Equal Employment Opportunity Commission c. North Gibson School Corporation 00-3117 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 00-3117 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. NORTH GIBSON SCHOOL CORPORATION, Defendant-Appellee. On Appeal from the United States District Court for the Southern District of Indiana, Evansville Division Honorable Larry J. McKinney, Judge BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW Washington, D.C. 20507 (202) 663-4728 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 2 A. Nature of the Case and Course of Proceedings 2 B. Statement of Facts 3 C. District Court Decision 9 STANDARD OF REVIEW 14 SUMMARY OF ARGUMENT 14 ARGUMENT 16 I. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO GRANT NORTH GIBSON'S MOTION FOR SUMMARY JUDGMENT ON THE COMMISSION'S CLAIMS FOR MONETARY DAMAGES. . . . . . . . . 16 A. The district court erred when it held that the Commission could not proceed with its ADEA claims against North Gibson on grounds that the Commission lacked a timely filed underlying charge of age discrimination and its claims against North Gibson would not sufficiently vindicate the public interest . . . . . . . . . . . . . . 17 B. Assuming that the Commission's action in this case must be based on a timely charge of age discrimination, the district court erred when it failed to recognize that a reasonable jury could find that this action is based on such a charge . . . . . . . . . . . . . . . . . . . . . . 25 II. THE DISTRICT COURT ERRED WHEN IT DISMISSED THE COMMISSION'S CLAIM FOR INJUNCTIVE RELIEF TO PREVENT FUTURE AGE DISCRIMINATION AGAINST ANTHIS AND SCHLETER. . . . . . 28 CONCLUSION 31 CERTIFICATE OF COMPLIANCE SEVENTH CIRCUIT RULE 30(D) STATEMENT REGARDING APPENDIX CERTIFICATE OF SERVICE APPENDIXTABLE OF AUTHORITIES CASES PAGE(S) Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . 23, 24 Anderson v. Montgomery Ward & Co., 852 F.2d 1008 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . 26, 30 EEOC v. American & Efird Mills, Inc., 964 F.2d 300 (4th Cir. 1992) . . . . . . . . . . . . . . . . . . . 18, 19 22 EEOC v. Crown Point Community School Corporation, No. 2:93 CV 237, 1997 WL 54747, 72 Fair Emp. Prac. Cases (BNA) 1803 (N.D. Ind. Jan. 2, 1997) . . . . . . . . 5 EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 22 EEOC v. Harris Chernin, Inc., 10 F.3d 1286 (7th Cir. 1993)11, 13, 17, 20, 21, 22, 24, 31 EEOC v. Harvey L. Walner & Associates, 91 F.3d 963 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 21 EEOC v. Johnson Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996) . . 26 EEOC v. Kidder, Peabody & Co., 156 F.3d 298 (2d Cir. 1998) . . 22 EEOC v. Pan American World Airways, Inc., 897 F.2d 1499 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . 26 EEOC v. Tire Kingdom, Inc., 80 F.3d 449 (11th Cir. 1996) . . 18, 19, 22 EEOC v. Waffle House Inc., 193 F.3d 805 (4th Cir. 1999), petition for cert. filed, No. 99-1823, 68 U.S.L.W. 3726 (May 15, 2000) . . . . . . . . . . . . . . . . . . . . . . 22 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) . . . . . . . . . . . . . . . . . . 17, 22 Heiar v. Crawford County, Wisconsin, 746 F.2d 1190 (7th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . 18 Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598 (7th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . 19 Majeske v. City of Chicago, 218 F.3d 816 (7th Cir. 2000) . . . 14 Massey v. Wheeler, 221 F.3d 1030 (7th Cir. 2000) . . . . . . . . 14 Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) . . 19 Reeves v. Sanderson Plumbing Products, 120 S. Ct. 2097 (2000) . . . . . . . . . . . . . . . . 14, 25 Solon v. Gary Community Sch. Corp., 180 F.3d 844 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 16, 29 31 United States v. Rutherford, 442 U.S. 544 (1979) . . . . . . . 24 STATUTES 28 U.S.C. § 451 . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 215 . . . . . . . . . . . . . . . . . . . . . . . 29 29 U.S.C. § 217 . . . . . . . . . . . . . . . . . . . . . 10, 29 30 Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 626(a) . . . . . . . . . . . . . . . . . . . 17 29 U.S.C. § 626(b) . . . . . . . . . . . . . . . . . 18, 30 29 U.S.C. § 626(d) . . . . . . . . . . . . . . . . . 19, 28 29 U.S.C. § 626(f) . . . . . . . . . . . . . . . . . . . 22 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 00-3117 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. NORTH GIBSON SCHOOL CORPORATION, Defendant-Appellee. On Appeal from the United States District Court for the Southern District of Indiana, Evansville Division Honorable Larry J. McKinney, Judge BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT STATEMENT OF JURISDICTION On September 3, 1998, the Commission brought this action under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., alleging that defendant-appellee North Gibson School Corporation ("North Gibson") engaged in unlawful employment discrimination in violation of the ADEA. R.1.<1> Specifically, the Commission alleged that North Gibson unlawfully discriminated based on age when it offered and paid lower early retirement benefits to employees age 56 and over than it offered and paid to employees age 55. See id. at p. 1. The district court's jurisdiction was based on 28 U.S.C. §§ 451, 1331, 1337, 1343, 1345. Id. ¶ 1. The district court entered judgment in favor of North Gibson on June 21, 2000. A1. The district court's June 21, 2000 order and judgment is a final judgment that disposes of all claims as to all parties. On August 16, 2000, the Commission timely filed its notice of appeal. R.160. This Court has jurisdiction over the Commission's appeal under 28 U.S.C. § 1291. There are no prior or related appellate proceedings in this case. STATEMENT OF THE ISSUES 1. Whether the district court erred in granting North Gibson's motion for summary judgment on the Commission's claims for monetary damages where the ADEA authorizes the Commission to seek and obtain such relief irrespective of whether an individual claimant has filed a charge (timely or otherwise) of discrimination. 2. Whether the district court erred in granting North Gibson's motion to dismiss the Commission's claims for injunctive relief where the ADEA authorizes the Commission to seek such relief to prevent future age discrimination against claimants Fred Anthis and Lewis Schleter. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings On September 3, 1998, the Commission filed a complaint in federal district court, alleging that North Gibson engaged in unlawful employment discrimination in violation of the ADEA. R.1. On November 18, 1998, North Gibson filed a motion to dismiss the Commission's action under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. R.13; R.14. The Commission filed its response on December 14, 1998, and North Gibson filed its reply to the Commission's response on December 31, 1998. R.19; R.25.