EEOC and Hopkins v. City of Independence, Missouri (8th Cir.) Brief as appellant March 6, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Nos. 05-4489, 05-4490 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant, and RICHARD HOPKINS, Plaintiff–Intervenor–Appellant, v. CITY OF INDEPENDENCE, MISSOURI, Defendant–Appellee. On Appeal from the United States District Court for the Western District of Missouri BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC") alleges in this action that the City of Independence, Missouri ("City") violated the Age Discrimination in Employment Act of 1967 ("ADEA") when it barred City employees, including Richard Hopkins, from receiving donations of sick leave via the City's Leave Donation Program because of their retirement-eligible status, which the City defined as being over sixty years old with five years' service. The EEOC also alleges that the City constructively discharged Hopkins from his position because it forced him to choose between retirement and resignation when there were other options that should have been made available to him, but were not, because of his age. The defendant argues that the City's treatment of Hopkins does not violate the ADEA because an employee's age is not the sole factor that determines his eligibility for retirement and, in turn, his eligibility for receipt of leave donations. The defendant also maintains that Hopkins was not constructively discharged because the City did not render his working conditions intolerable. In granting summary judgment to the defendant, the district court purported to rely on the Supreme Court's decision in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), which held that employment actions based on a factor "empirically correlated with age," or when "the factor motivating the employer is some feature other than the employee's age," do not constitute actionable age discrimination under a disparate treatment theory. The district court also granted summary judgment to the City on the EEOC's constructive discharge claim on the ground that the City did not force Hopkins to retire. In this appeal, we argue that the district court erred in holding that Hazen Paper supports the conclusion that the City's exclusion of retirement-eligible individuals from receiving leave donations does not constitute age-based disparate treatment because, unlike in Hazen Paper, the City expressly bases its determination on the requesting employee's age. We also argue that a reasonable jury could find that Hopkins was constructively discharged from his position on the basis of his age because the evidence in the record reflects that the City failed to offer him the full range of options available to younger employees and instead forced him to choose between retirement and resignation. The EEOC submits that oral argument of twenty minutes per side would assist this Court in resolving these issues. TABLE OF CONTENTS SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT. . . . . . . . . .i TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . .iii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .v STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES AND APPOSITE CASES . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 A. Course of Proceedings . . . . . . . . . . . . . . . . . . .2 B. Statement of the Facts. . . . . . . . . . . . . . . . . . .2 C. District Court's Decision . . . . . . . . . . . . . . . . 10 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 13 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 I. THE CITY DISCRIMINATES ON THE BASIS OF AGE WHEN IT DENIES EMPLOYEES THE OPPORTUNITY TO RECEIVE DONATIONS OF SICK LEAVE BASED ON THEIR ELIGIBILITY FOR RETIREMENT BECAUSE AN EMPLOYEE'S AGE PLAYS A ROLE IN DETERMINING WHETHER HE IS RETIREMENT-ELIGIBLE.. . . . . . . . . . . . . . . . . . . 15 II. THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT HOPKINS WAS CONSTRUCTIVELY DISCHARGED BECAUSE A REASONABLE JURY COULD FIND THAT THE CITY'S DISCRIMINATORY ACTIONS PLACED HOPKINS IN A POSITION WHERE HIS ONLY REASONABLE OPTION WAS TO TERMINATE HIS EMPLOYMENT BY RETIRING.. . . . . . . . . . . . . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 28 TABLE OF AUTHORITIES CASES Auerbach v. Board of Education of Harborfields Central School District, . . . . . . . . . . . . . . . . 136 F.3d 104 (2d Cir. 1998)18-19 Cooney v. Union Pacific Railroad Co., 258 F.3d 731 (8th Cir. 2001)19 EEOC v. Borden's, Inc., 724 F.2d 1390 (9th Cir. 1984). . . 10, 19 EEOC v. McDonnell Douglas Co., 191 F.3d 948 (8th Cir. 1999).19-20 Erie County Retirees Association v. County of Erie, . . . . . . . . . . . . . . . . . .220 F.3d 193 (3d Cir. 2000)18 Hanebrink v. Brown Shoe Co., 110 F.3d 644 (8th Cir. 1997). . . 20 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). . . . . . passim Huff v. UARCO, Inc., 122 F.3d 374 (7th Cir. 1997). . . . . . . 19 Johnson v. New York, 49 F.3d 75 (2d Cir. 1995) . . . . . . . . 19 Keathley v. Ameritech Corp., 187 F.3d 915 (8th Cir. 1999). . . 13 King v. Trans World Airlines, 738 F.2d 255 (8th Cir. 1984) . . 21 Mayer v. Nextel West Corp., 318 F.3d 803 (8th Cir. 2003) . . . 13 O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996)1 Phillips v. Martin Marietta, 400 U.S. 542 (1971) . . . . . .1, 21 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . 