Equal Employment Opportunity Commission v. Jefferson County Sheriff's Department

571 analysis. Fed. or harmless-error error Olano, v. States 52; United 507

R.CrimP. 735, 113 1770.

U.S. thirty-month sentence is with-

Johnson’s therefore, and, is afford- the Guidelines presumption

ed a reasonable- rebuttable Williams, v.

ness. United States 436 F.3d (6th Cir.2006). By not even arguing 3553(a) particular § considerations may resentencing, him at benefit procedural to rebut the

Johnson has failed

and substantive reasonableness his sen- Id. also at 708. See United States

tence. (5th Cir.2005). Mares,

v. F.3d circumstances, as appellate

Under these

judges, engage we should decline

trial court in the futile exercise of march- up sentencing again, only hill

ing

hand down the same sentence and march Tucker, v.

back down. United States L.Ed.2d

U.S. (Blackmun, dissenting). J. reasons, respectfully I

For these dissent.

I would affirm.

EQUAL EMPLOYMENT OPPOR COMMISSION,

TUNITY

Plaintiff-Appellant, COUNTY SHERIFF’S

JEFFERSON Kentucky

DEPARTMENT, Retire Systems, and the

ment Common Kentucky, Defendants-Ap

wealth of

pellees.

No. 03-6437. Appeals,

United States Court Circuit.

Sixth 7, 2006.

Argued: June Filed: Oct.

Decided and

MOORE, Judge. Circuit Plaintiff-Appellant Equal Employ- (“EEOC”) Opportunity ment Commission brings public-enforcement age-dis- this crimination against lawsuit Defendants- Appellees County the Jefferson Sheriffs Department, Kentucky Retirement Systems, and the Commonwealth of Ken- (referred tucky “KRS”), collectively alleging that disability-retirement- KRS’s county benefits for state and employ- Age ees violates the in Em- Discrimination (“ADEA”), ployment Act 29 U.S.C. Bernstein, K. Equal ARGUED: Dori § § seq., 621 et as amended the Older Commission, Employment Opportunity (“OWB- Workers Benefit Protection Act D.C., Washington, Appellant. for Robert PA”), Pub. Law 104 Stat. 978 Klausner, Kaufman, D. Klausner & Plan- (1990). disability-retirement- The KRS tation, Florida, Appellees. ON (hereinafter benefits plan”) “The KRS Bernstein, Equal BRIEF: Dori K. Em- disqualifies employees who are still work- Commission, ployment Opportunity Wash- ing receiving disability-retirement D.C., ington, Appellant. Robert D. if they already benefits have reached nor- Klausner, Kaufman, Klausner & Planta- mal retirement-benefit the time tion, Florida, Perry, Mitchell L. Jefferson they become disabled. The KRS also Office, Louisville, County Attorney’s Ken- disability-retirement calculates benefits in Beavin, tucky, Tully, Lisbeth A. Joseph C. such a way that an older who is Allen, James D. Ogden, Stoll Keenon Lex- eligible to receive disability benefits re- Irvin, ington, Kentucky, D. Brent Office of ceives fewer benefits—in the form of lower Frankfort, Attorney General, Ken- monthly payments youn- benefit a—than tucky, Appellees. ger employee receiving disabled disability- retirement benefits who is similar to the BOGGS, MARTIN, Judge; Before Chief every disabled relevant BATCHELDER, DAUGHTREY, factor age. other than MOORE, COLE, CLAY, GILMAN, Both GIBBONS, the district court ROGERS, SUTTON, COOK, original and the panel of this court McKEAGUE, GRIFFIN, pursuant concluded that Circuit Lyon v. Ohio Education Association Judges. Union, 53 F.3d 135 Professional Staff MOORE, J., (6th opinion Cir.1995), delivered the the EEOC had failed to court, MARTIN, DAUGHTREY, in which establish prima facie violation of the COLE, CLAY, GIBBONS, SUTTON, ADEA. Lyon concluded that a retirement COOK, GRIFFIN, JJ., joined. plan that used as a factor to determine ROGERS, 583), (p. J. a separate delivered in a materially indistinguishable opinion BOGGS, concurring in the way result. manner to used 583-90), C. (pp. J. delivered separate did not establish a facie dissenting opinion, in which violation of ADEA despite fact BATCHELDER, GILMAN, and older workers received lower benefits be- JJ., McKeague, joined. cause of their Lyon held that further consis- demonstrating proceedings treat- trict court for addition opinion. tent needed plaintiff ment the basis discriminatory ani- produce evidence I. BACKGROUND people in order to sur- mus summary-judgment dispute led to this lawsuit be- employer’s vive the gan at the Lickteig, when Charles who was motion. the Jefferson Deputy time a Sheriff with parties’ arguments reviewing After County Department, was denied Sheriffs law, we conclude the relevant disability-retirement benefits under a prima facie viola- has established EEOC of age. because his Because KRS ADEA, tion of the a Lickteig’s job Deputy as Sheriff was of facially on the basis hazardous, Lickteig considered became eli- dispa- age. authority Court on Supreme gible age at for normal retirement benefits as claims rate-treatment-discrimination 55,1 working past chose to but he continue many of authority of persuasive well as the school-age he had chil- that date because history the other circuits (“J.A.”) support. Appendix to Joint dren OWBPA) (as dem- ADEA amended ¶ 11). 1995, Aff. In Lick- (Lickteig at 49 is not to sum- that KRS entitled onstrate Deputy had worked a Sheriff teig, who mary judgment. We further hold 1978, “a since became disabled due to dete- employment policy when or benefit ], arthritis, dam- riorating vertebra[ nerve such as the KRS discrimi- point and Parkinson’s disease” to the natory, plaintiff challenging longer Depu- no his perform that he could proof does need additional of discrimi- Aff. ty (Lickteig at Sheriff duties. J.A. pri- in natory animus order establish 6). ¶¶4, July 1995, sixty-one age In at Upon disparate-treatment ma claim. facie and seven and with seventeen review, Lyon’s en we conclude that banc service, Lickteig applied months worth disparate-treatment age- standard for disability-retirement under the benefits discrimination claim is inconsistent (William at 42 Hanes Aff. plan. J.A. KRS authority as well as ¶ ¶ 7). 3); In a (Lickteig at 49 Aff. J.A. of our circuits rulings of several sister August defendants letter dated involving age cases similar role Lickteig request that his for dis- notified plans. therefore employee-benefit We ability-retirement benefits had been denied previous our part overrule in decision letter, age. denial because of his its Lyon. explained: at you state that must have Because we conclude that the EEOC Our laws credit, be age 60 months of service has facie claim of least established discrimination, apply within we REVERSE the district under your day paid employ- last grant summary judgment months of court’s regular position in a full-time age-discrimination the EEOC’s ment Disability REMAND the the dis- Retirement. qualify claim and case to eligible original panel explained, to receive normal 1. As the this court tion is system, Ky.Rev.Stat. the KRS retirement em "[a]n under benefits at ployee position eligible to a hazardous 61.510(18).” County EEOC v. Jefferson at receive normal (6th Dep’t, 424 Cir. F.3d Sheriff’s service, twenty years Ky.Rev.Stat. or with 2005), grant reh’g en banc vacated on 16.576, 78.545(31), 16.577(2), 61.592(4), §§ (2006). posi- in a whereas an nonhazardous Therefore, you eligible .1). are not to apply age.” cause of (Compl. J.A. at 21 Disability you Retirement original since are As the hearing panel of our court position. 55 and a hazardous explained: over Letter). (Lickteig Denial J.A. As a disability-retirement [KRS benefits] request result of the denial of his for dis- appears disadvantage scheme ability-retirement Lickteig filed a workers virtue of the fact that a class charge of discrimination with the EEOC workers, in significant determined February 1996, alleging that defendants part by age (actually youth), gets un- illegally denied him the benefits because of worked attributed to them for (EEOC his J.A. at 57-59 Charges). purposes calculating the amount of began investigating Lickteig’s EEOC disability retirement. When workers charges eventually concluded that the are they eligible disabled after become plan KRS violated the ADEA. retirement, only normal receive normal aspects The material of the retirement benefits. The plan KRS First, yearly are as amount of the general- follows. benefits is pro- types ly vides two employee’s of retirement benefits— calculated as 2.5% of the normal final disability- compensation retirement benefits and times the of number However, years Employees retirement benefits. worked. for employees like Lick- teig yet who are not positions eligible who work hazardous for normal are re- (i.e., eligible tirement employees for normal retirement under age benefits at age fifty-five service), and with completing years or after fewer than 20 of twenty service, years years of additional whereas an are added to num- working years in a ber of position eligi- purposes nonhazardous worked for calculation disability-retirement ble for normal retirement [of benefits at ben- sixty-five. years The The challenging efits]. EEOC is not number added is plan provisions years number of remaining normal retire- until the ment worker benefits for either would have employ- class of reached either nor- ees, mal plan’s provision twenty years but rather retirement or service, disability-retirement benefits. but no more than the Lickteig As number of years already is a hazardous-category employee, purpose worked. ap- the dis- pears trict court original hearing give and the to be to panel disabled worker the of our amount analyzed only court of benefit he disability- would have been plan’s impact upon entitled to had he worked until normal retirement, positions, notwithstanding hazardous and we do the the fact note, however, same. that he actually We that our had not holding worked those equally applicable years. additional to KRS’s treatment of employees in positions nonhazardous scheme, Under this disability retire- the extent disability-retirement ment greater benefits will often be than materially utilizes in a indistin- normal employ- retirement benefits for guishable way in provision of disabili- (but ees with the same of service ty-retirement benefits to service) twenty years less than positions. nonhazardous compensation. same final The em- argues plan’s EEOC ployee who receives normal retirement provisions of disability-retirement benefits will benefits be entitled to 2.5% of his ADEA violates the “de- compensation final times his actual ser- nies pays benefits or years, reduced be- vice whereas the employee who factor, assuming every other than disability retirement benefits will receive employ- that is relevant determine an final will the same 2.5% his receive (i.e., position, ee’s benefits type compensation, multiplied will have condition, abling compensation, final higher than his number service) identical, service, length of leading high- to a actual Moreover, paid annually amount to a worker who disability er benefit. disability younger age retires on at a greater will for workers who become be (and never frequently will exceed will be disability at a entitled than) less the annual benefits of work- the same younger age with number disability at an er who retires due to years of service. County Dep’t, EEOC Sheriffs Jefferson Br. at Additionally, EEOC 16-17. (6th Cir.2005) (foot- 469-70 F.3d argues, EEOC and defendants do not dis- omitted), grant reh’g duty monthly of guaranteed of benefits job, who retires from the same with the final monthly pay, at least of rate of 25% condition, of disabling length same ser- if dependent has chil- employee the vice, compensation, and final who be- dren, dependent-child bene- she receives reaching comes disabled after 55/65 monthly fit of final rate of pay 10% of must take normal retirement. child, depen- each to a maximum for all up EEOC Br. at 16. monthly dent of of final rate children 40% challenges The EEOC both the 1998 and Ky. 16.582(6). § pay. of Rev. Ann. Stat. Kentucky the 2000 versions of the statute parties dispute The do not an other- the EEOC Br. governing plan.2 See employee who becomes dis- wise-identical challenged aspects (explaining at 7-8 of duty abled in the line of but because of her of pre-2000 both the and 2000 versions the disability at ineligible the time of (excerpting portions id. A-2 plan); at disability-retirement benefits could not re- of pre-2000 and 2000 versions the dependent ceive these additional benefits. statute). original panel explained The key differences the 1998 and 2000 between provided EEOC has charts demon- of the versions statute: strating impact employee’s age of an employee Prior to an was disability-retirement-benefit July her eligible disability amount in Br. at not to receive retire- its brief. EEOC illustrate, he was “less than These and defendants do ment benefits unless charts age.” Ky.Rev.Stat. not that: normal retirement dispute, higher pay analysis to be "the 2. We confine our is calculated will therefore (25%) 1998 versions of the statute. We twenty-five and 2000 percent member's note, however, Kentucky Legislature monthly pay final rate of or the retirement again the KRS in 2004. The revised allowance in the same manner as determined age-based eligibili- 2004 revision retained retirement date for retirement at his normal version, ty requirements the 2000 al- years compensation and final service disability-retirement tered the calculation being as of the date of his disabili- determined beginning partici- members benefits. For 16.582(5)(b). ty.” § Ky.Rev.Stat. Ann. 1, 2004, pate August disability- after on or 576 16.582(2)(b) (1999), that, Ky.Rev.Stat.