<2> The district court granted North Gibson's motion in part and denied it in part on August 5, 1999, dismissing the Commission's claims for injunctive relief but allowing the remaining claims to proceed. A18-39. North Gibson filed a motion for summary judgment on March 15, 2000.<3> R.129; R.130. The Commission filed its response on April 17, 2000, and North Gibson submitted its reply to the Commission's response on June 5, 2000. R.147; R.157. The district court granted North Gibson's motion for summary judgment on June 21, 2000, entering judgment to that effect on the same day. A2-17; A1. On August 16, 2000, the Commission timely filed its notice of appeal from the district court's ruling. R.160. B. Statement of Facts<4> The basic facts in this case are not in dispute. From 1988 to 1997, North Gibson offered an early retirement plan to its teachers. R.148 ¶ 3. The first version of the early retirement plan was incorporated into the collective bargaining agreement after contract negotiations in 1988 between North Gibson and the North Gibson Education Association ("the Union"), and the plan remained largely unchanged in subsequent contracts. Id. ¶¶ 1, 4(a). In each version of North Gibson's early retirement plan, the early retirement benefit was calculated by multiplying the following three factors: (1) the teacher's years of service (up to twenty); (2) the starting salary (in the year the benefit was to be paid) for a teacher with a master's degree; and (3) the percentage specified in the chart provided in the contract. Id. ¶ 118. The early retirement plan included in the 1995-98 contract was based on the following chart and percentages: Age at Retirement year of ret. 55 56 57 58 59 60 61 62 63 64 1 2.5% 2.25 2 1.75 1.5 1.25 1 1 1 1 2 2.25 2 1.75 1.5 1.25 1 1 3 2 1.75 1.5 1.25 1 1 4 1.75 1.5 1.25 1 1 5 1.5 1.25 1 1 6 1.25 1 1 7 1 1 8 1 A44. See also R.148 ¶ 120.<5> Under the early retirement plan in effect from 1995-1998, teachers were eligible to participate in the plan if they were no less than age 55 and no more than age 65 by June 30 of the year of retirement, and had completed fifteen years of service. A41. See also R.148 ¶¶ 123.<6> In January, 1997, Cathy Heck, the UniServ Director for the Indiana State Teachers Association ("ISTA") and the chief negotiator for the Union, received a memorandum about the decision in EEOC v. Crown Point Community School Corporation, No. 2:93 CV 237, 1997 WL 54747, 72 Fair Emp. Prac. Cases (BNA) 1803 (N.D. Ind. Jan. 2, 1997), which held that an early retirement benefit plan violated the ADEA. R.130 ¶¶ 7-9. Heck reviewed the collective bargaining agreements of the ISTA local affiliates she represented, and determined that North Gibson and one other affiliate had early retirement plans similar to the one deemed in violation of the ADEA in Crown Point. R.130 ¶¶ 8-9. In February or March 1997, Heck contacted Sandy Nixon, North Gibson's superintendent, and advised her that in light of the Crown Point decision, there might be a problem with the early retirement plan in the collective bargaining agreement between North Gibson and the Union. R.130 ¶ 10. On March 10, 1997, Heck sent a letter to Nixon, suggesting that North Gibson and the Union participate in bargaining to correct any actual or perceived problems with the early retirement provisions. Id. ¶ 11. North Gibson agreed. Id. at ¶ 12. Accordingly, on May 29, 1997, North Gibson and the Union held their first negotiation meeting about creating a new early retirement plan. Id. at ¶ 13. At that meeting, North Gibson stated that no one else would be allowed to retire under the questionable early retirement provisions in the 1995-98 collective bargaining agreement. Id. at ¶ 15. North Gibson added that, if anyone wished to retire early before North Gibson and the Union agreed on a new early retirement plan, that individual would have to negotiate his or her retirement separately and under different terms. Id. Heck, however, informed North Gibson's attorney "that she would be surprised if the Board or Superintendent wanted to tell teachers that they are going to refuse to honor the early retirement provisions in the contract." R.148 ¶ 148 (letter dated August 27, 2000). At the same May 29, 1997 negotiation meeting, North Gibson and the Union also discussed teacher Noel Loftin and his retirement. Id. ¶ 132. Loftin, who was 55 years old and had seventeen years of service, had contacted Nixon earlier in the month about retirement benefits, and had received a memorandum (dated May 15, 1997) from Nixon that outlined the retirement/severance benefits available under the early retirement provisions in the 1995-98 collective bargaining agreement. Id. ¶¶ 129-30, 140, 142. At the May 29 meeting, North Gibson and the Union discussed the need to "create some kind of retirement plan for [Loftin] that was not the current contract." Id. ¶¶ 129, 133. North Gibson and the Union also discussed the possibility of having Loftin sign a release acknowledging that "he's getting the benefits," and indicated that maybe they would "have to make 'em slightly different." Id. ¶ 134. On June 16, 1997, Nixon sent Loftin a revised memorandum outlining the retirement/severance benefits available under the early retirement provisions in the 1995-98 collective bargaining agreement. Id. ¶ 136. Three days later, Loftin wrote a note to the school board asking it to accept his retirement. Id. ¶ 137. In both the May 15 and June 16 memoranda to Loftin, Nixon indicated that Loftin would have received a total of $64,958.15 under the early retirement provisions in the 1995-98 collective bargaining agreement, including a severance payment to be paid in late June 1997. Id. ¶¶ 130, 136, 141-42. See also R.149, Exhibits 18 and 20 (May 15 and June 16 memoranda). At the end of June 1997, Loftin and North Gibson executed an agreement regarding Loftin's retirement, under which Loftin received a total of $64,958.16 in benefits. Id. ¶ 143.<7> On August 1, 1997, teacher David Specht retired at age 55 with over twenty years of service. Id. ¶ 144. Specht expressed his intent to retire when he sent a letter to North Gibson on March 31, 1997. Id. Specht taught until the end of the summer school session on August 1, 1997, and then received the full amount of early retirement benefits available to teachers retiring at age 55 under the 1995-98 collective bargaining agreement, receiving his first payment in October 1997. Id. ¶ 145. On December 29, 1997, Fred Anthis and Lewis Schleter filed charges of discrimination with the Commission against North Gibson. Id. ¶ 56. In their charges, Anthis and Schleter asserted that "[t]he contract for Teachers and Administrators provides that older retirees receive a lesser percentage of their salaries for their retirement pay, and that they receive retirement pay for a lesser number of years than the younger retirees do." Id. See also A45-46. Both Anthis and Schleter have indicated that they would have retired in 1995 at age 60, but for the discriminatory nature of the early retirement provisions in effect at that time. R.148 ¶¶ 50, 52-53. Before Anthis and Schleter filed their charges of discrimination, the Commission had not received any information about the discriminatory early retirement provisions used by North Gibson. Id. ¶ 151. North Gibson and the Union resolved their negotiations about a new early retirement benefit plan in 1998. Id. ¶ 18. The North Gibson School Board adopted the new agreement on February 25, 1998, and the Union ratified it on March 9, 1998. Id. The Commission filed this ADEA action against North Gibson on September 3, 1998. R.1. The claimants in this case are Carolyn Browning, Iona Froman, William Krietemeyer, Francis Murphy, JoAnne Parke, Fred Anthis and Lewis Schleter. R.148 ¶ 22. Of this group, Browning, Froman, Krietemeyer, Murphy and Parke have retired from North Gibson.