10 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)15-16 Singletary v. Missouri Department of Correction, 423 F.3d 886 (8th Cir. 2005)13 Smith v. World Insurance Co., 38 F.3d 1456 (8th Cir. 1994) .1, 23 Tadlock v. Powell, 291 F.3d 541 (8th Cir. 2002). . . . .1, 12, 22 Tatom v. Georgia-Pacific Corp., 228 F.3d 926 (8th Cir. 2000)1, 22 FEDERAL STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1333 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .1 Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.passim 29 U.S.C. § 623(a)(1). . . . . . . . . . . . . . . . . . . . . 15 STATE STATUTES Mo. Ann. Stat. § 70.645 (West 2005). . . . . . . . . . 3, 6, 7, 8 Mo. Rev. Stat. §§ 213.010 et seq.. . . . . . . . . . . . . . . .2 RULES Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . 27 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . 27 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . 27 Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . 13 STATEMENT OF JURISDICTION This is an enforcement action brought by the EEOC pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1345. Final judgment was entered on October 31, 2005. I Joint Appendix ("J.A.") 12. Both the EEOC and Hopkins filed timely notices of appeal on December 29, 2005. I J.A. 13; II J.A. 532, 534. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES AND APPOSITE CASES 1. Whether the defendant discriminates against employees on the basis of age when it denies them the opportunity to receive donations of sick leave under its Leave Donation Policy because they are sixty or older with five years' accrued service. Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996) Phillips v. Martin Marietta, 400 U.S. 542 (1971) 2. Whether there is sufficient evidence to support a finding that the defendant constructively discharged Richard Hopkins. Tadlock v. Powell, 291 F.3d 541 (8th Cir. 2002) Tatom v. Ga.-Pac. Corp., 228 F.3d 926 (8th Cir. 2000) Smith v. World Ins. Co., 38 F.3d 1456 (8th Cir. 1994) STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court dismissing this enforcement action under the ADEA. The EEOC's complaint alleges that the defendant violated the ADEA by excluding all City employees age sixty or older with at least five years' service, including Richard Hopkins and Arthur Main, from receiving donations of leave time through the City's Leave Donation Program. I J.A. 15-16. Hopkins intervened as a plaintiff on December 22, 2004. I J.A. 3. Hopkins' complaint seeks relief only under the Missouri Human Rights Act, Mo. Rev. Stat. §§ 213.010 et seq. I J.A. 23. On October 31, 2005, the district court granted the defendant's motion for summary judgment with respect to all claims. Addendum A-1; I J.A. 12. The district court entered judgment the same day. I J.A. 12. Both the EEOC and Hopkins filed notices of appeal on December 29, 2005. I J.A. 13; II J.A. 532, 534. B. Statement of the Facts The City of Independence, Missouri, maintains a Leave Donation Program ("LDP") for its employees who "have exhausted all paid leave and are experiencing a catastrophic, debilitating, or long-term illness or injury requiring an extended absence from work." I J.A. 100 (City Personnel Policies and Procedures Manual ("PPPM"), Art. VI, sec. D, at 41). Pursuant to the LDP, eligible employees may receive up to 1,040 hours of donated leave, the equivalent of six months' full-time work. I J.A. 101 (PPPM Art. VI, sec. D, at 42). To qualify for leave donations under the LDP, an employee must meet the following conditions: He must have completed his six-month probationary period; he must have exhausted "all accumulated sick leave, personal business leave, accrued holidays, compensatory time, and vacation leave"; he "must not be receiving or be eligible to receive disability compensation benefits from the City's Long-Term Disability (LTD) carrier, or other City funded insurance programs"; and "[t]he employee must not be eligible for regular retirement." I J.A. 101 (PPPM Art. VI, sec. D, at 42). An employee is eligible for regular retirement if he has at least five years of credited service under LAGERS, the pension plan applicable to city employees, and he is at least sixty years old, or fifty- five if he is a member of the fire or police service.<1> I J.A. 104 (PPPM Art. VII, sec. E, at 45), 210 (Craig aff. ¶ 3); Mo. Ann. Stat. § 70.645 (West 2005). Richard Hopkins began working for the City as a full-time Code Compliance Officer in 1994. I J.A. 130 (Hopkins dep. at 18). His duties included, inter alia, investigation of citizens' complaints, inspecting properties, and issuing citations for code violations. I J.A. 130 (Hopkins dep. at 20), 261-62 (position description). As a part of his regular duties, Hopkins conducted frequent on-site investigations, which required that he drive a car to the investigation sites. I J.A. 265 (Warlen aff. ¶ 5). In November of 2002, Hopkins was hospitalized and diagnosed with sustained ventricular tachycardia ("VT"), a form of heart disease involving rapid heartbeat. I J.A. 282 (Berenbom dep. at 17-19). While Hopkins was in the hospital, doctors implanted a device called an implantable cardioverter defibrillator, or ICD, into his chest; the ICD functions by recognizing when the patient's heart rate speeds up into a dangerous range and either "pacing" the heart back to a slower rate or delivering an electric shock to the heart to slow it down. I J.A. 275 (Berenbom letter at 1), 279 (Berenbom dep. at 8). The ICD device also kept a record of Hopkins' VT incidents. I J.A. 284 (Berenbom dep. at 28). According to Hopkins' medical records, he had multiple incidents of VT between November of 2002 and April of 2003, but his condition improved when he began treatment with beta blockers in March or April of 2003. I J.A. 285 (Berenbom dep. at 30). Hopkins' last incidence