____________________________________________ No. 04-4178 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. SUNDANCE REHABILITATION CORPORATION, Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Ohio, Eastern Division Docket No. 01-1867 Hon. Lesley Wells, Presiding _______________________________________________________ PETITION OF THE PLAINTIFF-APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR PANEL REHEARING OR REHEARING EN BANC _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii RULE 35(b) STATEMENT . . . . . . . . . . . . . . . . . . . . .1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . .1 PANEL DECISION . . . . . . . . . . . . . . . . . . . . . . . .4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .6 . . . . .THE PANEL MAJORITY'S DECISION CONTRAVENES THE SUPREME COURT'S RULING IN WHITE AND IMPERMISSIBLY UNDERMINES THE EEOC'S LAW ENFORCEMENT EFFORTS. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . .A-1 . . . . . . . . . . . . . . . . . . . . . . .Panel DecisionA-2 Burlington N. & Santa Fe. Ry. Co. v. White, . . . . . . . . . . . . . . . . . . . 126 S.Ct. 2405 (2006)A-3 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . .C-1 TABLE OF AUTHORITIES Cases Burlington N. & Santa Fe Ry. Co. v. White, . . . . . . . . . . . . . . . . . . 126 S.Ct. 2405 (2006)passim Bill Johnson's Rests., Inc. v. NLRB, . . . . . . . . . . . . . . . . . . . . . .461 U.S. 731 (1983)8 EEOC v. Bd. of Governors of State Colls. & Univs., . . . . . . . . . . . . . . . . .957 F.2d 424 (7th Cir. 1992)13 EEOC v. Frank's Nursery & Crafts, Inc., . . . . . . . . . . . . . . 177 F.3d 448 (6th Cir. 1999)4, 9-10 EEOC v. Jefferson County Sheriff's Dep't, . . . . . . . . . . 467 F.3d 571 (6th Cir. 2006) (en banc)12-13 EEOC v. Ohio Edison Co., . . . . . . . . . . . . . . . . 7 F.3d 541 (6th Cir. 1993)11-12 Hishon v. King & Spalding, . . . . . . . . . . . . . . . . . . 467 U.S. 69 (1984)5, 13, 14 Hollins v. Atl. Co., Inc., . . . . . . . . . . . . . . 188 F.3d 652 (6th Cir. 1999)5, 6, 9 NLRB v. Scrivener, . . . . . . . . . . . . . . . . . . . . . .405 U.S. 117 (1972)8 Robinson v. Shell Oil Co., . . . . . . . . . . . . . . . . . . . . . .519 U.S. 337 (1997)7 Smith v. City of Salem, . . . . . . . . . . . . . . 378 F.3d 566 (6th Cir. 2004)5, 6, 9 Statutes 29 U.S.C. § 206(d) . . . . . . . . . . . . . . . . . . . . . . 3 29 U.S.C. §§ 621 et seq. . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . . . . . . 3 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . 3 Rules Fed. R. App. P. 35(b). . . . . . . . . . . . . . . . . . . . . 1 RULE 35(b) STATEMENT A divided panel of this Court has ruled that an employer does not violate the anti-retaliation rules found in the four federal employment discrimination laws by imposing a severance policy purposely to prevent its employees from filing charges with the Equal Employment Opportunity Commission ("EEOC") and/or participating in EEOC investigations. The majority's holding conflicts directly with the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006). This critical case, which the majority here failed to consider, requires the prohibitions on retaliation to be applied vigorously to ensure employees remain completely free to aid the EEOC in carrying out its law enforcement function. Contrary to the dictates of White, the majority's ruling permits SunDance, and will encourage countless other employers, to promote facially retaliatory policies that inhibit the EEOC's important work. Accordingly, this case should be reheard by this panel or the Court en banc. BACKGROUND<1> In 1999, defendant-appellant SunDance terminated a number of employees as part of a company-wide reduction-in-force ("RIF"). SunDance offered severance benefits to all employees terminated in the RIF. However, SunDance's severance policy provided that SunDance would not pay severance to any employee who has not signed an approved "Separation Agreement and General Release" ("Agreement" or "Release"). The Release obligated signatories not to file charges of discrimination with the EEOC and arguably precluded these separated employees from even participating in EEOC investigations or other proceedings. The Release provided that if the recipient of severance violated the Release, SunDance would have the right to sue for "return of the entire amount of the consideration paid by [SunDance] under this Agreement, plus any other damages proven, including reasonable attorneys' fees and costs." Elizabeth Salsbury worked for SunDance as a speech-language pathologist. SunDance discharged Salsbury in conjunction with the company-wide RIF. Under SunDance's severance policy, Salsbury was entitled to eighty hours of severance pay. However, Salsbury wanted to file a charge of sex discrimination against SunDance because she believed SunDance had discriminated against her by previously denying her a promotion and including her in the RIF. Because the Release would prohibit Salsbury from reporting this alleged discrimination to the EEOC – or would subject her to a lawsuit by SunDance if she did file an EEOC charge – Salsbury believed she could not sign it. Salsbury asked SunDance's Human Resources department if she could strike out the part of the Release prohibiting her from filing a charge with the EEOC, but