NUMBER: 15-13552-CC IN THE UNITED STATES COURT ......NUMBER: 15-13552-CC IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _____ CHRISTINE WILLIAMS, Plaintiff-Appellant,

NUMBER: 15-13552-CC

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________________________________________________

CHRISTINE WILLIAMS,

Plaintiff-Appellant,

v.

POARCH BAND OF CREEK INDIANS,

Defendant-Appellee.

___________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION

Civil Action No. 1:14-CV-00594-CG-M

____________________________________________________________

ADDITIONAL PRINCIPAL BRIEF FOR PLAINTIFF-APPELLANT

_______________________________________________________________

Robert L. Wiggins, Jr.

Candis A. McGowan

L. William Smith

Wiggins, Childs, Pantazis, Fisher & Goldfarb

The Kress Building

301 19th Street North

Birmingham, Alabama 35203

(205) 314-0500

Counsel for Plaintiff-Appellant

Date: May 4, 2016

Case: 15-13552 Date Filed: 05/04/2016 Page: 1 of 35

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

Counsel for Plaintiff-Appellant certifies that the following is a complete list of

the trial judges; attorneys involved in the case; and all persons, associations of

persons, firms, partnerships, and corporations having an interest in the outcome of

this case:

1. Honorable Callie V. S. Granade, United States District Judge;

2. Honorable Bert W. Milling, Jr., United States Magistrate Judge;

3. James C. Pennington, M. Tae Phillips, and the attorneys working for or

with the firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Attorneys for

Defendant-Appellee;

4. Poarch Band of Creek Indians, Defendant-Appellee;

5. Appointed Counsel: Robert L. Wiggins, Jr., Candis A. McGowan, L.

William Smith, and the attorneys working for or with the firm of Wiggins, Childs,

Pantazis, Fisher & Goldfarb, Attorneys for Plaintiff-Appellant;

6. Christine Williams, Plaintiff-Appellant.

/s/Candis A. McGowan


Candis A. McGowan

L. William Smith


C-1 of C-1


STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested. The issues in this appeal require oral argument

because: (l) the appeal is not frivolous and involves an issue of first impression in

this Circuit; (2) the dispositive set of issues presented have not been recently

authoritatively decided; and (3) the decisional process will be significantly aided by

oral argument.

CERTIFICATE OF TYPE SIZE AND STYLE

Pursuant to Eleventh Circuit Rule 28.1 (d) the following is the type size and

styled used in this brief:

Times New Roman 14 pt.

-i-


TABLE OF CONTENTS

PAGES:

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . C-1

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . i

CERTIFICATE OF TYPE SIZE AND STYLE . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF ISSUE PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Course Of Proceedings And Disposition Below . . . . . . . . . . . . . . . . 1

B. Statement Of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF STANDARD FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. CONGRESS PROPERLY EXERCISED ITS AUTHORITY TO

ABROGATE INDIAN TRIBES’ IMMUNITY FROM SUIT

UNDER THE ADEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

-ii-


TABLE OF CONTENTS

PAGES:

A. Congress Clearly And Unmistakably Expressed Its Intent To

Abrogate Tribal Immunity When It Affirmatively Deleted

The Exemption From Suit For “Indian Tribe(s)” From The

Definition Of Employer It Borrowed From Title VII . . . . . . . . . . . . 6

B. The “Surrounding Circumstances” And Legislative History

Are Additional Evidence Of Congressional Intent To Abrogate

The Exemption And Immunity For “Indian Tribes” . . . . . . . . . . . . 11

C. The Decisions Relied Upon Below Fail To Properly

Address Whether Congress Abrogated Tribal Immunity

From Suit For ADEA Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

-iii-


TABLE OF AUTHORITIES

PAGES:

City of Vestavia Hills v. Gen. Fidelity Ins. Co.,

676 F.3d 1310 (11th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Edelman v. Jordan,

415 U.S. 651 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21

EEOC v. The Cherokee Nation,

871 F.2d 937 (10th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

EEOC v. Fond du Lac Heavy Equip. and Constr. Co., Inc.,

986 F.2d 246 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

EEOC v. Forest County Potawatomi Community,

2014 U.S. Dist. LEXIS 62353 (E.D. Wis., May 6, 2014) . . . . . . . 2, 3, 12, 13

EEOC v. Wyoming,

460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983) . . . . . . . . . . . . . . . 13

Ex Parte Virginia,

100 U.S. 339 (1880) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Fed. Express Corp. v. Holowecki,

552 U.S. 389 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

* Federal Power Comm’n v. Tuscarora Indian Nation,

362 U.S. 99 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

*Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 15, 18, 19,

20, 21, 22

-iv-



PAGES:

Florida Paraplegic Association Incorporated v. Miccosukee Tribe of

Indians of Florida,

166 F.3d 1126 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17, 18

Garcia v. Akwesasne Housing Authority,

268 F.3d 76 (2nd Cir.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Green v. Mansour,

474 U.S. 64 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Gross v. FBL Fin. Servs.,

557 U.S. 167 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 19

Houston v. Marod Supermarkets, Inc.,

733 F.3d 1323 (11th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Kiowa Tribe v. Manufacturing Techs., Inc.,

523 U.S. 751 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

* Lorillard, Div. of Loew’s Theatres, Inc. v. Pons,

434 U.S. 575 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 10, 19

McElmurray v. Consol. Gov’t of Augusta—Richmond Cty.,

501 F.3d 1244 (11th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Morton v. Mancari,

417 U.S. 535 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Northcross v. Board of Ed. of Memphis City Schools,

412 U.S. 427 (1973) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

-v-



PAGES:

