EEOC v. Ameritech Reply Brief Aug. 23, 2004 (draft brief filed) No. 04-3496 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. AMERITECH SERVICES, INC., Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the Northern District of Ohio ______________________________________________ FINAL REPLY BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ______________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, DC 20507 (202) 663-4728 TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .1 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 A. Each application of Ameritech's seniority system is a new unlawful act1 1. Ameritech's seniority policy intentionally discriminates on the basis of pregnancy . . . . . . . . . . . . . . . . .2 2. Every application of a discriminatory seniority system is actionable, not just the first one. . . . . . . . . . . . .6 3. Section 2000e-5(e)(2) applies to seniority rules that were legal when adopted. . . . . . . . . . . . . . . . . . . . 10 B. This case does not involve retroactive application of the PDA12 C. Ameritech's other arguments are meritless . . . . . . . . . 14 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Armstrong v. Flowers Hosp., 33 F.3d 1308 (11th Cir. 1994). . . . . . . . . . . . . . . . .3 Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995). . . . . . . . . . . . . . . .3-4 Bazemore v. Friday, 478 U.S. 385 (1986). . . . . . . . . . . . . . . . . . . . . 14 Bronze Shields, Inc. v. N.J. Dep't of Civil Serv., 667 F.2d 1074 (3d Cir. 1981) . . . . . . . . . . . . . . . . .9 Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993) . . . . . . . . . . . . . . . . . .8 Carter v. West Publ'g Co., 225 F.3d 1258 (11th Cir. 2000) . . . . . . . . . . . . . . . .9 Conlin v. Blanchard, 890 F.2d 811 (6th Cir. 1989) . . . . . . . . . . . . . . . .8-9 Cox v. City of Memphis, 230 F.3d 199 (6th Cir. 2000) . . . . . . . . . . . . . . . . .8 Del. State Coll. v. Ricks, 449 U.S. 250 (1980). . . . . . . . . . . . . . . . . . . . . .8 Dixon v. Anderson, 928 F.2d 212 (6th Cir. 1991) . . . . . . . . . . . . . . . . .8 Dobbs v. City of Atlanta, 606 F.2d 557 (5th Cir. 1979) . . . . . . . . . . . . . . . . .9 EEOC v. Joe's Stone Crab, 220 F.3d 1263 (11th Cir. 2000) . . . . . . . . . . . . . . . .2 EEOC v. McCall Printing Co., 633 F.2d 1232 (6th Cir. 1980). . . . . . . . . . . . . . . . .9 EEOC v. Penton Indus. Publ'g Co., 851 F.2d 835 (6th Cir. 1988) . . . . . . . . . . . . . . . . .9 Frank v. United Airlines, 216 F.3d 845 (9th Cir. 2000) . . . . . . . . . . . . . . . . .3 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). . . . . . . . . . . . . . . . . . . . .5-6 Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999). . . . . . . . . . . . . . . . . . . . .4-5 Lockheed Corp. v. Spink, 517 U.S. 882 (1996). . . . . . . . . . . . . . . . . . . .12-13 L.A. Dept' fo Water & Power v. Manhart 435 U.S. 702 (1978). . . . . . . . . . . . . . . . . . . . . 15 Massarsky v. Gen. Motors Corp., 706 F.2d 111 (3d Cir. 1983). . . . . . . . . . . . . . . . . .3 Maynard v. City of San Jose, 37 F.3d 1396 (9th Cir. 1994) . . . . . . . . . . . . . . . . .2 McLaughlin v. Richard Shoe Co., 486 U.S. 128 (1988). . . . . . . . . . . . . . . . . . . . .4-5 Pandazides v. Va. Bd. of Educ., 13 F.3d 823 (4th Cir. 1994). . . . . . . . . . . . . . . . . .3 Regions Hosp. v. Shalala, 522 U.S. 448 (1998). . . . . . . . . . . . . . . . . . . .13-14 Turic v. Holland Hospitality, 85 F.3d 1211 (6th Cir. 1996) . . . . . . . . . . . . . . . . .5 United Air Lines v. Evans, 431 U.S. 533 (1977). . . . . . . . . . . . . . . . . . . . .5-6 Statutes Equal Pay Act of 1963, 29 U.S.C. 206(d) . . . . . . . . . . . . . . . . . . . .14-15 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.. . . . . . . . . . . . . . . . passim 2000e-5(e)(2). . . . . . . . . . . . . . . . . . . . . passim Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified in part at 42 U.S.C. 2000e(k) . . . . . . . . passim Other Authority 29 C.F.R. pt. 1604 app.. . . . . . . . . . . . . . . . . . . . 10 29 C.F.R. 1620.10. . . . . . . . . . . . . . . . . . . . . . 14 29 C.F.R. 1620.11. . . . . . . . . . . . . . . . . . . . . . 14 H.R. Rep. 102-40(II) (1991), reprinted in 1991 U.S.C.C.A.N. 694 . . . . . . . . . . . . . 11 INTRODUCTION The EEOC's position is straightforward: Ameritech's seniority system even today gives less credit for some pregnancy-related leave than for comparable medical leave. Because this system is intentionally discriminatory, the company violates Title VII every time it uses seniority to deny benefits to women who were not credited for their past pregnancy-related leave. Ameritech offers a parade of mostly half-hearted objections to this line of reasoning. In this brief, we focus on the pivotal issues at the core of this case: that Ameritech's seniority system is intentionally discriminatory; that every application of an intentionally discriminatory seniority system is an unlawful act; and that these conclusions do not entail retroactive application of the PDA. ARGUMENT A. Each application