UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1688
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff – Appellant,
v.
BALTIMORE COUNTY,
Defendant – Appellee,
and
AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL
EMPLOYEES, Local #921; BALTIMORE COUNTY FEDERATION OF
PUBLIC EMPLOYEES, FMT, AFT, AFL-CIO; BALTIMORE COUNTY
SHERIFF’S OFFICE FRATERNAL ORDER OF POLICE/LODGE NUMBER 25;
BALTIMORE COUNTY LODGE NO. 4 FRATERNAL ORDER OF POLICE
INCORPORATED; BALTIMORE COUNTY FEDERATION OF PUBLIC HEALTH
NURSES; BALTIMORE COUNTY PROFESSIONAL FIRE FIGHTERS
ASSOCIATION INTERNATIONAL ASSOCIATION FIRE FIGHTERS LOCAL
1311-AFL-CIO,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District
Judge. (1:07-cv-02500-BEL)
Argued: May 11, 2010 Decided: June 25, 2010
Before GREGORY and SHEDD, Circuit Judges, and Arthur L. ALARCÓN,
Senior Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
Vacated and remanded by unpublished opinion. Judge Shedd wrote
the opinion, in which Judge Gregory and Senior Judge Alarcón
joined.
ARGUED: Paul D. Ramshaw, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. James Joseph
Nolan, Jr., BALTIMORE COUNTY OFFICE OF LAW, Towson, Maryland,
for Appellee. ON BRIEF: James L. Lee, Acting General Counsel,
Carolyn L. Wheeler, Acting Associate General Counsel, Vincent J.
Blackwood, Assistant General Counsel, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. John
E. Beverungen, County Attorney, BALTIMORE COUNTY OFFICE OF LAW,
Towson, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
The Equal Employment Opportunity Commission appeals the
district court’s order granting Baltimore County summary
judgment. EEOC v. Baltimore County, 593 F. Supp.2d 797 (D. Md.
2009). For the following reasons, we vacate and remand.
I.
We view the evidence in the record in the light most
favorable to the EEOC, the non-moving party. Laber v. Harvey,
438 F.3d 404, 415 (4th Cir. 2006) (en banc).
A.
At all times relevant, as a condition of employment with
the County, new, full-time employees were required to join the
County’s Employee Retirement System (ERS), unless they were
fifty-nine or older. Baltimore County Code § 5-1-203(1) (2004).
Under the ERS, most employees are eligible for retirement at age
sixty or, regardless of age, when the employee completes thirty
years of creditable service. § 5-1-213. Correctional officers,
however, are eligible for retirement after twenty years of
creditable service, regardless of age. § 5-1-218(b).
All employees must contribute a percentage of their salary
to the ERS, but that percentage varies based on the employee’s
age at the time the employee joins the system. § 5-1-203(1).
For example, employees who join the ERS at age forty contribute
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5.57% of their salary to the ERS, while employees who join at
age twenty need only contribute 4.42%. J.A. 30.
B.
Wayne Lee and Richard Bosse were both correctional officers
for the County. In 1999 and 2000, they filed EEOC complaints
alleging that the ERS violates the Age Discrimination in
Employment Act (ADEA) because, as older enrollees, they have
more money deducted from their paychecks than younger enrollees.
In 2000, the EEOC ordered the County to respond to their
complaints. The County responded, denying the officers’ charges
of discrimination. Six years later, 1 the EEOC determined that the
ERS violates the ADEA. Conciliation failed, and the EEOC filed
this action.
Subsequently, the County moved for summary judgment,
arguing that the disparate contribution rates are based on
financial concerns rather than age. It argued that because an
older new-hire has fewer years to fund a pension, the older new-
hire needs to contribute to the pension plan at a higher rate
than a younger new-hire. The EEOC opposed this motion and moved
for partial summary judgment, arguing that the contribution
rates violate the ADEA because they are expressly based on age.
1
Because of this delay, the County moved to dismiss on the
grounds of laches. The district court denied the County’s
motion, and the County does not cross-appeal this issue.