§ exception, with one the Tenth and 61.600(l)(b) (1999). Eleventh litiga- § After Amendments do not shield KRS age-discrimination from the EEOC’s suit. began, provisions tion were amend- Ky. Sys., Fed.Appx. EEOC v. Ret. ed, currently provide that an em- Cir.2001). (6th After the case was ployee eligible is not for retirement court, remanded to the district both if disability employee benefits summary judg- EEOC and KRS moved for “eligible for an unreduced retirement granted ment. The district court sum- 16.582(2)(b) Ky.Rev.Stat. allowance.” defendants, mary judgment for concluding (2001) (effective 14, 2000); July see that pursuant reasoning Lyon, to our Ky. Acts at *4. Under both necessary intent was to es- versions, an who is or old- tablish a facie case of discrimi- disability er cannot receive disparate-treatment nation claim. addition, under cur- benefits. (Dist. 4-5). Op. J.A. at 32-33 Ct. version, who rent became district court recognized intent could eligible to receive normal retirement facially discriminatory be inferred from a having virtue of policy, but found that disability could not service also receive facially discriminatory, and thus con- retirement benefits. alleged cluded that the EEOC had not County, 424 EEOC v. F.3d Jefferson disparate-treatment valid ADEA claim. explains n. 1. The it is not EEOC timely appeal. The EEOC filed a notice of challenging the exclusion of this latter Although suggesting regarding concerns group employees' rendered ineli- —those of Lyon’s reasoning, soundness gible disability-retirement benefits be- original hearing panel our court deemed service, cause of their rather than Lyon itself bound decision and af- their The EEOC “seeks relief “[bjecause firmed, holding that the retire- who, for individuals because were plan ment at issue in this case materially retirement, disability ap- excluded from or indistinguishable early from the retire- plied disability retirement and have ment incentive [held be consistent received fewer annual Octo- since Lyon, Kentucky with the in ADEA] 16, 1992,” ber which is the enactment date Retirement cannot be held to violate 27; Reply of the Br. at OWBPA. EEOC County, the ADEA.” EEOC v. Jefferson see also EEOC Br. at 34. 424 petitioned F.3d at 473. The EEOC 1998, In the fall of the EEOC and KRS banc, rehearing arguing en that the KRS attempted dispute, to conciliate this facially discriminatory, and that the parties agreement. could not reach an Commission has therefore established a (Marcia Aff.). Hall-Craig J.A. at 60-62 prima age facie claim of discrimination. 2, 1999, August On the EEOC filed this The also urges Lyon EEOC us to overrule lawsuit in the United States District Court Lyon plain- extent that holds that a Kentucky, for the District of Western al- challenging facially discriminatory tiff leging illegally discrimi- employment policy proof must have that nates on age the basis of violation of the the policy by discriminatory was motivated 1-12). ADEA. (Compl.lffl J.A. at 21-23 against animus older workers in order to KRS filed motion to dismiss the suit on state a facie violation of ADEA. immunity Tenth and Amendment Eleventh II. ANALYSIS grounds. After the district court denied dismiss, panel motion to defendants’ begin origins We with a discussion of the decision, ADEA, our court holding history affirmed of the as the of the Act