of Ameritech's seniority system is a new unlawful act. The key to analyzing this case is 42 U.S.C. 2000e-5(e)(2), which provides that an unlawful employment practice occurs when an employee is injured by application of a seniority system "adopted for an intentionally discriminatory purpose" in violation of Title VII. Because as explained below Ameritech's seniority system intentionally discriminates on the basis of pregnancy, 2000e- 5(e)(2) establishes that the company commits an unlawful employment practice every time it uses its seniority system to deny pension benefits to a woman who lacks sufficient seniority because she was not credited for pregnancy-related leave. Ameritech tries to dodge the rule of 2000e-5(e)(2) in three ways: first, by denying that its seniority policy was adopted for an intentionally discriminatory purpose in violation of Title VII; second, by suggesting that the every-application- discriminates rule of 2000e-5(e)(2) covers only the first time that a seniority system is applied to an individual; and third, by suggesting that 2000e-5(e)(2) does not apply to a seniority system that was legal when adopted. None of these contentions withstands scrutiny. 1. Ameritech's seniority policy intentionally discriminates on the basis of pregnancy. Intentional discrimination on the basis of pregnancy means deliberately applying a different and disadvantageous standard to an employee because she is or was pregnant. See EEOC v. Joe's Stone Crab, 220 F.3d 1263, 1283 (11th Cir. 2000) (plaintiff in gender-discrimination case need show only that "women were intentionally treated differently" because of their gender); Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) ("Intentional discrimination means that a defendant acted at least in part because of a plaintiff's protected status."). In this sense, the term "intentional discrimination" is synonymous with disparate treatment. Armstrong v. Flowers Hosp., 33 F.3d 1308, 1313 (11th Cir. 1994); Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir. 1994). When an employer's policy treats pregnant and non-pregnant employees differently on its face, the policy by definition amounts to disparate treatment. See Frank v. United Airlines, 216 F.3d 845, 853 (9th Cir. 2000); see also Massarsky v. Gen. Motors Corp., 706 F.2d 111, 119 (3d Cir. 1983) ("[W]here an employer's policy or practice is discriminatory on its face, it is unnecessary for the plaintiff to make a separate showing of intent to discriminate."). Ameritech treats its employees differently depending on whether or not they were pregnant. The company's seniority computation operates differently if an employee took pregnancy-related leave before the PDA than if the employee took other forms of medical leave during that period. This is not, as Ameritech suggests by using the term "disparate impact" (Ameritech br. at 21), a neutral seniority- counting rule that merely happens to affect formerly pregnant employees more harshly. The seniority-counting rule differs because of an employee's past pregnancy. There is no way to avoid the conclusion that Ameritech adopted this seniority-counting rule because it wished to treat pregnant and non-pregnant employees differently. See Bangerter v. Orem City Corp., 46 F.3d 1491, 1500 (10th Cir. 1995) (When policies "facially single out" a protected group and "apply different rules to them . . . the discriminatory intent and purpose of [the policies] are apparent on their face. Whether such discrimination is legal or illegal remains to be determined, but there can be no doubt that the[y] are discriminatory."). Whatever Ameritech's subjective reasons may have been for developing this policy good, bad, or neutral the policy constitutes disparate treatment on its face and, thus, was "adopted for an intentionally discriminatory purpose" within the meaning of 2000e-5(e)(2). Ameritech tries to blunt the force of this argument by contending that it honestly did not believe that its post-PDA actions violated Title VII, and therefore it could not have intended to discriminate. (Ameritech br. at 19-20.) This contention misunderstands the term "intentional discrimination." The relevant "intention" is the intent to differentiate on the basis of a characteristic here, pregnancy that is protected by Title VII. It is not, as Ameritech would have it, the intent to violate the law. To be sure, the availability of punitive damages turns on whether the employer knew or should have known that its actions violated federal law. See Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536-37 (1999); see also McLaughlin v. Richard Shoe Co., 486 U.S. 128, 133 (1988) (extended statute of limitations for "willful" violations of Fair Labor Standards Act depends on knowledge of employer). But as the Supreme Court explained in Kolstad, an employer can intend to discriminate and therefore violate Title VII without intending to violate Title VII or even knowing that it is doing so: There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard. In some instances, the employer may simply be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liabillity. 