No. 11-1294 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________________________________________ MARTA J. MITCHELL-WHITE, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. NORTHWEST AIRLINES, INC., DELTA AIR LINES, INC., as successor to NORTHWEST AIRLINES, INC., and NORTHWEST AIRLINES PENSION PLAN FOR CONTRACT EMPLOYEES, Defendant-Appellees. _________________________________________________________ On Appeal from the United States District Court for the Southern District of New York _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF MARTA J. MITCHELL-WHITE _________________________________________________________ P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ERIC A. HARRINGTON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The District Court Erred in Granting Northwest's Motion to Dismiss and Instead Should Have Granted Mitchell-White's Partial Motion for Summary Judgment. . . . 8 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS. . . . . . . . . . . . . . .18 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . 19 TABLE OF AUTHORITIES CASES EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996). . . . . . . . . 9 EEOC v. Minnesota Department of Corrections, 702 F. Supp. 2d 1082 (D. Minn. 2010). . . . . . . . . . . . . . . . . . 11, 16 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). . . . . . . . . . . . 10, 11, 12 Jankovitz v. Des Moines Independent Community School District, 421 F.3d 649 (8th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 9 Johnson v. New York, 49 F.3d 75 (2d Cir. 1995). . . . . . . . . . . . . . . 9, 12 Karlen v. City Colleges of Chicago, 837 F.2d 314 (7th Cir. 1988). . . . . . 9, 16 Kentucky Retirement Services v. EEOC, 554 U.S. 135 (2008). . . . . . . . . passim Quinones v. City of Evanston, 58 F.3d 275 (7th Cir. 1995). . . . . . 8, 9, 10, 15 Solon v. Gary Community School Corporation, 180 F.3d 844 (7th Cir. 1999). . . 9 STATUTES Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. . . . . . . . . . . . . . . . . . . . . . . . passim RULES & REGULATIONS 29 C.F.R. § 1625.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 9 STATEMENT OF INTEREST The United States Equal Employment Opportunity Commission is the agency charged by Congress with administering, interpreting, and enforcing the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. This case raises an important issue regarding the application of the Supreme Court's decision in Kentucky Retirement Services v. EEOC, 554 U.S. 135 (2008). Given the importance of this issue to the effective enforcement of the ADEA, the EEOC offers its views. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUE Northwest's pension plan has a reduction-in-benefits provision that is triggered not by a change in the retiree's pension status but by the retiree's 65th birthday. The Supreme Court has concluded that when differential treatment is based on pension status an ADEA plaintiff must demonstrate that the differential treatment was "actually motivated" by age, but, in all other cases, a "policy that facially discriminates based on age" violates the ADEA. Does the age-65-trigger violate the ADEA because it is facially discriminatory?<1> STATEMENT OF FACTS Northwest Airlines, and now Delta Air Lines as its successor, administers the Northwest Pension Plan for Contract Employees ("Plan"). The Plan was established in 1970 to provide pension benefits to Northwest's union-represented employees, and has been amended from time-to-time as part of collective bargaining agreements negotiated between Northwest Airlines and the various labor unions representing Northwest employees. A22 ¶ 17; A192 ¶¶ 1-2.<2> The current Plan offers four types of pension benefits, each with its own eligibility and benefit vesting requirements: (1) Normal Retirement Pension, (2) Early Retirement Pension, (3) Disability Retirement Pension and (4) Deferred Vested Pension. A23 ¶ 22; A58 §§ 3.1.1, 3.2.1; A59 § 3.3.1; A60 § 3.4.1; A60 § 3.4.2; A160; A193 ¶5. The Normal Retirement Pension Plan is generally available to those employees who have reached age 65 or who have 5 years of service, whichever comes later. A22 ¶ 20; A193 ¶ 6; see also A49 § 1.2.18; A58 § 3.1.1. That is, if an employee has 5 years or more of service, she is eligible for Normal Retirement on her 65th birthday; on the other hand, if she does not have 5 years of service on her 65th birthday she is eligible for Normal Retirement on the day that she obtains 5 years of service. The Early Retirement