02-7841{L}
02-7869{CON}, 02-9401{CON}, 02-9409{XAP}, 02-9410{CON}
______________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________________
MICHAEL ABRAHAMSON, JAMES A. BEHLER, JOHN P. CALOGERO, ALBERT A. CERILLI, JR., ANDREA
DOMBROWSKI, JOHN P. HOTROVICH, JOHN C. LUMIA, NANCY MOREAU, RICHARD L. NADEAU,
STEPHEN T. O'LOUGHLIN, ROSEANN C. SECCHIA, PAMELA SEEGER, ELLEN METZGER O'SHEA,
PHILIP K. CAMERON, JR., MARGARET MEALIA, ASSUNTA DAS, GRETA M. WOO, GEORGE M. KAISER,
and CARLOS PICCIOTTI,
Plaintiffs-Appellees-Cross-Appellants,
v.
THE BOARD OF EDUCATION OF THE WAPPINGERS FALLS CENTRAL SCHOOL DISTRICT,
WAPPINGERS FALLS CENTRAL SCHOOL DISTRICT,
Defendants-Cross-Defendants-Appellants-Cross-Appellees,
THE WAPPINGER FALLS CONGRESS OF TEACHERS,
Defendant-Cross-Claimant-Appellant-Cross-Appellee.
_______________________________________________
On Appeal from the United States District Court
for the Southern District of New York
_________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS
AND IN FAVOR OF AFFIRMANCE IN PART AND REVERSAL IN PART
__________________________________________________
ERIC S. DREIBAND EQUAL EMPLOYMENT OPPORTUNITY
General Counsel COMMISSION
Office of General Counsel
VINCENT J. BLACKWOOD 1801 L Street, NW., Room 7052
Acting Associate General Counsel Washington, DC 20507
(202) 663-4870
JAMES M. TUCKER
Attorney
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . .i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .2
STATEMENT OF THE ISSUES ON APPEAL. . . . . . . . . . . . . . . .3
STATEMENT OF THE CASE
1. Statement of Facts. . . . . . . . . . . . . . . . . . . . .3
2. District Court's Decisions. . . . . . . . . . . . . . . . .5
ARGUMENT
I. THE DISTRICT COURT CORRECTLY HELD THAT
PLAINTIFFS WERE EXCLUDED FROM PARTICIPATING IN
OPTION 2 BECAUSE OF THEIR AGE. . . . . . . . . . . . . . . . . 10
II. THE DISTRICT COURT CORRECTLY HELD THAT OPTION
2 IS NOT A VOLUNTARY EARLY RETIREMENT INCENTIVE
PLAN ELIGIBLE FOR SAFE HARBOR PROTECTION UNDER
THE ADEA.. . . . . . . . . . . . . . . . . . . . . . . . . . ..14
III. THE PLAIN LANGUAGE OF THE ADEA MANDATES AN
AWARD OF REASONABLE ATTORNEY'S FEES TO THE
PLAINTIFFS.. . . . . . . . . . . . . . . . . . . . . . . . . ..19
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 31
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
CASES Page(s)
Auerbach v. Bd. of Educ. of the Harborfields Cent. Sch. Dist.,
1136 F.3d 104 (2d Cir. 1998). . . . . . . . . . . .6, 11, 15
Abrahamson, et al. v. Bd. of Educ. of the Wappingers Cent. Sch. Dist.,
No. 01 Civ. 10859 (CM) (S.D.N.Y. Dec. 23, 2002) . .9, 22, 24
Bhatia v. Air India,
No. 90 Civ. 5445, 1992 WL 232146 (S.D.N.Y. Sept. 2, 1992) 26
Desert Palace, Inc. v. Costa,
__ U.S. __, 123 S. Ct. 2148 (2003). . . . . . . . . . . . 20
Detje v. James River Paper Corp.,
167 F. Supp. 2d 248 (D. Conn. 2001) . . . . . . . 25, 26, 27
DiRussa v. Dean Witter Reynolds Inc.,
121 F.3d 818 (2d Cir. 1997) . . . . . . . . . . . . . . . 22
Farrar v. Hobby,
506 U.S. 103 (1992) . . . . . . . . . . . . . . . . . . . 22
Gilbert v. Monsanto Co.,
216 F.3d 695 (8th Cir. 2000). . . . . . . . . . . . . 24, 26
Hagelthorn v. Kennecott Corp.,
710 F.2d 76 (2d Cir. 1983). . . . . . . . . . . . . . . . 27
Hazen Paper Co. v. Biggins,
507 U.S. 604 (1993) . . . . . . . . . . . . . . . . . 10, 12
Hensley v. Eckerhart,
461 U.S. 424 (1982) . . . . . . . . . . . . . . . . . . . 25
Hewitt v. Helms,
482 U.S. 755 (1987) . . . . . . . . . . . . . . . . . . . 24
Johnson v. New York,
49 F.3d 75 (2d Cir. 1995) . . . . . . . . . . . . . . . . 12
McDonnell v. Miller Oil Co.,
968 F. Supp. 288 (E.D. Va. 1997),
remanded on other grounds,
134 F.3d 638 (4th Cir. 1998). . . . . . . . . . . . . . . 23
Nance v. Maxwell Fed. Credit Union,
186 F.3d 1338 (11th Cir. 1999). . . . . . . . . . . . 24, 26
O'Brien v. Bd. of Educ. of the Deer Park Union Free Sch. Dist.,
92 F. Supp. 2d 110 (E.D.N.Y. 2000),
decision adhered to on reconsideration,
127 F. Supp. 2d 342 (E.D.N.Y. 2001) . . . . . . . . . . . 15
Purcell v. Seguin Bank & Trust Co.,
999 F.2d 950 (5th Cir. 1993). . . . . . . . . . . . . . . 24
Quinn v. New York State Elec. & Gas Corp.,
621 F. Supp. 1086 (S.D.N.Y. 1985) . . . . . . . . 25, 26, 28
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . 10
Rhodes v. Stewart,
488 U.S. 1 (1988) . . . . . . . . . . . . . . . . . . . . 23
Salvatori v. Westinghouse Elec. Corp.,
190 F.3d 1244 (11th Cir. 1999). . . . . . . . . . . . . . 26
Samborski v. Linear Abatement Corp.,
No. 96 Civ. 1405(DC), 1999 WL 739543 (S.D.N.Y. Sept. 22, 1999)25, 26
Sherry v. Protection, Inc.,