Sanderlin v. Seminole Tribe of Florida,

243 F.3d 1282 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

* Smith v. City of Jackson,

544 U.S. 228 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

Taylor v. Alabama Intertribal Council Title IV J.T.P.A.,

261 F.3d 1032 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17, 18, 21

Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc.,

135 S. Ct. 2507 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

* Trans World Airlines, Inc. v. Thurston,

469 U.S. 111 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9, 18

Tremblay v. Mohegan Sun Casino,

599 Fed. Appx. 25 (2d Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

* United States v. Dion,

476 U.S. 734, 738, 90 L. Ed. 2d 767, 106 S. Ct. 2216 (1986) . . . . . . . . . . 11

United States v. Lara,

541 U.S. 193 (U.S. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 22

United States v. Motamedi,

767 F.2d 1403 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Statutes:

28 U.S.C. §1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. §1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

-vi-



PAGES:

42 U.S.C. §2000e(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 21

78 Stat., Sec. 701(b), Public Law 88-352, p. 253, July 2, 1964 . . . . . . . . . 8, 13, 14

81 Stat., Sec. 11 (b), Public Law 90-202, p. 605,

December 15, 1967, 29 U.S.C. §630(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

86 Stat., §701(2(b), Public Law 92-261 (March 24, 1972

(codified as 42 U.S.C. §2000e(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

88 Stat., §28(a)(3), Public Law 93-259, April 8, 1974

(codified as 29 U.S.C. §630(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Age Discrimination In Employment Act of 1967 (ADEA) . . . . . . . . . . . . . . passim

Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202,

§11(b), 81 Stat. 602, 605 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Americans With Disabilities Act (“ADA”) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Civil Rights Act of 1964, Pub. L. No. 88-352, § 715, 78 Stat. 241, 265

(superseded by Equal Employment Opportunity Act of 1972, §10, Pub. L.

No. 92-261, 86 Stat. 103, 111) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Civil Rights Act of 1964, Pub. L. No. 88-352, §701(b) . . . . . . . . . . . . . . . . . . . . . 7

Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 19, 20, 21, 22

Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

-vii-



PAGES:

Title VII of Civil Rights Act of 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Title VII, §2000e-2(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Title VII, §2000e-5(g)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

OTHER AUTHORITIES:

2 H. Eglit, Age Discrimination §16.01 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

J. Kalet, Age Discrimination in Employment Law 1-2 (1986) . . . . . . . . . . . . . . . 13

J. Kalet, Age Discrimination in Employment Law 2 . . . . . . . . . . . . . . . . . . . . . . 13

J. Kalet, Age Discrimination in Employment Law 1-3 . . . . . . . . . . . . . . . . . . . . . 13

110 Cong. Rec. 2596-99 (1964) (amendment to include age as protected

category under Title VII offered by Rep. Dowdy; amendment rejected

by vote of 94 to 123) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

110 Cong. Rec. 9911-16, 13,490-92 (amendment to include age as protected

category under Title VII offered by Sen. Smathers; amendment rejected by

vote of 28 to 63) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

110 Cong. Rec. 13,701-03 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

-viii-


JURISDICTIONAL STATEMENT

The Court has jurisdiction of this appeal under 28 U.S.C. §1291. The district

court wrongly concluded that it lacked subject matter jurisdiction due to tribal

immunity.

STATEMENT OF THE ISSUE PRESENTED FOR REVIEW

Did Congress sufficiently indicate its intent to abrogate exemption or immunity

from suit under the Age Discrimination In Employment Act (“ADEA”) when it

adopted the definition of “employer” from Title VII of the Civil Rights Act of 1964

but deleted the exemption for “Indian tribe(s)” contained in such definition, as well

as when it enacted a statute of general application that applies to all employers except

those specifically exempted by the explicit terms of such statute?

STATEMENT OF THE CASE

A. Course Of Proceedings And Disposition Below

The plaintiff, Christine Williams, filed her complaint and prosecuted her claim

against the Poarch Band of Creek Indians without a lawyer. Doc. 1. Plaintiff’s

complaint alleged wrongful termination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA). Doc. 1. The Poarch Band filed a Motion to

Dismiss the pro se complaint, arguing that the court lacked subject matter jurisdiction

based on an alleged tribal immunity from suit. Docs. 10, 11. The defendant argued

1


that Congress had not exercised its authority to abrogate the alleged immunity

because the ADEA is allegedly silent on the issue of whether an Indian tribe is

subject to suit under the ADEA. It failed, however, to cite to or acknowledge the fact

that Congress acted to explicitly delete the exemption of “Indian tribe(s)” from its list

of entities immune from suit when it borrowed the definition of “employer” from

Title VII of the Civil Rights Act of 1964 which contained such exemption. Docs. 10,

11.