of VT was in April of 2003. I J.A. 275 (Berenbom letter at 1). Hopkins' treating physician, Dr. Robert Glueck, determined that Hopkins was unable to drive a car for a period of six months following his most recent VT incident. I J.A. 276 (Berenbom letter at 2). Patients with VT are usually restricted from driving for six months following their last attack because they may be susceptible to having another attack while operating a motor vehicle. I J.A. 276 (Berenbom letter at 2), 285-86 (Berenbom dep. at 29-35). According to the deposition testimony of the EEOC's expert witness, Dr. Loren Berenbom, based on the April 2003 date of Hopkins' last incidence of VT, Hopkins reasonably and safely could have resumed driving as of October 2003. I J.A. 276 (Berenbom letter at 2). Shortly after Hopkins was hospitalized in November 2002, his supervisor, Andrew Warlen, became aware that Hopkins was about to run out of sick leave. II J.A. 316 (Warlen dep. at 33). Warlen asked Rose Barham, the union steward, to coordinate collecting leave donations for Hopkins pursuant to the LDP. II J.A. 316 (Warlen dep. at 33); I J.A. 232 (Barham dep. at 14-15). On November 14, 2002, Barham sent out an e-mail request for donated leave for Hopkins. I J.A. 232 (Barham dep. at 16); II J.A. 493 (e-mail). By Monday, November 18, six City employees had donated 135 hours of leave to Hopkins, and several others had indicated to Barham that they were planning to donate leave as well. II J.A. 494-99 (donation forms), 493, 500-07 (e-mails). Later that same day, however, Warlen was notified by Human Resources ("HR") that Hopkins was not eligible to receive leave donations under the LDP because he was eligible for retirement. II J.A. 318 (Warlen dep. at 38). Warlen then notified Barham immediately that Hopkins was ineligible to receive leave donations and asked her to stop collecting them on Hopkins' behalf, since he would not be allowed to use them. II J.A. 318 (Warlen dep. at 38-39). Around the same time, Lenear Brownlee of the City's Human Resources department called Hopkins at home and informed him that he would not be eligible to receive donated leave. I J.A. 141 (Hopkins dep. at 61). Hopkins testified that Brownlee told him, "I didn't know you were that old," and when Hopkins asked her what he meant, she responded, "Well, you're of retirement age, Richard, you're over 60. You can't draw donated leave time." Id. In a meeting with City officials on November 21, Hopkins was again informed that he was ineligible to receive leave donations "due to his age." II J.A. 459 (J. Hopkins aff. ¶ 7).<2> Hopkins' paid vacation time and sick leave ran out on November 21, 2002. I J.A. 212 (Craig aff. ¶ 14). His FMLA leave became effective as of November 4, 2002, and ran through January 27, 2003; after November 21, this was unpaid leave. I J.A. 212 (Craig aff. ¶¶ 13-15). Hopkins requested an extension of his FMLA leave through May 2003; the City apparently granted the extension but never told Hopkins. II J.A. 303 (Craig memo of 2/14/03); I J.A. 145 (Hopkins dep. at 77). Hopkins applied for long-term disability in February of 2003. I J.A. 212 (Craig aff. ¶ 18). On March 14, while this application was pending, Hopkins sent a fax to Larry Blick, City Manager, asking to be considered for another position within the City that would not require driving. II J.A. 306 (Blick fax of 3/14/03). Blick testified in his deposition that he construed Hopkins' fax as a request for a further extension of his FMLA leave through August 24, 2003. I J.A. 203 (Blick dep. at 103-04). That request was denied in a letter dated March 31, 2003. II J.A. 479 (Blick letter of 3/31/03). On March 24 or 25, 2003, Hopkins met with Brownlee and Warlen regarding his employment status. II J.A. 354 (Warlen letter of 3/27/03). In a letter to Hopkins summarizing the meeting, Warlen explained that Hopkins' latest request for an extension of his FMLA leave was denied, and that he and Brownlee had presented Hopkins with four possible options: "1) resignation; 2) an Accommodation Request form be [sic] completed by April 7th; 3) retirement; and 4) long-term disability (through Hartford)." Id. The letter stated that "it was recommended that you request another Leave of Absence Without Pay that specifically identifies your intent to retire." Id. Warlen concluded the letter by stating, "Richard, failure to inform us of your intention regarding your employment status by April 15, 2003, will result in our considering your departure as a resignation." Id. Although the City's personnel policy specified that the City Manager had the authority to approve up to a year's worth of extended leave without pay, I J.A. 89-90 (PPPM Art. V, sec. J, at 30-31), unpaid leave was not among the options presented to Hopkins. Debra Craig, the City's HR Director, testified that this option should have been available to Hopkins and she did not know why it had not been offered to him. II J.A. 475 (Craig dep. at 84-85). Craig also testified that she did not know of any instance where a request for an extended leave of absence had been denied. II J.A. 477 (Craig dep. at 105). On April 2, 2003, Hopkins submitted a request for accommodation under the Americans with Disabilities Act ("ADA"). II J.A. 395-96 (Hopkins fax form of 4/2/03). That request was denied in May. II J.A. 399 (Blick letter of 5/20/03). Meanwhile, on April 4, 2003, Hopkins submitted his retirement papers to the city, noting that he did so "under coercion and threat of losing my benefits," and that he did so "because I was instructed to retire, resign, or submit a letter