577 Employment Oppor- analysis printed of the issues raised U.S. Equal informs our tunity Legislative History including considered Congress this case. Commission, Of Age Employment age protected as a class when was debat- Discrimination (1981) (hereinafter drafting and Title VII the Civil 22-23 ‘Wirtz ing Re- Act 1964, but declined to do so Rights port”). Act of the ADEA was “Because modeled employers might of concerns that findings because on the Wirtz and recom- Report’s legitimate mendations, basis for mak- sometimes have a Report provides critical ing age-related employment decisions. insights meaning.” into the statute’s Cline, Dynamics Sys., Land Inc. v. Smith, 254, Gen. 544 U.S. at 125 S.Ct. 1536 581, 1236, 124 S.Ct. 157 (O’Connor, J., judgment). in the concurring (2004). In order to deter- L.Ed.2d 1094 “that Report The Wirtz concluded there action Congressional mine whether to ad- arising little discrimination was age necessary dress discrimination was people, like or older but that intolerance of type what and understand better ‘arbitrary’ discrimination did result from remedy existing prob- legislation might 232, certain limits.” Id. S.Ct. lems, Congress requested then-Secre- (majority Report opinion). stat- tary full of Labor Wirtz conduct “a Willard it had of preju- ed that “found no evidence complete study of factors which based on intolerance of dice dislike or might to result discrimination tend worker,” “intolerance, older and that employment in the overriding importance such case of consequences discrimination on the of such groups, attitudes toward other assumes economy affected.” and individuals Smith importance minimal in the case 228, Jackson, City U.S. people Report Wirtz older workers.” (2005) (quot- 161 L.Ed.2d Despite lack of finding at 6. discriminato- Rights ing Title of the Civil Act of VII ry people, Secretary animus 88-352, § No. Pub.L. 78 Stat. found evidence arbi- Wirtz “substantial (1964)). at 5. trary” age discrimination. Id. Secre- arbitrary3 age discrimi- tary Wirtz defined report, The Secretary of Labor’s submit- “assumptions nation as about effect of concluded Congress ted June ability job to do a sufficiently employee’s] [an discrimination there no basis these widespread public it warranted con- when is in fact Report cern, assumptions.” at 2. The ex- age nature of discrimina- Id. that the arbitrary plains that common form quite tion was different from discrimina- time age discrimination at that was the protected by tion based the classes upon Secretary to hire individuals for employers refusal Title VII. Labor, U.S. Of The Age reached a certain positions once had Older American Worker: Discrimina- Employment (June to 1965), age, any without actual relevance 5-6 re- tion In necessarily largely applicants, adopted exclude older to the Supreme 3. The Court has "arbitrary” age Report’s advantage Similarly, Wirtz definition of younger ones.” Id. jurisprudence. Jackson, in its In discrimination ADEA City her concurrence in Smith Cline, Systems, Dynamics Inc. v. General Land Report's Justice O’Connor the Wirtz def read ADEA’s the Court stated that the terms "arbi- "clearly "arbitrary” equating] inition trary "arbitrary age discrimina- limits” and as treatment treatment” tion” unmistakable references "are age the basis that is “intentional and age finding” ceilings Report's Wirtz that Smith, U.S. at unfounded.” hiring widespread. at the time were J., (O’Connor, concurring S.Ct. 1536 in the 124 S.Ct. 1236. "The ADEA’s ban on judgment). 'arbitrary age applies caps limits’ thus job particular position’s requirements. Id. not discriminate age.” “because of KRS Rather, at 6-8. Br. argue, at 10. defendants plan merely age KRS uses as one of sever- Report inspired Congress Wirtz benefits, al factors to determine in the Secretary proposed that the draft request way many, same is a factor in if discrimination, legislation to combat most, plans. retirement-benefit See completed, Congress that was and after Br. at KRS 13. Defendants also assert favorably proposal” “acted on his and en- that a disparate-treatment valid claim re- Smith, acted the ADEA. 544 U.S. at 232- quires plaintiff proof to establish of dis- In Congress 1536. “[tjhere motive, criminatory and that is no ADEA, enacted the which now renders it plan] evidence that the [KRS framework (1) employer “unlawful for an to fail or provide established to benefits to disabled discharge any refuse to hire or to individu- Kentucky members of Retirement was against any al or otherwise discriminate any age-driven.” fashion KRS Br. at 26- respect compensa- individual with to his tion, terms, conditions, privileges or of em- ployment, because of such individual’s We consider first the argument EEOC’s “(2) limit, age;” segregate, as well as or that it has a prima established facie ADEA classify employees any way his which disability-retire- claim because the KRS deprive deprive any

would or tend to indi- plan facially ment-benefits discriminato- employment opportunities vidual of or oth- ry. then argument We assess KRS’s adversely affect erwise his status as an if facially even the discrimina- of such employee, because individual’s tory, produce the EEOC must evidence 623(a)(1)-®). age.” 29 U.S.C. was motivated discrimina- case, urges tory against EEOC us to people animus in order prima conclude that it has established a prima sustain its facie burden. facie claim of discrimination because A. The EEOC Has Established Prima