14 F. Supp. 2d 1055 (N.D. Ill. 1998). . . . . . . . . . . 23
Soler v. G & U, Inc.,
801 F. Supp. 1056 (S.D.N.Y. 1992) . . . . . . . . . . 25, 26
Tyler v. Union Oil Co.,
304 F.3d 379 (5th Cir. 2002). . . . . . . . . . . . . 24, 26
United States v. Altese,
542 F.2d 104 (2d Cir. 1976) . . . . . . . . . . . . . . . 21
United States v. Gonzalez,
520 U.S. 1 (1997) . . . . . . . . . . . . . . . . . . 20, 21
United States ex rel. Barajas v. United States,
258 F.3d 1004 (9th Cir. 2001) . . . . . . . . . . . . . . 21
Villescas v. Abraham,
311 F.3d 1253 (10th Cir. 2002). . . . . . . . . . . . 24, 25
STATUTES, REGULATIONS and RULES
The Fair Labor Standards Act,
29 U.S.C. §§ 201 et seq.. . . . . . . . . . . . . . . . . 19
29 U.S.C. § 216(b). . . . . . . . . . . . . . . . . . .7, 19
The Age Discrimination in Employment Act,
29 U.S.C. §§ 621 et seq.. . . . . . . . . . . . . . . . . .2
29 U.S.C. § 623(a)(1) . . . . . . . . . . . . . . . . . . 10
29 U.S.C. § 623(c)(3) . . . . . . . . . . . . . . . . . . 10
29 U.S.C. § 623(f)(2)(B)(i) . . . . . . . . . . . . . . . 18
29 U.S.C. § 623(f)(2)(B)(ii). . . . . . . . . . . . . .6, 14
29 U.S.C. § 626(b). . . . . . . . . . . . . . . . . . .7, 19
29 U.S.C. § 2617(a)(3) . . . . . . . . . . . . . . . . . . . . 23
31 U.S.C. § 3730(c)(5) . . . . . . . . . . . . . . . . . . . . 21
42 U.S.C. § 2000e-5(k) . . . . . . . . . . . . . . . . . . . . 22
42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . 22
Fed. R. Civ. P. 54(a). . . . . . . . . . . . . . . . . . . . . 20
OTHER AUTHORITY
EEOC Compliance Manual 915.003,
Chapter 3: Employee Benefits (Oct. 3, 2000),
available at http://www.eeoc.gov/docs/benefits.html . . . 14
S. Rep. No. 101-263 (1990) . . . . . . . . . . . . . . . . . . 13
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________________
No. 02-7841
______________________
MICHAEL ABRAHAMSON, JAMES A. BEHLER, JOHN P. CALOGERO,
ALBERT A. CERILLI, JR., ANDREA DOMBROWSKI, JOHN P. HOTROVICH,
JOHN C. LUMIA, NANCY MOREAU, RICHARD L. NADEAU, STEPHEN T.
O'LOUGHLIN, ROSEANN C. SECCHIA, PAMELA SEEGER, ELLEN
METZGER O'SHEA, PHILIP K. CAMERON, JR., MARGARET MEALIA,
ASSUNTA DAS, GRETA M. WOO, GEORGE M. KAISER, and CARLOS
PICCIOTTI,
Plaintiffs-Appellees-Cross-Appellants,
v.
THE BOARD OF EDUCATION OF THE WAPPINGERS FALLS CENTRAL
SCHOOL DISTRICT, WAPPINGERS FALLS CENTRAL SCHOOL DISTRICT,
Defendants-Cross Defendants-Appellants-Cross Appellees,
THE WAPPINGER FALLS CONGRESS OF TEACHERS,
Defendant-Cross Claimant-Appellant-Cross Appellee.
_______________________________________________
On Appeal from the United States District Court
for the Southern District of New York
_______________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS
AND IN FAVOR OF AFFIRMANCE IN PART AND REVERSAL IN PART
________________________________________________________
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency charged by
Congress with interpreting and enforcing the Age Discrimination in Employment Act,
29 U.S.C. §§ 621, et seq. ("ADEA"), and other federal employment discrimination
laws. This appeal raises important questions concerning the ADEA's safe harbor
provisions for early retirement incentive plans and the right of a successful ADEA
plaintiff to obtain an award of attorney's fees. The defendants challenge the district
court's decision to grant summary judgment for the plaintiffs on their claim that a
benefits plan adopted by the defendants violated the ADEA. Their arguments, if
accepted, would permit employers and unions to evade the ADEA's prohibition on
discriminatory benefits by using proxies for age as eligibility criteria and by passing
off otherwise unlawful benefit plans which do not require retirement as a condition
of participation as lawful early retirement incentives. Plaintiffs' cross-appeal from
the denial of their request for attorney's fees raises important issues concerning the
scope of the ADEA's provision mandating that reasonable attorney's fees be included
in any judgment awarded to a plaintiff. Because we believe the district court's
decision is inconsistent with the plain language of the statute, the Commission offers
its views to the Court.
STATEMENT OF THE ISSUES ON APPEAL
1. Whether a benefit plan which excludes employees based on a
factor—retirement eligibility—which is in turn based on age, discriminates on the
basis of age.
2. Whether a benefit plan must require participants to retire in order to be eligible
for the ADEA's safe harbor for otherwise unlawful benefits plans which are
"voluntary early retirement incentive plans."