was told that she could not alter the Agreement in any way. Salsbury thus decided not to sign it and was forced to forego severance pay. Instead, she filed a charge of sex discrimination. Salsbury's charge also indicated that she had refused to sign the Release because she believed it "violates the Laws administered by the EEOC." The EEOC concluded there was reasonable cause to believe that by requiring Salsbury to agree not to file a charge to get severance pay, SunDance had violated the anti-retaliation provisions of the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d), Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. The EEOC later filed this lawsuit on behalf of Salsbury and all SunDance employees subjected to SunDance's severance policy. In a decision granting the EEOC's motion for summary judgment, the district court recognized that "the thrust of the EEOC's argument is that the SunDance Separation Agreement is facially retaliatory." R.43 at 18. The district court explained that "the policy by its terms authorizes the employer to take adverse employment action once an employee . . . engage[s] in some protected activity." R.43 at 17 n.8. The district court concluded that "when an employer requires an employee as part of a separation agreement to give up her right to file a charge with the EEOC in exchange for severance benefits, the employer violates the anti-retaliation provisions of the laws enforced by the EEOC." R.43 at 20. PANEL DECISION In reversing the district court, the panel majority recognized that "[t]here can be little doubt that the filing of charges and participation by employees in EEOC proceedings are instrumental to the EEOC's fulfilling its investigatory and enforcement missions." Slip Op. at 8. For this reason, the majority acknowledged, many courts, including this Court, have found that contractual provisions prohibiting employees from engaging in such protected activity are void as against public policy and unenforceable. Id. (citing EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999), and similar cases from other circuits). "But we need not rule on the enforceability of the Separation Agreement[,]" the majority said, "because that question is not before this [C]ourt." Slip Op. at 9. Here, the majority reasoned, SunDance "has offered a contract, and . . . engaged in no further action." Slip Op. at 8. "We are not persuaded," the majority held, that the "mere offer" of the Release, "without more,": amounts to facial retaliation under the four statutes at issue here. The language of the [Release] probably does not prevent mere participation in EEOC proceedings, and is unenforceable if it does. . . . [T]he charge- filing ban [also] may be unenforceable; but its inclusion in the [Release] does not make SunDance's offering that Agreement in and of itself retaliatory. Slip Op. at 10. The panel majority found that SunDance employees "have not been deprived of anything by the offering of the Separation Agreement." Slip Op. at 10. "T hose employees who reject the [A]greement obviously do not give up any rights." Id. The majority further reasoned that unlike Hishon v. King & Spalding, 467 U.S. 69 (1984), involving the discriminatory denial of an employment benefit that was "part and parcel of the employment relationship," SunDance employees who accepted the Agreement are "better off" because they have received a benefit they were never entitled to in the first place. Slip Op. at 10. Moreover, these "employees may, if they wish, accept the agreement and argue later that parts of it may be unenforceable . . . ." Id. The panel majority also held that "[e]ven if Salsbury's statements to the human resources representative did amount to protected activity (a dubious proposition, as the ‘opposition' would only have been the personal declining of an offered contract)," Salsbury had not been harmed here in any event. Slip Op. at 10. "SunDance's refusal to pay Salsbury severance pay that she was otherwise not due or promised . . . left her in the same position that she had been in before the offer . . . ." Id. at 11. Thus, the majority ruled, Salsbury had suffered no retaliatory adverse action. Id. (citing Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004), and Hollins v. Atl. Co., Inc., 188 F.3d 652, 662 (6th Cir. 1999)). Judge Cohn dissented. He wrote that "[t]he distinction the majority opinion makes between facial retaliation and what is surely intimidation cuts too fine a line." Slip Op. at 13 (Cohn, D.J., dissenting). According to Judge Cohn, "[a]ny act by an employer which interferes with or chills a protected right is . . . contrary to public policy and in violation of the anti-retaliation provisions of the several statutes involved." Id. ARGUMENT THE PANEL MAJORITY'S DECISION CONTRAVENES THE SUPREME COURT'S RULING IN WHITE AND IMPERMISSIBLY UNDERMINES THE EEOC'S LAW ENFORCEMENT EFFORTS. The result reached by the panel majority is in direct conflict with White, the Supreme Court's recent decision broadly construing Title VII's anti-retaliation rule.<2> In defining what constitutes a "materially adverse action" for these purposes, the Supreme Court ruled that an employer may not do anything that "well might . . . dissuade[] a reasonable worker from making or supporting a charge of discrimination." White, 126 S.Ct. at 2415 (internal quotation marks omitted).