EEOC v. North Gibson School

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.

Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 98 C 168--Larry J. McKinney, Chief Judge.

ARGUED FEBRUARY 14, 2001--DECIDED September 11, 2001

Before POSNER, COFFEY and RIPPLE, Circuit
Judges.

RIPPLE, Circuit Judge. In December 1997,
the Equal Employment Opportunity
Commission ("EEOC") received charges of
age discrimination from two employees of
the North Gibson School Corporation
("NGSC"). The charges alleged that NGSC’s
early retirement plan ("ERP")
discriminated on the basis of age in
violation of the Age Discrimination in
Employment Act, as amended, 29 U.S.C.
sec. 621 et seq. ("ADEA"). The EEOC filed
this action against NGSC in September
1998; it sought monetary and injunctive
relief against NGSC on behalf of a group
of seven former and current employees.
The district court dismissed the claims
for injunctive relief as moot and later
granted summary judgment to NGSC with
respect to the claims for monetary
relief. For the reasons set forth in the
following opinion, we affirm the judgment
of the district court.

I

BACKGROUND
A. Facts

In February or March 1997, Cathy Heck,
UniServ director for the Indiana State
Teachers Association and chief negotiator
for the North Gibson Education
Association, telephoned Sandra Nixon, the
superintendent of NGSC. Heck had learned
that a district court had held that the
Crown Point Community School
Corporation’s early retirement plan
discriminated against teachers and
administrators on the basis of age. See
EEOC v. Crown Point Comm. Sch. Corp., No.
2:93 CV 237, 1997 WL 54747 (N.D. Ind.
Jan. 2, 1997). In her conversation with
Nixon, Heck expressed concern that there
also might be a problem with NGSC’s ERP
contained in the master contract
("Contract") that had been negotiated by
NGSC and the North Gibson Education
Association ("the Union") in 1995.

At the time of the Crown Point decision,
NGSC’s ERP was similar to the plan that
had been rejected in Crown Point. The ERP
originally had been adopted in 1988 and
was amended in 1995, although the
amendments left it virtually unchanged.
To be eligible for early retirement
benefits, an employee had to be at least
fifty-five and not older than sixty-five
years old on June 30 of the year of
retirement, and he also must have
completed at least fifteen years of
service with NGSC by June 30 of the
retirement year./1

On March 10, 1997, Heck wrote Nixon a
letter suggesting that the ERP may no
longer be appropriate and formally
requesting that NGSC and the Union
commence bargaining to rectify any
problems with the ERP./2 Nixon replied
that, pursuant to Article IV of the
Contract, NGSC believed it no longer was
bound by the ERP because it had a good-
faith belief that the ERP could be found
to be in violation of the law./3 In a
letter written on March 20, 1997, Nixon
also com-municated that the North Gibson
School Board agreed to begin negotiating
a new early retirement plan immediately.

The first negotiation meeting was held
on May 29, 1997, and the ERP was
terminated at that meeting. NGSC told the
Union bargaining committee that NGSC
would not permit anyone to retire under
the ERP. NGSC and the Union also agreed
to create a separately negotiated
retirement plan for Noel Loftin, an
employee who had expressed his wish to
retire after NGSC decided no longer to
honor the ERP. The Union and NGSC
continued negotiations on several
subsequent occasions. NGSC adopted a new
plan, modeled after Crown Point’s revised
plan, on February 25, 1998, and the new
plan was ratified by the Union on March
9, 1998.

On December 29, 1997, two teachers, Fred
Anthis and Lewis Schleter, filed charges
of age discrimination against NGSC with
the EEOC. The charges alleged 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 the retirement pay for a lesser
number of years than the younger retirees
do." R.15, Nixon Aff., Ex.1 at 2 & Ex.2
at 2. In the charges, neither Anthis nor
Schleter claimed that he had retired
under the ERP. Both were employed with
NGSC at the time they filed the charges
of discrimination.