the KRS discriminates Facie ADEA Claim Because the (1) ways: in two Facially Plan Discriminates on employees ineligible renders for dis- Age the Basis of ability-retirement simply of their which means that disabled Court has clear made ineligible disability workers who are employer’s formal, “upon reliance fa benefits because of their receive lower cially discriminatory policy requiring ad (normal) retirement benefits than other- verse treatment of with that wise-similar workers who become [protected] trait” establishes a facie great- disabled and are able to receive the disparate-treatment claim under (2) er disability-retirement ADEA. Paper Biggins, Hazen Co. v. plan the an employee’s age KRS uses in 604, 610, U.S. 113 S.Ct. 123 L.Ed.2d disability-retirement order to calculate (1993) Airlines, (citing Trans World way an eligi- benefits such Thurston, 111, 121, Inc. v. 469 U.S. ble monthly receives lower (1985)). 83 L.Ed.2d 523 ability-benefit than an payments other- Thurston, plaintiffs the pilots were who younger wise-similar disabled worker. disqualified to serving became continue that, argue contrary Defendants position captain they to the the of when reached assertion, plan EEOC’s age sixty. KRS does not Unlike individuals who became ADEA policy violate the because the disqualified serving does from as captain for First, plan in ways. like the transfer age, plaintiffs than were two reasons other Thurston, automatically plan categorically ex- privilege of granted not position flight engi- age of transferring still-working employees to the cludes over Instead, captains former who be- particular employment from a fifty-five neer. continuing from in the disqualified age. came because their In order benefit age captain because of their position disability-retirement eligible for bene- be only flight engineer position obtain fits, could employees positions must hazardous bidding pro- they successful in if were they age before reach become disabled cess. fifty-five. absolutely dispute There is no plan, when such that under that even A unanimous Court stated age fifty- at employee becomes disabled required to the airline was not though older, is ad- five or any disquali- privileges transfer provide age versely treated because of his or her “if some grant TWA does captains, fied to a compared when disabled coworker captains ‘privilege’ disqualified similarly who is situated in all relevant flight engineers, less senior ‘bumping’ face, age. this aspects other than On its opportunity to others may deny not man- aspect age-eligibility Thurston, age.” of their 469 U.S. because dates treatment of disabled em- 120-21, 105 S.Ct. 613. Thurston held at ployees age. on the basis Defendants’ had plaintiffs prima established a employees to render in hazardous decision discrimination because facie case positions ineligible disability-retire- direct that the method “there is evidence simply they have ment benefits disqualified cap- available to a of transfer for- normal is “a reached upon captain’s] age. [the depends tain mal, facially discriminatory policy” that captains it allows who become dis- Since age, on the is discriminates basis of which any reason other than qualified to establish facie ADEA sufficient flight TWA’s ‘bump’ engineers, less senior Paper, violation. Hazen 507 U.S. discriminatory on its transfer 113 S.Ct. 1701. also face.” Id. S.Ct. 613. See & City Angeles, Dep’t Los Water facially The KRS Manhart, Power way, employees in a second that KRS (find- (1978) 1370, 55 L.Ed.2d disabled are still who become when ing facial sex discrimination violation enough” to be for disabili- “young eligible female are re- Title where VII reduced ty-retirement benefits receive larger make contribu- quired pension compared to otherwise-similar male counterparts).4 tions than their for no younger even disabled than their KRS does apply we the definition of reason other When disabil- dispute pays that its lower facial discrimination established Thurston, Paper, an older worker ity-retirement in Hazen benefits to Court who, similarly present dispute, ap apart it is situated Manhart re- that the KRS dis to a worker all relevant parent therefore, “ac- criminatory employee’s age, in at least An spects. basis of class, this effect- Interestingly, in Man- and held that absence of plaintiffs' defeat rejected argument did not successful hart the defendant’s evidence upon the fa- produce disparate-treatment claim based plaintiffs must actuarial evidence actually discriminatory policy. facially discriminatory cially nature of the that the Manhart, 716, at S.Ct. 1370. women as a 435 U.S. 98 had a effect on 580 in”

totally play[s] plans a role and has “a deter- justified by benefit are significant minative influence on the outcome” of the cost considerations.” Older (“OWB- employee’s disability- amount a Workers Benefit Act disabled Protection PA”), 101, § Pub. Law payment retirement benefit is each month. 104 Stat. (1990) (codified 621). 610, 978 at Hazen 507 113 29 U.S.C. Paper, U.S. S.Ct. way 1701. is a second that This The original panel in this case consid- face, disparate on plan, requires its treat- ered Betts and the legislative history of the 609, ment on the basis of See id. at v. County, OWBPA. EEOC 424 Jefferson (stating 113 1701 S.Ct. Nevertheless, F.3d at 474-75. original employer treatment occurs when “[t]he determined panel ultimately it was simply people favorably treats some less distinguish Lyon unable to on that ground protected than others of their” legislative because the same material was trait) (quoting Int’l Bhd. Teamsters v. Lyon panel. available to the (citing, Id. States, 15, n. United 335-36 alia, excerpts inter final debate (1977)). 52 L.Ed.2d S.Ct. stating about the OWBPA bill “[t]he provides that workers who are disabili- conclusion, The district court’s com ty cannot be forced to receive their pelled by Lyon5 that the KRS does pension at retirement age” and that under not discriminate on the basis OWBPA, “they will receive the differ- contrary Supreme also to the Court’s ence typically between what a lower analysis in Public Employees Retirement pension benefit and higher disability Betts, System Ohio U.S. benefit”). legislative We believe that this (1989). 106 L.Ed.2d 134 history compelling evidence that when plan’s disqualification revising Betts, the ADEA in response to age fifty-five disability and over for bene Congress prohibit intended to very closely fits resembles the characteristic of age-based sort of discrimination that Betts that the original panel, by Lyon, bound condoned facially discriminatory. found to be See id. plan. 166, 109 (finding S.Ct. 2854 its “[o]n face, [employee benefit] scheme ren many That of our sister circuits have ders covered ineligible for dis reached contrary conclusions to Lyon ability retirement once have attained lends support further for our conclusion 60,” holding employer that the met that Lyon’s definition of a prima facie exemption under the ADEA because ADEA claim longer can no stand. Since plaintiffs provide did not evidence of “sub Lyon decided, Second, Seventh, Betts, terfuge”). response Congress Eighth, and Ninth Circuits have each rec promptly the ADEA amended to remove ognized a prima facie ADEA violation in proof the need for of subterfuge and to analogous situations. See Jankovitz v. Des clarify prohibit its intent “to discrimination Dist., Moines Indep. Cmty. Sch. F.3d (8th Cir.2005) in all employee workers ben (stating that a re except age-based efits when reductions in “discriminatory tirement on its Although Lyon challenge involved a County, EEOC v. 424 F.3d at 471. Jefferson use of plans compute in the determination of the amount disputed Both benefits in early agree way we employee's age with the such a is the original hearing panel in this case that the determinative factor in the calculation of the amount, age played role that in the at issue benefit with an older re- Lyon materially distinguishable” “is ceiving lower benefits than an otherwise-simi- age plays plan. the role that in the younger employee. lar Id.