527 U.S. at 536-37. Judge Batchelder has put it simply: Title VII's prohibition on intentional discrimination "makes no exception for discriminatory acts that an employer would not reasonably have known to be prohibited." Turic v. Holland Hospitality, 85 F.3d 1211, 1217 (6th Cir. 1996) (concurring opinion). Thus, Ameritech's protest that it "cannot have intended to discriminate unlawfully" (Ameritech br. at 19 (emphasis added)) is irrelevant at the liability stage. There is no good-faith defense to liability for employment discrimination. Because it is intentionally discriminatory, Ameritech's seniority policy is quite different from those at issue in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), and United Air Lines v. Evans, 431 U.S. 553 (1977), which Ameritech relies on. (Ameritech br. at 13-14.) In both Teamsters and Evans, the seniority systems themselves were completely nondiscriminatory. Although the systems exacerbated the effect of other, prior, non-seniority-related discrimination by the companies, neither system had the sort of discriminatory seniority-counting rule that is at issue in this case. Teamsters, 431 U.S. at 355-56; Evans, 431 U.S. at 555 & n.6. In Evans, for example, the seniority rule no credit for prior service following a break in service applied equally to men and women who had left the company. 431 U.S. at 555 & n.6. Similarly, the rule at issue in Teamsters that competitive seniority was determined by bargaining unit rather than companywide applied "equally to all races and ethnic groups." 431 U.S. at 355-56. In this case, by contrast, the seniority rule itself discriminates: Pre-PDA leave counts toward seniority if the leave is medical but not if it is pregnancy- related. It follows that Ameritech's seniority system intentionally discriminates on the basis of pregnancy. 2. Every application of a discriminatory seniority system is actionable, not just the first one. Ameritech suggests on page 37 of its brief that under 2000e-5(e)(2), an unlawful employment practice occurs only the first time a discriminatory rule is applied against a particular employee. This interpretation finds no support in the text or history of 2000e-5(e)(2). The relevant clause, which states that an unlawful employment practice occurs "when a person aggrieved is injured by the application of the seniority system or provision of the system," does not contain the word "first" although Congress easily could have included it. More importantly, though, Ameritech's interpretation cannot be squared with the core purpose of 2000e-5(e)(2). As we explained in our opening brief at page 24, Congress enacted 2000e-5(e)(2) in large part to prevent employees from having to sue their employers right at the outset of their employment relationship, before they have suffered real injury from the discriminatory rule. Ameritech's rule would subvert this goal by forcing employees to sue almost immediately after joining the workforce. For example, an employee who began working at Ameritech in 1975 and took pregnancy-related leave that year would have had to sue immediately even if the only tangible effect of the discrimination would not be manifested for 30 years, when the employee was set to retire. This is precisely the scenario Congress sought to head off with the Civil Rights Act of 1991. The better interpretation of 2000e-5(e)(2) is in accordance with its plain meaning: A seniority system that discriminates intentionally (whether or not the discrimination is evident on its face, as it is here) can be challenged any time it is used to deny a benefit to an employee, even long after the system was first adopted or applied against a particular employee. Ameritech therefore cannot rely on the general principle of Delaware State College v. Ricks, 449 U.S. 250 (1980), that Title VII's statute of limitation runs from when the discriminatory act occurs, not when its effects become most painful. (Ameritech br. at 28-31.) Congress has modified this rule with respect to seniority systems to provide that a new discriminatory act occurs every time the effect of discrimination is felt. Ameritech would have this Court hold that a seniority rule is applied only when it is first used to make a seniority computation, but 2000e- 5(e)(2) provides otherwise by stating that an unlawful employment practice occurs whenever an employee is injured by application of the seniority system. See Brunet v. City of Columbus, 1 F.3d 390, 402 (6th Cir. 1993) ("Section 2000e-5(e)(2) provides for the accrual of a cause of action when the consequences of the discriminatory act are felt by the plaintiff . . . .") (emphasis added). Discriminatory seniority rules were not at issue in Ricks which involved an allegedly discriminatory decision not to grant tenure, 449 U.S. at 257 or other cases cited by Ameritech on pages 28-31 of its brief. See Cox v. City of Memphis, 230 F.3d 199, 201 (6th Cir. 2000) (facially neutral promotional list based on allegedly