<8> Id. ¶¶ 23, 28, 33, 38, 43. As of June 21, 2000, both Anthis and Schleter were still employed by North Gibson, each with at least thirty years of service. A4. See also R.148 ¶ 48 (indicating that Anthis and Schleter were still employed by North Gibson as of December 1, 1999). C. District Court Decision On November 20, 1998, North Gibson filed a motion to dismiss the Commission's ADEA claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that the Commission's claims are moot and do not state a cause of action for which relief can be granted. R.13; R.14. In an order dated August 5, 1999, the district court granted North Gibson's request to dismiss the Commission's claims for injunctive relief as moot, but denied North Gibson's request to dismiss the Commission's claims for monetary relief. A38-39. In dismissing the claims for injunctive relief, the district court noted that the early retirement plan in the 1995-98 collective bargaining agreement is no longer in effect, and stated that nothing suggested that North Gibson intends to revert to that plan or implement another discriminatory plan in the future. A27. The court rejected the Commission's argument that injunctive relief was still needed to enjoin North Gibson from discriminating on the basis of age by paying reduced early retirement benefits to older workers and by continuing to withhold full early retirement benefits from older workers. A28-29. Instead, the court held that the Commission's claims for injunctive relief were obviated by the provisions of the ADEA itself (specifically 29 U.S.C. § 217), which provides a remedy that would allow the Commission, should it prevail, to obtain relief barring North Gibson from withholding the full amount of early retirement benefits from the claimants. A29. Accordingly, the district court granted North Gibson's Rule 12(b)(1) motion to dismiss the Commission's claims for injunctive relief as moot. A29. The district court denied the remainder of North Gibson's motion to dismiss. First, the district court rejected North Gibson's argument that the Commission's monetary damages claims on behalf of Anthis and Schleter must be dismissed under Rule 12(b)(1). A31. North Gibson contended that Anthis' and Schleter's claims were untimely and were moot because they did not indicate in their charges of discrimination (or in an affidavit they might have opted to file in response to the motion to dismiss) that they would have retired but for the discriminatory terms of the early retirement plan. A30. In the district court's view, North Gibson's motion to dismiss under Rule 12(b)(1) failed because "the timeliness of the filing of EEOC charges is not a jurisdictional issue," and North Gibson's mootness argument was "more of an argument that the EEOC does not have a valid claim rather than [an] argument that it has not presented a live case or controversy." A31.<9> Second, the district court rejected North Gibson's argument that the Commission's complaint should be dismissed under Rule 12(b)(6) because none of the claimants filed timely charges of discrimination. A38. The district court began by recognizing that the ADEA does not place a statute of limitations on when the Commission may bring an enforcement action based on the claims of an individual. A33-35. The district court stated, however, that the courts have invoked doctrines such as res judicata or mootness to hold that the Commission may not seek monetary relief "on behalf of an individual or group of individuals who have previously litigated, settled, waived or arbitrated their discrimination claims." A35. See also A35-36 (citing EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291 (7th Cir. 1993), and indicating that the Commission may still seek injunctive relief when monetary damages are barred by res judicata or a similar doctrine). The district court held that it could not determine if this line of cases should apply to the Commission's action against North Gibson because the court lacked sufficient information about the claimants and whether they filed timely charges or have settled, arbitrated or litigated their claims. A37. Accordingly, because the Commission alleged sufficient facts in its complaint "that could lead [to] the conclusion that the EEOC can recover" on behalf of the claimants, the district court denied North Gibson's Rule 12(b)(6) motion to dismiss the Commission's claims for monetary damages. A37-38. On March 15, 2000, North Gibson filed a motion for summary judgment, renewing its argument that the Commission's claims for monetary relief are barred because none of the claimants would be able to obtain such relief if they sued individually. R.129; R.130. On June 21, 2000, the district court accepted North Gibson's argument and granted its motion for summary judgment. See A2-17. Initially, the district court reiterated its understanding that while the Commission's right to litigate an age discrimination claim is not dependent on an individual filing a charge of discrimination, the Commission cannot obtain monetary damages when it sues on behalf of individuals who have litigated, settled or waived their discrimination claims. A9 (noting that the Commission may, however, sue for injunctive relief in this context). The court then turned to the information it had received about the claimants, and agreed with North Gibson that the Commission's monetary damages claims failed because they were not based on a timely filed charge of discrimination. A11. Specifically, the court noted that, of the seven claimants, only Anthis and Schleter filed charges. Id. In the district court's view, Anthis and Schleter's charges were untimely because they were filed more than 180 days after North Gibson renounced its early retirement policy on May 29, 1997, and thus were not filed within the limitations period that the ADEA establishes for civil actions commenced by individuals in "non-deferral" states. Id. (citing 29 U.S.C. § 626(d)(1)). In so ruling, the district court rejected the Commission's argument that North Gibson's treatment of Specht's and Loftin's requests for early retirement benefits established that the 1995-98 early retirement provisions remained in effect until a date within 180 days of when Anthis and Schleter filed their charges of discrimination. A12. Instead, the court held that