3. (Cross-Appeal) Whether plaintiffs who obtain an enforceable judgment
enjoining defendants from implementing a discriminatory benefits plan are entitled
to reasonable attorney's fees under the ADEA's fee shifting provision which
requires courts to award attorney's fees in addition to any judgment awarded to
plaintiffs.
STATEMENT OF THE CASE
1. Statement of Facts
Prior to the 2001-02 school year, the collective bargaining agreement
between the Wappingers Falls Central School District ("district") and the
Wappingers Falls Congress of Teachers ("union") included a provision titled the
"Salary Elective Program"("SEP"). Joint Appendix (JA.) at 68. This provision
described a benefit plan ("option 1") under which any teacher could obtain a
"termination bonus" of $20,000 if she submitted an application for retirement
during the first year that she met the following "eligibility requirements:"
(1) 15 years of District service,
(2) 20 years of member service in the New York State Teachers'
Retirement System, and
(3) eligibility for a service retirement pursuant to the rules and
regulations of the New York State Teachers' Retirement
System.
Id. To be eligible for service retirement under the New York State Teachers'
Retirement System (NYSTRS), a teacher must be at least 55 years of age. The
only exception is for teachers who joined the NYSTRS before July 1, 1973. Those
teachers may become eligible for retirement before reaching the age of 55, if they
have completed at least 35 years of credited New York State service. JA.218, 242.
On June 20, 2001, the district and the union executed a Memorandum of
Agreement which added the following language to the SEP:
A unit member who meets the eligibility requirements as set forth
above may decline the benefits of the salary elective program and
elect to continue employment. Such an election shall be final. The
unit member shall receive an additional Seven Thousand Dollars
($7000) per year up to three (3) years. Upon conclusion of the third
year of additional payments, the unit member's salary shall revert to
the appropriate placement on the salary schedule. Once the unit
member declines the salary elective program the unit member is no
longer eligible for any further payments.
JA.128-32.
The new provision—"option 2"—was scheduled to go into effect in the
2001-02 school year. JA.83, 132. Before any payments were made under option
2, a group of teachers who were not eligible for the new benefit because they had
met the prerequisites for the SEP in past school years initiated this action, alleging
that the new benefit violated the ADEA because they were precluded from
participating because of their age. JA.37-38, 250-51. A number of other plaintiffs
have intervened during the pendency of this action, and there are now nineteen
plaintiffs. None of the plaintiffs first became eligible for retirement by virtue of
completing 35 years of service.<1> JA.187-89.
2. District Court's Decisions
On June 21, 2002, the district court issued a decision granting summary
judgment for the plaintiffs. JA.236-49. The court first concluded that the
plaintiffs were excluded from option 2 because of their age. JA.242. The court
rejected the defendants' argument that eligibility for option 2 is not based on age
"because there is no express requirement . . . that a teacher has to be a certain age
in order to take advantage of the retirement programs." JA.241-42. According to
the court, the "plaintiffs have demonstrated that age is the trigger for the denial of
benefits in their case" because "[u]nder all but one of the tiers of the NYSTRS, a
teacher may not become eligible for service retirement until he is at least 55 years
of age." Id. at 242. Furthermore, the court stated, although a teacher may in
theory become eligible for retirement without regard to his age under "Tier 1" of
the retirement system if he accumulates 35 years of service, "it would be extremely
rare for a . . . teacher to reach the 35th year of service credit prior to reaching age
55," given the requirement that a teacher must have a college degree before
commencing employment in the New York State system, in addition to other rules
governing the tabulation and accumulation of qualifying years of service. Id.
The court next rejected the defendants' argument that option 2 qualified as a
"voluntary early retirement incentive" eligible for safe harbor protection under
§ 4(f)(2)(B)(ii) of the ADEA, as codified at 29 U.S.C. § 623(f)(2)(B)(ii). In the
court's view, this Court's decision in Auerbach v. Bd. of Educ. of the Harborfields
Cent. Sch. Dist., 136 F.3d 104 (2d Cir. 1998), holds that, in order to be an early
retirement incentive plan, a benefit plan must require that an employee retire in
order to receive benefits. JA.246-47. Because there is no requirement that a
teacher must retire in order to obtain benefits under option 2, option 2 is,
according to the court, "less a retirement incentive than it is a mechanism for
allowing a teacher to hedge his bets: by electing Option # 2, he can temporarily
increase his salary and then see how he feels as his third ‘bump up' year draws to a
close." Id. The court concluded: "[B]y giving the teacher the freedom to take the
money and run or take the money and stay, the District has provided a temporary
employment benefit to any individual who elects to continue working. And that
violates the ADEA." Id. at 247.
On October 15, 2002, the court entered judgment declaring that option 2
violates the ADEA, and directing the defendants to bring their collective
bargaining agreement into compliance with the statute. JA.293-94. Subsequently,
the plaintiffs filed a motion requesting attorney's fees and costs under § 16(b) of
the Fair Labor Standards Act, which provides that a court "shall, in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to
by paid by the defendant, and costs of the action." 29 U.S.C. § 216(b)
(incorporated into the ADEA by 29 U.S.C. § 626(b)).
On November 15, 2002, the court issued a decision denying the plaintiffs'
motion for fees and costs. JA.415-18. The court noted that the plaintiffs had
sought, and were granted, injunctive relief, and that while this relief constituted an
enforceable judgment, "they did not obtain a judgment that afforded them any
immediate direct benefits, aside from the satisfaction of winning." JA.418. The
court noted that the plaintiffs had sought a judgment which would have permitted
them to participate in option 2 retroactively, but obtained only "an injunction
ordering the [defendants] to bring the CBA into compliance with [the] ADEA,
whatever that took." Id. at 417. Because the court agreed with the defendants that
they could bring the CBA into compliance with the ADEA in other ways, such as
by eliminating option 2 altogether, it concluded that "the judgment . . . does not
guarantee plaintiffs any economic benefit and will not necessarily result in any
change in their pre-retirement compensation options." Id. at 416.