requesting leave without pay with the inclusion of my intent to retire or be terminated." II J.A. 397 (Hopkins letter of 4/4/03). Warlen responded to Hopkins in a letter dated April 15, 2003, in which he stated that "[i]t was not and is not our intention to suggest that you be required to choose the option of retiring." II J.A. 398 (Warlen letter of 4/15/03). Warlen informed Hopkins that "the City is holding your . . . retirement paperwork until April 28, 2003 to allow you time to reconsider your options." Id. However, the paperwork was eventually submitted and Hopkins' retirement became effective on June 1, 2003. II J.A. 512 (City HR Action Form). On June 20, 2003, Hopkins' application for long-term disability benefits was granted retroactive to May 1, 2003. II J.A. 509 (Hartford letter of 6/20/03). Several months after Hopkins' retirement became effective, in late 2003, another City employee, Arthur Main, sought to receive donations of leave through the LDP. II J.A. 508 (Main aff. ¶ 6), 477 (Craig dep. at 104-05). Main was sixty- one years old and had vested in LAGERS over a decade prior to his request. II J.A. 508 (Main aff. ¶¶ 4, 5). The City rejected Main's request and subsequently informed him that he was ineligible to receive leave donations because he was over sixty years old. II J.A. 508 (Main aff. ¶ 9 (misnumbered ¶ 7)). Hopkins filed a charge of age discrimination with the EEOC on April 16, 2003. I J.A. 166 (charge). The EEOC filed suit on September 28, 2004. I J.A. 2 (docket entry). The complaint alleges that the city violated the ADEA by denying Hopkins the opportunity to participate in the LDP based on his age and by constructively discharging him. I J.A. 15-16 (Complaint at 2-3). The complaint also alleges that the city's practice of excluding retirement-eligible employees from the LDP may have unlawfully denied others in the protected age group the opportunity to participate in the LDP on the basis of their ages. I J.A. 16 (Complaint at 3). Hopkins intervened as a plaintiff in December 2004. I J.A. 3 (docket entry), 23 (Plaintiff-Intervenor's Complaint). C. District Court's Decision The district court granted summary judgment to the City on the Commission's claims of discriminatory disparate treatment and constructive discharge.<3> The court began its legal analysis by noting that, because the plaintiffs allege that the City's policy is "facially discriminatory," it would proceed under the "direct evidence" standard of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Addendum A-6. The court agreed with the City that "there is no express age dividing line in this case," because "many of [the city's] employees under age sixty are not eligible to receive donated leave for various reasons, while some employees who are over the age of sixty, but not vested in LAGERS, are eligible to receive donated leave." Addendum A-8. The district court recognized that, in this respect, the City's policy is similar to the policy that the Ninth Circuit held constituted age discrimination in EEOC v. Borden's, Inc., 724 F.2d 1390, 1393 (9th Cir. 1984) (holding that policy denying severance benefit to pension-eligible employees discriminated on the basis of age, stating that "an employer discriminates ‘because of' age whenever age is a ‘but for' cause of discrimination"). Addendum A-8–9. However, the court found that, "although this case might be helpful to plaintiffs," it was suspect because it predated the Supreme Court's decision in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), in which the Court "significantly clarified and diminished the age/proxy doctrine." Addendum A-9. The district court noted that the Supreme Court in Hazen Paper held that there can be no viable disparate treatment claim under the ADEA where an employer makes a decision based on a factor "‘empirically correlated with age,'" but "‘the factor motivating the employer is some feature other than the employee's age.'" Addendum A-9 (quoting Hazen Paper, 507 U.S. at 608-09). Noting that "other courts in the Eighth circuit [sic] have followed the lead of Hazen Paper," the district court determined that the LDP is not facially discriminatory because "[a]lthough the years of service may correlate with age to deny persons who are age sixty and older, [sic] the ability to participate in the program, it is also true that there are employees who are over age sixty, but who are not vested are [sic] eligible to draw donated leave." Addendum A-10. The court also observed that there are employees under the age of sixty who might not be eligible to participate in the LDP for other reasons, and concluded that "the restrictions contained in the City's Leave Donation program are motivated by factors other than age (the desire to limit employee's [sic] to only one benefit at a time), and although this factor may correlate with age, it does not constitute age discrimination." Id. With respect to constructive discharge, the district court ruled that the City's treatment of Hopkins did not meet the standard set forth in Tadlock v. Powell, 291 F.3d 541, 547 (8th Cir. 2002), where this Court held that "[c]onstructive discharge occurs when an employer intentionally creates a work environment so intolerable as to compel a reasonable employee to quit, and the employee does in fact quit." Addendum A-11. Rather, the district court concluded, "[i]n this case, the facts demonstrate that the City worked with Hopkins over a period of several months in an effort to find a solution" to the problem of his inability to drive a motor vehicle. Id. The court observed