Pension, Disability Retirement Pension, and Deferred Vested Pension Plan, on the other hand, are available, under certain circumstances, to those under the age of 65. A23 ¶ 23; A193 ¶ 7; see also A58-60 §§ 3.2.1, 3.3.1 & 3.4.1. The key provision in the Plan for purposes of this appeal is as follows: Under the non-Normal Retirement Pension plans, a retiree's benefit check is not offset by any Workers' Compensation Benefit she also receives so long as she remains under the age of 65. A24 ¶ 30; A194 ¶ 11; A151. For example, if a 64- year old who collects a pension under one of the three non-Normal Retirement Pensions receives $2,000 from the Plan and another $600 from Workers' Compensation, she pockets $2,600. But, once she turns 65, a reduction in benefits by whatever amount she collects from Workers' Compensation is triggered. A23 ¶¶ 24-25; A193-94 ¶ 8; see also A24 ¶ 29; A59 § 3.2.2; A60 § 3.3.2; A61 § 3.4.2; A157; A159; A161; A194 ¶ 10. This age-65-trigger means that this hypothetical pensioner would have her pension reduced from $2,000 to $1,400 to offset the $600 received from Workers' Compensation. In other words, based solely on her age, she would receive $600 less from the Plan. The 64-year-old version of this hypothetical pensioner would receive $2,000 from the Plan, whereas the 65-year- old would receive only $1,400.<3> Marta J. Mitchell-White was born in 1941 and is now 70 years old. She was hired by Northwest Airlines in March 1967 and worked as a Northwest reservationist until 1983, and then as a customer service agent at the Northwest ticket counter at LaGuardia Airport in Queens, New York, until 2003. A20 ¶ 7; A24 ¶ 32; A194 ¶ 13. Work-related injuries forced her to stop working on November 30, 2003. A24 ¶ 34; A195 ¶ 15. In May 2004, Mitchell-White applied for and began receiving Social Security Disability benefits. A24 ¶ 35; A195 ¶ 16. In July 2005, she elected to begin receiving a pension from the Early Retirement Plan, which amounted to $1,685.64 per month and began on July 31, 2005. A24-25 ¶¶ 36-38; A195 ¶¶ 17- 18. Around the same time-in the summer of 2005-she applied to the New York State Workers' Compensation Board for Workers' Compensation benefits. A25 ¶ 39; A195 ¶ 19. In the summer of 2005, she also contacted Northwest's Retirement Department, asking what effect Workers' Compensation would have on her pension benefits, and was told that her pension benefit would be offset by Workers' Compensation once she turned 65. In October 2005, the Worker's Compensation Board awarded her $380.00 per week (or around $1,646.66 per month) in Workers' Compensation benefits. A25 ¶ 40; A195 ¶ 20. She turned 65 in February 2006. A25 ¶ 42; A195 ¶ 21. And, for about two-and-a-half years after her 65th birthday, she received both the full monthly pension benefits and the Workers' Compensation benefits. A25 ¶ 43; A195 ¶ 22. In June 2008, Mitchell-White received a letter from the Plan Administrator, stating that the amount of her Workers' Compensation benefits should have been offset from her pension benefits once she turned 65. A25-26 ¶ 44; A195-96 ¶ 23. The letter stated that because the Administrator had failed to offset her benefits following her 65th birthday, she had been "overpaid" $39,262.32, and that going forward, the Plan would reduce her monthly pension by the amount of her Workers' Compensation Benefits. A25-26 ¶ 44; A196 ¶¶ 24-25. To do so, the Administrator subtracted her monthly Workers' Compensation benefit ($1,646.66) from the monthly pension benefit paid to her by the Plan ($1,685.64) and arrived at a monthly pension benefit of $38.98. A25-26 ¶ 44; A196 ¶ 26. But, because $38.98 was less than the Plan's "protected minimum benefit," the Administrator decided that she would receive a "protected minimum benefit" of $231.48 per month. A25-26 ¶¶ 44; A196 ¶¶ 27. The Administrator, however, reduced that protected minimum pension benefit payment by $57.87 in order to recoup the overpayment of $39,262.32, resulting in a monthly pension payment of $173.61. A25-26 ¶¶ 44, 47; A196 ¶¶ 28-29. The overpayment will be fully repaid in 2065, that is, sometime after Mitchell-White's 124th birthday. A26 ¶ 48; A197 ¶¶ 30- 31. Mitchell-White filed a class action suit against Northwest Airlines, Inc., Delta Air Lines, Inc., and Northwest Airlines Pension Plan for Contract Employees (collectively "Northwest"). A9; A19. She alleges that the age-65-trigger violates the ADEA. A9; A19. Northwest filed a motion to dismiss the complaint, arguing that Mitchell-White failed to state an ADEA claim, because, according to Northwest, after the Supreme Court's decision in Kentucky Retirement Systems v. EEOC, 554 U.S. 135 (2008), a plaintiff must "show that the differential treatment was 'actually motivated' by age," regardless of whether the differential treatment is facially discriminatory. R.9, at 10.