The pro se plaintiff initially made the same mistake and others, such as arguing

that the motion to dismiss was based on “abstention” rather than immunity. Doc. 14

at 6-9. The plaintiff, however, corrected her error by submitting supplemental

authorities with the District Court’s approval (Docs. 21 & 22), and by requesting the

Court to “take note [that] Title VII . . . explicitly exempts Indian tribes, but the ADEA

does not.” Doc. 26 at p. 3. Among other supplemental authority submitted, the

plaintiff submitted the decision in EEOC v. Forest County Potawatomi Community,

2014 U.S. Dist. LEXIS 62353, ** 3-14 (E.D. Wis., May 6, 2014), which held that

Congress authorized ADEA suits against Indian tribes by adopting a statute of

general application without expressly excluding such tribes from its coverage. See

Doc. 21 at p. 2 & Exh. 2. Based on that decision and others, the plaintiff argued pro

se that the ADEA authorizes suits against Indian tribes for age discrimination. Doc.

2


21. The district court considered the Potawatomi decision and the general issue of

whether Congress abrogated tribal immunity in either the ADEA itself or its

legislative history. See Report and Recommendation at 8 & 16, Doc. 25. That

question is one of first impression in this Circuit.

The magistrate judge recommended that Defendant’s motion to dismiss be

granted, rejecting Plaintiff’s argument that “the ADEA does authorize private

lawsuits against federally recognized Indian tribes....” Doc. 25 at 6. In support of the

recommendation for dismissal, the magistrate addressed “whether Congress has

expressly abrogated such immunity as may be applied under the ADEA.” Doc. 25 at

14. The magistrate erroneously concluded, however, that “Congress has not

abrogated” tribal immunity from ADEA suits. Doc. 25 at 15-17. The District Court

adopted the Report and Recommendation and ordered that Defendant’s motion to

dismiss for lack of subject matter jurisdiction be granted and that Plaintiff’s complaint

be dismissed. Doc. 28. The Court did not reach the question of whether dismissal

was independently warranted under Fed. R. Civ. P. 12(b)(6). Doc. 25.

On appeal, the Court appointed counsel for the plaintiff-appellant to brief the

issue of whether Congress authorized suits against Indian tribes for age

discrimination or otherwise abrogated any exemption or immunity from such claims.

3


B. Statement Of Facts

The plaintiff, Christine Williams, was employed by the Poarch Band of Creek

Indians as the Lab Manager of its Health Department. Docs. 1, 5. Plaintiff is over the

age of 55. (Docs. 1, 5). Prior to her termination on or around June 17, 2014, she had

been employed by Defendant for more than 21 years. Docs. 1, 5.

Plaintiff alleges that she was terminated in violation of Poarch Creek’s

Employee Personnel Policies, that the reasons advanced for her termination by

Defendant are false and “a ploy to justify the termination,” and that the basis for her

termination was age discrimination. Docs. 1, 5. Plaintiff further contends that Health

Administrator Ginger Bergeron and Tribal Administrator Edie Jackson conspired to

replace Plaintiff with a twenty-eight year old female medical laboratory scientist but

that the position was not filled because of Plaintiff’s legal action. Docs. 1, 5.

Plaintiff’s complaint further alleges that she was told that if she did not resign, she

would not be able to find a job as a lab administrator due to her age. Docs. 1, 5. The

District Court stated that it did not consider the merits of plaintiff’s claim and limited

its decision to the question of tribal immunity from suit.

STATEMENT OF STANDARD FOR REVIEW

This Court reviews de novo a district court’s dismissal of a complaint under

Rule 12(b)(1) for lack of subject matter jurisdiction. Houston v. Marod Supermarkets,

4


Inc., 733 F.3d 1323, 1328 (11th Cir. 2013). When determining whether the plaintiff

has sufficiently alleged a basis for subject matter jurisdiction, the Court of Appeals

is to take the allegations in the complaint as true. McElmurray v. Consol. Gov’t of

Augusta—Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). This Court reviews

the district court’s findings of jurisdictional facts for clear error. City of Vestavia

Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012).

SUMMARY OF ARGUMENT

The lower Court erred in granting the defendant’s motion to dismiss the

plaintiff’s complaint on the basis that the tribe allegedly was immune from suit under

the ADEA. Given that the ADEA was derived in haec verba from Title VII, Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985), Congress’s decision in

1967 to affirmatively delete the exemption of Indian tribes from the definition of an

“employer” that it borrowed from Title VII was sufficient to clearly and unmistakably

express Congress’s intent to abrogate tribal immunity from age discrimination suits

brought under the ADEA.

5


ARGUMENT

I. CONGRESS PROPERLY EXERCISED ITS AUTHORITY TO

ABROGATE INDIAN TRIBES’ IMMUNITY FROM SUIT UNDER THE

ADEA

A. Congress Clearly And Unmistakably Expressed Its Intent To

Abrogate Tribal Immunity When It Affirmatively Deleted The

Exemption From Suit For “Indian Tribe(s)” From The Definition

Of Employer It Borrowed From Title VII

Congress adopted a clear and unmistakable abrogation of tribal immunity from

suits under the ADEA when it deleted the exemption of “Indian tribe(s)” from the

definition of “employer” that it borrowed in haec verba from Title VII of the Civil

Rights Act of 1964.1 Rather than exempting “Indian tribe(s)” from the definition of

employers who could be sued under the ADEA as Title VII did four years earlier,

1 The Supreme Court has held several times that the ADEA adopted the

statutory terms of Title VII in haec verba with few exceptions. Trans World Airlines,

Inc. v. Thurston, 469 U.S. 111, 121 (1985) (Holding that the provisions of the ADEA

“were derived in haec verba from Title VII.”) (quoting Lorillard v. Pons, 434 U.S.