that Hopkins was "not clearly expressing to the City when or if he would be able to resume driving," and noted that the date on which he expected to be able to return to work changed several times during the spring of 2003. Addendum A-11–12. The court noted that, "in the midst of this confusion," the City gave Hopkins several choices of how he wanted to proceed, and referred to the letter of April 15, 2003, in which Warlen told Hopkins that he was not trying to force Hopkins to retire and that he would hold his retirement paperwork until April 28. Addendum A-12. The district court concluded, "[t]hus, it was clear that the City was not forcing plaintiff to retire. . . . Rather, the City made a reasoned decision based on the information which the plaintiff provided to them." Id. STANDARD OF REVIEW This Court reviews a district court's grant of summary judgment de novo. Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir. 2003). In determining whether summary judgment was appropriate, this Court views the record in the light most favorable to the non-moving party, "afford[ing] the non-moving party all reasonable inferences to be drawn from the record." Singletary v. Missouri Dep't of Corr., 423 F.3d 886, 890 (8th Cir. 2005); Fed. R. Civ. P. 56(c). Accordingly, summary judgment is warranted only if no reasonable factfinder could return a verdict for the Commission. Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir. 1999) ("Summary judgment should not be granted unless the evidence could not support any reasonable inference of discrimination.") (internal citation and quotation marks omitted). SUMMARY OF ARGUMENT The ADEA makes it unlawful for an employer to discriminate against its employees "because of . . . age." An employer discriminates against an employee "because of . . . age" when the employee's age actually plays a role in the employer's treatment of the employee. The City violated this provision of the ADEA when it denied Hopkins and others access to the LDP on the basis of their retirement eligibility because its employees' ages necessarily play a role in determining whether they are retirement-eligible and, hence, disqualified by this provision of the LDP. Contrary to the district court's view, neither the Supreme Court's decision in Hazen Paper, nor this Court's case law construing Hazen Paper, supports the conclusion that the City's exclusion of retirement-eligible employees like Hopkins from receiving leave donations is not unlawful age discrimination. In Hazen Paper, the Court held that a plaintiff does not state a claim of disparate treatment based on age where he alleges that the differential treatment is based on a factor — in that case, pension vesting — "correlated with age" in practice, but not age itself. In this case, however, the City defines retirement eligibility with explicit reference to the employee's age: employees are eligible to retire when they reach the age of sixty and have five years of service. Accordingly, in contrast to the scenario in Hazen Paper, the City's differential (and inferior) treatment of older employees in this case is directly based on their ages, and discriminates against them on that basis. Moreover, the fact that not every City employee over the age of sixty may be affected by the City's leave donation policy because some may have fewer than five years of service, and therefore not be retirement-eligible, does not render the City's leave donation policy non-age-based. The City treats its employees who have accrued five years of service differently based on whether they are sixty or older, on the one hand, or fifty-nine or younger, on the other: If in the latter category, they may receive donations of sick leave, but if in the former category they may not. The evidence also would support a finding that Hopkins was constructively discharged from his job as a result of the City's age discrimination. A reasonable jury could find that the City essentially forced Hopkins to choose between premature retirement and outright dismissal, and that it impermissibly narrowed the range of continued employment options available to Hopkins on the basis of his age. Under the law of this Circuit, this evidence is sufficient support a finding that Hopkins was constructively discharged. Accordingly, the district court erred in concluding that there was no genuine dispute of material fact on this point. ARGUMENT I. THE CITY DISCRIMINATES ON THE BASIS OF AGE WHEN IT DENIES EMPLOYEES THE OPPORTUNITY TO RECEIVE DONATIONS OF SICK LEAVE BASED ON THEIR ELIGIBILITY FOR RETIREMENT BECAUSE AN EMPLOYEE'S AGE PLAYS A ROLE IN DETERMINING WHETHER HE IS RETIREMENT- ELIGIBLE. 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). 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, 507 U.S. at 610 (alterations in original)). The City violated this provision of the ADEA when it denied Hopkins, Main, and others access to the LDP because they were retirement-eligible. Since, in this case, retirement eligibility contains an express age component, age necessarily "played a role" in determining whether a particular employee is disqualified by this provision of the LDP. Both Hopkins' and Main's experiences with the LDP graphically illustrate that it discriminates on the basis of age. In this case, both individuals had already attained five years' service before turning sixty; accordingly, they were eligible to receive donations of leave literally up until their respective sixtieth birthdays, when that option was foreclosed to them.