581 facially discriminatory in it classifies an that undisputed “it is that face” because an disadvantages or “because early ineligible is status, protected addi- employee’s of’ the plan] if he or she benefits [under 65”); proof discriminatory Bd. tional of intent is v. over the of Abrahamson needed, by the directly as it is evidenced Falls Cent. Sch. Wappingers Educ. of (2d Cir.2004) discriminatory Dist., 66, facially policy nature of the (finding F.3d 73 374 Supreme held in Auto- un itself. As the Court prima facie case discrimination Controls, Inc., v. trig mobile Johnson “is the effective Workers der ADEA when 187, 199, 1196, 113 111 S.Ct. policy); for retirement 499 U.S. ger eligibility” (1991), a who has Sys., plaintiff Ret. L.Ed.2d 158 Employees v. Cal. Pub. Arnett (9th Cir.1999) facially discriminatory employ- a 690, (recogniz identified 179 695 F.3d need not evidence of policy provide claim ment ing prima disparate-treatment facie discriminatory animus on a dis- prevail to unquestionable when it “is Em claim. parate-treatment dis Johnson Controls ployees greater would have received explained: for their ability retirement benefits but hire”), granted, cert. U.S. ages 528 aof malevolent motive absence [T]he 930, 807, 145 va L.Ed.2d facially convert a discriminato- does not by v. Flori grounds

cated other Kimel on policy into a neutral with a ry policy Regents, da 120 S.Ct. Bd. U.S. discriminatory an em- effect. Whether 631, 145 (2000); L.Ed.2d practice involves ployment Huff (7th UAR-CO, Inc., Cir. 122 F.3d 387-88 through explicit facial treatment 1997) to (finding employer not entitled why the depend does not on crimination disparate-treatment on summary judgment but rather employer discriminates early policy claim because explicit terms the discrimination. line express an between workers “draws ap Supreme Court reaffirmed this under”). fifty-five over and those proach stating in Hazen evi Paper, necessary is facial- We conclude KRS intent to discriminate dence of ly discriminatory age, on the “can in disparate-treatment basis claim thus estab- mere we hold that EEOC has be inferred from the some situations ADEA. lished a facie violation of the fact of differences treatment.” (internal quotation B. Need Addi- The EEOC Not Provide omitted). Jankovitz, 421 See also marks Discriminatory Ani-