The court recognized that, unlike Title VII and other civil rights statutes, the
ADEA does not limit attorney's fees to a "prevailing party," but instead provides
that "[t]he court shall . . . in addition to any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorney's fee to be paid by the defendant." Id.
Nonetheless, the court, "reasoning from [cases construing the term ‘prevailing
party'], and regardless of the difference in language between ADEA/FLS [sic] and
Title VII/Section 1988," held that the plaintiffs "do not appear to be entitled to
recover attorneys [sic] fees from either defendant." Id. at 418. The court added
the proviso that, should the district and the union renegotiate option 2 "in a way
that afforded the plaintiff teachers some tangible benefit, plaintiffs' counsel would
be entitled to attorneys' fees." Id. Accordingly, the court denied the fee petition
"without prejudice to its renewal should the defendants comply with the injunction
in a way that accorded some tangible benefit to the plaintiffs." Id.
On December 23, 2002, the court denied the plaintiffs' motion to reconsider
its attorney's fees decision. Abrahamson, et al. v. Bd. of Educ. of the Wappingers
Cent. Sch. Dist., No. 01 Civ. 10859 (CM) (S.D.N.Y. Dec. 23, 2002) ("Rearg.
Mem."). The court noted that, contrary to the plaintiffs' contention, the court did
not read Title VII's "prevailing party" language into the ADEA's attorney's fees
provision. Id. at 3. Rather, the court stated, it had found that the FLSA, "fairly
interpreted," required the plaintiffs to obtain an enforceable judgment in their
favor to be entitled to attorney's fees. Id. The court further stated that in
determining what constituted a judgment in the plaintiffs' favor, it had looked to
"relevant parallels" in the jurisprudence surrounding the "prevailing party" issue,
and had concluded that to be in the plaintiffs' favor, "the judgment must alter the
legal relationship between plaintiffs and defendants by modifying the defendants'
behavior in such a way that directly benefits the plaintiffs." Id.
ARGUMENT
I. THE DISTRICT COURT CORRECTLY HELD THAT PLAINTIFFS
WERE EXCLUDED FROM PARTICIPATING IN OPTION 2 BECAUSE
OF THEIR AGE.
Section 4(a)(1) of the ADEA prohibits an employer from discriminating
against any individual "with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age." 29 U.S.C.
§ 623(a)(1). Section 4(c)(3) makes it unlawful for a union "to cause or attempt to
cause an employer to discriminate against an individual in violation of this
section." 29 U.S.C. § 623(c)(3). An employment decision is taken "because of
. . . age" when the individual's age "actually played a role in [the employer's
decisionmaking] process and had a determinative influence on the outcome."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (alterations in original).
The district court correctly ruled that plaintiffs were excluded from
participating in option 2 because of their age since it disqualified them from
obtaining salary increases because they had become eligible for retirement prior to
the effective date of option 2. Since it is uncontested that all of the plaintiffs
attained the age of 55 before they had completed 35 years of service, their age was
a necessary component of their retirement eligibility. In this respect, this case is
controlled by this Court's decision in Auerbach v. Bd of Educ. of the Harborfields
Cent. Sch. Dist., 136 F.3d 104 (2d Cir. 1998).
In Auerbach, the plaintiffs challenged a benefits plan which provided a
bonus to employees who retired during the first year in which they met the plan's
two eligibility criteria: 20 years of service under the NYSTRS, 10 years of
consecutive service in the school district, and 55 years of age. 136 F.3d at 107.
This Court held that plaintiffs—teachers who could not presently obtain the
benefit because they had first become eligible in years past—were excluded on the
basis of their age. Id. at 110. The court reasoned:
Here the . . . plaintiffs fulfilled the retirement plan's job service
requirements and reached the requisite age of 55 or older. But
because they did not retire in the precise year when they first fulfilled
the requirements of the plan, they are forever precluded from
receiving the retirement incentive benefits. Thus, age is a trigger for
the denial of their employee benefits. Meanwhile, teachers under the
age of 55 who have fulfilled the plan's job service requirements have
the future option to receive the retirement incentive benefits.
Consequently, we think it plain that age, not years of service, is
the factor behind the disparate treatment of teachers.
Id. The only difference between the plan in this case and the plan in Auerbach is
that here the plan does not base eligibility directly on age, but instead bases it on
retirement eligibility which in turn is based on age. JA.68, 129-30. The
requirement that the participating teacher be eligible for retirement under the
NYSTRS, however, serves as a proxy for an explicit age requirement.
Indeed, this Court has held that, when an employment decision is based on a
proxy for age, that decision is based on age for purposes of the ADEA. In Johnson
v. New York, 49 F.3d 75 (2d Cir. 1995), a state employee was terminated because
of his inability to meet the requirement that he maintain active membership in the
air national guard. The guard had discharged him when he reached age 60, based
upon its policy mandating retirement at that age. The court held that, by firing the
plaintiff for that reason, the state "implement[ed] an age-based criterion." 49 F.3d
at 80. The court concluded that "there can be no doubt that Johnson's age
‘actually played a role . . . and had a determinative influence' on the decision to
terminate his employment," that "the employee's ability to maintain the required
status is conditioned upon age," and that therefore his termination based upon his
failure to maintain guard membership "was in violation of the ADEA as a matter
of law." Id. (quoting Hazen Paper, 507 U.S. at 610) (alterations in original). Just
as the guard membership requirement in Johnson served as a proxy for an explicit
age requirement, the requirement here that a teacher be eligible for NYSTRS
retirement as a condition for participation in option 2 serves as a proxy for an
explicit age requirement.
In addition, the legislative history of the Older Workers Benefit Protection
Act of 1990 (OWBPA) clearly indicates that Congress considered discrimination
based on pension eligibility to constitute age discrimination. See S. Rep. No. 101-
263, at 23 (1990) (noting, in discussion of the impropriety of coordinating pension
benefits with severance payments: "pension benefits are age related. Pension-
eligibility is a proxy for age. Accordingly, it is per se age discrimination to use
pension-eligibility as a basis for denying an older worker any other benefit.").