<4> Moreover, when it became clear that Hopkins' leave would run out before he could return to work, Warlen, his supervisor, began collecting leave donations for him. It was only when Warlen learned that Hopkins was over sixty that he told him he was "too old" to participate in the LDP and directed Barham to stop collecting donations of leave on Hopkins' behalf. The district court reasoned that, in light of the Supreme Court's decision in Hazen Paper, the exclusion of retirement-eligible employees from the LDP is not facially discriminatory because an employee's retirement eligibility is a factor "empirically correlated with age," but is not age. Addendum A-9–10. The district court's reasoning reflects a fundamental misunderstanding of the Hazen Paper decision. In Hazen Paper, the plaintiff alleged that he was fired because he was about to vest in the company's pension plan, and this constituted discriminatory disparate treatment based on age. 507 U.S. at 606. Employees vested in the company's pension plan after they completed ten years of service, without any reference to age. Id. at 611. The Supreme Court held that, even though years of service, in practice, may well be "correlated with age" because older workers will likely have more years of service than younger workers, an employment decision based on pension vesting — as defined in that case, based on years of service only — is still "wholly motivated by factors other than age." Id. at 611 (emphasis added). In this case, however, the decision to deny Hopkins permission to obtain leave donations was based on his eligibility for retirement, which, unlike the pension vesting in Hazen Paper, is defined with explicit reference to the employee's age — sixty years old plus five years of service. This case thus presents a fact pattern that the Supreme Court expressly declined to consider in Hazen Paper: the "special case" where an employer takes action against an employee on the basis of attaining a status that was triggered by the employee's age, rather than some other factor. See id. at 613 ("[W]e do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service, . . . and the employer fires the employee in order to prevent vesting.") (emphasis in original). Both before and after Hazen Paper, courts have consistently held that a decision is based on age where it is based on a factor, like retirement eligibility in this case, that is in turn based at least partially on age. See, e.g., Erie County Retirees Ass'n v. County of Erie, 220 F.3d 193, 211 (3d Cir. 2000) (where employer offered Medicare-eligible retirees health insurance coverage inferior to that offered to non-Medicare eligible employees, disparate treatment claim based on age was not barred by Hazen Paper because Medicare eligibility is explicitly age-based; noting that these facts are "therefore parallel to the ‘special case' mentioned by the Court in Hazen Paper, where an adverse action is taken against a person because of a particular event (i.e. approaching pension vesting) and that event in turn occurs because the person has attained a certain age"); Auerbach v. Bd. of Educ. of Harborfields Cent. Sch. Dist., 136 F.3d 104, 110 (2d Cir. 1998) (when eligibility for early retirement is conditioned on being age fifty-five or older plus requisite years in service, "age is a trigger for the denial of [plaintiffs'] employment benefits"); Huff v. UARCO, Inc., 122 F.3d 374, 388 (7th Cir. 1997) (where employer uses a "hybrid" standard of age and years of service to determine eligibility for lump-sum payout of pension benefits, "[b]ecause age is an express condition of receiving a benefit, . . . the instant case presents a close approximation of the case Hazen Paper declined to decide"; noting that "UARCO's policy draws an express line between workers over fifty-five and those under"); Johnson v. New York, 49 F.3d 75, 79-80 (2d Cir. 1995) (rejecting defendant's reliance on Hazen Paper where "the decision to require dual status [i.e., membership in third-party organization with mandatory retirement age of sixty] . . . is not merely correlated with age; unlike Hazen Paper, the employer's decision here in fact implements an age-based criterion") (emphasis in original); EEOC v. Borden's, Inc., 724 F.2d 1390, 1393 (9th Cir. 1984) (holding that "an employer discriminates ‘because of' age whenever age is a ‘but for' cause of discrimination"). Moreover, this Court has never held to the contrary. The cases cited by the district court for the proposition that the Eighth Circuit "follows Hazen Paper" do not hold that an employment decision based on a criterion including age as a factor is not a decision based on age. Cooney v. Union Pac. R.R. Co., 258 F.3d 731 (8th Cir. 2001) (citing EEOC v. McDonnell Douglas Co., 191 F.3d 948, 952 (8th Cir. 1999), for the proposition that "[e]mployment decisions motivated by factors other than age (such as salary, seniority, or retirement eligibility), even when such factors correlate with age, do not constitute age discrimination"); McDonnell Douglas, 191 F.3d at 951 (same); Hanebrink v. Brown Shoe Co., 110 F.3d 644, 647 (8th Cir. 1997) ("Employment decisions motivated by characteristics other than age (such as salary and pension benefits), even when such characteristics correlate with age, do not constitute age discrimination."). Nor are we aware of any other decision of this Court that so holds. Rather, these cases simply follow the Court's holding in Hazen Paper that employment actions based on traits that simply tend to "correlate" with age, rather than being expressly linked to or based on age, do not constitute actionable disparate