tional Proof re (concluding at 653 that because F.3d Discriminatory mus, Intent Is As discriminatory on tirement Facially Evidenced Discrimi- to discriminate “intent the basis natory Plan Nature of Massarsky v. Gen. presumed”); can be (3d Cir. Corp., F.2d Motors are argues defendants 1983) employer’s (stating “where summary judgment because entitled discriminatory on its policy practice or any proof that provided has not EEOC unnecessary face, plaintiff for the it is disability-retirement- KRS enacted intent to dis separate showing of make a criminate.”) older workers. Unfortu animus KRS, bound Johnson Controls argument runs con As was nately for panel at one Paper, Lyon Hazen trary authority and the recognized that intent point correctly ADEA. Once history purpose a defen- can inferred from be plaintiff has established that discriminate knowledge disparate of a dant’s effect. individual adverse actions—is the action of Lyon, (stating See 53 F.3d that writing policy.” agree, Id. We and we plaintiffs “alleged have not that [defen- employer’s hold that an intent to discrimi- a disparate dants aware of effect on were] directly by nate is employ- evidenced employees, such that we could infer writing er’s or adoption facially of a dis- knowledge.”). Lyon intent from later uses criminatory employment policy. however, that language, contradicts not Finally, argument only KRS’s that the only recognition this earlier but also the disparate treatment on the basis of precedent.6 above id. See designed remedy the ADEA was (“Plaintiffs try to cure their lack of evi- disparate treatment motivated by inferring discriminatory dence of intent criminatory against animus the old is non- on the a disparate animus basis of effect sensical considering origins circular, older workers. This is and would ADEA. Report, The inspired Wirtz which meaningless carefully-wrought render ADEA, Congress to enact the found “no between disparate-impact distinction prejudice evidence of based on dislike or disparate-treatment theories of discrimina- intolerance of the older worker.” Wirtz ...”). original tion. hearing panel Report at Despite 6. the absence of dis- suggested persuasively this case that dis- criminatory workers, animus criminatory arguably “[i]ntent should be Congress enacted fight the ADEA to arbi- employer’s inferred from the knowledge trary discrimination, Secretary which concerning plan,” its own [retirement] Wirtz age-based defined as assumptions is, argument continued that an “[s]uch that lacked a basis fact. Id. at 2. Thus however, by Lyon.” foreclosed EEOC v. interpretation KRS’s of the Act to be County, 424 F.3d 473. The Jefferson correct, it would mean that in passing the panel continued in Lyon, its criticism of ADEA, Congress intended to prohibit explaining why Lyon’s requirement that a type of age discrimination plaintiff alleging disparate treatment must had been advised did not exist. We will produce additional evidence of a defen- interpret the ADEA so narrowly and discriminatory dant’s animus where the illogically. challenged employment action consists of a plan misguided because “the There is simply dispute no that under only action that will ever be taken in plan, cases an employee’s age actually involving plans opposed plays role the defendants’ decision- —as language Paper upon which sion and therefore constitute Hazen treat- defendants, court, panel the district and the previous ment. With citations to its decisions Lyon rely appear to for their belief that addi- Manhart, gave in Thurston and the Court proof discriminatory tional motive is re- formal, example its first "a discrimi- quired Paper’s statement that "a Hazen natory policy requiring adverse treatment disparate treatment claim cannot succeed un- [protected] with that trait.” Id. It employee’s protected less actually trait evident Paper therefore lan- Hazen played employer’s a role in [the decision-mak- guage Lyon cling defendants and to in an ing process] and had determinative influ- attempt argue Paper added an Hazen Paper, ence on the outcome.” Hazen requirement additional ani- added). U.S. at (emphasis 113 S.Ct. 1701 simply summary mus was the Court's state- analysis Paper A closer belies defen- Hazen ment to describe the various circumstances argument. Immediately making dants' before that can constitute intentional action suffi- statement, gave Paper the Court in Hazen support disparate-treatment cient a viable examples ways protected in which the trait claim. actually employer’s could motivate an deci- discriminatory characteristic. That amount, any, if ond” what about making process is, plans em- were called if the retirement disability-retirement benefits receives, name, therefore has no and that there would be the same ployee the outcome” influence on arising than that a “determinative other discrimination (or employee. Hazen for the disabled more attribution of unworked Paper, age. If that years) based on unworked hazardous-catego- plan excludes cured, The KRS other on the were discrimination over from fifty-five and ry employees age hand, in which the KRS way the “first” disability-retirement receiving only. would be semantic plan discriminates eligible to older pays and reduced benefits Second, unnecessary for my in view it is youn- their compared to workers disabled panel court to characterize the en banc age. of their counterparts because ger opinion treatment of our court’s opinion’s facie prima has established The EEOC as it Lyon. panel opinion, in The available claim. ADEA speaks for Reporter, in the Federal opinion itself, any panel and in event the III. CONCLUSION vacated. has been prima facie has established The EEOC it has discrimination case Third, necessary for us to only it is facially that the KRS demonstrated Lyon Lyon to the extent overrule No on the basis discriminates holding and with our en banc inconsistent animus is need- discriminatory evidence to future liti- reasoning. I leave would the basis of ed, to discriminate on as intent through Lyon and going the task of gants by the directly evidenced age is and what does identifying what survives plan. discriminatory nature of the KRS not. grant court’s the district We REVERSE make clear that Finally, we should summary judgment to defendants on whether position we take no this case further district court for REMAND to the by supported Lyon result can be opinion. consistent with proceedings exception to ADEA early retirement 623(f)(2)(B)(ii). The § liability, 29 U.S.C. ROGERS, concurring Judge, Circuit summary granted in Lyon court district separately. the defendants after judgment in favor of result, for the generally in the I concur to es- had failed finding plaintiffs majority opinion. in the expressed reasons disparate-treatment facie tablish a however, concerns, pre- following four The and, alternatively, the retire- claim my concurring opinion. in that vent constituted lawful at issue ment First, at issue plans the retirement plan pursuant incentive early way only one discriminate this case 623(f)(2)(B)(ii). at 137. Our 53 F.3d majority’s descrip- than two. The rather the latter did not reach Lyon court way first in which tion of the the district agreed it issue because it only as con- significant discriminates prima facie plaintiffs’ regarding court is, way. That of the second part stitutes a Id. case. give not facial discrimination plan kind of retirement workers one BOGGS, Judge, dissenting. Chief plan with the same younger workers that the disabili- majority concludes real difference name. different County of the Jefferson ty-retirement plan disability retirement and normal between Kentucky Retire- Department, one caused the “sec- Sheriffs is the disparate treatment and im- Systems, disparate ment Commonwealth (collectively referred to as Kentucky pact employment theories of discrimina- “KRS”) to a facial violation of the amounts tion. 507 U.S. at 113 S.Ct. 1701. The Act Employment Age Discrimination Court stated that under a treat- §§ (“ADEA”), seq., 621 et U.S.C. theory, employer simply ment treats “[t]he the Older Benefits amended Workers favorably people some less than others (“OWBPA”), P. Law 101- Act Protection race, color, religion because of their [or (1990). I that a 104 Stat. believe protected other Proof characteristics.] examination shows careful critical, although motive is age only in with combination considers it can in some situations be inferred from to retirement years of service fact the mere of differences in treat- Ibid, non-discriminatory way a age, and is (second ment. ...” alteration and el- protection against providing workers (internal lipsis original) quotation marks opportu- have had an disability before omitted) (quoting Teamsters v. United pension nity to earn a normal at retire- States, 324, 15, 431 U.S. 335-36 n. 97 S.Ct. It therefore illegal ment under (1977)). 1843,52 L.Ed.2d 396 Supreme precedent Court’s in Hazen dispa Court continued “[i]n Paper Biggins, Co. v. 507 U.S. case, liability depends rate treatment on (1993), 123 L.Ed.2d I (under the protected whether trait respectfully dissent. ADEA, age) actually motivated the em Congress purpose stated of the ployer’s Paper, decision.” Hazen 507 U.S. “promote employment ADEA is to of older employer 113 S.Ct. 1701. The persons ability on their rather than based “may formal, upon have relied arbitrary age age; prohibit to discrimina- discriminatory policy requiring adverse employment; help employers tion in to trait,” treatment of with that ways meeting prob- find workers ibid, Thurston, (citing supra, An and Los arising impact lems from on Manhart, geles Dep’t Water & Power v. 621(b). § employment.” 