<4> Mitchell-White, on the other hand, opposed Northwest's motion to dismiss and cross-moved for partial summary judgment on the question of whether the age-65-trigger violates the ADEA. R.15. She argued that the court should deny the motion to dismiss because to state an ADEA claim for which relief could be granted she did not have to plead that the differential treatment was "actually motivated by age." R.15, at 15. She further argued that because there was no dispute of fact that the age-65-trigger is facially discriminatory and because Northwest failed to demonstrate that one of the ADEA's defenses or exemptions applied, she was entitled to partial summary judgment on the question of whether the age-65-trigger violated the ADEA. R.15, at 17. The district court granted Northwest's motion to dismiss, reasoning that under the Supreme Court's decision in Kentucky Retirement, the plaintiff must plead that the adverse decision was "actually motivated" by age and Mitchell- White only pleaded that the policy was facially discriminatory. A296. This appeal followed. A312. SUMMARY OF ARGUMENT The age-65-trigger is a facially discriminatory policy that deprives older workers of a benefit that is received by younger workers based solely on the particular worker's age and therefore it violates the ADEA. In Kentucky Retirement Services v. EEOC, 554 U.S. 135 (2008), the Supreme Court held that in a case alleging differential treatment based on pension status the plaintiff must allege and show that the differential treatment was actually motivated by age. Because the differential treatment in this case is not based on pension status- indeed, the district court and Northwest contend that the age-65-trigger is designed to avoid differential treatment based on pension status-the district court misapplied the Supreme Court's decision in requiring Mitchell-White to plead that the differential treatment was actually motivated by age. ARGUMENT The District Court Erred in Granting Northwest's Motion to Dismiss and Instead Should Have Granted Mitchell-White's Partial Motion for Summary Judgment. On its face, the age-65-trigger denies to older workers a benefit that is received by younger workers based solely on age. Under all the non-Normal Retirement Pension plans-the Early Retirement Pension, Disability Retirement Pension, and Deferred Vested Pension plans-those under 65 do not have their pension benefits reduced by whatever they collect from Workers' Compensation. It is only after they turn 65 (and because they turn 65) that their pensions are reduced by whatever amount they receive from Workers' Compensation. "A pension is a form of deferred compensation." See Quinones v. City of Evanston, 58 F.3d 275, 278 (7th Cir. 1995) (noting that "Congress added in 1990 that '[t]he term "compensation, terms, conditions, or privileges of employment" encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.' 29 U.S.C. § 630(l), added by the Older Workers Benefits Protection Act, 104 Stat. 978 (1990)"). And, the ADEA proscribes "discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." See 29 U.S.C. § 623(a)(1) (emphasis added); see also 29 C.F.R. § 1625.2 ("It is unlawful for an employer to discriminate against an individual in any aspect of employment because that individual is 40 years old or older, unless one of the statutory exceptions applies." (emphasis added)). Thus, the age-65-trigger is a policy that facially discriminates on the basis of age, and it therefore violates § 623(a)(1) of the ADEA. As the Supreme Court reiterated in Kentucky Retirement and many other courts have recognized, it is axiomatic that "a statute or policy that facially discriminates based on age suffices to show disparate treatment under the ADEA." Ky. Ret., 554 U.S. at 137; see also EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1541-42 (2d Cir. 1996) (holding that a policy that requires employees to retire at a certain age violated the ADEA); Johnson v. New York, 49 F.3d 75, 78- 79 (2d Cir. 1995) ("In cases . . . where there is direct evidence that the disparate treatment . . . is age-dependent, the . . . search for a motive is