Specht tendered his resignation before North Gibson renounced the 1995-98 plan, and that Loftin retired under a separate plan he negotiated with North Gibson. Id. Having determined that none of the claimants filed a timely charge of discrimination, the district court held that the Commission's claims for monetary damages are barred. A13. Relying on this Court's decision in Harris Chernin, 10 F.3d at 1291, the district court held that the Commission's claims for monetary damages in this case would not promote the public interest in preventing employment discrimination. A14-15. Specifically, the district court determined that the Commission's lawsuit was not in the public interest because: (1) any relief recovered would go to the individual claimants, despite the fact that they would not have been able to obtain that relief on their own; (2) North Gibson has abandoned the discriminatory early retirement plan; (3) nothing suggests that North Gibson's new plan is unlawful; (4) the courts already have issued precedent declaring similar retirement plans to be unlawful; and (5) any resulting monetary judgment would place a "severe financial hardship" on North Gibson, a public school corporation dedicated to serving the public interest in education. A15-16. Based on this view of the Commission's case, the district court granted North Gibson's motion for summary judgment, and entered judgment in favor of North Gibson. A17; A1. STANDARD OF REVIEW This Court reviews the questions of law presented in this brief de novo. See Majeske v. City of Chicago, 218 F.3d 816, 820 (7th Cir. 2000). The district court's decision to grant North Gibson's motion for summary judgment is also reviewed de novo, and in conducting this review, this Court "must draw all reasonable inferences in favor of the nonmoving party," refrain from making credibility determinations or weighing the evidence, and "disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods., 120 S. Ct. 2097, 2110 (2000) (discussing the review standard under Rule 50 of the Federal Rules of Civil Procedure, which "mirrors" the standard for summary judgment). Last, this Court must review the district court's decision to grant (in part) North Gibson's motion to dismiss under Rule 12(b)(1) de novo, accepting all well-pleaded facts as true and drawing all reasonable inferences in the Commission's favor. See Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000). SUMMARY OF ARGUMENT This Court should reverse the district court's decision to grant North Gibson's motion for summary judgment on the Commission's ADEA claims for monetary damages. In reaching its decision, the district court erroneously barred the Commission's claims on grounds that the Commission lacked a timely filed underlying charge of age discrimination and the claims would not sufficiently vindicate the public interest. This Court should reject the district court's reasoning and decision because the Commission's authority to litigate claims under the ADEA does not depend on the Commission having received a charge of discrimination (timely filed or otherwise). Further, the district court improperly, and with no support in this Court's case law, imposed its negative view of the law enforcement and public interest benefits of this action as a bar to the Commission's monetary damages claims against North Gibson. Finally, even if this Court accepts the district court's premise that the Commission's action in this case must be based on a timely filed charge of discrimination, this Court still should reverse the district court's decision because a reasonable jury could find that the Commission's action is based on such a charge. The district court also erred when it dismissed the Commission's claims for injunctive relief to prevent future age discrimination against Anthis and Schleter. The ADEA, through its incorporation of various provisions of the Fair Labor Standards Act, expressly grants district courts the authority to enjoin an employer from withholding amounts owing to an individual aggrieved by a violation of the ADEA. It was error for the district court to hold that the Commission's request for injunctive relief was unnecessary and moot, because should the Commission prove its claim of age discrimination, injunctive relief will be necessary and appropriate to ensure that, when Anthis and Schleter retire, North Gibson offers them the highest early retirement benefit that was available under the discriminatory early retirement provisions in the 1995-98 collective bargaining agreement. ARGUMENT I. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO GRANT NORTH GIBSON'S MOTION FOR SUMMARY JUDGMENT ON THE COMMISSION'S CLAIMS FOR MONETARY DAMAGES In this case, North Gibson offered its teachers an early retirement plan that treated younger workers more favorably than older workers, based solely on their age at retirement. The terms of the plan itself establish age discrimination, as individuals who retire at age 55 receive the highest monetary benefit, while individuals who retire at age 56 or over receive a lower benefit (and no benefits if they retire at age 65 or over), even if they retire in the same calendar year and have the same number of years of service. See supra pp. 3-5. See also Solon v. Gary Community Sch. Corp., 180 F.3d 844, 852-53 (7th Cir. 1999) (finding a prima facie case of age discrimination where early retirement benefits similarly varied depending on the retiree's age). In granting North Gibson's motion for summary judgment, the district court did not take issue with the Commission's view that North Gibson's early retirement plan discriminated on the basis of age. Instead, the district court held that the Commission's claims for monetary damages were barred because none of the claimants filed a charge of discrimination within 180 days of North Gibson's May 29, 1997 verbal renouncement of the early retirement provisions in the 1995-98 collective bargaining agreement, and because the claims would not vindicate the public interest. See A11-13, 16-17. The following analysis will demonstrate that the district court erred when it awarded summary judgment to North Gibson on these grounds, because: (1) the Commission's litigation authority under the ADEA does not depend on the existence of an underlying charge of age discrimination (timely filed or otherwise) or on a court's agreement that the Commission's claims would vindicate the public interest; and (2) even if a timely charge is required, a reasonable jury could find that the Commission has satisfied that requirement because Anthis and Schleter filed their charges within 180 days of the final date on which North Gibson offered its discriminatory early retirement plan. A. The district court erred when it held that the Commission could not proceed with its ADEA claims against North Gibson on grounds that the Commission lacked a timely filed underlying charge of age discrimination and its claims against North Gibson would not sufficiently vindicate the public interest Under the ADEA, the Commission's right to litigate claims of age discrimination is independent of any private individual's rights. See Harris Chernin, 10 F.3d at 1291. The Commission "may receive information concerning alleged violations of the ADEA 'from any source,'" and, regardless of whether it has received a charge filed by an aggrieved individual, the Commission "has independent authority to investigate age discrimination." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991). See also 29 U.S.C. § 626(a) (granting the Commission the "power to make investigations"). If the Commission determines that an employer engaged in a discriminatory employment practice, the Commission first must attempt to achieve voluntary compliance with the ADEA "through informal methods of conciliation, conference and persuasion." 29 U.S.C. § 626(b). If those efforts fail, the Commission has "independent authority to bring suit to enforce the provisions of the ADEA." EEOC v. American & Efird Mills, Inc., 964 F.2d 300, 303 (4th Cir. 1992) (explaining that the Commission's independent enforcement authority logically follows from its independent authority to investigate). See also 29 U.S.C. § 626(b). Within this framework, there is no statute of limitations applicable to the Commission when it files suit under the ADEA. As the Eleventh Circuit has explained, although the Commission's "right to bring a suit under the ADEA was subject to certain time limitations" before 1991, the Civil Rights Act of 1991 deleted language from the ADEA that incorporated the statute of limitations of § 6 of the Portal-to-Portal Act of 1947, and thus the statute of limitations no longer applies. EEOC v. Tire Kingdom, Inc., 80 F.3d 449, 451 n.1 (11th Cir. 1996) (discussing the ADEA, the Civil Rights Act of 1991, and the Portal-to-Portal Act of 1947). See also Heiar v. Crawford County, Wisconsin, 746 F.2d 1190, 1196 (7th Cir. 1984) (discussing statute of limitations that applied to ADEA actions before the statute was amended by the Civil Rights Act of 1991).<10> Further, while the ADEA requires individuals to file timely charges of discrimination as a prerequisite to commencing a civil action (see 29 U.S.C. § 626(d), stating that no "individual" may commence a civil action until sixty days after a proper charge of discrimination has been filed), it is clear that those limitations do not apply to the Commission. See Tire Kingdom, 80 F.3d at 451 (explaining that the limitations expressed in 29 U.S.C. § 626(d) do not apply to the Commission); American & Efird Mills, 964 F.2d at 304 (same).<11> The Commission commenced this action against North Gibson in a manner that is entirely consistent with and faithful to the provisions of the ADEA. As previously noted, the Commission first learned of North Gibson's discriminatory early retirement benefit plan on December 29, 1997, when Anthis and Schleter filed their charges of age discrimination. See supra p. 8. The Commission began its administrative process, therefore, a mere seven months after the date North Gibson contends it stopped offering benefits under the discriminatory early retirement provisions in its 1995-98 collective bargaining agreement. Then, "[a]fter numerous attempts to conciliate the charges," the Commission commenced this action on September 3, 1998, when it filed a complaint with the district court. A5. The district court granted North Gibson's motion for summary judgment despite being aware of both the Commission's authority to litigate ADEA claims and the administrative process that preceded this litigation. See A5, 9 (discussing the ADEA and the administrative background to this case). In reaching its decision, the district court looked to this Court's decision in Harris Chernin, 10 F.3d at 1291, and held that based on that precedent, the Commission could not sue for monetary damages because none of the claimants filed timely charges of discrimination and because the Commission's monetary damages claims were not in the public interest. See supra pp. 12-14. This Court now should reject the district court's misplaced and erroneous application of the decision in Harris Chernin to this case. In Harris Chernin, 10 F.3d at 1289-92, this Court addressed the Commission's authority to sue for monetary damages under the ADEA in a case where the individual employee previously had filed, and lost, a private lawsuit alleging ADEA claims. Applying the doctrine of res judicata, this Court held that the Commission could not seek monetary damages<12> because the employee had fully litigated his ADEA claim in his earlier lawsuit, the Commission's action was based on the same claim, and "there is privity between the EEOC and individuals for whom it seeks individual benefits." Id. at 1290-91 (citing EEOC v. United States Steel Corp., 921 F.2d 489, 496 (3d Cir. 1990)). See also EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 970-71 (7th Cir. 1996) (discussing Harris Chernin and noting that the decision to bar the Commission's claim for monetary damages was based on res judicata, or "representative claim preclusion"). In light of this summary, it is clear that the district court erred in this case when it invoked the decision in Harris Chernin and held that the Commission's claims for monetary damages are barred due to the alleged lack of a timely charge and the court's view that the Commission's claims would not be in the public interest. First, nothing in Harris Chernin calls into question the statutory provisions of the ADEA that grant the Commission the independent authority to investigate and litigate claims of discrimination regardless of whether it has received a charge from an aggrieved individual. See supra pp. 17-20 (discussing the Commission's litigation authority under the ADEA). See also Gilmer, 500 U.S. at 28 (Commission's power to investigate does not depend on filing of a charge); Tire Kingdom, Inc., 80 F.3d at 451 (Commission's independent enforcement authority logically follows from its independent authority to investigate); American & Efird Mills, 964 F.2d at 303 (same). Instead, the decision in Harris Chernin has no application here, because the decision does not discuss charge filing requirements under the ADEA, and its discussion of res judicata is not relevant because there is no indication that any of the claimants in this action have previously litigated their ADEA claims against North Gibson. See Harris Chernin, 10 F.3d at 1289 (listing the three elements required for res judicata, including the requirement that there be "a final judgment on the merits in an earlier action"); EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 463 (6th Cir. 1999) (lack of a prior lawsuit by aggrieved individual precluded application of res judicata as a bar to the Commission's lawsuit).