29 U.S.C. 702, 704-18, 435 U.S. 98 S.Ct. 623(a)(1) § prohibits employer an U.S.C. (1978)), “may L.Ed.2d 657 or have been from, alia, “discriminatpng] against inter by motivated the protected trait on an ad any respect compen- to his individual with hoc, informal basis.” Ibid. ‘Whatever the terms, conditions, sation, privileges or employer’s decisionmaking process,” the of such employment, because individual’s noted, disparate Court “a treatment claim age.”1 cannot succeed employee’s pro unless the Supreme Court has noted that the actually played tected trait role “broadly prohibits arbitrary ADEA dis process and had a determinative influence workplace crimination based on ” Ibid, added). (emphases on the outcome. Airlines, age.” Trans Inc. v. Thur World ston, 111, 120, added, way, Defined in that Court (1985) (internal quotation “captures L.Ed.2d 523 treatment the essence omitted). Congress sought citation In of what discussing prohibit marks and Paper, Supreme very the ADEA in Hazen ADEA. It is the essence of emphasized employee distinction between crimination for an older to be " terms, conditions, '[CJompensation, provided pursuant employee or to a bona fide privileges employment1 encompasses 630(1). all plan.” benefit 29 U.S.C. including such benefits Thurston, an ADEA case cited employer believes fired because Paper Court in Hazen as one competence decline with productivity and formal, facially the employer’s which dis “Congress’ promulgation age.” old Ibid. criminatory intent dis showed by its concern prompted of the ADEA was criminate because being deprived of that older were workers comfortably of their fits within the the basis of inaccurate and employment on “very essence” the ADEA as discussed stereotypes.” type Ibid. This stigmatizing Paper. the Court in Hazen Thur nowhere found in the stereotyping ston, policy by which adopted TWA had today. plan under consideration from captains disqualified who were serv Paper, In Hazen the Court addressed ing capacity for reasons other than employer’s an fir- question of whether posi age were to transfer to the allowed ing pension whose was short- flight process tion of and in the engineer, ADEA ly to vest violated the where the “bump” flight engineers. senior Pi less vesting pension was based exclusive- going disqualified lots who were to be ly of service. The Court held continuing captains serve although pension status is typically 60, however, age had the reached age, although and it is correlated with had to bidding procedures resort to in perhaps employees that “older true to flight engineer, order become a and if likely Hazen more ‘close Paper are be in procedures flight the did not result vesting’ younger employees,” age than engineer position, captain the had to retire years and of service were nevertheless an- 115-17, 120, at 60. 469 105 U.S. at S.Ct. alytically employer distinct. If the fired policy, following 613. Under the the TWA status, pension because of A Captain results would is obtain. dis age, prohibited not ster- “[t]he qualified continuing to serve as cap (‘Older eotype employees likely are to be incompetent. tain because he is found to be -’) figured They not have deci- B Captain nearing age would 60. are sion, stigma similarly Captain and attendant not otherwise situated. A is would position of flight ensue.” conduct would not allowed transfer Such violate flight and engineer bump engi less-senior ADEA, held. 507 at the Court U.S. (The neers in the id. at 611-12, process, S.Ct. ulti- 613; Captain B is not. The Court found mately for a determination of remanded “the policy, under which method firing whether had in fact been based disqualified cap of transfer available to a age years on than on rather service. depends upon age,” tain his was “discrimi 1701.) short, In Id. natory face,” on its and therefore amount that, held Supreme Court under age ed to direct discrimination evidence ADEA, could make a companies decision ADEA. violation of the Id. solely money, based on the need to save 105 S.Ct. 613. The Thurston case thus if heavily, even that decision bore more on that, example of a forbidden workers, average, so long on fact, implicates stigmatizing inaccu only factor on relied correlated with age 60 stereotype-that pilots rate over are case, age, determined our capable, less or at least less valuable as motives, with much less base employees, even than workers impacted by in relation age years incompetence. have who been relieved years remaining of service nor- until policy clearly mal retirement as shown exam- TWA’s embodied “es- sought to ples given pro- 16 and sence” of what the ADEA pages infra. is, arbitrary age years However, discrimination. hibit-that number of worked. employees yet eligible the case with the KRS disabili who are not That is not (i.e., for normal employees retirement ty-retirement plan, nor was it the case age under 55 and with fewer than 20 early-retirement policy Lyon with the service), years of years additional are Ohio Education Ass’n and 'l Un Prof Staff years added to the number of (6th Cir.1995). worked ion, Here, 53 F.3d 135 purposes of the calculation. The Lyon, stereotype no such is implicated. years number of added is the number of majority contends that there are years remaining until the worker would ways plan facially two in which the KRS have reached either normal retirement employees. discriminates twenty service, or years of no First, years with less than 20 workers more than years already the number of (for employees service time in hazardous worked. positions2) who become disabled before a County EEOC v. Dep’t, Jefferson Sheriff’s (in certain the case of (6th Cir.2005) (footnote 424 F.3d 55) positions, hazardous receive additional omitted), grant vacated on reh’g en retirement, credit while those over toward banc, (6th U.S.App. LEXIS 258 Cir. normal retirement do not receive addi- 2006). Jan. majority argues (that is, years tional credits their to normal with, e.g., because older zero). Second, a dis- years $50,000 pay service and final abled worker with remaining fewer receive fewer benefits than younger em- until age may receive fewer ployees with the same of service and additional credits than a worker with more final pay, plan the KRS discrimi- years remaining.3 But the calculations for natory. majority Yet the point misses the determining disability benefits for workers that a 53-year-old employee who becomes age who become disabled under 55 and for similarly disabled is not situated to a 33- normal retirement for benefits those over year-old disabled, employee who becomes same, exception are the with the they even if years have the same service imputed years the added to former’s final pay and at the time disability. All service time. being else equal, the non-disabled 33- The original panel succinctly describes year-old years of course has more to work plan how the KRS works: and live than a 55-year- does non-disabled When they workers are disabled after old. Lyon, See 53 F.3d at 140-41 retirement, become eligible for normal (explaining early-retirement that an plan they receive normal retirement early that “ensure[s] retirees the same benefits. yearly The amount of the ben- benefits that would have received had generally efits is calculated as 2.5% of they continued to work until their normal employee’s compensation final times retirement date” pay did not older workers parties, 2. I years follow the convention for maximum benefits as an older work- original panel, majority and the of this en (e.g., 40-year-old er in the case of a with 15 court, by referring plan banc to the KRS years 50-year-old of service and a with 15 positions, although in hazardous service), second, years of additional cred- analysis applies plan years already it is limited to the number of positions in nonhazardous as well. Thus, 49-year-old worked. a with six service years 40-year-old a with six service first, “May receive” for two reasons: get will each the same benefit-six additional pages shown below at 16 and a years of credit. may only worker need the same number of OWBPA, amending the employ- gress passed age; two lower benefits finding a of ADEA. The OWBPA included equal years ages but ees of different situated). [Betts], Here, legislative ac- similarly that “as a are not result service work necessary original of additional to restore the number of tion is to, but not a factor related amend- passing lost is intent in congressional credit by, [ADEA], prohibit determined which was to dis- ing the in all against older workers crimination Sys- Employees Retirement In Public except age- when employment benefits Betts, 158, 109 S.Ct. 492 U.S. tem v. plans reductions benefit based (1989), L.Ed.2d 134 cost consider- justified by significant are disability-retirement a confronted Comb OWBPA, No. Pub.L. ations.” retire- provided age-and-service (1990) (codified at 29 104 Stat. retired over to those who ment benefits note). § 621 U.S.C. (for Betts, plaintiff, certain 60) and had certain age was at issue In contradistinction un- years, or to those of service number Betts, was de the case the OWBPA higher a set who had served der the overturn, does signed provided also years. number of specific younger workers with provide under the re- disability to those to older workers. unavailable benefit a certain age who had served tirement Betts, that a the crucial distinction was disability. years and suffered number of a worker a “disability” gave 2854. The at 492 U.S. minimum income of 30% of guaranteed disability provided in Betts scheme salary. disquali was final Betts worker’s not less than would constitute payments solely on receiving that benefit fied from final aver- disability retiree’s 30% of the qualified age, though she the basis age- no floor existed age salary; such Betts, every respect. other Betts became and-service retirees. 162-63, 109 S.Ct. 2854. 61, and therefore was unable abled re- disability She to receive benefits. “disability” re- plan, a Under the KRS just age-and-service ceived no from intrinsically different tirement have received half what she would over pension available the “normal” retirement Id. at 109 S.Ct. disability. are based on every worker. Benefits to to a (augmented years of credited service its stated that “[o]n Court workers ineli- of 20 for disabled maximum face, renders covered em- the ... scheme retirement), by multiplied for normal gible disability retirement ineligible for ployees salary. If “nor- to final a factor related 60.” Yet the age have attained once aug- greater are than the mal” benefits did not vio- found that the scheme course, disability, for mented benefits it fit under late the ADEA because provided. are greater benefits provision of 29 U.S.C. then-existing a who is provides that worker plan simply 623(f)(2) deci- exempted age-based that for nor- reaching eligibility before disabled “any to the terms pursuant taken sions way a of re- has mal retirement benefits as a plan such fide benefit bona (or to equal ceiving a retirement benefit retirement, plan, or insurance pension, to) had have received what he would closer subterfuge a to evade which is not reaching disabled before he become of’ the ADEA. Id. purposes years 20 age or the normal retirement after the year 2854. A Betts, Con- service. decision Supreme Court’s benefit, credit, very ages, reasonable and their and with that additional