unnecessary and therefore inapplicable."); Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649, 654 (8th Cir. 2005) ("Arbitrary age discrimination occurs when an employer denies or reduces benefits based solely on an employee's age."); Solon v. Gary Cmty. Sch. Corp., 180 F.3d 844, 854-55 (7th Cir. 1999) ("[B]ecause the [policies] were discriminatory on their face, the plaintiffs were not required to prove that [the defendant] intended to discriminate on the basis of age; that intent could be presumed."); Quinones v. City of Evanston, 58 F.3d 275, 278 (7th Cir. 1995) (concluding that a policy that granted pensions to some workers but not others based solely on age violated the ADEA). Simply put, "[i]f [an employer] said to their [employees], at age 65 you lose your free parking space (or dental insurance, or any other fringe benefit), they would be guilty, prima facie, of age discrimination." Karlen v. City Colls. of Chi., 837 F.2d 314, 317 (7th Cir. 1988). The district court, however, ignored the rule that a statute or policy that facially discriminates based on age suffices to show disparate treatment under the ADEA, reasoning instead that Kentucky Retirement "requires that the Amended Complaint be dismissed due to its failure to allege that the implementation of the Offset at age 65 is actually motivated by age." R.37, at 9. But Kentucky Retirement's "actually motivated" rule applies only to the unique situation of differential treatment based on pension status. As the Supreme Court made clear, it was deciding only the question of "whether a plan that (1) lawfully makes age in part a condition of pension eligibility, and (2) treats workers differently in light of their pension status, (3) automatically discriminates because of age." Id. at 143 (emphasis added). And the Court said the "actually motivated" rule applies only in the "quite special case of differential treatment based on pension status." Id. at 147-48 (emphasis in original). If the differential treatment, however, is not based on pension status, then the normal "rule that a statute or policy that facially discriminates based on age [violates] the ADEA" applies. Id. at 147-48; see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) ("[L]iability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision[, which can happen when] [t]he employer . . . relie[s] upon a formal, facially discriminatory policy requiring adverse treatment of employees with that trait."); EEOC v. Minn. Dep't of Corr., 702 F. Supp. 2d 1082, 1087 (D. Minn. 2010) (noting that a facially discriminatory policy violates the ADEA and nothing in Kentucky Retirement changed that "landscape"). Indeed, there are at least two important differences between the discrimination challenged in this case and in Kentucky Retirement that demonstrate that the discrimination in this case is based on age rather than pension status and that the district court therefore erred in concluding that Kentucky Retirement foreclosed Mitchell-White's claim. First, that the differential treatment in this case is not based on pension status is clear because every retiree under 65 can collect both full pension benefits and Workers' Compensation without her pension benefit being offset regardless of her pension status. On the other hand, every retiree 65 and over has her pension benefit offset by whatever amount she also collects from Workers' Compensation, again regardless of her pension status. Instead, the relevant distinction with regard to the age-65-trigger is age and only age, not pension status or any other trait. The challenged plan in Kentucky Retirement was quite different. At issue in that case was a disability retirement plan that imputed years of service for an employee who became disabled before accumulating enough service time to retire with pension benefits, but did not similarly add years of service for an employee who became disabled after accumulating sufficient service time for pension benefits. Ky. Ret., 554 U.S. at 139-40. Under the plan, if an employee had to work 15 years to become pension-eligible but became disabled after 10 years, the employer would impute 5 years of service to the employee to allow him or her to be eligible for full pension benefits. Id. The Court noted that sometimes the plan benefited younger workers, but also sometimes benefited older workers. Id. at 146. The disparate treatment between the two classes of employees, the court concluded, resulted not from an individual employee's age, but