____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ____________________________________________ No. 07-8002 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Respondent, v. ALLSTATE INSURANCE CO., Defendant–Petitioner. _______________________________________________________ On Petition from the United States District Court for the Eastern District of Missouri _______________________________________________________ THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S OPPOSITION TO THE PETITION FOR INTERLOCUTORY APPEAL _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . .3 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 10 PERMISSION TO APPEAL SHOULD BE DENIED BECAUSE ALLSTATE HAS NOT SHOWN THAT THIS IS AN EXCEPTIONAL CASE JUSTIFYING INTERLOCUTORY REVIEW.. . . . . . . . . . . . . . . . . . . . . 10 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 20 TABLE OF AUTHORITIES CASES Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674 (7th Cir. 2000) . . . . . . . . . . . . . . . . 12, 13, 18 Control Data Corp. v. Int'l Bus. Mach. Corp., 421 F.2d 323 (8th Cir. 1970) . . . . . . . . . . . . . . . . . . . . 19 Johnson v. Alldredge, 488 F.2d 820 (3d Cir. 1973) . . . . . . 13 Leftwich v. Harris-Stowe State Coll., 702 F.2d 686 (8th Cir. 1983) . . . . . . . . . . . . . . . . . . . . 18 McFarlin v. Conesco Servs., 381 F.3d 1257 (11th Cir. 2004). . 13 Orion Fin. Corp. of S.D. v. Am. Foods Group, Inc., 201 F.3d 1047 (8th Cir. 2000) . . . . . . . . . . . . 10 Robinson v. Shell Oil Co., 519 U.S. 337 (1997). . . . . . . . 15 Smith v. City of Jackson, 544 U.S. 228 (2005) . . . . . . .5, 13 White v. Nix, 43 F.3d 374 (8th Cir. 1994). . . . . . . 2, 11, 20 STATUTES 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . 10 28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . .2, 11 29 U.S.C. § 630(f). . . . . . . . . . . . . . . . . . . . . . 15 29 U.S.C. § 621 et seq. . . . . . . . . . . . . . . . . . . . .1 29 U.S.C. § 623(a)(2) . . . . . . . . . . . . . . . . . . . . 13 29 U.S.C. § 623(f)(1) . . . . . . . . . . . . . . . . . . . . .5 TREATISES James Wm. Moore, 19 Moore's Federal Practice, § 203.31[1] (3d ed. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 12 Wright, Miller, & Cooper, 16 Fed. Prac. & Proc. § 3930 (2d ed. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 12 INTRODUCTION In June 2000, Allstate Insurance Company terminated all of its employee- agents. Shortly after these employees were terminated, the company adopted a policy barring them from any employment with Allstate for up to two years. The employees affected by the termination and rehiring ban were almost all over 40 years of age, and were, as a group, significantly older than the rest of Allstate's workforce. The Equal Employment Opportunity Commission alleges in this action that the moratorium on rehiring terminated agents violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., because it had a disparate impact based on age and was not based on a reasonable factor other than age. The district court granted the Commission's motion for partial summary judgment, ruling that the case was cognizable under a disparate impact theory and that the statistical evidence established that the policy had a disparate impact. The court denied the defendant's motion for summary judgment on the question of whether the hiring moratorium was based on reasonable factors other than age, holding that this issue should be decided by a jury.<1> The district court subsequently granted Allstate's motion to certify the following questions for interlocutory appeal pursuant to 28 U.S.C. § 1292(b): (1) whether a claim that a policy has a disparate impact on former employees based on age is cognizable under § 4(a)(2) of the ADEA; and (2) whether the method of determining a disparate impact used by the Commission and adopted by the district court is inadequate "as a matter of law" to establish a disparate impact. Allstate has now petitioned this Court for permission to pursue interlocutory review of these claims. Interlocutory appeal under § 1292(b) "is designed to be used sparingly and in extraordinary cases." White v. Nix, 43 F.3d 374, 379 (8th Cir. 1994). As we explain in detail below, Allstate's proposed appeal does not meet this stringent standard for several reasons. First, although Allstate characterizes both issues presented as questions of law, the district court's resolution of these issues is inextricably linked to the unusual facts of this case where a policy relating to the hiring of former employees was adopted in conjunction with a program that terminated the employment of those same employees. Accordingly, this case does not present the kind of "pure" question of law which courts have identified as appropriate for interlocutory review. Furthermore, a proper understanding of the limited nature of the district court's ruling demonstrates that there is not "substantial ground for difference of opinion" as to the correctness of the decision below. Finally, an interlocutory appeal at this time would not materially advance the ultimate resolution of this litigation because important issues regarding the standard for determining whether Allstate's policy was lawful as a reasonable factor other than age remain to be resolved by the district court before the company's liability is