Anthis and Schleter each claim that they
would have retired in 1995 but for the
discriminatory nature of the ERP that was
in effect at that time. In 1994 or 1995,
Anthis and Schleter discussed together
that the ERP was discriminatory because
they were sixty years old, but they claim
that they did not realize they could file
charges of discrimination. At that time,
neither notified NGSC or the Union that
he intended or wished to retire. Anthis
and Schleter were aware, in March 1997,
that NGSC and the Union were negotiating
a new early retirement plan. They filed
charges with the EEOC in December 1997
only after they learned of the Crown
Point decision in August 1997.

After receiving the charges that Anthis
and Schleter had filed against NGSC, the
EEOC sent a "Notice of Charge of
Discrimination" to Nixon in early January
1998. Id., Ex.1 at 1 & Ex.2 at 1. After
NGSC responded to the charges, both
parties proposed conciliation agreements
that were rejected by the other party. On
July 20, 1998, the EEOC notified NGSC
that it would make no further efforts at
conciliation.

B. Proceedings in the District Court

On September 3, 1998, the EEOC filed a
complaint with the district court in
which it alleged that NGSC had engaged in
unlawful employment practices in
violation of the ADEA by discriminating
against employees age fifty-six and older
through its ERP. In its prayer for
relief, the EEOC requested both monetary
damages and permanent injunctive relief
for a group of individuals who suffered
discrimination under NGSC’s ERP./4 The
group of individu-als consisted of seven
employees, including Anthis and Schleter.
The other five employees retired prior to
the ERP’s termination, but none of the
five filed a grievance or charges with
NGSC, the Union, or the EEOC.

NGSC filed a motion to dismiss all of
the EEOC’s claims under Federal Rules of
Civil Procedure 12(b)(1) and (6), which
the district court denied in part and
granted in part. The district court
denied the motion to dismiss the claims
for monetary damages, suggesting that a
motion for summary judgment would be a
more appropriate procedural vehicle for
addressing those claims.

With respect to the claims for
injunctive relief, the district court
granted NGSC’s motion to dismiss. The
court reasoned that the EEOC’s request
for an injunction restraining
discriminatory policies and practices was
moot because the allegedly discriminatory
ERP had been discontinued in May 1997,
and the EEOC had no reasonable
expectation that a discriminatory plan
would be reinstated./5

The district court later granted NGSC’s
motion for summary judgment on the EEOC’s
claims for monetary relief. The court
held that the EEOC must base a claim for
individual monetary relief on a timely,
individual charge of discrimination. The
court reasoned that the EEOC was in
privity with the individuals for whom it
sought relief; if the individuals were
time-barred from bringing the claims, the
EEOC also was barred from bringing the
claims. The court acknowledged that the
EEOC’s right to sue in its own name is
independent of an individual’s right to
sue and that the EEOC’s role in
preventing employment discrimination
serves a public interest broader than
that of an individual. However, the court
believed that the public interest served
by the EEOC’s suit for compensation for
individual teachers was minimal and did
not outweigh the need to conform to the
statutory time limits established for
individual claims./6
 Turning to the circumstances of this
case, the court determined that none of
the employees had filed timely charges
that could serve as a basis for the
EEOC’s claim because five of the
employees never filed charges and Anthis’
and Schleter’s charges were untimely.

II

DISCUSSION

A. Monetary Relief

We review the district court’s decision
to grant summary judgment de novo. See
Thomas v. Pearle Vision, Inc., 251 F.3d
1132, 1136 (7th Cir. 2001). Summary
judgment is proper when "there is no
genuine issue as to any material fact and
. . . the moving party is entitled to a
judgment as a matter of law." Fed. R.
Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). To
determine whether a genuine issue of
material fact exists, we must construe
all facts and draw all reasonable
inferences in the light most favorable to
the nonmoving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).