This is worker, particular, younger that a eligible one it is as if each had worked until likely to highly would be more value more normal retirement. worker, newly-hired older who than a 3)Take employees differing two with likely acquired to have

would be more years ages and of service. The first is 45 from more extensive earlier other benefits years with of service. The second is 40 employment. questioning The extensive years They with service. both be- by argument, attempting this court at oral time, come disabled. This the older work- way probe provide this sensible actually gets greater er benefit because reasoning, result under the appellants’ get he for all years will credit of the 10 quick that we not be too shows should bring that would him to the retirement intended, Congress that or com- assume age, whereas the worker will wrote, by language manded years “max out” at the full 20 of credit being such was out- reasonable years an additional credit. lawed. examples starkly These demonstrate repeating plaintiff It is worth here, not a Lickteig, already controlling variable in the eligible Mr. operation “normal” plan. They retirement based on his of the KRS also years having of service and plan provides practice his attained show (55 exactly the normal retirement for employ- what claimed for it appel- (or jobs). ees hazardous he rath- argument What lees’ counsel in the before us: a behalf) er, what the EEOC his is at- way against disability to insure tempting to do in this suit is to prevent greatest sensitive to the loss caused granted who have been a form disability inability to continue earn- —the against disability of insurance pre- at a ing credits toward retirement at a normal obtaining that benefit. age. examples Several show how the KRS Many life insurance policies have a fea- does not differentiate based on premiums ture that if paid are from the age only years but on in relation to inception policy no further service. premium payments required. are Some 1) Take two the same also have a “disability feature called waiv- years service, One is 48 with 10 premiums”: er of if the holder be- other is 48 with 15 They service. disabled, comes company insurance both become disabled: The first longer will no premiums, collect in effect credit, gets of extra which takes crediting policyholder though those him age gets years and the second Yet, premiums being are paid. on aver- credit, of extra which takes him to 20 (which age, disability such a feature no one service, years of in but each case it is as if would contend constitutes discrimina- the employee eligible had worked until tion) exactly plan. works like the KRS normal retirement. feature waiver is worth more to the 2) person Take who is disabled at 40 than one who employees two with the same 60, because, is years average, service. One is 50 with 15 disabled on the of ser- years many years. vice. The second is 35 waiver is effect for more with 15 They service. And one who both become disabled. is disabled after 65 receives They all, each get exactly the additional no benefit at premium already same as the credit—5 years despite fully paid the difference in up. — that not differenti- employees). But does patently and obvious undisputed, It is who are now more plan, that both ate between workers nature of the KRS from the plan of that All years younger. and the effect and those rationale advanced (and, have a reason- that all had may to insure such workers wish insur- employer-sponsored disabled, prospect of might able not have been able become disability that occurs before to) ance beyond that normal retirement work On income becomes available. have any plan But must younger A than if average, using age as qualification, criteria for B and both suffer the same thought one of the criteria has never been 1) time, had A will have ability at the same changed ADEA. If to violate the money and retirement time to earn less age, the plan to have a later retirement 2) credit, years more to live. and will have computations mathematics of some does, to, ame- is meant plan The KRS at- change, aspect being but would A and B exactly ways in which liorate Thus, it here would remain. tacked situated, A by providing similarly not are impermissible stereotyping that had clear of the for the circumstances with a “bonus” age-correlated with the fea- nothing to do years depends That “bonus” disability. that are involved here. tures of the to normal retirement years of service employee’s age plan, the KRS Under often, always, will but not age. The bonus to his service with relation an than larger for worker be factors into retirement benefits employer show, examples one. As the majority, by dubiously calculations. The who become provided bonus labeling that as credit vary can from no additional disabled ADEA, that to in- uses statute under credit, in a fashion years’ to as much as far from the validate a lies (just pension may be correlated fact, correlated) ADEA-and, in does of the “essence” Paper status Hazen inAge at all. implicate essence perfectly. far from with performed of service relation to nothing whatever to The KRS has age qua not the same as employer is ster- stigmatizing “inaccurate and do with 507 U.S. at Paper, Hazen age. See ability of the relative eotypes” surrounding (the “requires ADEA job-that is to employees to do the (ab- ignore employee’s age employer to enacting the reason for say, Congress’s defense); statutory exemption or sent a ADEA, and the as the discussion above characteristics specify does not legislative majority’s analysis own of the further ignore.”). employer that an must also 576-77). (Maj.Op. pp. indicate history any part There is no intimation problem There is a further any demeaning inappropri- or Lyon court majority’s analysis. As the workers. All em- stereotyping ate of older noted, at least as reasoning applies disabled under ployees who are considered much to this case: equally unable to do plan are ig- very willingness to employer’s] [The disability. jobs-because of their hire work- stereotypes and ageist nore of the na- resembling consideration factor to have any actually appears ers of appellants aging that counsel for ture of “problem.” plaintiffs exacerbated argument at oral could adduce “disadvantaged” are those Those most to work employees might wish some older hiring. (55 at the time who were oldest for haz- beyond normal retirement letter, as contrary to the It would be nonhazardous employees, 65 for ardous Security Agency penal- of the ADEA to spirit, well as the and Chief of the Cen Security Service, —Ap employer the incidental rami- tral ize Defendant s (No. 06-2095) objectivity. pellants —Appel fications Cros s (No. 06-2140). lees Here, 140 n. 6. 53 F.3d at the older No. 06-2140. against” workers “discriminated are some- exactly who were times those hired later Appeals, United States Court of life, many and thus had not accumulated as Sixth Circuit. employer with this as Oct. (su- (although, example 3 shows worker 588), exactly this factor pra, sometimes Beeson, York, NY, Ann New for Plain- give the later-hired older will worker tiffs-Appellees. Thus, I advantage). believe that neither the intent nor the letter of the ADEA bars BATCHELDER, GILMAN, Before: plan, KRS retirement I the reasonable and GIBBONS, Judges. Circuit respectfully dissent.

ORDER The government stay pend- moves for a ing appeal of the district court’s order holding the Terrorist Surveillance Pro- gram permanently unconstitutional and en- joining the utilizing Government from Program “in any way, including, to, conducting limited warrantless wiretaps communications, of telephone and internet in contravention of [FISA Title III].” In considering stay pending whether AMERICAN CIVIL LIBERTIES UN appeal issue, should we balance the tradi ION; American Civil Liberties Union injunctive tional factors governing relief: Foundation; American Civil Liber (1) applicant whether the has demonstrat Michigan; ties Union of Council on ed a substantial likelihood of success on Relations; AmericanIslamic Council (2) merits; applicant whether the will on American-Islamic Relations (3) irreparably injured be stay; absent a Michigan; Greenpeace, Incorporated; stay whether issuance of the will substan National Association of Criminal De tially injure the parties; other interested Lawyers; Bamford; fense James Lar (4) public where the interest lies. ry Diamond; Christopher Hitchens; Baker v. County/Ohio Valley Adams Sch. McKelvey; Rubin, Tara Barnett R. Bd., (6th Cir.2002); 310 F.3d (No. 06-2095) Appellees Plaintiffs — Michigan Coal. Radioactive Material (No. 06-2140) Appellants Cross — Users, Inc. v. Griepentrog, 945 F.2d (6th Cir.1991). court, This in Grutter (6th v. Bollinger, 247 F.3d Cir. 2001), noted that NATIONAL SECURITY AGENCY/CEN SERVICE; TRAL Michigan SECURITY Keith Coalition said that the suc- Alexander, General, B. in his official cess on the merits which must be dem- capacity as Director of the National onstrated inversely proportional notes vacated on pute, that: (2006). en banc every case, In a worker than addition, hazardous-category em- (55/65) normal retirement who re- ployee eligible disability-retire- for the more ben- disability tires on will receive injured in ment-benefit who is the line year efits each than an older

Case Details

Case Name: Equal Employment Opportunity Commission v. Jefferson County Sheriff's Department

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 31, 2006

Citation: 467 F.3d 571

Docket Number: 03-6437

Court Abbreviation: 6th Cir.