from his or her pension status-a disabled worker who was eligible for retirement received no imputation, whereas a disabled worker who was not yet eligible for retirement did. Id. at 143. But here, the 65-trigger is not differential treatment that is based on pension status which "merely correlate[s] with age," like the plan in Kentucky Retirement; it "in fact implements an age-based criterion." See Johnson, 49 F.3d at 79-80; see also Hazen Paper Co., 507 U.S. at 610. Because age and the imposition of the offset "are inextricably linked," the age-65-trigger violates the ADEA. See Johnson, 49 F.3d at 80. Second, that the differential treatment is not based on pension status is clear because the complained of discrimination would be remedied not by making any changes to how pension status is obtained or calculated but only would require the Court to strike down the age-65-trigger. No changes in Northwest's pension statuses are required to eliminate the alleged discrimination. In contrast, in Kentucky Retirement, the Court concluded that any remedy of the differential treatment in that case would have imposed an unworkable burden on a pension system that was trying to help employees who were disabled on the job. Ky. Ret., 554 U.S. at 147. To remedy the differential treatment, "Kentucky [would have to] severely . . . cut the benefits given to disabled workers who are not yet pension eligible [or] increase the benefits available to disabled, pension-eligible workers, while lacking any clear criteria for determining how many extra years to impute for those pension-eligible workers who already are 55 or older." Id. But, here the discrimination can be remedied simply by removing the age-65-trigger altogether. One final point: Northwest simultaneously argued below both that Kentucky Retirement governs this case and that the age-65-trigger is legal because it ensures that retirees in the various pension statuses are not treated differently, in other words, that there is no differential treatment based on pension status. See R.9, at 10 (Defendant's Memorandum in Support of Motion to Dismiss) ("Establishing an Offset beginning at age 65 simply ensures equal treatment among all participants, regardless of whether they elect to receive an Early Pension or a Normal Retirement Pension."). But it makes no sense to argue that the Plan both results in differential treatment based on pension status and ensures that there is no differential treatment based on pension status. It has to be one or the other. If the Plan does not result in differential treatment based on pension status, then Kentucky Retirement, by its express terms does not apply: It bears emphasizing that our opinion in no way unsettles the rule that a statute or policy that facially discriminates based on age suffices to show disparate treatment under the ADEA. We are dealing today with the quite special case of differential treatment based on pension status, where pension status-with the explicit blessing of the ADEA-itself turns, in part, on age. Ky. Ret., 554 U.S. at 147-48 (emphasis in original). Nonetheless, the district court agreed with Northwest's argument that the age-65-trigger is legal because it ensures not differential, but identical treatment between those in the non-Normal Retirement Plans and those in the Normal Retirement Plan. As the district court put it, "the imposition of the Offset at age 65 is not, in itself, discriminatory, because eligibility for a Normal Retirement Pension correlates with age 65, and pension status may depend on age." R.37, at 11. The district court's characterization is both factually misleading and legally wrong. First, the age-65-trigger correlates with the Normal Retirement date but it is not coterminous. The Normal Retirement is when the participant turns 65 or has 5 years of service, whichever is later. So, if an employee is 65, but has not completed 5 years of service, she would not be eligible for the Normal Retirement benefit. Thus, as a factual matter, the age-65-trigger does not correspond exactly with Normal Retirement eligibility, because, for example, a 67-year-old may not be eligible for the Normal Retirement benefit. Thus, the age-65-trigger does not really ensure identical treatment. Second, the premise of the district court's analysis is incorrect. The court reasoned that because Northwest could treat people differently based on pension status (a notion which is not entirely legally accurate) and has chosen the particular age that also