discriminatory testing process); Dixon v. Anderson, 928 F.2d 212, 214 (6th Cir. 1991) (Ohio "double dipping" law for state employees); Conlin v. Blanchard, 890 F.2d 811, 815 (6th Cir. 1989) (past denials of promotions to men under affirmative- action program); EEOC v. Penton Indus. Publ'g Co., 851 F.2d 835, 838 (6th Cir. 1988) (isolated past incident in which male had been paid more than female); EEOC v. McCall Printing Co., 633 F.2d 1232, 1234 (6th Cir. 1980) (conciliation agreement more favorable to women than past agreements were to black employees); Carter v. West Publ'g Co., 225 F.3d 1258, 1265 (11th Cir. 2000) (past employee stock-purchase program); Bronze Shields, Inc. v. N.J. Dep't of Civil Serv., 667 F.2d 1074, 1083 (3d Cir. 1981) (neutral hiring roster); Dobbs v. City of Atlanta, 606 F.2d 557, 559 (5th Cir. 1979) (neutral pension plans that depend on position held). Ameritech speculates that starting a new limitations period every time that a discriminatory seniority system is applied would be bad policy (Ameritech br. at 38) although, as we explained in our opening brief at 23-24, proper application of 2000e-5(e)(2) is likely to reduce the amount of litigation by eliminating the need to file premature, speculative, and unproductive lawsuits. In any event, it is for Congress, not Ameritech, to decide what policy best serves the public interest. Congress has spoken through 2000e-5(e)(2), and this Court should enforce Congress's chosen policy. 3. Section 2000e-5(e)(2) applies to seniority rules that were legal when adopted. Ameritech also contends that 2000e-5(e)(2) applies only if the seniority system violated Title VII when it was adopted. Because, according to Ameritech, pregnancy discrimination was legal when the less-credit-for-pregnancy-leave rule was adopted, 2000e-5(e)(2) should not apply. Even assuming Ameritech is correct that before the PDA it was legal to discriminate on the basis of pregnancy in seniority-accrual rules, the company is incorrect that 2000e-5(e)(2) would not apply to this case. Section 2000e-5(e)(2) applies even to seniority systems that were legal when adopted. Ameritech's contrary interpretation would undermine the purpose of 2000e-5(e)(2) because it would mean that any seniority system adopted before Title VII was enacted 1964, even if adopted for discriminatory reasons, would be immune from challenge. As Ameritech recognizes on page 37 of its brief, however, one of the primary purposes of adding 2000e-5(e)(2) was to ensure that "discriminatory practices in existence when Title VII became law" could be challenged when they are applied today. H.R. Rep. No. 102-40(II), at 23 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 716. At bottom, Ameritech seeks to convince this Court that the company ceased to discriminate when it repealed its less-credit-for-pregnancy-leave rule prospectively. This view is not correct. The rule continues to be applied because seniority calculations are still made pursuant to it. Ameritech today counts or ignores pre-PDA leave using the pregnancy-based rule. For that reason, it is inaccurate to say that Ameritech "abandoned" (Ameritech br. at 1) its discriminatory policy when the PDA was enacted. The outcome of this case should be the same whether or not Ameritech abandoned the rule prospectively. A hypothetical may clarify the matter. Suppose that an employee took pregnancy-related leave in 1975 but not again after the PDA came into force. The company would not give her full seniority credit for any of her pregnancy-related leave. This is true regardless of whether the company gives full credit to other employees who took pregnancy-related leave at a later date. In determining whether the company discriminated against her, why should it matter if the company granted full seniority credit to other employees who took post-PDA leave? The effect on her is the same either way. In short, it does not matter whether the company has continued to discriminate in other situations. The PDA prohibits pregnancy-based seniority-counting rules, and under 2000e-5(e)(2) those rules can be challenged any time they are used to an employee's detriment. B. This case does not involve retroactive application of the PDA. Section 2000e-5(e)(2) also helps explain why this case does not involve retroactive application of the PDA, as we explained in our opening brief at 20-22. Ameritech's reliance on Lockheed Corp v. Spink, 517 U.S. 882 (1996), is therefore misplaced. In Lockheed, the employer did not allow Spink to contribute to a retirement plan because of his age, a practice that was legal at the time. Id. at 885. When the law changed to prohibit age-based exclusions, the employer allowed Spink to begin contributing. Id. Spink nonetheless sued under the new prohibition against excluding employees from pension plans on the basis of age. Id. As the Supreme Court straightforwardly recognized, this claim required retroactive application of the new law, because Spink was excluded from the pension plan only before the new law came into effect. In