Defendants argue that the pension eligibility requirement does not amount
to an age requirement in this case because it is theoretically possible for some
teachers to become eligible for retirement before the age of 55 if they complete 35
years of service. However, as noted by the district court, it is highly improbable
that any teacher could satisfy the 35 year service requirement before she was 55 in
light of the fact that a teacher must obtain a college degree before beginning work.
In addition, although defendants argue on appeal that "there are some [teachers]
who have 35 or more years of total service prior to age 55," (Wappingers Falls
Congress of Teachers' Defendant-Appellant's brief at 26), there is no evidence in
the record identifying any such teacher.
More important, however, is the fact that none of the plaintiffs in this case
had 35 years of service prior to reaching the age of 55, and, therefore, their
eligibility for a service retirement was based on their age. Accordingly, they were
disqualified from the benefits afforded under option 2 based on their age. For this
reason the possibility that other persons could be disqualified because they became
eligible for pensions without regard to age is beside the point.
II. THE DISTRICT COURT CORRECTLY HELD THAT OPTION 2 IS NOT
A VOLUNTARY EARLY RETIREMENT INCENTIVE PLAN ELIGIBLE
FOR SAFE HARBOR PROTECTION UNDER THE ADEA.
The defendants argue that even if the plaintiffs were excluded from option
2 because of their age, their exclusion was sanctioned by § 4(f)(2)(B)(ii) of the
ADEA, which provides a safe harbor for otherwise unlawful actions if they are
taken in observance of "a voluntary early retirement incentive plan consistent with
the relevant purpose or purposes of [the ADEA]." 29 U.S.C. § 623(f)(2)(B)(ii).
The district court rejected this argument on the ground that option 2 is not an early
retirement incentive plan because it does not require employees to retire in order
to obtain benefits. We believe the decision and analysis of the district court was
correct.
The Commission has stated that, in an early retirement incentive plan,
"older employees typically are offered a financial incentive in exchange for their
agreement to leave the workforce earlier than they had planned." EEOC
Compliance Manual 915.003, Chapter 3: Employee Benefits, at VI.A (Oct. 3,
2000), available at http://www.eeoc.gov/docs/benefits.html. In this case, teachers
eligible for option 2 were offered a financial bonus regardless of whether or not
they agreed to leave the workforce at any time. We are aware of no case where a
court has held that a plan like this, which does not require a promise to retire as a
condition for participation, is an early retirement incentive plan within the
meaning of § 4(f)(2)(B)(ii). As the district court noted, this Court stated that the
benefit at issue in Auerbach was a retirement incentive precisely "because the sick
leave benefit is not paid out unless and until a teacher retires under the plan."
Auerbach, 136 F.3d at 112 (emphasis added). See also O'Brien v. Bd of Educ. of
the Deer Park Union Free Sch. Dist., 92 F. Supp. 2d 110, 113-14 (E.D.N.Y. 2000)
(relying on Auerbach to hold that the benefit plan at issue in that case, which made
no payment until the participating teacher retired, was a voluntary retirement
incentive plan for purposes of the ADEA), decision adhered to on reconsideration,
127 F. Supp. 2d 342 (E.D.N.Y. 2001). Accordingly, in order to be eligible for the
ADEA's safe harbor for voluntary early retirement incentive plans, a plan must
require employees to retire or promise to retire as a condition of participation.
While a benefit plan's eligibility for safe harbor protection is conditioned in
part upon whether that plan actually requires employees to retire in order to obtain
benefits, it is not the Commission's position that the commitment to retire must be
a commitment to retire immediately. The ADEA provides employers latitude in
fashioning voluntary early retirement incentive benefit plans which comport with
the purposes of the ADEA. Employers should be encouraged to use this latitude
to be creative in designing early retirement incentive plans which satisfy the
statutory terms. Protection under the safe harbor depends not on the length of time
between when an employee opts to participate in the benefit plan and when they
actually retire, but rather whether the plan in fact requires them to retire as a
necessary condition for participation.
The defendants do not dispute that option 2 does not require a teacher to
retire or promise to retire in order to obtain benefits. Instead, they argue that
option 2 should be considered an early retirement incentive plan because it was
intended to induce teachers to retire early and it is "inextricably intertwined" with
option 1, which does require a teacher to retire to obtain benefits. According to
the defendants, "common sense" dictates that teachers who choose option 2 would
"be expected to retire immediately, or not long, [sic] after the three-year period
ends." The defendants' intent, however, cannot transform a plan which provides
additional benefits to teachers, without regard for whether they retire or not, into
an early retirement incentive plan.
Furthermore, contrary to the defendants' assertion, "common sense" dictates
that all eligible teachers would choose option 2 whether they have any intention of
retiring in the near future or not. Option 2 offers a substantial financial benefit to
all eligible employees without requiring them to give up anything except the right
to choose option 1. Accordingly, the only incentive created by option 2 is an
incentive for employees who were thinking of taking option 1 and retiring the first
year they were eligible, to instead choose option 2 and retire later, not earlier.
Employees who choose option 2 have no incentive to retire earlier than they would
have otherwise. Option 2 creates an artificially high three-year salary bubble
which can be used to increase a teacher's pension. However, the teacher does not
have to retire at the end of the third year to take advantage of this bubble. As long
as the three years after a teacher chooses option 2 remain the teacher's "high
three" salary years, he can use those years as the basis for his pension.<2> Therefore,
contrary to the defendants' assertion, option 2 would not provide any incentive to
a teacher to retire earlier than he otherwise intended.
We do not dispute that any time an employer provides a financial bonus to
employees who are eligible for retirement, some of those employees may decide to
retire in light of their improved financial condition. However, if this effect were
enough to convert an otherwise unlawful benefit plan into a lawful early
retirement incentive plan, the result would be to extend the ADEA's safe harbor
protection for voluntary early retirement incentive plans to any benefit plan which
discriminates on the basis of age and which might, somehow, induce some
employees to retire early. Such a broad interpretation would not only do violence
to the language and purpose of the provision protecting bona fide early retirement
incentive plans, it would undermine the ADEA's distinctions between early
retirement incentive plans and other bona fide employee benefits plans which are
lawful only if they satisfy an equal cost/equal benefit standard. See 29 U.S.C.