established. Contrary to the district court's view, even if this Court were to review the case now and affirm the district court's summary judgment rulings, the parties are unlikely to engage in settlement efforts prior to an appeal on the reasonableness question. Thus the district court's belief that interlocutory review at this point will prevent lengthy proceedings in the district court is erroneous. BACKGROUND On June 30, 2000, Allstate terminated the employment of approximately 6,300 employee-agents as part of the company's Preparing for the Future Group Reorganization Program. More than 90% of these employee-agents were 40 or older. The average age of the employee-agents terminated under the program was 51.1 years, while the average age of the rest of the Allstate workforce was 39.4 years. Furthermore, 23 percent of Allstate's workforce aged 40 or older were terminated pursuant to the program, whereas only 2.7 percent of employees under 40 were terminated. The terminated employee-agents were given the option of converting to independent contractor status and continuing to work as Allstate agents. Those who did not wish to become independent contractors were offered severance benefits. Ordinarily Allstate does not limit the rehiring of former employees unless they were fired for poor performance or misconduct. However, in September 2000,<2> Allstate established a policy that the employee-agents subject to the reorganization program were not eligible to be rehired as Allstate employees in any job until the later of (1) the passage of one year after the termination of their employment, or (2) after all severance benefits had been received, which was two years at the latest. Allstate articulated several reasons for prohibiting the rehiring of terminated agents: (1) to avoid a situation in which customers assigned to new agents encountered former agents working in another capacity for the company; (2) to encourage the former employee-agents to elect to become independent contractor agents with Allstate; (3) to prevent the former employee-agents from receiving severance benefits at the same time they were receiving salaries; (4) to avoid placing former employee-agents who had rejected the offer to become independent contractors in close proximity to other Allstate employees; and (5) to use a policy consistent with the rehiring policy implemented in a particular retirement program which the company had used in the past. The Commission brought suit, alleging that the restriction on hiring terminated employee-agents violated the ADEA because it had an adverse impact based on age and was not justified as a "reasonable factor other than age" pursuant to § 4(f)(1) of the ADEA.<3> The Commission alleged that the policy resulted in the defendant's refusal to hire applicants who were former employee-agents and deterred former employee- agents from applying for non-agent positions with the company. Based on the undisputed evidence that the hiring restriction applied only to a subset of Allstate employees who were significantly older than the rest of the workforce, the Commission moved for summary judgment on the question of whether the policy had a disparate impact based on age. Allstate also moved for summary judgment on liability. The company argued that the Commission's claim is not cognizable under the ADEA because it amounts to a disparate impact challenge to a "hiring" policy. According to Allstate, the Supreme Court's decision in Smith v. City of Jackson, Miss., 544 U.S. 228, 238 (2005), establishes that ADEA disparate impact claims may only be brought under § 4(a)(2) of the ADEA, and, since § 4(a)(2) refers only to "employees," not "applicants," it may not be used to challenge discrimination in hiring. Allstate also faulted the Commission's statistical analysis because it does not comport with the analysis used in other disparate impact hiring cases. On October 19, 2006, the district court granted the EEOC's motion for partial summary judgment and denied Allstate's motion for summary judgment. The court accepted Allstate's premise that the disparate impact theory may not be applied to a hiring policy under the ADEA. Memorandum and Order ("Mem.") at 12 ("[A] disparate impact hiring case . . . is no longer cognizable [under the ADEA] after City of Jackson."). However, the court concluded that, based on the evidence in this case, "the most logical approach is to treat the rehire policy as part of [Allstate's] Reorganization Plan which affected all employee-agents." Id. at 13. The court reasoned that "[t]he legality of the Reorganization Plan is not before this court, but the effect of that reorganization was to require the former agents to either become independent contractors, or to seek other employment. The Defendants then implemented a rehire policy which barred this same group from reapplying for positions within the company." Id. at 14. The court agreed with the Commission that the action was properly litigated as a challenge to a policy that affects the status of members of the protected class as employees. Id. at 14- 15. "When an employee is terminated, the court treats this as a term of employment, analyzed under § 623(a)(2). The current case is no different, the employees were terminated, and then unable to apply for an alternate position." Id. at 18. Consequently, the