this case, by contrast, we are not challenging Ameritech's treatment of pregnancy-related leave in the 1970s. Rather, we are challenging application in the 1990s of a seniority policy that treats pre-PDA pregnancy-related leave less favorably than other medical leave taken in that period. Under 2000e-5(e)(2), this is a new unlawful act of discrimination one that took place years after the PDA came into effect. No analog to 2000e-5(e)(2) was at issue in Lockheed, and no claim in that case was tied to acts that happened after the law was changed. The better comparison, as we argued in our opening brief at 21, is to Regions Hospital v. Shalala, 522 U.S. 448 (1998). That case involved a decision by the Secretary of Health and Human Services to reaudit, several years after the fact, reimbursement data from fiscal year 1984. Id. at 453-54. The reaudits were conducted under a 1986 law that changed the reimbursement rules. Id. The new calculations were not used to change payments actually due for fiscal year 1984, but instead were to be used as a baseline for computing reimbursements in future years. Id. Because the reaudits were used only for future decisions and not to undo past actions, the Supreme Court rejected the contention that this amounted to retroactive application of the new statute. Id. at 456. Likewise, the PDA prohibits Ameritech from continuing to use pregnancy-based seniority calculations for decisions made prospectively. This does not entail retroactive application of the PDA. Surprisingly, Ameritech does not try to distinguish or even cite the Regions Hospital decision. C. Ameritech's other arguments are meritless. Ameritech offers a pastiche of other arguments that require little response. Our opening brief thoroughly explains, for example, why Bazemore rather than Evans provides a better fit for this case. (EEOC br. at 11-15; see Ameritech br. at 13-16, 34-36.) It also adequately covers why the bona-fide-seniority-system provisions of Title VII and the Equal Pay Act do not apply to seniority systems, such as Ameritech's, that are themselves intentionally discriminatory. (EEOC br. at 17-18; see Ameritech br. at 16-18, 39.) Ameritech suggests offhandedly although it provides no argument that it is "far from clear" that the Equal Pay Act applies, because the statute covers only the payment of "wages." (Ameritech br. at 39.) It is perfectly clear, however, that the controlling regulation defines "wages" to encompass "all payments made to [or on behalf of] an employee as remuneration for employment," including fringe benefits such as retirement benefits. 29 C.F.R. 1620.10, 1620.11(a) (brackets in original). In this case, the EEOC challenges retirement benefits paid by Ameritech under a seniority system that, because it is facially discriminatory, is not bona fide. Under the regulation, this practice violates the Equal Pay Act's prohibition against discrimination in wages. Ameritech also prematurely expresses concern about the relief that the EEOC seeks in this case. Ameritech speculates, for example, about whether the EEOC could obtain relief on behalf of individuals whose cases were decided by the Seventh Circuit (Ameritech br. at 11) even though those individuals are only a fraction of the potential claimants in this case or whether relief would disrupt operation of the company's pension fund (Ameritech br. at 25). These matters should be addressed on remand when the district court exercises its equitable powers to craft a remedy for Ameritech's violations. See, e.g., L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702, 718-23 (1978) (in determining "appropriate" relief, the district court must minimize the harm to innocent third parties, such as other pension recipients). While we know of no reason why the district court should not order full relief in this case and Ameritech certainly has not made the case against full relief the matter is premature, and this Court need not delve into it at this stage. CONCLUSION This Court should direct that summary judgment be entered in the EEOC's favor on liability and remand for the district court to order appropriate relief. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel __________________________ BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, DC 20507 (202) 663-4728 September 10, 2004 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 3,475 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Corel WordPerfect 9 in 14-point Times New Roman. ____________________________ BENJAMIN N. GUTMAN September 10, 2004 CERTIFICATE OF SERVICE I certify that on September 10, 2004, I caused copies of this brief to be served by first-class mail on: Office of the Clerk United States Court of Appeal for the Sixth Circuit 100 East Fifth Street, Room 532 Cincinnati, OH 45202-3988 Jeffrey W. Sarles Mayer, Brown, Rowe & Maw LLP 190 South LaSalle Street, Suite 3431 Chicago, IL 60603-3441 Attorney for Defendant-Appellee ____________________________ BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, DC 20507 (202) 663-4728