575, 584, (1978)). See generally Northcross v. Board of Ed. of Memphis City Schools,

412 U.S. 427, 428 (1973) (per curiam). In interpreting the ADEA, the Supreme Court

looks to prior interpretations of similar provisions in the Civil Rights Act of 1964,

beginning “with the premise that when Congress uses the same language in two

statutes having similar purposes, particularly when one is enacted shortly after the

other, it is appropriate to presume that Congress intended that text to have the same

meaning in both statutes.” Smith v. City of Jackson, 544 U.S. 228, 233 (2005). See

also Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct.

2507 (2015) (“This similarity in text and structure is all the more compelling given

that Congress passed the FHA in 1968—only four years after passing Title VII and

only four months after enacting the ADEA.”).

6


Congress chose to eliminate that exemption in the ADEA when it adopted Title VII’s

definition of “employer” but deleted the following words: “The term ‘employer’ . .

. does not include . . . an Indian tribe.” 42 U.S.C. §2000e(b).2 The deletion of those

words was an affirmative act of Congress, not passive silence or a failure to act or

indicate its intent.

2 The definition of employer in the ADEA is taken verbatim from the original

definition in Title VII except for deleting the exemption of “Indian tribe(s)” from suit.

The relevant language from § 701(b) of Title VII as originally enacted in 1964 reads

as follows:

The term “employer” means a person engaged in an industry

affecting commerce who has twenty-five or more employees for each

working day in each of twenty or more calendar weeks in the current or

preceding calendar year . . . but such term does not include the United

States, a corporation wholly owned by the Government of the United

States, an Indian tribe, or a State or political subdivision thereof. . . .

Civil Rights Act of 1964, Pub. L. No. 88-352, § 701(b), 78 Stat. 241, 253 (emphasis

added). Congress lifted these same terms into §11(b) of the ADEA, as shown on the

face of such section which reads:

The term “employer” means a person engaged in an

industry affecting commerce who has twenty-five or more

employees for each working day in each of twenty or more

calendar weeks in the current or preceding calendar year .

. . but such term does not include the United States, a

corporation wholly owned by the Government of the

United States, or a State or political subdivision thereof.

Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, §11(b), 81 Stat.

602, 605 (emphasis added).

7


Congress can express its will by actions which delete words as much as adding

them. Its decision to delete the words “Indian tribe” from the definition of “employer”

that it borrowed from Title VII was no different from the equivalent deletion of state

governments from that same definition which the Supreme Court held to be sufficient

to abrogate the state’s immunity from Title VII claims in Fitzpatrick v. Bitzer, 427

U.S. 445, 452 (1976).3 There was no explicit declaration of abrogation in that

instance other than the deletion of the following words: “The term ‘employer’ . . .

does not include . . . a state or political subdivision.”4 Congress used that same means

of abrogating tribal immunity in the ADEA by deleting the following words from the

definition of “employer” it adopted from Title VII: “The term ‘employer’ . . . does not

include . . . an Indian tribe.” 42 U.S.C. §2000e(b). By deciding to include those

words in Title VII in 1964 but to delete them three years later when it enacted the

3 The Supreme Court treated the definition of “employer” as the correct place

in the statute for Congress to abrogate the State’s immunity from Title VII claims.

Fitzpatrick, 427 U.S. at 449 & n.2. The Court also determined that deleting the

exception for state governments from Title VII’s definition of “employer” was the

correct means for Congress to exercise its authority to abrogate the state’s sovereign

immunity. Id. That was done by deleting the following words from Title VII’s

definition of “employer” in 1972: “The term ‘employer’ . . . does not include . . . a

state or political subdivision thereof.” Fitzpatrick v. Bitzer, 427 U.S. 445, 449

(1976).

4 Compare 78 Stat., §701(b), Public Law 88-352, p. 253, July 2, 1964 with 86

Stat., §701(2(b), Public Law 92-261 (March 24, 1972, codified as 42 U.S.C.

§2000e(b)).

8


ADEA on the basis of Title VII, Congress expressed its clear and unmistakable intent

to abrogate tribal immunity from suits for age discrimination. That was a deliberate

choice by Congress.

The Supreme Court has held that most of the ADEA was “derived in haec

verba from Title VII”, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121

(1985), and for that reason that differences between the two statutes are particularly

important in determining Congressional intent. Gross v. FBL Fin. Servs., 557 U.S.

167, 174 (2009) (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393

(2008); Lorillard v. Pons, 434 U.S. 575, 585 n. 14 (1978). For this reason, the

Supreme Court, in interpreting the ADEA, has frequently looked to prior

interpretations of similar provisions in the Civil Rights Act, beginning “with the

premise that when Congress uses the same language in two statutes having similar

purposes, particularly when one is enacted shortly after the other, it is appropriate to

presume that Congress intended that text to have the same meaning in both statutes.”

Smith v. City of Jackson, 544 U.S. 228, 233 (2005).5 But when the texts of two inter-

dependent statutes differ, the Supreme Court has not hesitated to conclude that such

5 See also Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc.,

135 S. Ct. 2507 (2015) (“This similarity in text and structure is all the more

compelling given that Congress passed the FHA in 1968—only four years after

passing Title VII and only four months after enacting the ADEA.”).