§ 623(f)(2)(B)(i) (providing safe harbor protection for bona fide employee benefit
plans where, "for each benefit or benefit package, the actual amount of payment
made or cost incurred on behalf of an older worker is no less than that made or
incurred on behalf of a younger worker"). By extending protection to plans which
arguably could not satisfy the requirements for that safe harbor, but which might,
conceivably, inspire a person to retire, the defendants' argument, if accepted,
would undercut the equal cost/equal benefit safe harbor as well.
III. THE PLAIN LANGUAGE OF THE ADEA MANDATES AN AWARD OF
REASONABLE ATTORNEY'S FEES TO THE PLAINTIFFS.
The ADEA incorporates the enforcement procedures of the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. See 29 U.S.C. § 626(b). This
action was brought under § 16 of the FLSA, which provides that "[t]he court in [an
action under § 16] shall, in addition to any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs
of the action." 29 U.S.C. § 216(b). The district court denied attorney's fees to the
plaintiffs in this action, notwithstanding its acknowledgment that the "plaintiffs
clearly ‘won'" their lawsuit and obtained "an ‘enforceable judgment' against the
defendants," which "will force defendants to modify their behavior." JA.416, 418.
This decision was erroneous, as § 16(b), by its terms, requires a court to award
attorney's fees to the plaintiff whenever the court awards judgment to the plaintiff,
regardless of whether the judgment directly benefits the plaintiff.
The Supreme Court has made clear that the starting point for analysis of a
statutory provision is "the statutory text." Desert Palace, Inc. v. Costa, __ U.S. __,
__, 123 S. Ct. 2148, 2153 (2003) (citation omitted). "And where, as here, the
words of the statute are unambiguous, the judicial inquiry is complete." Id. The
words "any judgment" in § 16(b) lack ambiguity, and therefore provide no room
for statutory interpretation beyond their customary, plain meaning.
It is uncontested that the court's October 15, 2002, order constituted a valid
judgment on the merits of plaintiffs' claim. A "judgment" is defined in the
Federal Rules of Civil Procedure as "a decree and any order from which an appeal
lies." Fed. R. Civ. P. 54(a). The term "any" is similarly unambiguous in its
modification of the word "judgment." By using the term "any," Congress
unambiguously communicates a lack of restriction on the word or phrase it
modifies. In United States v. Gonzalez, 520 U.S. 1 (1997), the Supreme Court, in
interpreting a criminal statute, framed the issue as "whether the phrase ‘any other
term of imprisonment' ‘means what it says, or whether it should be limited to
some subset' of prison sentences." 520 U.S. at 5 (citation omitted). The Court
concluded that, because "Congress did not add any language limiting the breadth
of [the word "any"] we must read [the criminal statute] as referring to all ‘term[s]
of imprisonment,' including those imposed by state courts." Id. (emphasis added;
citations omitted).
This Court has also recognized that, when Congress uses the word "any," it
conveys an intent not to restrict the scope of the word it modifies. See United
States v. Altese, 542 F.2d 104, 106 (2d Cir. 1976) ("[W]e find ourselves obliged to
say that Title IX in its entirety says in clear, precise and unambiguous language
[by] the use of the word ‘any' that all enterprises that are conducted through a
pattern of racketeering activity or collection of unlawful debts fall within the
interdiction of the Act. . . . We cannot in the light of such language hold that
Congress did not say what it meant nor mean what it said.") (internal citation and
footnote omitted). See also United States ex rel. Barajas v. United States, 258
F.3d 1004, 1010-11 (9th Cir. 2001) ("The language of [the False Claims Act, 31
U.S.C.] § 3730(c)(5) places no restrictions on the alternate remedies the
government might pursue. It specifies broadly that the government may pursue
‘any alternative remedy available to [it].' The term ‘any' is generally used to
indicate lack of restrictions or limitations on the term modified.") (citations
omitted). Accordingly, by providing that a court shall include a reasonable
attorney's fee in "any judgment" awarded to an ADEA plaintiff, Congress
mandated such an award in every ADEA case in which a plaintiff is awarded a
judgment. See DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 822 (2d Cir.
1997) (quoting with approval the district court's statement that "it is difficult to
imagine a more ‘well defined, explicit and clearly applicable' provision of
governing law than the ADEA's mandate that successful age discrimination
claimants such as plaintiff recover attorney's fees").
Notwithstanding this clear statutory language, the district court held that not
every judgment for an ADEA plaintiff requires an award of reasonable attorney's
fees. According to the court, attorney's fees are mandated in ADEA actions only
when the court's judgment materially alters the legal relationship between the
parties by modifying the defendants' behavior in a way that directly benefits the
plaintiffs. JA.417; Rearg. Mem. at 5. The court derived this standard from Farrar
v. Hobby, 506 U.S. 103 (1992), and other cases interpreting the term "prevailing
party." As the court recognized, those decisions involved requests for attorney's
fees under statutes which authorize an award of fees only to a "prevailing party."
See 42 U.S.C. § 2000e-5(k) ([T]he court, in its discretion, may allow the
prevailing party . . . a reasonable attorney's fee"); § 1988 (same).
Under Farrar and its progeny, it is clear that not all plaintiffs who obtain
judgments are prevailing parties. See, e.g., Farrar, 506 U.S. at 110 ("[A]
judgment—declaratory or otherwise—‘will constitute relief [sufficient to make
plaintiff a "prevailing party"], for purposes of § 1988, if, and only if, it affects the
behavior of the defendant towards the plaintiff.'") (quoting Rhodes v. Stewart, 488
U.S. 1, 3 (1988) (per curiam)). However, the plain language of the attorney's fee
provision at issue in this case requires an award of fees to plaintiffs in all cases in
which they obtain a judgment. Accordingly, the "prevailing party" standard
utilized by the district court is incompatible with the applicable statutory
provision.