district court rejected Allstate's argument that this case constitutes a "hiring" case which cannot be brought as a disparate impact claim under § 4(a)(2). Because the court did not consider the action a challenge to a hiring policy, it also rejected Allstate's argument that the method of identifying a statistically significant impact on older workers necessarily had to assess the effect of the hiring moratorium on the general applicant population. According to the court, "[a]pplicants from the general population would not be subject to the rehire policy at issue, because they were not former employees." Id. at 12; see also id. at 17. Instead, because "the Reorganization Plan [is] inextricable from the rehire policy, the appropriate analysis is that suggested by the Plaintiff, comparing the total number of Allstate employees within the protected group that were affected by the policy, with the number of Allstate employees not in the protected group that were affected by the policy." Id. at 18. The district court noted that the average age of employees subject to the hiring moratorium was 51.1 years while the average age of the rest of the Allstate workforce was 39.4 years. Id. The district court granted the Commission's motion for partial summary judgment, holding that the Commission had established as a matter of law that the hiring moratorium had a disparate impact on the former employee-agents aged 40 and older who had been terminated under the reorganization program. The court denied Allstate's motion for summary judgment on the reasonableness of the policy, holding that the issue was properly determined by a jury. The court allowed the RFOA issue to go to a jury because "a reasonable jury could find for the Plaintiff that the Plaintiff has provided sufficient evidence that the proffered reasons are unreasonable." Id. at 20. On January 4, 2007, the district court issued an order granting Allstate's request that the court certify two questions for interlocutory appeal, and amended its October 19, 2006 order to include a finding that the proposed questions met the requirements of 28 U.S.C. § 1292(b). The court held that the two questions were controlling issues of law about which there exist substantial grounds for difference of opinion and resolution of the questions will materially advance the ultimate termination of the litigation. Memorandum and Order of January 4, 2007 at 10. The court emphasized that interlocutory review was appropriate in this case because "the questions decided by this court may contribute to the determination of a wide spectrum of cases." Jan. 4 Order at 6 (citing Fed'l Deposit Ins. Corp. v. First Nat'l Bank of Waukesha, Wisc., 604 F. Supp. 616, 620 (E.D. Wis. 1985)). The district court stated that its ruling that Allstate's policy restricting the rehiring of terminated employee-agents may be challenged under § 623(a)(2) of the ADEA using a disparate impact theory will affect future challenges to rehire policies. Id. The court opined that the uniqueness of the hiring moratorium, the dearth of case law interpreting the Supreme Court's decision in Smith v. City of Jackson, and the dearth of analogous cases brought under the ADEA or Title VII provide a basis for finding substantial grounds for a difference of opinion. Id. at 7-8. The court reiterated the "uniqueness" of a rehire policy generally and stated that "it is illogical to treat this as a hiring case, when the rehire policy effected [sic] only a small subset of individuals applying for positions with the Defendant; however, it does not squarely fit within the language of § 623(a)(2) which by its terms applies to employees." Id. at 8. The district court maintained that an immediate appeal resulting in affirmance of the court's summary judgment rulings may encourage the parties to settle before a final judgment is entered. The court noted that relief proceedings must be conducted for 100 claimants before the case is concluded, and it had previously ordered that "trial of no more than six claimants at a time is appropriate." January 4 Order at 9. According to the court, if an interlocutory appeal is permitted now, the parties may be amenable to settlement after the trial of the first claimants "rather than continuing with the trial of all claimants in order to preserve the appealability of the questions at issue in this order." Id. The court rejected the Commission's argument that interlocutory review at this point in the case is unlikely to advance the termination of the litigation because Allstate might well seek another interlocutory appeal after the first trial to resolve questions related to the standard for determining whether the rehiring restriction was a reasonable factor other than age. The court explained that the reasonableness issue "is a question to be decided by the jury, and does not negate the Court's reasoning that an appeal at this time will materially advance the termination of the litigation." Id. at 9 n.3. The district court stayed all proceedings pending resolution of this petition. ARGUMENT PERMISSION TO APPEAL SHOULD BE DENIED BECAUSE ALLSTATE HAS NOT SHOWN THAT THIS IS AN EXCEPTIONAL CASE JUSTIFYING INTERLOCUTORY REVIEW. Ordinarily, courts of appeals have jurisdiction only over "final decisions of the district courts." 