<3> In adopting this common-sense, practical rule, the Court clearly was concerned with the potential impact of employer conduct on employee access to the EEOC. It emphasized that the prohibitions on retaliation "prevent[] an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement" of equal employment opportunity and freedom from discrimination. White, 126 S.Ct. at 2412. The Court recognized that enforcement of the anti- discrimination laws depends: upon the cooperation of employees who are willing to file complaints and act as witnesses. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances. . . . Interpreting the anti-retaliation provision[s] to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act[s'] primary objective[s] depends. White, 126 S.Ct. at 2414 (internal citation and quotation marks omitted). The Supreme Court cautioned that construing the anti-retaliation rules more narrowly "would fail to fully achieve" their "‘primary purpose'" – namely, "‘[m]aintaining unfettered access to statutory remedial mechanisms.'" White, 126 S.Ct. at 2412 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)); see also id. at 2414 (the goal of the anti-retaliation provisions is to "ensure that employees are completely free from coercion against reporting unlawful practices" (quoting NLRB v. Scrivener, 405 U.S. 117, 121-22 (1972) (internal quotation marks omitted))). Therefore, the Court concluded, the anti-retaliation provisions must be read to "deter the many forms that effective retaliation can take," White, 126 S.Ct. at 2412 – by "‘prohibi[ting] a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities . . . .'" Id. at 2414 (quoting Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 740 (1983)). Had the panel majority applied White in this case, as it was obliged to do, it would have been compelled to find that SunDance's severance Agreement was a facially retaliatory policy that violated the EPA, Title VII, the ADEA, and the ADA. SunDance conditioned severance pay on a promise by the employee not to make or support charges of discrimination. The Agreement also effectively ensured compliance with this promise by reserving to SunDance the right to sue and seek damages from any employee who later filed a charge. Thus, the Release presented employees with a Hobson's Choice: They could either accept the severance pay but relinquish the right to file a charge, or retain this right but sacrifice a significant sum of money. SunDance's severance policy was designed and operated to prevent employees from coming to or cooperating with the EEOC. This is exactly the kind of retaliation the Supreme Court proscribed in White. See White, 126 S.Ct. 2415 (illegal retaliation includes all "employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers" (internal quotation marks omitted)); id. at 2416 (it prohibits acts "likely to dissuade employees from complaining or assisting in complaints"). Notably, the panel majority failed to consider this landmark Supreme Court case. Instead, in finding that SunDance had not retaliated unlawfully against Salsbury, the majority relied on this Court's pre-White cases applying the narrower definition of actionable retaliation the Supreme Court explicitly rejected in White. See Slip Op. at 11 (citing Smith, Hollins). Under White, the majority's reasons for ruling that SunDance's policy is not facially retaliatory do not withstand scrutiny. For example, although the panel majority acknowledged that the pertinent parts of SunDance's Release "may be" unenforceable, it concluded nonetheless that merely including these illegal provisions in the Agreement does not make it retaliatory. However, as Judge Cohn indicated in his dissent, the majority's conclusion is untenable where, as here, the reason the policy is unenforceable is the same reason why it is retaliatory. Courts – most importantly this one – have found contractual clauses precluding protected EEOC activity to be against public policy precisely because such provisions deprive the EEOC, a federal law enforcement agency, of the information it needs to do its job.<4> This is the same rationale underlying the statutory prohibitions against retaliation and animating the Supreme Court's vigorous application of those rules in White. See White, 126 S.Ct. at 2414 (recognizing that "[i]nterpreting the anti-retaliation provision[s] to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act[s'] primary objective[s] depends"). The panel majority was unwilling to rule that a policy with such clearly retaliatory terms could constitute, on its own, a facial violation of the statutes. The majority reasoned that SunDance simply "offered a contract" and that this, "without more," is not retaliatory. Apparently, the majority would wait until SunDance has "engaged in further action" – presumably until it actually sues an employee to enforce the illegal punitive provisions in its Agreement – before considering whether SunDance has retaliated unlawfully. After all, the majority said, the signatory can always argue that the Release "may be" unenforceable. However, in all likelihood, SunDance will never have to sue to enforce its illegal