treatment based on age. In reaching the conclusion that the City's denial of leave donations to pension-eligible employees is not age-based, the court noted that not all city employees over sixty are excluded by the policy, since "employees who are over age sixty, but who are not vested are eligible to draw donated leave." Addendum A-10. However, an employer who denies a benefit to some employees over forty based on their relative older age violates the ADEA even if it does not deny the benefit to all older employees. Here, as in all of the cases cited above holding that a policy that uses age as one of several criteria for denying a benefit constitutes age discrimination, not all older employees will be excluded by the policy. In this respect, the city's policy is indistinguishable from the policy at issue in Phillips v. Martin Marietta, 400 U.S. 542 (1971) (per curiam), where an employer refused to take employment applications from women with school-age children, but accepted applications from men with school-age children. Despite this policy, over 75% of the employees hired were women. Id. at 543. Nonetheless, the Supreme Court concluded that this policy discriminated on the basis of sex because it imposed a condition on female applicants — that they have no school-age children — that was not imposed on male applicants. Id. at 544. See also King v. Trans World Airlines, 738 F.2d 255, 258-59 (8th Cir. 1984) (observing that "it is clear that an employer cannot have two interview policies for job applicants with poor work records, poor attendance records, small children or some other characteristic — one for men and one for women"). Likewise, in this case, the City cannot maintain different policies for receipt of leave donations by employees with five years' service, one for those sixty or older and one for those fifty-nine or younger, that operate to disadvantage the older employees. The district court also noted that some city employees under sixty may be excluded from participating in the LDP "for some other reasons." Addendum A- 10. This possibility is simply irrelevant to the question at issue in this case. The fact that younger employees might not be eligible to receive leave donations for other reasons — e.g., because their medical conditions do not qualify, or because they have worked for the City for less than six months — has no bearing on whether the City's policy of excluding retirement-eligible employees, all of whom by definition must be sixty or older, from receiving leave donations constitutes age discrimination. As the Supreme Court stated in Hazen Paper, 507 U.S. at 612, the ADEA "requires the employer to ignore an employee's age" in making employment decisions. Because the City's practice of denying retirement-eligible employees the opportunity to receive leave donations requires the city to consider an employee's age in determining whether he is eligible for the LDP, this practice constitutes unlawful age discrimination under the ADEA. II. THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT HOPKINS WAS CONSTRUCTIVELY DISCHARGED BECAUSE A REASONABLE JURY COULD FIND THAT THE CITY'S DISCRIMINATORY ACTIONS PLACED HOPKINS IN A POSITION WHERE HIS ONLY REASONABLE OPTION WAS TO TERMINATE HIS EMPLOYMENT BY RETIRING. As the district court observed, this Court has held that an employer constructively discharges an employee when it "intentionally creates a work environment so intolerable as to compel a reasonable employee to quit, and the employee does in fact quit." Tadlock, 291 F.3d at 547. This Court has explained that "[t]he plaintiff can satisfy the intent requirement [for constructive discharge] by showing that his resignation was a reasonably foreseeable consequence of his employer's discriminatory actions." Tatom v. Ga.-Pac. Corp., 228 F.3d 926, 932 (8th Cir. 2000). Specifically, this Court has held that an employee who accepts an offer of early retirement has been constructively discharged "when the choice is essentially either early retirement or continuing to work under intolerable conditions, like the threat of termination without benefits." Smith v. World Ins. Co., 38 F.3d 1456, 1461 (8th Cir. 1994) (internal citations omitted). A reasonable jury could find that this standard was met in this case, and, accordingly, summary judgment was inappropriate. In late March of 2003, while Hopkins' application for long-term disability benefits was still pending, the City insisted that Hopkins choose one of four "options" with respect to his employment: resignation, a request for accommodation, retirement, or long-term disability. II J.A. 354 (Warlen letter of 3/27/03). In reality, two of the four choices named by the City — accommodation and long-term disability — were not in fact made available to Hopkins. Hopkins requested accommodation under the ADA, but the City itself turned him down. II J.A. 395-96 (Hopkins fax form of 4/2/03), 399 (Blick letter of 5/20/03). As to long-term disability benefits, Hopkins had already submitted his application in February of 2003, but the City required him to choose an option before the insurance company made a decision on his application. I J.A. 212 (Craig aff. ¶ 18) (application submitted in February 2003); II J.A. 354 (Warlen letter of 3/27/03) (stating that Hopkins was required to make his decision by April 15, 2003). Accordingly, Hopkins was effectively offered only two choices: retirement or termination without benefits. Given that choice, it was reasonably foreseeable that Hopkins would choose to retire. A reasonable jury could find that Hopkins