent with the tendency of courts to conclude that there
is a lack of preclusion when the right to be enforced is
subject to heightened scrutiny.

F.

Contrary to Defendants’ argument, a different result is
not required by our prior decision in Ahlmeyer v. Nevada
System of Higher Education, 555 F.3d 1051, 1054 (9th Cir.
2009), which held that the ADEA precludes § 1983 suits to
remedy equal protection violations based on age
discrimination.

In Ahlmeyer, we compared § 1983 equal protection
claims based on age discrimination in employment to such
claims under the ADEA and determined that “the ADEA
provides broader protection than the Constitution,” so “a
plaintiff has ‘nothing substantive to gain’ by . . . asserting a
§ 1983 claim” in addition to an ADEA claim. Id. at 1058
(quoting Williams v. Wendler, 530 F.3d 584, 586 (7th Cir.
2008)). In light of the ADEA’s greater protections, we held
that its discrimination provisions are sufficiently
comprehensive to preclude § 1983 equal protection claims.12

12
There is a circuit split on this issue. Compare, e.g., Hildebrand v.
Allegheny County, 757 F.3d 99 (3d Cir. 2014) (holding that because the
ADEA provides more expansive protection against age discrimination
than the Equal Protection Clause, the ADEA precludes § 1983 suits
 STILLWELL V. CITY OF WILLIAMS 31

Ahlmeyer’s holding was motivated at least in part by the
fact that classifications based on age are subject to rational
basis review. Ahlmeyer relied heavily on Zombro v.
Baltimore City Police Department, 868 F.2d 1364, 1366 (4th
Cir. 1989), a pre-Fitzgerald case holding that § 1983 suits
alleging age discrimination were precluded by the ADEA in
part because of this level-of-scrutiny characteristic. See
Ahlmeyer, 555 F.3d at 1057. Zombro had emphasized that
“the equal protection clause does not recognize a ‘class
defined as the aged’ to be a suspect class in need of special
protection in which alleged discrimination is subject to
‘strict judicial scrutiny,’” 868 F.2d at 1370 (quoting Mass.
Bd. of Ret. v. Murgia, 427 U.S. 307, 313–14 (1976) (per
curiam)), and that this differentiated age discrimination
claims from Ҥ 1983 actions predicated on race, sex, or
religious discrimination or an infringement of specific First
Amendment rights.” Id. at 1370. Ahlmeyer itself also noted
that, unlike “claims of discrimination based on race or sex
[that] are entitled to heightened scrutiny, age discrimination
claims under the Constitution are subject to rational basis
scrutiny.” Ahlmeyer, 555 F.3d 1059 n.8. Thus, a plaintiff
“has little to gain by circumventing the ADEA, which
affords more protection in the area of age discrimination
than does the federal Constitution.” Id.

alleging equal protection violations based on age discrimination in
employment), cert. denied, 135 S. Ct. 1398 (2015), with Levin v.
Madigan, 692 F.3d 607, 617 (7th Cir. 2012) (holding that “[a]lthough
the ADEA enacts a comprehensive statutory scheme for enforcement of
its own statutory rights, akin to Sea Clammers and Rancho Palos Verdes,
. . . it does not preclude a § 1983 claim for constitutional rights” because
of “the ADEA’s lack of legislative history or statutory language
precluding constitutional claims, and the divergent rights and protections
afforded by the ADEA as compared to a § 1983 equal protection claim”
(citing Fitzgerald, 555 U.S. at 252–53)).
32 STILLWELL V. CITY OF WILLIAMS

Because the ADEA’s retaliation provision is critically
different from the ADEA’s discrimination provision at issue
in Ahlmeyer, that opinion is not controlling here. As
explained above, the ADEA’s retaliation protections are
narrower than the First Amendment’s in some important
respects, whereas the ADEA discrimination provision
provides more protection against age discrimination than
does the Equal Protection Clause. Cf. Kimel, 528 U.S. at 86
(“Judged against the backdrop of our equal protection
jurisprudence, it is clear that the ADEA is ‘so out of
proportion to a supposed remedial or preventive object that
it cannot be understood as responsive to, or designed to
prevent, unconstitutional behavior.’” (quoting City of
Boerne v. Flores, 521 U.S. 507, 532 (1997)).