The EEOC submits that the district court
improperly granted summary judgment to
NGSC on the claims for monetary relief on
behalf of the seven employees. The EEOC
contends that it has independent
authority to file suit under the ADEA to
recover damages on behalf of individual
employees, and it is therefore irrelevant
whether any of the teachers in this case
filed timely charges. Alternatively, the
EEOC argues that a reasonable jury could
have found that Anthis’ and Schleter’s
charges were timely, and, as a result,
the other five employees could have
piggybacked their claims onto Anthis’ and
Schleter’s claims. We examine each
argument in turn.

1. Timely Charges as a Basis for the
EEOC’s Suit

Under the ADEA, the EEOC has the power
to investigate violations, to sue on
behalf of aggrieved individuals, and to
institute injunctive proceedings. See 29
U.S.C. sec.sec. 626(a) & (b). In EEOC v.
United States Steel Corp., 921 F.2d 489,
496 (3d Cir. 1990), our colleagues in the
Third Circuit noted that this power
encompasses two distinct roles--
vindicating specific private claims and
protecting the public interest. When the
EEOC "seeks individualized benefits under
the ADEA for particular grievants, . . .
the Commission functions to that extent
as their representative." U.S. Steel, 921
F.2d at 496. Consequently, courts have
held that the EEOC is precluded from
seeking monetary relief for individuals
who are barred from seeking the same
relief themselves because their claims
have been adjudicated or are subject to
arbitration agreements./7 See EEOC v.
Harris Chernin, Inc., 10 F.3d 1286, 1291
(7th Cir. 1993) (holding that the EEOC’s
claim for individual monetary relief was
barred by res judicata because the
individual on whose behalf the EEOC
brought suit previously had been
dismissed for failure to file a timely
charge of discrimination); see also EEOC
v. Kidder, Peabody & Co., 156 F.3d 298,
300-01 (2d Cir. 1998) (holding that the
EEOC’s claim for individual monetary
relief was precluded by a prior
arbitration agreement between the
employee and the employer); U.S. Steel,
921 F.2d at 496-97 (holding that the
EEOC’s claim for individual monetary
relief was barred by res judicata).

In these cases, we, along with the
Second and Third Circuits, have
emphasized the distinctive enforcement
scheme of the ADEA, which places the EEOC
in privity with the individual for whom
it seeks relief. Under the statute, the
EEOC steps into the shoes of the
individual because "the right of any
person to bring such action shall
terminate upon the commencement of an
action by the Equal Employment
Opportunity Commission to enforce the
right of such employee under [the ADEA]."
29 U.S.C. sec. 626(c)(1); see also
Kidder, 156 F.3d at 302; Harris Chernin,
10 F.3d at 1291; U.S. Steel, 921 F.2d at
494. As the Third Circuit has noted, in
this respect, the drafters of the ADEA
consciously departed from the enforcement
scheme of Title VII, which does not
terminate the rights of the employee once
the EEOC has brought suit. See U.S.
Steel, 921 F.2d at 494 n.4. Indeed, in
U.S. Steel, the Third Circuit suggested
that Congress would have preserved the
individual’s right to bring a complaint
in some other fashion if it had not
believed that the EEOC would represent
the interests of the individual. See id.
at 495. It is this privity, created by
the ADEA’s distinctive enforcement
scheme, that precludes the EEOC from
seeking monetary relief that is not
available to the individual.

In Harris Chernin, we held that the EEOC
could not seek back pay, liquidated
damages, and reinstatement under the ADEA
on behalf of an employee whose individual
claim already had been adjudicated. See
Harris Chernin, 10 F.3d at 1291. Prior to
the EEOC’s suit, the employee had filed a
complaint that was dismissed by the
district court on summary judgment
because the claim was barred by the
statute of limitations in effect at that
time. See id. at 1288. We held that the
EEOC, because it was the employee’s
representative, was barred by res
judicata from subsequently seeking
monetary relief on his behalf. See id. at
1291. We adopted the Third Circuit’s
reasoning in U.S. Steel that, "’if a
person first litigates in his own behalf,
that person may be precluded from
claiming any of the benefits of a
judgment in a subsequent action that is
brought or defended by a party
representing him.’" Id. (quoting U.S.
Steel, 921 F.2d at 493). Because we
accepted the Third Circuit’s
determination that there is privity
between the EEOC and individuals for whom
it seeks individual benefits, we held
that individuals were precluded from
obtaining individualized relief in a
subsequent EEOC action based on the same
claims. See id. at 1290-91; see also U.S.
Steel, 921 F.2d at 496.