28 U.S.C. § 1291. "‘The finality requirement . . . embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.'" Orion Fin. Corp. of S.D. v. Am. Foods Group, Inc., 201 F.3d 1047, 1048-49 (8th Cir. 2000) (quoting United States v. Nixon, 418 U.S. 683, 690 (1974)). Section 1292(b) of the Judicial Code provides a limited exception to the finality requirement by granting the courts of appeals discretion to entertain an appeal from an interlocutory order when a district court determines that the order involves "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). However, interlocutory review is to be granted "sparingly and with discrimination" and "used only in exceptional cases where a decision on appeal may avoid protracted and expensive litigation." White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994). Even where a district court acts within its discretion in certifying an appeal for interlocutory review, the court of appeals has discretion whether to hear the appeal and may deny the appeal for any reason. Id. at 376 n.2. Allstate fails to meet its "heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted." Id. at 376. Immediate review should be denied both because the requirements of § 1292(b) are not met, and because, even if they were, this is not an appropriate case for interlocutory review. The two questions certified are: (1) whether a challenge to Allstate's policy restricting rehire of terminated employee-agents may be brought under § 4(a)(2) of the ADEA which prohibits practices with a disparate impact based on age; and (2) whether the method of determining a disparate impact used by the Commission and adopted by the district court is inadequate "as a matter of law" to establish a disparate impact. In considering whether these questions were properly certified by the district court, the requirements of § 1292(b) should be viewed as a whole. Although the statute may be broken down into separate elements for purposes of analysis, "in practice the courts treat the statutory criteria as a unitary requirement, and the decisions granting and discussing interlocutory appeals under [the statute] uniformly cite all three of the elements as being present in any particular case." James Wm. Moore, 19 Moore's Federal Practice, § 203.31[1], at 203-86-87 (3d ed. 2000); see also Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000) ("The criteria are conjunctive, not disjunctive."). In addition, the criteria tend to overlap. For example, "the requirement that an appeal may materially advance the ultimate termination of the litigation is closely tied to the requirement that the order involve a controlling question of law." Wright, Miller, & Cooper, 16 Fed. Prac. & Proc. § 3930 415, 432 (2d ed. 1996); see also id. at 427 (characterizing as "artificial" the attempt to identify a controlling question as an inquiry separate from the prediction whether an appeal may materially advance the ultimate termination of the litigation). Allstate attempts to frame the questions proposed for interlocutory review in this case in broad legal terms. But they are, in fact, narrow issues that are inextricably tied to the unusual and complex facts of this case. As such, they are not "questions of law" within the meaning of § 1292(b). The drafters of § 1292(b) "used ‘question of law' in much the same way a lay person might, as referring to a ‘pure' question of law . . . something the court of appeals could decide quickly and cleanly without having to study the record." Ahrenholz, 219 F.3d at 676-77; see also McFarlin v. Conesco Servs., 381 F.3d 1257, 1258 (11th Cir. 2004) ("question of law" excludes any question that "requires rooting through the record in search of the facts"); Johnson v. Alldredge, 488 F.2d 820, 822 (3d Cir. 1973) (court would have serious doubts about deciding the question certified since it "comprehends factual as well as legal matters"). The questions certified by the district court both go to the issue of whether Allstate's policy restricting the rehire of terminated employee-agents has a disparate impact based on age within the meaning of § 4(a)(2) of the ADEA. Section 4(a)(2) makes it unlawful for an employer "to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. § 623(a)(2). The Supreme Court held in Smith v. City of Jackson, 544 U.S. 228, 238 (2005), that this provision outlaws neutral practices with a disparate impact based on age. The district court concluded that the Commission's challenge to Allstate's policy limiting employment opportunities for recently terminated employee-agents is cognizable under § 4(a)(2), and that the policy had a disparate impact based on age. Both of these rulings flow from and are dependent upon the court's factual determination that, based on the evidence in the record, the policy at issue is best viewed as an integral part of the company's reorganization program affecting employee-agents, rather than as a hiring policy. We submit that this determination is correct. However, whether it is right or wrong, it certainly is not appropriate for interlocutory review and, therefore, renders the two certified questions similarly inappropriate for interlocutory appeal. Contrary to the suggestion in Allstate's petition, the district court did not make a broad legal ruling that § 4(a)(2) applies to "rehiring cases." Instead, the court ruled only on the narrow