9


differences are especially significant, cautioning that “we ‘must be careful not to

apply rules applicable under one statute to a different statute without careful and

critical examination.’” Gross v. FBL Fin. Servs., 557 U.S. 167, 174 (2009) (quoting

Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008). The reasoning of Gross

v. FBL Fin. Servs. is especially instructive. The Supreme Court concluded, “[w]e

cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not

make similar changes to the ADEA. When Congress amends one statutory provision

but not another, it is presumed to have acted intentionally.” Id. at 168.6 Similarly, in

Lorillard, Div. of Loew’s Theatres, Inc. v. Pons, 434 U.S. 575, 585 fn. 14 (1978) the

Court held that “to the extent petitioner correctly interprets congressional intent with

respect to jury trials under Title VII, the very different remedial and procedural

provisions under the ADEA suggest that Congress had a very different intent in mind

in drafting the later law.” Id. (emphasis added) (finding right to jury trial under the

ADEA but not necessarily under Title VII prior to the 1991 amendments).

6 In Gross, the Court concluded that Congress’s decision to add “motivating

factor” language to Title VII but not to the ADEA in 1991 clearly expressed

Congress’s intent to require “but for” causation under the ADEA but not Title VII,

pointing out that “Congress neglected to add such a provision to the ADEA when it

amended Title VII to add §§ 2000e-2(m) and 2000e-5(g)(2)(B), even though it

contemporaneously amended the ADEA in several ways.” 557 U.S. at 174.

10


B. The “Surrounding Circumstances” And Legislative History Are

Additional Evidence Of Congressional Intent To Abrogate The

Exemption And Immunity For “Indian Tribes”

The Supreme Court has held that a clear and unmistakable intent to abrogate

tribal immunity can be determined from the actions of Congress, from surrounding

circumstances” and from the “legislative history”, not just from an “express

declaration of its intent to abrogate.” United States v. Dion, 476 U.S. 734, 739 (1986).

“When interpreting a statute, Congress’s intent as expressed in that statute is

determinative”, and “‘we must presume that Congress acts with deliberation, rather

than by inadvertence, when it drafts a statute.’” United States v. Motamedi, 767 F.2d

1403, 1406 (9th Cir. 1985). “What is essential is clear evidence that Congress actually

considered” the issue, Dion. at 476 U.S. at 739-740, of whether “Indian tribe(s)”

should be exempt from suit under the Act. That “clear evidence” is established here

by the affirmative act of Congress that deleted the words “Indian tribe” from the list

of exempt employers it borrowed in haec verba from Title VII. See fn. 3 supra at p.

6. Congressional intent was also shown by the fact that the deletion of the exemption

from suit for “Indian tribe(s)” was enacted against the background of the Supreme

Court’s decision that “it is now well settled by many decisions of this court that a

general statute in terms applying to all persons includes Indians.” Fed. Power

Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960); see also id. at 120

11


(“‘[G]eneral acts of Congress apply to Indians as well as to all others in the absence

of a clear expression to the contrary.’”).7 The ADEA’s definition of “employer” is

such a statute of general application which applies to all employers engaged in

interstate commerce, including “Indian tribe(s).” EEOC v. Forest County Potawatomi

Community, 2014 U.S. Dist. LEXIS 62353, ** 3-14 (E.D. Wis., May 6, 2014).8

The ADEA’s legislative history confirms Congress’s intent to abrogate such

exemption and immunity of employers exempt from suit. Age discrimination was

originally part of the deliberations of Title VII in 1964 but was not enacted at that

time.9 Instead, Congress chose to direct the Secretary of Labor to study whether age

7 A Congressional statute of general applicability presumptively applies to

Indian tribes absent some clear indication that Congress did not intend for tribes to

be subject to the legislation. Florida Paraplegic Association Incorporated v.

Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999) (citing

Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (1960)).

8 The Supreme Court has recognized that there is a reason for the exclusion of

Indian tribes from the definition of employer under Title VII -- to enable Indian tribes

to continue to be free to give preference to Indians in tribal government employment

which would run afoul of the prohibition on racial discrimination without such

immunity. Morton v. Mancari, 417 U.S. 535, 548, 41 L. Ed. 2d 290, 94 S. Ct. 2474

(1974); see 110 Cong. Rec. 13,701-03 (1964) (comments by Sen. Mundt regarding

amendment to exclude Indian tribes from compliance with Title VII). There is no

comparable reason for Congress to carve out an exception for Indian tribes under

ADEA.

9 There is considerable evidence indicating that Congress had an acute

awareness of Title VII’s provisions when promulgating the ADEA. During

consideration of Title VII there were unsuccessful efforts to include age as one of the

12


discrimination should be outlawed on the same basis as the other forms of

discrimination in Title VII. Id. Based on that study, Congress enacted the ADEA in

1967 by borrowing most of the language from Title VII in haec verba, including the

definition of “employer” without the deleted exemption for “Indian tribe(s).” See fn.