<13> Second, the district court erred when it indicated that the Commission may only exercise its independent litigation authority when it seeks "to protect an interest that is greater than that of an individual litigant," and held that the Commission's claims for monetary damages against North Gibson are barred because the claims would not vindicate the public interest. A14-15. There is no support in this Court's decision in Harris Chernin for the proposition that the Commission's authority to seek monetary damages is limited by a public interest litmus test such as the one applied by the district court. Similarly, the decision in Harris Chernin does not support the district court's implicit holding that seeking monetary relief is not a significant means of vindicating the public's interest in upholding the twin goals of the anti-discrimination statutes: compensating victims and encouraging employers to root out discrimination in the workplace. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975) (discussing the role of monetary damages in encouraging compliance and making victims of discrimination whole for their injuries). To be sure, in Harris Chernin, this Court did discuss the Commission's role in vindicating the public interest in preventing employment discrimination, but it did so only to explain that, due to the Commission's unique role, "[t]here is no privity such that res judicata as to [the employee's] claim for individual relief would bar the EEOC from bringing an action seeking an injunction, in order to prevent further violations." 10 F.3d at 1291 (emphasis added). The district court therefore made a substantial leap in logic when it interpreted Harris Chernin as creating a rule that the Commission may only sue for monetary damages when a court agrees that such a claim would be in the public interest. Moreover, the district court's view that the Commission's monetary damages claims against North Gibson are barred because they would not serve the public interest conflicts with Supreme Court precedent. As the Supreme Court has explained, monetary damages awards serve the public interest because "[i]f employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality. It is the reasonably certain prospect of a backpay award that 'provides the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history.'" Albermarle Paper Co., 422 U.S. at 417-18 (citations omitted). Finally, the district court's dismissive view of the public interest value of this action against North Gibson is troubling because, unlike the executive and legislative branches, the judiciary generally is not empowered to weigh competing issues of public policy. See United States v. Rutherford, 442 U.S. 544, 555 (1979) ("Under our constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite legislation in accord with their own conceptions of prudent public policy."). It was improper for the district court to impose its negative view of the law enforcement and public interest benefits of this action as a bar to the Commission's monetary damages claims against North Gibson, and accordingly, this Court should reverse the district court's decision. B. Assuming that the Commission's action in this case must be based on a timely charge of age discrimination, the district court erred when it failed to recognize that a reasonable jury could find that this action is based on such a charge Even if this Court accepts the district court's premise that the Commission may only sue for monetary damages where an individual claimant has filed a timely charge of discrimination, it is evident that the district court erred in barring the Commission's monetary damages claims against North Gibson. Indeed, a reasonable trier of fact, viewing the evidentiary record in the light most favorable to the Commission, could find that Anthis and Schleter filed their charges of discrimination within 180 days of North Gibson's application of its discriminatory early retirement plan. See Reeves, 120 S. Ct. at 2110 (explaining that, when reviewing a motion for judgment as a matter of law, "the court must draw all reasonable inferences in favor of the nonmoving party," and "must disregard all evidence favorable to the moving party that the jury is not required to believe"). A reasonable trier of fact could also find that, in processing Anthis' and Schleter's timely charges, the Commission investigated North Gibson's early retirement provisions, issued a letter of determination notifying North Gibson that it found reasonable cause to believe the provisions violated the ADEA, and attempted to conciliate the claims of all individuals aggrieved by the discriminatory provisions. Because of the scope of the Commission's investigation and attempts to conciliate before commencing this action, this Court should hold that the Commission may seek relief on behalf of the remaining claimants even though they did not file charges. See EEOC v. Johnson Higgins, Inc., 91 F.3d 1529, 1533, 1535-36 (2d Cir. 1996) (Commission permitted to file ADEA action challenging a mandatory retirement policy where it learned of the policy while investigating a separate, timely filed charge, issued a letter of determination finding reasonable cause to believe the retirement policy was discriminatory, and attempted to conciliate). See also EEOC v. Pan American World Airways, Inc., 897 F.2d 1499 (9th Cir. 1990) (discussing an ADEA action brought by the Commission, seeking relief for two named individuals and any other persons aggrieved by the policy at issue).<14> In analyzing North Gibson's motion for summary judgment, the district court erroneously concluded that this action against North Gibson is not based on a timely charge of discrimination. The district court's determination is fatally flawed, however, because the court's finding is premised on its improper decision to credit North Gibson's argument that it stopped using its discriminatory plan on May 29, 1997, when it unilaterally stated that it was no longer bound by the early retirement provisions in the 1995-98 collective bargaining agreement. Summary judgment was inappropriate on that issue because a reasonable jury could find that North Gibson's discriminatory plan remained in effect well after July 1, 1997,<15> and therefore find that Anthis and Schleter filed their charges of discrimination within 180 days of North Gibson's application of its discriminatory early retirement plan. Specifically, notwithstanding North Gibson's May 29, 1997 unilateral declaration, the union believed that the terms of the 1995-98 plan would remain in effect until North Gibson and the union agreed on a new plan. Consistent with the union's impression, North Gibson allowed David Specht to retire on August 1, 1997 under the terms of the 1995-98 plan, despite the fact that North Gibson supposedly renounced the plan in May 1997. See supra pp. 6-8. Similarly, North Gibson allowed Noel Loftin to retire on June 30, 1997 with full early retirement benefits, paying him almost the identical amount ($64,958.16 instead of $64,958.15) that he would have received under the 1995-98 plan, albeit under the guise of a separate contract. See supra pp. 6-7 (listing statements about North Gibson's decision to make Loftin's retirement benefits seem "slightly different" from the benefits available under the discriminatory plan).