point that Allstate's policy, which adversely affected recently terminated employee-agents precisely because they were recently terminated employee-agents, falls within the scope of that provision. This limited legal holding is fully consistent with the language of § 4(a)(2). The statute makes it unlawful to classify "employees" in a way that may limit their employment opportunities based on their age. There is no question that if the hiring moratorium had been implemented at the same time as the reorganization program, a challenge to the policy would be covered under § 4(a)(2). Allstate does not dispute this, but argues that because it waited until shortly after the employee- agents were terminated to impose limits on their future employment, the policy is immune from scrutiny under § 4(a)(2). The district court correctly recognized that this distinction is "illogical." The distinction Allstate advances is also legally unsound and, therefore, is not one as to which there is substantial ground for difference of opinion as required under § 1292(b). The company's argument is premised on the notion that § 4(a)(2) applies only to discrimination against current employees. In Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997), the Supreme Court held that the term "employee" in Title VII's retaliation provision includes former employees. Robinson is dispositive in this instance because, as in Title VII, the definition of "employee" in the ADEA (see 29 U.S.C. § 630(f)) "lacks any temporal qualifier and is consistent with either current or past employment." Robinson, 519 U.S. at 342. Furthermore, the policy concerns expressed by the Robinson Court apply with equal force in this case. In Robinson, the plaintiff alleged that his former employer violated Title VII when it gave him a negative job reference in retaliation for his filing an EEOC charge following his termination. The Court noted that the alleged retaliation grew directly out of the plaintiff's employment with the defendant, and construing Title VII to put this conduct beyond the reach of the courts would undermine the purpose of the statute. Similarly, the alleged discriminatory policy in this case was directly connected to the fact that the former employee-agents were employed by Allstate. To construe the ADEA to insulate the policy from challenge simply because it was implemented shortly after, rather than before the employee-agents were terminated would make it too easy for employers to evade the prohibitions of the statute. Here, the policy was implemented several months after the agents were terminated, but, under Allstate's argument, the policy would be equally immune if it had been implemented the day after they were terminated. The district court's construction of the statute to avoid this result is not subject to substantial question and, for this reason as well, is not appropriate for interlocutory review. The other question proposed by Allstate for interlocutory appeal is similarly an inappropriate vehicle for such review because it is tied to the same factual determination by the district court that the employment restriction was simply an aspect of the company's reorganization program. Allstate would have this Court decide whether the statistical analysis used by the district court is inadequate "as a matter of law" to establish disparate impact. Once again the company mischaracterizes the court's holding. The district court's decision was based on the particular facts of this case, not on any general legal principles relating to "rehiring" or "hiring" cases, as Allstate suggests. In order to review this decision, this Court would have to examine the evidence relating to the institution of the hiring moratorium to assess the validity of the district court's view of the policy as part and parcel of the reorganization program rather than a separate hiring policy. Furthermore, to understand the hiring moratorium and its relationship to the reorganization, the Court will have to look at the company's justifications—a heavily fact-intensive inquiry and the subject of the remaining liability issue scheduled to be tried to a jury. It is undeniable that the hiring moratorium was instituted as part of the reorganization program. The policy disadvantaged the same group of people, and almost all of the justifications advanced by the company for restricting the employment opportunities of former employee-agents relate to concerns about having these former employees back at Allstate after their jobs were eliminated by the reorganization: the purported worry about customer confusion, the desire to encourage the former employee-agents to sign on as independent contractors, the desire to prevent double-dipping, and the desire to keep terminated agents away from Allstate's other employees. Once the district court determined that the challenged policy was an abridgement of employment opportunities for the former employee-agents because of their status as terminated employees, it logically embraced the EEOC's statistical analysis. Here, the group selected for an adverse employment action was disproportionately older when compared to Allstate's workforce. Because this is not a hiring case involving applicants without a relationship to the company, the Commission's expert appropriately did not perform any analysis of the labor pool of potential applicants for Allstate positions. Comparing the former employee- agents to the rest of Allstate's workforce was "clearly an appropriate method to establish disparate impact." Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 690 (8th Cir. 1983) (in disparate impact ADEA action involving a RIF, court of appeals approved statistical analysis that only considered the defendant's workforce affected by the policy challenged, not the labor market). Finally, resolution of the questions certified "must promise to speed up the litigation." Ahrenholz, 219 F.3d at 676 (emphasis in original). In arguing that an interlocutory appeal is warranted here, Allstate relies entirely on the fact that a decision reversing the district court's decision would end the litigation. But this is true whenever a court denies a defendant's motion for summary judgment. Accordingly, it cannot be enough by itself to justify the extraordinary step of granting interlocutory review. The district court stated that interlocutory review at this time was justified because, if this Court affirms its ruling, the parties may be more inclined to settle before relief proceedings for the 100 claimants are concluded. On the contrary, there is every reason to believe that affirmance of the present ruling will simply generate another interlocutory appeal if the jury decides the remaining issue pertaining to liability against Allstate. If interlocutory appeal is denied, this issue will be decided by a jury during the initial trial of the first six complainants. If the jury finds the policy unreasonable and finds for the Commission, Allstate can be expected to petition this Court for interlocutory appeal a second time before the other claimants' claims for damages are tried. Because the Supreme Court created a new standard for analyzing the RFOA provision in Smith v. City of Jackson and there is little case law interpreting it, the court's jury instructions defining the parameters of that standard may well present important unresolved legal issues warranting interlocutory appeal. Accordingly, if Allstate's petition is denied, proceedings in the district court may proceed expeditiously and the question of Allstate's liability will be determined. The first trial of the initial six claimants was scheduled for March of this year. The district court stayed proceedings, including the completion of discovery, pending the petition for interlocutory review. See Ahrenholz, 219 F.3d at 676 (proceeding in district court "normally grinds to a halt as soon as the judge certifies an order in the case for an immediate appeal"). However a jury decides the reasonableness issue, there will be novel questions before the Court. Appellate review of this case will thus be more efficient if the three connected issues are examined together after the first trial. See Control Data Corp. v. Int'l Bus. Mach. Corp., 421 F.2d 323, 325 (8th Cir. 1970) ("It has, of course, long been the policy of the courts to discourage piece-meal appeals because most often such appeals result in additional burdens on both the court and the litigants."). Should this Court affirm the district court's rulings on summary judgment, nothing will have been gained but delay of the first trial and a potential additional petition for interlocutory appeal on the reasonableness question. CONCLUSION Because "[c]ertification is designed to be used sparingly and in extraordinary cases," White, 43 F.3d at 379, this Court should deny the petition for interlocutory appeal. Allstate has demonstrated neither that the questions certified meet § 1292(b)'s requirements, nor that this is an exceptional case necessitating immediate appellate review. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ JULIE L. GANTZ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF SERVICE I hereby certify that I served one copy of the foregoing opposition, and one copy of the digital version on diskette, by Federal Express next business day service, postage pre-paid, to the following counsel of record: Richard C. Godfrey, P.C. Sallie G. Smylie, P.C. Donna M. Welch KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601 Stephen H. Rovak Michael M. Godsy SONNENSCHEIN NATH & ROSENTHAL LLP One Metropolitan Square, Suite 3000 St. Louis, MO 63102 I hereby certify that one copy of the opposition and diskette containing the opposition was hand-delivered to the following counsel of record: Donald R. Livingston Nathan J. Oleson AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 Julie L. Gantz Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 *********************************************************************** <> <1> Trial was scheduled for March 2007 but has been stayed pending resolution of the § 1292(b) proceedings. <2> The Allstate official who devised the policy testified that that the hiring moratorium was established in September 2000. However, there is evidence that the employee-agents were informed of the rehiring ban at an earlier date. Thus the EEOC concedes that the policy was implemented in September 2000 only for purposes of this opposition. <3> The ADEA’s “reasonable factor other than age” or “RFOA” provision states that “it shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on a reasonable factor other than age.” 29 U.S.C. § 623(f)(1).