Given the substantial difference between the level of
scrutiny afforded age discrimination equal protection claims
and First Amendment retaliation claims, we cannot assume
that Congress intended the ADEA to affect the availability
of § 1983 claims in the same manner in both subject areas.

III.

For the foregoing reasons, we REVERSE and
REMAND for proceedings consistent with this opinion.

FERNANDEZ, Circuit Judge, dissenting:

I respectfully dissent.

Our quest here is not to search for or to explicate
constitutional principles; it is to search for congressional
intent. That is to say, Congress can set up a statutory scheme
wherein it demonstrates its intent to have that scheme, not
42 U.S.C. § 1983, apply to claims for enforcement of rights
 STILLWELL V. CITY OF WILLIAMS 33

under the statute. See, e.g., Fitzgerald v. Barnstable Sch.
Comm., 555 U.S. 246, 252–54, 129 S. Ct. 788, 793–94,
172 L. Ed. 2d 582 (2009); Middlesex Cty. Sewerage Auth. v.
Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13, 20–21, 101 S. Ct.
2615, 2622–23, 2626–27, 69 L. Ed. 2d 435 (1981). Here our
task is to determine whether Congress intended to make the
ADEA 1 exclusive in that sense.

We have already said that Congress did just that.
Specifically, we have held that “the ADEA precludes the
assertion of age discrimination in employment claims, even
those seeking to vindicate constitutional rights, under
§ 1983.” Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d
1051, 1057 (9th Cir. 2009). In that case, lest there be any
doubt, we went on to conclude that: “the ADEA is the
exclusive remedy for claims of age discrimination in
employment, even those claims with their source in the
Constitution.” Id. at 1060–61. In Ahlmeyer, we were
dealing with the claim of an older employee that her
employer had discriminated against her on account of her
age. Id. at 1054; see also 29 U.S.C. § 623(a)(1). The
majority says that this case differs from Ahlmeyer because
what is involved here is a claim of retaliation. 2 See 29
U.S.C. § 623(d). In effect, the majority says that Congress
has had two different intents regarding the ADEA.

The first of those relates to individuals whose need for
protection formed the mainspring of the ADEA—employees

1
Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634.

2
Ahlmeyer did not draw that distinction. Of course, it is not at all
unusual for those who make claims of discrimination to make claims of
retaliation also. In fact, at the trial court level that happened in Ahlmeyer
itself. See Ahlmeyer, 555 F.3d at 1054 n.1.
34 STILLWELL V. CITY OF WILLIAMS

discriminated against on account of their age. See id. § 621;
see also id. § 623(a)–(c). The second, somewhat more
collateral, intention was designed to more fully protect the
older employees for whom the ADEA was created. It relates
to individuals who are retaliated against, not necessarily
because of their own ages, but because they have “opposed
any practice made unlawful” by the ADEA. Id. § 623(d).

While the majority’s opinion is quite persuasively
written, I am not quite persuaded because I do not believe
that in creating this relatively simple piece of legislation
Congress held two very different intentions regarding the
ADEA. Those for whom the ADEA was primarily designed
had to rely upon ADEA remedies alone, but those who were
protected in order to assure that the protection of those in the
first group would be more effective did not have their
remedies so limited. The latter could spell out a § 1983
claim also. Nothing Congress said makes that so, 3 and I am
unable to conclude that Congress contemporaneously held
separate intentions when enacting and amending this fairly
uncomplicated piece of legislation.

Again, it is congressional intent that we must seek, and
even if we ignore the broad and encompassing language of
Ahlmeyer, I cannot say that Congress held those two separate
intents. In short, I believe that in deciding this case we are
bound by Ahlmeyer.

Thus, I must respectfully dissent.

3
Indeed, the majority explains that the legislative history helps not at
all.