4
The district court found that the disparate contribution
scheme is not motivated by age. Baltimore County, 593 F. Supp.
2d at 802. Accordingly, it granted the County’s motion for
summary judgment and denied the EEOC’s motion for partial
summary judgment. The EEOC now appeals the grant of summary
judgment. 2
II.
The EEOC argues that the district court erred by finding
that the disparate contribution rates under the ERS are based on
the number of years an employee contributes until reaching
retirement age, along with the corresponding time value of
money. We review the order granting summary judgment de novo.
Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en
banc).
Under the ADEA it is generally unlawful for an employer to
create a pension plan that discriminates based on age. See 29
U.S.C. § 623(a)(1). To succeed on such a claim, the plaintiff
carries the burden to demonstrate that age “actually motivated”
the disparate treatment. Ky. Ret. Sys. v. EEOC, 128 S.Ct. 2361,
2
In its complaint, the EEOC challenges the ERS under 29
U.S.C. §§ 623(a)(1) & (i)(1). J.A. 14. The district court
granted the County summary judgment on both counts. The EEOC,
however, only appeals the district court’s decision related to
§ 623(a)(1).
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2366 (2008). In fact, age must be the “but-for” cause of the
disparate treatment. Gross v. FBL Fin. Serv., Inc., 129 S.Ct.
2343, 2351 (2009) (citing Ky. Ret. Sys., 128 S.Ct. at 2363-66).
Here, the district court found that the County's
“requirement that older new-hires pay higher contribution rates
is based on the number of years a new-hire has until reaching
. . . retirement age and how long it will take to accumulate a
sufficient reserve to fund the new-hire's life annuity.”
Baltimore County, 593 F. Supp. 2d at 801. The court also noted
that because older new-hires will reach retirement faster, their
contributions will have less time to accrue earnings. Id. at
801-02. These two conclusions led the court to find that “the
County was motivated by a permissible principle, the time value
of money, rather than the age of new-hires.” Id. at 798.
Though the court gave various reasons why the ERS was not
motivated by age, each reason relies on this “time value of
money” rationale.
However, under the express terms of the ERS, two new-hires
with the same number of years until retirement age, and
therefore the same time value of money, can be required to pay
different contributions into the ERS. For example, if a twenty-
year-old new-hire and a forty-year-old new-hire enroll in the
ERS as correctional officers at the same time, they have the
same number of years until retirement eligibility. However, the
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forty-year-old must contribute 5.57% of his annual salary while
the twenty-year-old need only contribute 4.42%. 3 J.A. 30. This
disparity is not justified by the time value of money because
both employees contribute for the same twenty years. 4 Because
the district court’s holding rests solely on this faulty
premise, we must vacate the summary judgment.
Though the EEOC maintains that the ERS violates the ADEA
because applicable rates expressly rely on age, 5 the County
argues that, regardless of their express basis, these rates do
not violate the ADEA because they are actually motivated by
other financial considerations. From the record before us, we
are unable to determine as a matter of law that the contribution
rates are justified by permissible financial considerations.
3
This is not the only example demonstrating this
possibility under the ERS. Because the ERS allows for the
“transfer of service credit,” J.A. 30, two new-hires, a thirty-
two-year-old with ten years of service credit and a fifty-year-
old with ten years of service credit enter the system with the
same potential time value of money before retirement
eligibility. However, the latter must contribute 6.61% of his
salary while the former pays only 4.93%.
4
At oral argument, the County offered no explanation when
it was questioned about this scenario.
5
In their appellate brief, the EEOC argues for the first
time that the ERS violates the ADEA because (1) it reduces older
workers wages because of their age and (2) it violates 29 C.F.R.
§ 1625.10(d)(4)(i). Because the EEOC did not make these
arguments below, they have forfeited the right to make these
arguments in this appeal. Skipper v. French, 130 F.3d 603, 610
(4th Cir. 1997).
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Therefore, we remand this case for the district court to decide
whether the ERS is supported by such considerations.
III.
For the reasons stated herein, we vacate the district
court’s opinion and remand for further proceedings consistent
with this opinion.
VACATED AND REMANDED
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