Agreement. The Release is a preemptive, self-enforcing retaliatory tool. Employees who received severance pay have contractually obligated themselves never to engage in protected EEOC activity. SunDance may represent that it does not intend to enforce the in terrorem provisions in its Agreement. But it has not told signatories that. From their perspective, it is possible, indeed likely, that SunDance will sue if they break their promise. Signatories know if they ever make or support a charge of discrimination they could be forced to defend against a SunDance- initiated lawsuit and incur all the emotional, practical, and financial costs that come along with it. At this point, most signatories are probably unaware that they could challenge the Release as unenforceable, and if hauled into court would find little comfort in the ability to make such an argument anyway. Under the Agreement, signatories are still obligated to tender-back the severance they received even if parts of the Release are found to be unenforceable. Signatories would also have to pay their own attorneys' fees to defend the suit in any event. Accordingly, most signatories will, understandably, eliminate any risk of retribution by abiding by the Agreement they have signed. They will simply refuse to come to or cooperate with the EEOC (even if they want or need to). And that is precisely the problem. More than ninety former SunDance employees have signed the Release. We will never know how many of these employees would have filed EEOC charges but for the Release. For this reason, the Release must be enjoined now. See White, 126 S.Ct. at 2414 (anti-retaliation provisions "ensure that employees are completely free from coercion against reporting unlawful practices"); cf. EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993) (where this Court recognized that "Congress unmistakably intended to ensure that no person would be deterred from exercising his rights under [the anti-discrimination statutes] by the threat of discriminatory retaliation" (emphasis added)). The panel majority's reasoning ignores the Release's purpose and effect. This clearly is not a situation where SunDance "innocently" offered a contract which may contain unenforceable provisions. Rather, SunDance devised a policy conditioning severance pay on agreement to terms which SunDance knows are unenforceable and which operate to prevent separated employees from engaging in statutorily protected activity such as filing EEOC charges and/or participating in EEOC proceedings. Nothing in law or logic suggests that an employer should be immune from liability just because it uses a policy to retaliate (i.e., because its challenged conduct involves the proffering of a contract). To the contrary, the Supreme Court in White emphasized that the anti-retaliation rules "prohibi[t] a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities" and that they must be read to "deter the many forms that effective retaliation can take." White, 126 S.Ct. at 2412, 2414. This has to include policies like SunDance's which, on their face, operate to chill protected EEOC activity. The majority contravened White in concluding otherwise.<5> The panel majority's conclusion that the Agreement itself is not retaliatory because SunDance employees have not been "deprived of anything" to which they were otherwise entitled is unsustainable. That SunDance did not have to offer severance to its employees is beside the point. The Supreme Court explained in Hishon, a sex-discrimination case, that "[a] benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free . . . simply not to provide the benefit at all." Hishon, 467 U.S. at 75. Hence here, once SunDance decided to pay severance to all discharged employees it had to do so in a non-retaliatory way – without any regard for whether the recipient had engaged or would engage in protected EEOC activity. SunDance did just the opposite, expressly conditioning severance on a promise never to file a charge and threatening to sue anyone who signed and then does so. The panel majority's attempt to distinguish Hishon by stating that the severance pay at issue here, unlike consideration for partnership there, was not "part and parcel of the employment relationship" is questionable at best and immaterial in any event. First, SunDance offered to all its separated employees severance pay, which is commonly understood as a "benefit" resulting from an employment relationship. Moreover, White made clear that "[t]he scope of the anti-retaliation provision[s] extend[] beyond workplace-related or employment-related retaliatory acts and harm." White, 126 S.Ct. at 2414. In White, the Court specifically held that the protections against retaliation (at issue in this case) are broader than the prohibitions against discrimination (at issue in Hishon). Id. Thus, while an employer may not violate the substantive prohibitions unless it discriminates with respect to something that is "part and parcel of the employment relationship" (i.e., a term, condition, or privilege of employment), an employer may still unlawfully retaliate even if the benefit at issue is not. Accordingly, the majority's basis for distinguishing Hishon is unavailing after White. SunDance denied employees like Salsbury