<16> Based on these facts, a reasonable jury could find that North Gibson's discriminatory early retirement plan remained in effect after July 1, 1997, and therefore could find that Anthis and Schleter timely filed their charges of discrimination within the 180-day period specified in the ADEA. See 29 U.S.C. 626(d)(1). Further, because Anthis' and Schleter's charges were timely filed, the Commission has the authority to proceed in this action on behalf of the claimants that did not file charges of discrimination because the Commission investigated and attempted to conciliate the claims of all individuals aggrieved by North Gibson's early retirement provisions. See supra pp. 25-26 (explaining that, under these circumstances, the Commission may seek relief for individuals who did not file charges of age discrimination). Accordingly, this Court should reverse the district court's decision and allow the Commission to proceed with its claims for monetary relief. II. THE DISTRICT COURT ERRED WHEN IT DISMISSED THE COMMISSION'S CLAIM FOR INJUNCTIVE RELIEF TO PREVENT FUTURE AGE DISCRIMINATION AGAINST ANTHIS AND SCHLETER In opposing North Gibson's motion to dismiss the Commission's claims for injunctive relief, the Commission argued that it should be allowed to seek injunctive relief to enjoin North Gibson from withholding the highest amount of benefits from employees who could have retired under the 1995-98 early retirement plan. See A28 (noting the Commission's argument). The district court rejected the Commission's argument, but this Court should reverse the district court's erroneous decision as to Anthis and Schleter because the express language of the ADEA, as well as this Court's precedent, establishes that a court may award injunctive relief to ensure that employees who choose not to retire because of the discriminatory terms of an early retirement benefit plan receive the full amount of benefits available under the plan. See Solon, 180 F.3d at 848-49, 859 (affirming an award of injunctive relief in this context).<17> In proceedings below, the Commission advised the district court that the ADEA grants district courts the authority to award injunctive relief upon finding that an employer committed a prohibited act of age discrimination. See A28 (noting this argument). Specifically, the Commission explained that the ADEA incorporates 29 U.S.C. § 217 (see 29 U.S.C. § 626(b), incorporating this section of the Fair Labor Standards Act), which expressly authorizes "[i]njunction proceedings" in which a district court may restrain violations of 29 U.S.C. § 215, including the improper "withholding of payment of minimum wages or overtime compensation." 29 U.S.C. § 217. See also 29 U.S.C. § 626(b) (a prohibited act of age discrimination in violation of the ADEA is a prohibited act under 29 U.S.C. § 215); id. (explaining that "[a]mounts owing to a person as a result of [an ADEA violation] shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of [29 U.S.C. §§ 216-17]"). Despite this explanation, the district court held that the Commission could not pursue its claims for injunctive relief in this action. A29. Instead, the district court stated that the relief the Commission seeks under 29 U.S.C. § 217 is "a statutory remedy" that obviates the need for injunctive relief, and dismissed the Commission's request for injunctive relief as moot. A29. This Court should reject the district court's flawed reasoning. First, there is no basis for the distinction the district court made between relief under section 217 and injunctive relief. Simply put, relief under section 217 and "injunctive relief" are the exact same thing, as section 217's principal function is to authorize injunction proceedings to restrain violations of the Fair Labor Standards Act (and thus, the ADEA). See 29 U.S.C. § 217. See also Anderson, 852 F.2d at 1014-15 (indicating that the ADEA, through its incorporation of 29 U.S.C. §§ 216-17, allows the enforcement agency to "bring suit on behalf of an aggrieved individual for injunctive and monetary relief"). Second, the district court erred when it held that the Commission's claim for injunctive relief is moot. On the contrary, since Anthis and Schleter remain employed by North Gibson, an injunction is necessary to ensure that when they retire, North Gibson offers them the highest early retirement benefit that was available under the discriminatory early retirement provisions of the 1995-98 collective bargaining agreement. Indeed, this Court affirmed an identical remedy in Solon, 180 F.3d at 848-49, 859, upholding "an injunction specifying that each [of the individuals still working] had the right to voluntarily retire and receive the full amount of early retirement incentive benefits that would have been paid to an eligible teacher or administrator who elected to retire [at the age offered the highest benefit]." This Court should allow the Commission to pursue the same remedy in this action against North Gibson.<18> CONCLUSION For the foregoing reasons, this Court should reverse the district court's erroneous decision and remand the Commission's ADEA claims for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 September 27, 2000 (202) 663-4728 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This brief contains 8,137 words. GEOFFREY L.J. CARTERSEVENTH CIRCUIT RULE 30(D) STATEMENT REGARDING APPENDIX I certify that the appendix to this brief contains all materials required by Seventh Circuit Rules 30(a) and 30(b). GEOFFREY L.J. CARTERCERTIFICATE OF SERVICE I, Geoffrey L.J. Carter, hereby certify that on this 27th day of September, 2000, two copies of the attached corrected brief, and one copy of the attached corrected brief on digital media, were sent by first class mail, postage prepaid, to each of the following counsel of record: Mary Lee Schiff, Esq. Wm. Michael Schiff, Esq. Ziemer, Stayman, Weitzel & Shoulders P.O. Box 916 Evansville, IN 47706 GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 September 27, 2000 (202) 663-4728 APPENDIX R.159 - June 21, 2000 order entering judgment in favor of defendant-appellee North Gibson School Corporation (A1) R.158 - June 21, 2000 order granting North Gibson's motion for summary judgment (A2-17) R.59 - August 5, 1999 order granting in part and denying in part North Gibson's motion to dismiss (A18-39) R.149, Exhibit 6, cover page and pages 41-44 - Early retirement provisions from North Gibson's 1995-98 "Master Contract" (A40-44) R.131, Tab 12, North Gibson's Deposition Exhibits 3 and 14 - Charges of discrimination filed by Fred Anthis and Lewis Schleter on December 29, 1997 (A451 Citations in the form "R.*" refer to the record entry numbers listed on the district court's docket sheet. Citations in the form "A*" refer to the page numbers of the attached appendix. 2 The Commission filed a motion for summary judgment on the issue of liability on April 29, 1999. R.45; R.46. The district court did not rule on that motion, nor did it rule on the Commission's November 1, 1999 motion for summary judgment on the issue of damages. R.98; R.99. 