is used to determine normal retirement status (a notion which, as noted, is not entirely factually correct), Northwest also is authorized to discriminate based on that same age in all other pension statuses so long as it uses the same age and denies the same benefit. But, that is incorrect. Indeed, courts have rejected the argument that an authorization to discriminate in one respect also authorizes discrimination in other respects. For example, the ADEA's provision that allows a local government to refuse to hire a firefighter over the age of 35 does not also authorize a refusal to provide a pension benefit to firefighters that it does hire who are over the age of 35. See Quinones, 58 F.3d at 278 (discussing 29 U.S.C. § 623(a)). Likewise, the ADEA's authorization to create a mandatory retirement at 55 for certain employees does not also authorize an early retirement plan that provides health insurance and dental benefits to retirees who retire by the time they turn 55, but not for those over the age of 55. See Minn. Dep't of Corr., 702 F. Supp. 2d at 1089-90 (discussing 29 U.S.C. § 623(a)). The mere fact that an employer may adopt a pension plan that uses age as a factor does not mean that the employer can also cut off benefits within a particular plan solely on the basis of that same age. Nor does the fact that the age-65-trigger promotes an ostensibly legitimate end-making sure that the Normal Pension retirees are not worse off than, say, Early Pension retirees-mean that it does not violate the ADEA. That is because Northwest may not use an illegitimate means-facial age discrimination-to accomplish a legitimate end. For example, in holding that a plan designed to promote early retirement by reducing the amount of sick days a retiree could cash out based solely upon the employee's age when he retires violates the ADEA, the Seventh Circuit observed that the defendant's use of arbitrary age discrimination to accomplish an ostensibly legitimate end (encouraging early retirement) "strikes us as a damaging admission rather than a powerful defense." See Karlen, 837 F.2d at 320. CONCLUSION The district court unnecessarily complicated this case. The age-65-trigger is a facially discriminatory policy. The district court erred in requiring Mitchell- White to plead that the differential treatment was "actually motivated by age" and instead should have granted partial summary judgment in her favor. The Commission therefore urges this Court to reverse the order dismissing the case, grant partial summary judgment to Mitchell-White, and remand for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel /s/ Eric A. Harrington ERIC A. HARRINGTON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 3,839 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. 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 Microsoft Word 2003 in 14-point Times New Roman font. May 24, 2011 Attorney for the Equal Employment Opportunity Commission Dated: /s/ Eric A. Harrington CERTIFICATE OF SERVICE I, Eric A. Harrington, hereby certify that I filed this brief with the Court by uploading, this 24th day of May, 2011, an electronic version of the brief via this Court's Case Management/Electronic Case Filing System (CM/ECF). I also certify that I have served the following counsel of record via this Court's CM/ECF: Counsel for Marta J. Mitchell-White Herbert Eisenberg Eisenberg & Schnell LLP 233 Broadway, Suite 2704 New York, NY 10279 Robert J. Bach Law Office of Robert J. Bach, Esq. 60 East 42nd Street, 40th Floor New York, NY 10165 Counsel for Northwest Airlines, Inc., Delta Air Lines, Inc., as successor to Northwest Airlines, Inc., and Northwest Airlines Pension Plan for Contract Employees Jonathan Herman Eric B. Epstein Dorsey & Whitney LLP 250 Park Avenue New York, NY 10177 Andrew J. Holly Stephen P. Lucke Dorsey & Whitney LLP 50 South 6th Street Minneapolis, MN 55402 /s/ Eric A. Harrington ERIC A. HARRINGTON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov ********************************************************************************** <> <1> The EEOC takes no position on other issues raised on appeal. <2> "A" refers to the Joint Appendix. <3> Those who elect a Normal Retirement Pension also are subject to the offset but that plan has no age trigger; the offset is applied to all under that plan regardless of their age. <4> "R." refers to the district court docket number. <5> Northwest and the unions could of course negotiate a legitimate non-age-based trigger.