USCA1 Opinion

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,
______________
with

Assistant

Attorney General,

Government

whom Scott Harshbarger,

__________________

Attorney General,

was

Bure

on briefs

appellants.
Samuel A. Marcosson,
_____________________

with

whom

C. Gregory Stewart,
____________________

Gene

Counsel, Gwendolyn Young Reams, Associate General Counsel, and Vinc

_____________________
____

J. Blackwood, Assistant General Counsel, were on brief for appellee

____________

____________________

March 11, 1996

____________________

Per Curiam.
__________

Chapter

32 of

the Massachusetts

General

Laws

establishes

benefit plan

the

for its

Commonwealth's

state

statutory

and local

retirement

employees.

Section

3(2)(f) of that chapter provides that "[n]o person who enters

or who re-enters

the service of any governmental

employee after attaining

when

system

member except

hired

age sixty-five, and after

becomes operative

as otherwise

This provision generally

therein,

provided for

the date

shall

become a

in this

section."

prevents state and local

employees

after age 65 from participating in any public employee

retirement system in

Massachusetts.

part-time employee of

the Town of

membership in the Middlesex

charges

unit as an

challenging

Francis C.

Coolidge, a

Tewksbury who was

County Retirement System,

section

3(2)(f)

before

the

denied

filed

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

the

that section 3(2)(f)

violates and is

preempted by

Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.

623(a)(1) et. seq.

________

the district

Both sides moved for summary judgment;

court granted

section 3(2)(f)

ran afoul

the EEOC's

of 29

motion, ruling

U.S.C.

that

623(a)(1), which

makes it illegal for an employer to "discriminate against any

individual

with

respect

conditions,

or privileges

to

of

-2-2-

his

compensation,

employment, because

terms,

of

such

individual's age."

The

Commonwealth

now

appeals.

Although the state statute plainly discriminates on the basis

of age

regarding

benefits of

argues

that

Massachusetts statute

U.S.C.

the

623(f)(2)(B)(i),

differentiate on the basis of

benefit

package, the actual

employment, the

which

is

permits

Commonwealth

shielded

an

by 29

employer

to

age "where for each benefit or

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

allowed

C.F.R.

an employer

1625.10(f)(1)(iii)(A)

to

exclude from

(1989), which

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

3(2)(f) because

the Commonwealth concededly

costs on behalf

of workers excluded from the

the costs incurred

protect

does not

section

incur

pension system

at least

equal to

on behalf

of younger

workers.

The plain language of section 623(f)(2)(B)(i) makes

clear that it

regulation

principle.

provision

incorporates only those elements

that

conform to

this

The Commonwealth's

incorporates

the

equal

cost/equal benefit

argument that

regulation

of the cited

the statutory

wholesale,

even

-3-3-

portions of it--like 29 C.F.R.

16256.10(f)(1)(iii)(a)--that

are plainly inconsistent

principle,

simply

with the

cannot

be

equal cost/equal

squared

with

the

benefit

statutory

language.

If legislative history is consulted, it too supports the

EEOC

and

not the

Commonwealth.

As

the

Congress enacted

623(f) in

response to the Supreme Court's decision in Public

______

which

determined

benefits.

equal

that the

ADEA

492

did

not

U.S. 158

apply to

section

(1989),

fringe

Congress then amended the statute to reinstate the

cost/equal benefit

applied to

v. Betts,
_____

version of

court

observed,

Employees Retirement Sys.

__________________________

the current

district

rule and to

age-based discrimination

Rep. No. 263,

ensure that

in benefit

101st Cong., 2d Sess. 18

the ADEA

plans.

S.

(1990), reprinted in

____________

1990

U.S.C.C.A.N. 1509,

1523.

explicitly that Congress

portions

of

statute.

Id.
___

the

This

Senate

report

intended to incorporate only

regulation

consistent

with

the

said

those

amended

The Commonwealth argues that because the ADEA here would

preempt a

state statute, we

rule of interpretation,

452

(1991), and

doubts

C.F.R.

that

about

must apply a

"clear statement"

e.g., Gregory v. Ashcroft,

____ _______
________

resolve in

favor of

501 U.S.

the Commonwealth

any

whether Congress

intended

to

1625.10(f)(1)(iii)(a).

The EEOC

plausibly responds

the clear

statement

rule

applies

only

incorporate 29

in

deciding

-4-4-

whether

the

state

is

governed

questions

concerning

questions

whose answer affects

alike.

Although

the

substantive

this precise

been

by the

decided,

we have

very

contexts

to extend the clear

ADEA

and

reach of

not

the

to

ADEA,

public and private employers

question may

hesitant

in

not have

closely

been

related

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

__

statute

adopts

an

technical jargon is unraveled.

equal

cost/equal

benefit

test

The

for

differentiations "as permissible" under the cited regulation,

and

no one claims that the

to any
___

equal

particular

cost/equal

benefit test.

equal cost/equal

"permissible" under

subject

Commonwealth's flat bar conforms

matter

benefit

Thus,

whether

differential would

the regulation does not even arise.

is complex

but complexity

is not

be

The

the same

thing as ambiguity.

Affirmed.
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