The few courts which have analyzed the issue have held that the "prevailing
party" analysis of Farrar may not be used to deny attorney's fees to plaintiffs who
have obtained a judgment under a statute, like the one at issue in this case, which
directs a court to include reasonable attorney's fees in "any judgment" awarded to
a plaintiff. See McDonnell v. Miller Oil Co., 968 F. Supp. 288, 291–93 (E.D. Va.
1997) (because "prevailing party" requirement is inapplicable to the fee-shifting
provision in the Family and Medical Leave Act ("FMLA"), 29 U.S.C.
§ 2617(a)(3), which mandates a fee award in "any judgment" awarded to plaintiff,
court awarded reasonable attorney's fees "despite the plaintiff's rather limited
victory at trial," which consisted of $2 in damages), remanded on other grounds,
134 F.3d 638 (4th Cir. 1998); Sherry v. Protection, Inc., 14 F. Supp. 2d 1055, 1057
(N.D. Ill. 1998) ("[U]nder the broader FMLA attorney's fee provision, a plaintiff
may be eligible for fees even if he fails to meet the requirement that he be a
‘prevailing party.'") (internal citation omitted).
As the district court noted, there are a number of decisions in which courts
have stated that the "prevailing party" standard applies in determining whether to
award fees in an ADEA action. JA.417; Rearg. Mem. at 2. However, all of these
decisions simply assume that the "prevailing party" standard applies without any
consideration of the significant differences in the relevant statutory language. See
Villescas v. Abraham, 311 F.3d 1253, 1261-62 (10th Cir. 2002) (citing Farrar and
Hewitt v. Helms, 482 U.S. 755 (1987) (another § 1988 case) without discussion of
statutory differences with the ADEA); Tyler v. Union Oil Co., 304 F.3d 379, 404
(5th Cir. 2002) (applying "prevailing party" requirement to ADEA claimants,
pursuant to Purcell v. Seguin Bank & Trust Co., 999 F.2d 950, 961 (5th Cir.
1993), which itself applied the "prevailing party" standard to an ADEA claimant
without considering statutory differences or citation to supporting authority);
Gilbert v. Monsanto Co., 216 F.3d 695, 702 (8th Cir. 2000) (adopting "prevailing
party" requirement in an ADEA case without discussion of statutory differences);
Nance v. Maxwell Fed. Credit Union, 186 F.3d 1338, 1343 & n.10 (11th Cir.
1999) (although noting that Farrar did not involve an ADEA claim, and that the
ADEA and § 1988 are different bodies of law, stating without analysis that "the
two bodies of law are generally considered interchangeable"); Detje v. James
River Paper Corp., 167 F. Supp. 2d 248, 250 (D. Conn. 2001) (stating without
analysis or support that "[a] party must be a ‘prevailing party' to recover attorney's
fees under the ADEA," and then applying a "prevailing party" definition from
Hensley v. Eckerhart, 461 U.S. 424 (1982), a § 1988 case); Samborski v. Linear
Abatement Corp., No. 96 Civ. 1405(DC), 1999 WL 739543, at *1 (S.D.N.Y. Sept.
22, 1999) (in FLSA claim, court found that settlement made plaintiffs "prevailing
parties entitled to reasonable attorney's fees and costs," with citation to Farrar but
without examination of statutory differences); Soler v. G & U, Inc., 801 F. Supp.
1056, 1059 (S.D.N.Y. 1992) (citing without discussion Hensley for the proposition
that "[a] party must be a prevailing party to recover attorney's fees under the
ADEA"); Quinn v. New York State Elec. & Gas Corp., 621 F. Supp. 1086, 1093
(S.D.N.Y. 1985) (noting that the ADEA's fee shifting provision has "generally"
been interpreted as providing a fee award when the plaintiff "prevails," without
further discussion).
Furthermore, in none of these decisions did the court deny fees to an ADEA
plaintiff who, like the plaintiffs in this action, obtained an enforceable judgment
against the defendant. See Villescas, 311 F.3d at 1261-62 (compensatory damages
award—"the only relief granted by the district court"—reversed on appeal;
attorney's fees denied); Tyler, 304 F.3d at 404 (judgment for plaintiffs included
award of back pay and liquidated damages; attorney's fees awarded); Gilbert, 216
F.3d at 702-03 (settlement, including a damages award, enforceable by court;
remanded for award of attorney's fees); Nance, 186 F.3d at 1342-43 (district
court's damage award vacated, leaving no enforceable judgment; attorney's fees
denied); Detje, 167 F. Supp. 2d at 250 (judgment included damages award in
excess of one million dollars; attorney's fees awarded as "mandatory");
Samborski, 1999 WL 739543, at *1 (settlement for $50,000; attorney's fees
awarded); Soler, 801 F. Supp. at 1059 (judgment included damages award;
attorney's fees awarded); Quinn, 621 F. Supp. at 1093 (result achieved was not a
goal of the plaintiff, and summary judgment granted for defendants; attorney's
fees denied). See also Salvatori v. Westinghouse Elec. Corp., 190 F.3d 1244 (11th
Cir. 1999) (noting that in Nance "the plaintiff had not received an enforceable
judgment, and, as a result, had not ‘prevailed,' as that term has been used in other
civil rights contexts," and holding that Nance required that an award of attorney's
fees was therefore not available to a plaintiff who failed to obtain "a judgment,
either in the form of damages or equitable relief, that the court may enforce against
Westinghouse"); Bhatia v. Air India, No. 90 Civ. 5445, 1992 WL 232146, at *4
(S.D.N.Y. Sept. 2, 1992) (holding that in an ADEA case, settlement "which was
‘so ordered' by the court" gave rise to award of attorney's fees). Unlike the
instant matter, in which an enforceable judgment was entered for plaintiffs, all of
the cited decisions which deny fees involve plaintiffs who either did not obtain a
judgment at all or obtained a judgment which found a violation but awarded
neither monetary nor injunctive relief.