significant severance pay precisely because they refused to sign a waiver relinquishing the right to engage in protected activity. That is retaliation by any definition. Cf. White, 126 S.Ct. at 2417-18 (finding that suspending an employee without pay for thirty-seven days was actionable retaliation because it "could well act as a deterrent, even if the suspended employee eventually received backpay"). The panel majority's observation that those who reject the Agreement "obviously do not give up any rights" overlooks the high price these employees had to pay to retain these rights. Similarly, the panel majority's judgment that those who accept SunDance's Agreement are "better off" reflects a fundamental misperception of the Release's present chilling effect. Undoubtedly, it has deterred signatories from freely exercising their protected statutory rights to file EEOC charges. SunDance's conduct thus has also deprived the EEOC of potentially critical cooperation and harmed the public interest. The majority's opinion permits this anti-law enforcement outcome. Moreover, left to stand, it will almost certainly encourage other employers to adopt similar retaliatory policies. Indeed, since the majority has blessed the use of a retaliatory policy in the severance pay context, what is to prevent employers from now periodically requiring all at-will employees to waive the right to file charges as a condition for the "benefit" of continued employment? If the result reached here is replicated throughout the nation's workplaces, the damage done to the EEOC's law enforcement efforts will be immeasurable. For this reason, and because the majority's ruling is irreconcilable with White, the use of the Release must be enjoined now. This case should be reheard. Respectfully submitted, RONALD S. COOPER ____________________________ General Counsel DANIEL T. VAIL Attorney VINCENT J. BLACKWOOD EEOC Acting Associate General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 LORRAINE C. DAVIS (202) 663-4571 Assistant General Counsel daniel.vail@eeoc.gov CERTIFICATE OF SERVICE I certify that on December 7, 2006, I served the original and/or the requisite number of copies of this petition via Federal Express overnight delivery to: Office of the Clerk United States Court of Appeals for the Sixth Circuit 540 Potter Stewart U.S. Courthouse 100 E. Fifth Street Cincinnati, OH 45202-3988 Dean E. Westman Thomas Evan Green Kastner Westman & Wilkins, LLC 3480 West Market Street, Suite 300 Akron, OH 44333 I further certify that on December 7, 2006, I arranged to have the requisite number of copies of this petition delivered via messenger for receipt on or before December 8, 2006, to: Ann Elizabeth Reesman McGuiness Norris & Williams, LLP 1015 Fifteenth Street, N.W., Suite 1200 Washington, D.C. 20005 Stephen A. Bokat, Robin S. Conrad, Robert J. Costagliola National Chamber Litigation Center, Inc. 1615 H Street, N.W. Washington, D.C. 20062 ____________________________ DANIEL T. VAIL Attorney EEOC Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov APPENDIX Panel Decision Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006) *********************************************************************** <> <1> Unless otherwise indicated, all facts are taken from the EEOC’s Brief as Appellee. See EEOC Br. at 4-9. <2> While White involved Title VII, its rationale and result should apply with equal force to the anti-retaliation rules in the EPA, the ADEA, and the ADA, as well. <3> The Supreme Court struck down this Court’s prior, more stringent interpretation requiring a “materially adverse employment action” for retaliation to be actionable. This Court in cases like Hollins and Smith (relied upon by the panel majority here) had defined this to mean a significant negative change in the terms, conditions, or privileges of employment – i.e., the same standard used to determine whether substantive (e.g., sex, race, religious) discrimination is actionable. See White, 126 S.Ct. at 2410, 2414. In White, the Supreme Court held that the substantive discrimination provisions and the anti-retaliation rules “are not coterminous” and rejected this Court’s previous approach construing them similarly. Id. at 2412-14. <4> While the panel majority was only willing to state that the charge-filing ban “may be” unenforceable, this is not an open question in this Circuit. See Frank’s Nursery & Crafts, 177 F.3d at 456 (individuals may not contract away their right to file an EEOC charge and “such contracts are void as against public policy”). <5> Cases from this Court and other circuits also recognize that employer policies that explicitly permit or require discrimination or retaliation violate, on their face, the federal employment discrimination laws. See, e.g., EEOC v. Jefferson County Sheriff’s Dep’t, 467 F.3d 571, 573, 578-80 (6th Cir. 2006) (en banc) (finding that a disability-retirement-benefits plan was “facially discriminatory on the basis of age”); see also EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424, 431 (7th Cir. 1992) (explicitly holding, despite the panel majority’s contrary interpretation, that the anti-retaliation provision of the ADEA “prohibits policies that penalize employees who exercise their statutory rights under the ADEA”).