2 at p. 7, supra. The 1964 definition of “employer” in Title VII that Congress started

from in deliberating the ADEA in 1967 was as follows:

Title VII in 1964: “The term ‘employer’ means a person engaged in an

industry affecting commerce . . . but such term does not include (1) the

United States, a corporation wholly owned by the Government of the

United States, an Indian tribe, or a State or political subdivision

protected categories in that legislation. 110 Cong. Rec. 2596-99 (1964) (amendment

to include age as protected category under Title VII offered by Rep. Dowdy;

amendment rejected by vote of 94 to 123); 110 Cong. Rec. 9911-16, 13,490-92

(amendment to include age as protected category under Title VII offered by Sen.

Smathers; amendment rejected by vote of 28 to 63); see also EEOC v. Wyoming, 460

U.S. 226, 229, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983) (noting that amendments to

include age in Title VII were rejected). Title VII instead included a provision

directing the Secretary of Labor to study potential age discrimination in the

workplace and to make recommendations for combating the problem if it existed.

Civil Rights Act of 1964, Pub. L. No. 88-352, § 715, 78 Stat. 241, 265 (superseded

by Equal Employment Opportunity Act of 1972, § 10, Pub. L. No. 92-261, 86 Stat.

103, 111). The Secretary's report led to the enactment of the ADEA. See J. Kalet, Age

Discrimination in Employment Law 1-2 (1986). Commentators have noted that the

ADEA is effectively a hybrid of Title VII's general scheme and the Fair Labor

Standards Act’s remedial devices. J. Kalet, Age Discrimination in Employment Law

1-3. See generally 2 H. Eglit, Age Discrimination § 16.01 (1988). “Because Title VII

had already established a framework within which the ban on employment

discrimination could be enforced, the Title VII enforcement scheme and proof

considerations were followed extensively in the drafting of the ADEA.” J. Kalet, Age

Discrimination in Employment Law 2.

13


thereof.”10

Congress, however, elected to make two critical changes to that definition, first

deleting the words exempting “an Indian tribe” in 196711 and then deleting the words

exempting “a State or political subdivision thereof” in 1974. The two changes were

as follows:

ADEA in 1967: “The term ‘employer’ means a person engaged in an

industry affecting commerce . . . but such term does not include the

United States, a corporation wholly owned by the Government of the

United States, or a State or political subdivision thereof.”12

ADEA in 1974: “The term ‘employer’ means a person engaged in an

industry affecting commerce . . . . but such term does not include the

United States, or a corporation wholly owned by the Government of the

United States.”13

Those two changes to the definition of “employer” that the ADEA adopted from Title

VII are indistinguishable from the deletion of the exemption for “a State or political

subdivision” that was held sufficient to allow Congress to abrogate the state’s

10 78 Stat., Sec. 701 (b), Public Law 88-352, p. 253, July 2, 1964, 42 U.S.C.,

42 U.S.C. §2000e(b) (emphasis added).

11 81 Stat., Sec. 11 (b), Public Law 90-202, p. 605, December 15, 1967, 29

U.S.C. §630(b).

12 81 Stat., Sec. 11 (b), Public Law 90-202, p. 605, December 15, 1967, 29

U.S.C. §630(b).

13 Compare 81 Stat., §11(b), Public Law 90-202, p. 605, December 15, 1967

with 88 Stat., §28(a)(3), Public Law 93-259, April 8, 1974 (codified as 29 U.S.C.

§630(b)).

14


sovereign immunity from Title VII suits in Fitzpatrick v. Bitzer, 427 U.S. at 452. The

deleted exemption from suit for “Indian tribe(s)” in the ADEA has continued to the

present. Congress did not restore the words “Indian tribe” to the list of exempt

employers when it revisited the ADEA’s definition of “employer” in 1974. See fn.

14 supra. As shown by the definitions of “employer” quoted above, the term “Indian

tribe” remained deleted from the ADEA’s definition of exempt employers from 1974

forward, but the exemption for Indian tribes has never been deleted from Title VII’s

parallel definition of employer to this date. Congress has removed sovereign

immunity for state and local governments in both Title VII and the ADEA, but

retained tribal immunity only in Title VII.

Each of these deletions of exemptions for Indian tribes and state governments

was a clear and unmistakable expression of Congressional intent to abrogate tribal

and state immunity from suit under the ADEA for the same reasons the Supreme

Court set forth in Fitzpatrick v. Bitzer. This reasoning applies even more strongly to

Congress’s abrogation of tribal immunity under the ADEA because, unlike

Congress’s “limited authority” to abrogate state Eleventh Amendment immunity,

Fitzpatrick, 427 U.S. at 455, Congress’s power to limit tribal immunity is “plenary

and exclusive.” United States v. Lara, 541 U.S. 193, 200 (U.S. 2004). Taylor v.

Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 2001)

15


(“Indian sovereign immunity is a unique legal concept and, unlike state Eleventh

Amendment immunity, it can be more freely limited by Congressional enactment.”)

( (citing Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1285 (11th Cir.

2001)). The Supreme Court has also observed that the doctrine of tribal immunity

“developed almost by accident,” and that the rationale for the doctrine “can be

challenged as inapposite to modern, wide-ranging tribal enterprises extending well

beyond traditional tribal customs and activities” such that “[t]here are reasons to

doubt the wisdom of perpetuating [it].” Kiowa Tribe v. Mfg. Techs., 523 U.S. 751,

756-758 (1998).

For all the foregoing reasons, the district court erred in holding that the ADEA

is “silent” about authorizing suits against Indian tribes. Rept. & Rec. at 15-16, Doc.