This Court has not had occasion to decide whether the "prevailing party"
standard of Farrar and Hewitt applies to a request for fees under the ADEA. In
Hagelthorn v. Kennecott Corp., 710 F.2d 76 (2d Cir. 1983), the Court reversed a
district court decision denying attorney's fees to an ADEA plaintiff who had
obtained a judgment awarding back pay and liquidated damages. The Court,
quoting the language of § 16(b) of the FLSA, held that the district court had no
discretion under that provision to deny attorney's fees "to a prevailing plaintiff; its
discretion extended only to the amount allowed." 710 F.2d at 86. The decision
makes no reference to any cases which define "prevailing party" to exclude some
plaintiffs who obtain judgments. Accordingly, the decision in Hagelthorn does not
resolve the issue presented in this case.<3>
In concluding that the plaintiffs in this case are not entitled to attorney's
fees, the district court emphasized that they obtained substantially less in terms of
direct benefits than they sought. As the court noted, the plaintiffs sought an order
directing that they be permitted to obtain the benefits that would have been
available to younger teachers if option 2 went into effect. Instead, the court's
order simply directs the defendants to bring their benefits plan into compliance
with the ADEA. As the court notes, this could be done in a way which does not
directly benefit the plaintiffs, most obviously by eliminating option 2 altogether.
JA.418. This disparity between the relief plaintiffs sought and the relief they
obtained, however, does not provide a basis for finding them ineligible for
attorney's fees under the ADEA's fee provision, but is relevant only to the
reasonableness of the amount of fees they seek—an issue the district court did not
reach. In considering what a reasonable attorney's fee would be in this case, the
district court should also take into account that the only reason the plaintiffs did
not obtain monetary relief is that they acted promptly in obtaining an injunction
which prevented the defendants from carrying out an unlawful benefits plan.
Under these circumstances, the plaintiffs' failure to obtain monetary relief does
not warrant any substantial reduction in the fees to which they are entitled.<4>
CONCLUSION
For the foregoing reasons, the Commission respectfully asks this Court to
affirm the judgment below on the question of liability, to reverse the judgment
below denying plaintiffs an award of reasonable attorney's fees, and to remand the
case to the district court to determine the amount of reasonable attorney's fees and
costs due to plaintiffs, including the fees and costs incurred from the prosecution
of this appeal.
Respectfully submitted,
ERIC L. DREIBAND
General Counsel
VINCENT J. BLACKWOOD
Acting Associate General Counsel
_____________________________
JAMES M. TUCKER
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
1801 L Street, NW., Room 7052
Washington, DC 20507
(202) 663-4870
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume and length limitations
set forth in Fed. R. App. P. 32(a)(5)(A) and (7)(B). This brief contains 6,612
words, from the Statement of Interest through the Conclusion, as determined by
the Word Perfect 9 word-counting program, and was prepared using the
WordPerfect 9.0 word-processing system in 14-point proportionally spaced type
for text and 14-point type for footnotes.
____________________________
James M. Tucker
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing brief were sent this 5th day
of November, 2003, by first-class mail, postage prepaid, to the following counsel
of record:
Raymond G. Kuntz, Esq.
Route 22, Hunting Ridge Mall
P.O. Box 396
Bedford Village, NY 10506
James D. Bilik, Esq.
James R. Sandner, Esq.
800 Troy-Schenectady Rd.
Latham, NY 12110-2455
Richard C. Hamburger
David N. Yaffe
Hamburger, Maxson, Yaffe, Wishod & Knauer, LLP
225 Broadhollow Rd.
Melville, NY 11747
__________________________
James M. Tucker
***********************************************************************
<<FOOTNOTES>>
<1> The record shows that the first 18 plaintiffs to join this suit had previously
become eligible for the SEP based upon their age, not the exception for teachers with 35
years of service. While there is no information in the record on this issue as to the
latest plaintiff to join the suit (Carlos Picciotti), defendants have not alleged that
he, or any other named teacher in this action, satisfied the service-based exception to
the NYSTRS’ age requirement.
<2> Even accepting the defendants’ assumption that teachers can expect an average pay increase of $2,500 per year (see Wappingers Falls Congress of Teachers’
Defendant-Appellant’s brief at 20), a teacher who chose option 2 would have a higher
“high three” in the very next year after the option 2 salary increases ended.
Accordingly, a teacher’s pension would actually increase if he decides not to retire in
the third year after choosing option 2. If “x” is a teacher’s salary when he chooses
option 2, then his total salary for the next three years would be: (x + $7,000) + (x +
$7,000 + $2,500) + (x + $7,000 + $5,000), or 3x + $28,500. The same teacher’s salary in
the fourth year after choosing option 2 would be x + $7,500. Since that is higher than
his salary in the first year after he chose option 2, his pension would be higher if he
retired in the fourth year than if he retired in the third year.
<3> The district courts in Detje and Quinn cite Hagelthorn in applying the “prevailing
party” standard to ADEA attorney’s fee requests. Detje cites Hagelthorn for the
proposition that an award of attorney’s fees is mandatory for a plaintiff who is a
“prevailing party.” 167 F. Supp. 2d. at 250. Quinn cites Hagelthorn for the proposition
that the ADEA’s fee shifting provision “has generally been interpreted to mean that an
award of attorney’s fees should be made to the plaintiff when he or she prevails.” 621
F. Supp. at 1093.
<4> Plaintiffs argue on appeal that the district court erred in failing to order the
district to allow plaintiffs to participate retroactively in option 2 and to award
damages. See Plaintiff-Appellee’s Brief at 37-42. In view of the fact that no one
obtained benefits under option 2, we believe that the district court did not abuse its
discretion in limiting the relief awarded to an injunction ordering the defendants to
bring the collective bargaining agreement into compliance with the ADEA.