In Kidder, the EEOC sought back pay and
liquidated damages on behalf of nine
employees. See Kidder, 156 F.3d at 300.
The Second Circuit held that, under the
ADEA, the EEOC was barred from bringing
an action for monetary relief on behalf
of an individual who had signed a binding
arbitration agreement with the employer.
See id. at 300-01. The court also relied
on the distinctive enforcement scheme of
the ADEA and noted that "circuit courts
have uniformly held that the EEOC may not
seek monetary relief in the name of an
employee who has waived, settled, or
previously litigated the claim." Id. at
301.

In contrast, the same courts recognize
the EEOC’s right to pursue injunctive
relief to vindicate broader concerns
affecting the public interest. In making
this distinction, the courts have
distinguished claims for injunctive
relief from those for individual monetary
damages by contrasting the high level of
public interest served when the EEOC
seeks an injunction with the minimal
public interest served by an individual
monetary award. When the EEOC sues on its
own behalf to obtain an injunction that
prohibits discrimination, it promotes the
public interest because its "interests
are broader than those of the individuals
injured by discrimination." Harris
Chernin, 10 F.3d at 1291. "’[T]he ADEA is
designed not only to address individual
grievances, but also to further important
social policies’ such as deterrence of
employment discrimination and prevention
of future discrimination through class-
wide relief." Kidder, 156 F.3d at 302
(quoting Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 27 (1991)).

Our reasoning in Harris Chernin, shared
by our sister circuits in the cases that
we just have discussed, is applicable to
the situation before us. An individual
must have filed timely charges of
discrimination with the EEOC in order to
file a claim of discrimination himself.
See 29 U.S.C. sec. 626(d). Despite this
filing requirement, the EEOC asks us to
hold that it may bring suit for monetary
damages even when none of the individuals
on whose behalf it sues have filed timely
charges. Because of the distinctive
enforcement scheme of the ADEA, however,
the EEOC is in privity with the NGSC
teachers, and it represents their
interests in this claim for monetary
relief. As their representative, the EEOC
is barred from seeking individual
benefits that the employees would be
unable to pursue on their own.

Although the EEOC’s suit against NGSC is
not barred by res judicata, as the suit
in Harris Chernin was, the circumstances
in Harris Chernin nevertheless support
the decision we reach today.
Procedurally, the employee in
HarrisChernin took a step that the seven
individuals represented by the EEOC here
did not take--the employee brought suit
on his own prior to being represented by
the EEOC. However, five of the NGSC
teachers never filed charges of
discrimination, and, as we will discuss
in the next section, the charges filed by
the remaining two teachers were untimely.
If any of the individuals from NGSC had
attempted to bring suit in the district
court based on untimely or nonexistent
charges, the claim would have been
dismissed by the district court for a
failure to comply with the statutory
filing requirement. At that point, the
seven would be in the same position as
the employee in Harris Chernin, and the
prohibition Harris Chernin placed on the
EEOC’s subsequent relitigation of the
same claims would apply squarely.

2. The Timeliness of Anthis’ and
Schleter’s Charges

Because the EEOC does not have
independent authority to bring claims for
monetary relief, it may only maintain its
suit for damages if it can establish that
a charge of discrimination was filed
timely. Anthis and Schleter were the only
NGSC employees who filed charges. They
filed those charges on December 29, 1997.
Because Indiana is a non-deferral state
for purposes of establishing the
statutory period within which an employee
must file charges of age discrimination,
see Daugherity v. Traylor Bros., Inc.,
970 F.2d 348, 350 n.2 (7th Cir. 1992),
Anthis’ and Schleter’s charges had to be
filed within 180 days of the unlawful
employment practice, see 29 U.S.C. sec.
626(d)(1). This 180-day period began on
July 2, 1997, and the EEOC must
demonstrate that a discriminatory act
occurred subsequent to that time.