25. Congress authorized age discrimination claims to be brought against Indian tribes

when it adopted a definition of “employer” which applies generally to all employers

except those who are expressly excluded by the plain words of the statute.

C. The Decisions Relied Upon Below Fail To Properly Address

Whether Congress Abrogated Tribal Immunity From Suit For

ADEA Violations

The question of whether Congress abrogated tribal immunity from suits under

the ADEA is an issue of first impression in this Circuit. The two Eleventh Circuit

cases relied upon below were not ADEA cases and did not consider Congress’s

16


explicit deletion of the exemption for “Indian tribes” from the definition of

“employer” it borrowed from Title VII. The magistrate supported the recommendation

for dismissal with a citation to Taylor v. Ala. Intertribal Council, an Eleventh Circuit

case finding that Congress had not waived the tribes’ sovereign immunity under 42

U.S.C. § 1981 – a statute that preceded Title VII and did not delete Title VII’s

exemption from suit for “Indian tribe(s).” Doc. 25 at 17 (citing Taylor v. Ala.

Intertribal Council, 261 F.3d 1032, 1036 (11th Cir. 2001). As the Court noted in

Taylor, “Section 1981 was passed in 1870, in the aftermath of the Civil War;

therefore, it does not address the conception of Indian sovereign immunity that is

recognized in modern precedent.” Taylor v. Ala. Intertribal Council Title IV J.T.P.A.,

261 F.3d 1032, 1035 (11th Cir. 2001). The ADEA, by contrast, borrowed heavily

from Title VII just three years after it was enacted.

The Court’s decision in Florida Paraplegic Assoc., Inc. v. Miccosukee Tribe

of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999), is similarly distinguishable and

not controlling here because the Americans With Disabilities Act (“ADA”) at issue

in that case, unlike the ADEA, was not “derived in haec verba from Title VII.” See

generally 166 F.3d 1126. Moreover, the ADA expressly exempts Indian Tribes from

its definition of “employer” in Title I of the ADA, which prohibits discrimination

against disabled individuals in employment, suggesting that immunity is preserved.

17


Id. The ADEA, by contrast, deletes Indian tribes from Title VII’s otherwise identical

list of entities exempt from the definition of employer, thereby showing Congress’s

intent to abrogate tribal immunity in a way that is not applicable to non-ADEA cases

like Taylor and Florida Paraplegic. Unlike Section 1981 or the ADA, the substantive

provisions of the Age Discrimination in Employment Act of 1967 “were derived in

haec verba from Title VII,” Thurston, 469 U.S. at 121. Thus any differences between

the statutory language of ADEA and Title VII, either as originally enacted or as

subsequently amended, are significant, and express Congress’s intent that the statutes

be interpreted in differing ways.

As noted by the Eleventh Circuit in Taylor, two other Circuits, the Second and

the Tenth, have considered the issue of tribal immunity under the ADEA and

concluded that immunity does apply. See EEOC v. Fond du Lac Heavy Equipment &

Construction Co., 986 F.2d 246 (8th Cir. 1993); EEOC v. Cherokee Nation, 871 F.2d

937 (10th Cir. 1989). However, both of such decisions included strongly reasoned

dissents and did not consider the Supreme Court’s leading abrogation case of

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), for cases based on Title VII. That is also

true of the Second Circuit’s decision in Garcia v. Akwesasne Housing Authority, 268

F.3d 76, 86 (2nd Cir.2001), which does not consider the sources of Congressional

intent to abrogate tribal immunity from suit under the ADEA that are set forth here.

18


Nor is the unreported decision in Tremblay v. Mohegan Sun Casino, 599 Fed. Appx.

25 (2d Cir. 2015), a well reasoned decision on this issue of first impression in this

Circuit. Under the Supreme Court’s decision in Gross and Lorillard, Congress’s

decision to delete “an Indian tribe” from the list of entities excluded from the

ADEA’s definition of “employer” is sufficient to establish Congress’s intent to

abrogate and brings this case squarely within the Supreme Court’s abrogation ruling

in Fitzpatrick v. Bitzer, as explained below.

In Fitzpatrick v. Bitzer, the Court considered whether Congress had validly

waived the states’ sovereign immunity in enacting the 1972 amendments to Title VII.

427 U.S. 445, 447 (1976). The question presented in Fitzpatrick was “whether, as

against the shield of sovereign immunity afforded the State by the Eleventh

Amendment ... Congress has the power to authorize federal courts to enter such an

award against the state as a means of enforcing the substantive guarantees of the

Fourteenth Amendment.” 427 U.S. at 448. Justice Rehnquist, writing for the Court,

first cited Edelman v. Jordan for the background rule that, absent a valid

“authorization by Congress to join a state as a Defendant,” sovereign immunity

generally shields a State from suit by virtue of the Eleventh Amendment. 427 U.S.

at 448, 452 (citing Edelman v. Jordan, 415 U.S. 651 (1974)). Under Edelman, the

Court observed, “the necessary predicate” to finding waiver “was congressional intent

19


to abrogate the immunity conferred by the Eleventh Amendment.” 427 U.S. at 451-

52. The Court observed that Title VII, as originally passed in 1964, had excluded “a

state or political subdivision thereof” from its definition of “employer.” Id. at 449 fn.

2 (cites omitted). However, the 1972 amendments struck that exclusion from its

definition of entities that an “employee” might sue. Id.