3 In early February 2000, North Gibson filed a second motion to dismiss the Commission's complaint. R.112; R.115. The district court denied that motion on May 18, 2000. R.154. 4 This statement of facts is drawn from the following portions of the appellate record: R.148 (EEOC's Response to Defendant's Statement of Material Facts and EEOC's Statement of Additional Material Facts); R.130 (North Gibson's Brief in Support of Motion for Summary Judgment and Statement of Material Facts). 5 The early retirement plans in the contracts in effect from 1988-1994 were based on identical percentages, except that no benefits were offered to teachers over the age of 62 (and thus the contracts list no percentages for those ages). R.148 ¶¶ 117-18. 6 The early retirement plans in effect from 1988-95 contained similar eligibility requirements, with the principal difference being that teachers could only participate in the plan if they were no less than age 55 and no more than age 62 by June 30 of the year of retirement. See R.148 ¶ 122. 7 The yearly payments that Loftin receives under his agreement with North Gibson differ from the yearly payments he would have received under the early retirement provisions of the 1995-98 collective bargaining agreement. See id. ¶¶ 142-43. 8 Browning and Froman retired in the summer of 1992, under the 1991-92 collective bargaining agreement ("CBA"). R.148 ¶¶ 23, 33. Murphy retired in May 1994, under the 1993-94 CBA. Id. ¶ 38. Parke retired in May 1995, under the 1994-95 CBA. Id. ¶ 43. Krietemeyer also retired in May 1995, but did so under the terms of a "Letter of Agreement" that he wrote and the School Board accepted. Id. ¶ 28. 9 The district court also considered the question of whether the Commission's monetary damages claims on behalf of Anthis and Schleter stated a claim sufficient for Rule 12(b)(6), and held that it could not dismiss the complaint because the Commission "may be able to prove some set of facts consistent with the allegations of the complaint that would entitle [it] to relief." A32. 10 In this regard, the ADEA is identical to Title VII, which also lacks a statute of limitations that is applicable to the Commission. See generally Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) (discussing the statutory framework of Title VII and the lack of a statute of limitations applicable to the Commission's authority to file suit). 11 The Commission does not contend that claims under the ADEA last forever. Instead, there are legal and equitable guidelines that provide protection against "stale" claims. For example, the Commission considers whether a claim is stale as a factor when it assesses whether to litigate a claim in the public interest. In addition, the courts may invoke the doctrine of laches in an appropriate case to achieve a fair result if an employer is disadvantaged by the litigation of a stale claim. See, e.g., Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598, 603 (7th Cir. 1979) (Title VII case in which court reduced plaintiff's backpay award because of a four year delay in bringing suit). In any event, this action against North Gibson is not stale. The Commission began investigating the claims underlying this action a mere seven months after North Gibson supposedly renounced (in May 1997) its 1995-98 early retirement provisions, and filed suit once its efforts to conciliate failed. 12 This Court held that the Commission could proceed with its claims for injunctive relief, because the individual employee could not have adequately represented the Commission's interest in enforcing the federal employment discrimination statutes in the public interest. Harris Chernin, 10 F.3d at 1291-92. See also EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 970 (7th Cir. 1996) (summarizing this aspect of the holding in Harris Chernin). 13 In its opinion awarding summary judgment to North Gibson, the district court cited the Second Circuit's decision in EEOC v. Kidder, Peabody & Co., 156 F.3d 298, 301 (2d Cir. 1998) for the proposition that the Commission may not seek monetary relief for individuals who have settled, arbitrated or formally waived (e.g., by signing a waiver that complies with the Older Workers Benefit Protection Act, codified at 29 U.S.C. § 626(f)) their ADEA claims. The Commission notes that this Court has not extended its decision in Harris Chernin to the settlement, arbitration or formal waiver contexts, and further advises the Court that at least one court of appeals has disagreed with the Second Circuit's holding that an individual's pre-dispute agreement to arbitrate his or her ADEA claim bars the Commission from seeking monetary relief in federal court. Compare Frank's Nursery & Crafts, 177 F.3d at 467 (Title VII case holding that Commission may seek monetary relief in federal court notwithstanding individual's agreement to arbitrate) with Kidder, Peabody, 156 F.3d at 303 (individual's pre-dispute agreement to arbitrate his or her ADEA claim bars the Commission from seeking monetary relief). See also EEOC v. Waffle House Inc., 193 F.3d 805, 812-13 (4th Cir. 1999) (individual's agreement to arbitrate ADA claim barred Commission from seeking monetary damages in federal court based on the individual's claim), petition for cert. filed, No. 99-1823, 68 U.S.L.W. 3726 (May 15, 2000). 14 Claimants in private ADEA lawsuits may avail themselves of a similar rule. See Anderson v. Montgomery Ward & Co., 852 F.2d 1008, 1016-17 (7th Cir. 1988) (where employer is aware during conciliation of the possibility of a subsequent lawsuit with many claimants, claimants who did not file timely charges may "piggyback" onto the timely charges that were filed by others). 15 Anthis' and Schleter's December 29, 1997 charges of discrimination were filed within the 180-day time limitation if North Gibson's 1995-98 plan was still in effect on or after July 1, 1997 (the 180th day after July 1, 1997 fell on Sunday, December 28, 1997, and thus Anthis and Schleter had until the following Monday to file their charges). 16 The evidence about North Gibson's treatment of Loftin rebuts North Gibson's argument that it ended the 1995-98 early retirement plan in May 1997, and supports the conclusion that (as the union believed), the discriminatory plan remained in effect until it was replaced in 1998. 17 The Commission makes this argument for injunctive relief only as to its claims based on North Gibson's treatment of Anthis and Schleter. As noted in Section I above, the remaining claimants in this action are entitled to monetary relief. If this Court agrees with the district court that the Commission's claims based on Anthis and Schleter's charges are for monetary (rather than injunctive) relief, then the arguments in Section I apply to Anthis and Schleter as well. 18 As this Court stated in Harris Chernin, 10 F.3d at 1291, the Commission has an independent right to sue for injunctive relief.