was placed in this dilemma because of the city's discriminatory decision to exclude him from the LDP based on his age. Hopkins' retirement became effective on June 1, 2003. II J.A. 512 (City HR Action Form). On June 20, less than three weeks later, his application for long-term disability was granted. II J.A. 509 (Hartford letter of 6/20/03). Accordingly, if Hopkins had been able to retain his employment status for only nineteen additional days, he would have been able to go on long-term disability and return to work when he was able to resume driving. Thus, a jury could reasonably find that Hopkins would not have been forced to retire if he had been allowed to accept donated leave. The record reflects that before Warlen was told that Hopkins was too old to participate in the LDP, Hopkins' coworkers had already filled out forms donating 135 hours of leave, which would have been more than enough to allow Hopkins to remain employed until his application for long-term disability was approved. II J.A. 494-99 (donation forms), 493, 500-507 (e-mails). Both Bruce Hahl, the City's Community Development Director, and Brownlee testified in their depositions that City employees tended to donate leave freely and generously, and Hahl testified that he was not aware of a situation where an employee made a request for donated leave but failed to receive sufficient hours. I J.A. 223-24 (Hahl dep. at 29-30); II J.A. 366 (Brownlee dep. at 38-39). Accordingly, a jury could find that the City's policy of barring older employees like Hopkins from accepting donated leave forced Hopkins to retire prematurely, and therefore resulted in his constructive discharge. Moreover, the record reflects that there was, in fact, another option that should have been available to Hopkins under the City's leave policy: an extended leave of absence without pay. The City Manager has the authority to approve an employee's request for up to one year's extended leave without pay. II J.A. 475 (Craig dep. at 82- 83); I J.A. 89-90 (PPPM Art. V, sec. J, at 30-31). Debra Craig from HR testified that this option should have been available to Hopkins, that she did not know why it had not been offered to him, and that she did not know of any individual who had made a request for an extended leave of absence and had had that request denied. II J.A. 475, 477 (Craig dep. at 84-85, 105). As Craig explained in her deposition, if this option had been made available to Hopkins when his FMLA leave expired in January 2003, he could have remained on unpaid leave through January 27, 2004, well after he was able to return to work in October 2003. II J.A. 475 (Craig dep. at 82). Thus, a jury could also find that the City's unexplained failure to offer Hopkins the option of extended leave without pay, when such leaves were routinely granted to others, was a decision made on the basis of Hopkins' age and one that played a part in Hopkins' being compelled to retire prematurely. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ______________________________ ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,306 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 it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 Dated: March 10, 2006 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and nine copies of the foregoing brief, one copy of the digital version of the brief on diskette, and three copies of the Joint Appendix with this Court this 10th day of March, 2006, by Federal Express next business day service, postage pre-paid. I also certify that I served two copies of the foregoing brief, one copy of the digital version of the brief on diskette, and one copy of the Joint Appendix this 10th day of March, 2006, by Federal Express next business day service, postage pre-paid, to the following counsel of record: Counsel for Plaintiff–Intervenor/ Appellant: Kevin A. Graham, Esq. Flook & Graham, P.C. 11 East Kansas St. Liberty, MO 64068 (816) 792-0500 Counsel for Defendant/Appellee: Matthew Justin Gist, Esq. Ensz & Jester, P.C. 2121 City Center Square 1100 Main St. Kansas City, MO 64105 (816) 474-8010 Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 ADDENDUM *************************************************************************** <> <1> In the discussion that follows, we refer to the LAGERS minimum retirement age as sixty both for convenience and because that is the retirement age that applies to Hopkins and Main, the individuals whose treatment is at issue in this case. <2> According to the City’s HR Director, Debra Craig, as of May 28, 2005, there were six regular full-time City employees over sixty who were eligible to draw donated leave under the LDP because they each had less than five years’ accrued service. I J.A. 211 (Craig aff. ¶ 4(d)). <3> The district court also granted summary judgment to the City on the EEOC’s claim of age discrimination based on a disparate impact theory, which is not at issue in this appeal. Addendum A-12–14. <4> This is not to say, however, that the LDP does not discriminate on the basis of age against individuals who attain their five years’ accrued service after their sixtieth birthdays. For these individuals, although the immediate “trigger” for their ineligibility for leave donations is their five-year anniversary, they are still being treated worse than their counterparts who reach that anniversary before they turn sixty. In other words, an individual sixty or over who attains five years’ service is immediately precluded from receiving leave donations, whereas an employee under sixty who reaches that benchmark is not.