Before reaching the question presented, the Fitzpatrick Court thus was required

to answer the threshold question of whether Congress’s 1972 decision to remove

states as entities excluded from Title VII’s definition of “employer” sufficiently

expressed Congress’s intent to waive the states’ immunity under the Eleventh

Amendment. Only if Congress’s intent was sufficiently clear could the question of

Congress’s power to enforce that intent be reached.

Justice Rehnquist, writing the majority opinion in support of the Supreme

Court’s unanimous judgment, easily disposed of the preliminary question, holding

that the 1972 Amendments striking states from Title VII’s list of excluded entities

“clearly” constituted a valid waiver of the states’ sovereign immunity, observing that

“[o]ur analysis begins where Edelman ended, for in this Title VII case the ‘threshold

fact of congressional authorization’ ... to sue the State as an employer is clearly

present.” Id. at 452 (emphasis added). The Court concluded that Congress properly

expressed its intent to abrogate the state’s immunity from Title VII suits by the act of

20


deleting the state’s exemption from suit in the statutory definition of “employer.”

Fitzpatrick, 427 U.S. 445.

Fitzpatrick thus established that Congress, in enacting the 1972 amendments

to Title VII, had “clearly” satisfied Edelman’s threshold for waiver of the states’

sovereign immunity by revising Title VII to omit States from § 2000e(b)’s list of

entities to be excluded from the definition of “employer.” Id.

Because Congress’s power to waive tribal immunity is broader than its power

to waive state immunity under the Eleventh Amendment, the holding of Fitzpatrick

is controlling on the question of whether Congress, in omitting tribes from the list of

excluded entities under the ADEA, sufficiently expressed its intent to waive tribal

sovereign immunity against the recent legislative backdrop of Congress’s passage of

Title VII. Fitzpatrick dealt with the sovereign immunity of the states under the

Eleventh Amendment.14 The sovereign immunity of Native American tribes, by

contrast, is narrower than the States’ immunity because Congress’s power to curtail

it is not subject to the Eleventh Amendment’s limitations. See, e.g., Taylor v. Ala.

Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 2001) (“Indian

14The Eleventh Amendment states that “[t]he Judicial power of the United

States shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.”

21


sovereign immunity is a unique legal concept and, unlike state Eleventh Amendment

immunity, it can be more freely limited by Congressional enactment.”) Congress may

only abrogate state sovereign immunity when it acts pursuant to the power ceded it

by the states pursuant to the Civil War Amendments.15 Congress’s power to abrogate

the tribes’ sovereign immunity, by contrast, is “plenary and exclusive.” Lara, 541

U.S. at 200. However, the test to determine whether Congress has sufficiently

expressed a waiver of sovereign immunity is the same as the test to determine

whether Congress has waived state immunity, establishing that Eleventh Amendment

cases such as Fitzpatrick are fully controlling regarding the tribal immunity at issue

here.16

Here, likewise, Congress, when it passed the ADEA in 1967, looked to Title

VII as a drafting model and was therefore aware that, just three years earlier, it had

expressly excluded tribes from Title VII’s definition of “employer.” It necessarily

15The waiver of sovereign immunity permitting states to be sued under Title

VII, for instance, was authorized by Section 5 of the Fourteenth Amendment, which

states “Congress shall have power to enforce this article by appropriate legislation.”

an authorization the Supreme Court has described as “but a limited authority ...

extending only to a single class of cases.” 427 U.S. at 455 (quoting Ex Parte Virginia,

100 U.S. 339, 346-348 (1880).

16See, e.g., Green v. Mansour, 474 U.S. 64, 68 (1985) (“States may not be sued

in federal court unless they consent to it in unequivocal terms or unless Congress,

pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate

the immunity.”)

22


follows that Congress, in importing that definition to the ADEA but deleting tribes

from the list of excluded entities under that statute, intended to treat Native American

tribes differently under the ADEA from how it had treated them under Title VII.

Because the ADEA, read against the backdrop of Title VII, sufficiently expresses

Congress’s intent to abrogate tribal sovereign immunity, the lower court’s judgment

should be reversed.

CONCLUSION

Based on the above authorities and reasoning, the trial court’s judgment should

be reversed, and this case should be remanded for further proceedings.

Respectfully submitted,

s/Candis A. McGowan


Candis A. McGowan

L. William Smith


The Kress Building



(205) 314-0500


23


CERTIFICATE OF COMPLIANCE

Counsel for the Appellants certify that the Additional Principal Brief For

Plaintiff-Appellant complies with the type-volume limitation as it contains 5,760

words according to the word-count function of the word-processing system used to

prepare the brief.

s/Candis A. McGowan


Candis A. McGowan

L. William Smith


The Kress Building



(205) 314-0500


24


CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Additional Principal Brief For

Plaintiff-Appellant has been served upon the following by Electronic Filing and U.S.

First Class Mail, Postage Prepaid, this day, May 4, 2016:

James C. Pennington

M. Tae Phillips

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Suite 1900



Christine Williams

1662 Woods Road

Atmore, Alabama 36502

/s/Candis A. McGowan


25


Documents

NUMBER: 15-13552-CC IN THE UNITED STATES COURT ......NUMBER: 15-13552-CC IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _____ CHRISTINE WILLIAMS, Plaintiff-Appellant,