As early as 1994 or 1995, Anthis and
Schleter were on notice that the ERP
discriminated against them. Around that
time, they discussed the fact that they,
being sixty years old, would receive
lower early retirement benefits than a
fifty-five-year-old teacher with the same
number of years of service. However,
neither indicated to NGSC that he was
considering retirement nor did either
file charges with the EEOC. The ERP was
terminated by NGSC at the May 29, 1997
negotiation meeting between NGSC and the
Union. Based on this information alone,
it appears that the discriminatory acts
occurred before the 180-day period and
that the charges therefore were untimely.

Nevertheless, under the "continuing
violation" doctrine, the EEOC may "’get
relief for a time-barred act by linking
it with an act that is within the
limitations period.’" Miller v. Am.
Family Mut. Ins. Co., 203 F.3d 997, 1003
(7th Cir. 2000) (quoting Speer v. Rand
McNally, 123 F.3d 658, 663 (7th Cir.
1997)). A continuing violation may exist
when the employer has an express, openly
espoused, discriminatory policy that was
in effect during the limitations period.
See Place v. Abbott Labs., 215 F.3d 803,
808 (7th Cir. 2000), cert. denied, 121 S.
Ct. 768 (2001); Stewart v. CPC Int’l,
Inc., 679 F.2d 117, 121 (7th Cir. 1982).
However, the continuing violation
doctrine does not apply when a time-
barred incident cannot be linked with an
incident that occurred within the
statutory period or when the time-barred
incident alone should have triggered the
plaintiff’s awareness that his rights had
been violated. See Simpson v. Borg-Warner
Auto., Inc., 196 F.3d 873, 875-76 n.1
(7th Cir. 1999).

The Supreme Court has explained that a
facially discriminatory policy
discriminates each time that it is
applied. See Lorance v. AT&T Techs.,
Inc., 490 U.S. 900, 912 & n.5 (1989)./8
The Court also has made clear, though,
that the "proper focus is upon the time
of the discriminatory acts, not upon the
time at which the consequences of the
acts became most painful." Del. State
Coll. v. Ricks, 449 U.S. 250, 258 (1980)
(emphasis in original) (quotation marks
and citation omitted) (holding that the
limitations period on the plaintiff’s
discrimination claim began to run from
the time he was given notice that he
would not receive tenure, not from the
time he actually was terminated); see
also Chardon v. Fernandez, 454 U.S. 6, 8
(1981) (per curiam) (holding that the
limitations period began to run from the
time the plaintiffs were given notice of
their termination, even though the
plaintiffs continued to work after that
date). We have held that, in the context
of mandatory retirement programs, the
statute of limitations runs from the date
the employee is given notice that he will
be forced to retire upon reaching a
certain age, despite the fact that the
employee is not taken off the payroll
until some time after the notification
date. See Heiar v. Crawford County, 746
F.2d 1190, 1194 (7th Cir. 1984) (as
amended); see also Kuemmerlein v. Bd. of
Ed. of the Madison Metro. Sch. Dist., 894
F.2d 257, 259-60 (7th Cir. 1990) (holding
that the statute of limitations begins to
run on the date on which the plaintiffs
received notice of their termination, not
on their actual termination date); Mull
v. Arco Durethene Plastics, Inc., 784
F.2d 284, 290 (7th Cir. 1986) ("[T]he
significant date for purposes of Ricks
and the limitations period is that date
upon which the employee receives notice
of termination and not the date upon
which the termination becomes
effective."). The reasoning underlying
this principle is that the employee is
aware that he has been discriminated
against at the time the employer makes
clear to him that he will be subjected to
the discriminatory policy. The employee’s
eventual termination at a later date is
an inevitable consequence of the
discriminatory decision to terminate him;
it is not in itself a separate
discriminatory act. See Ricks, 449 U.S.
at 257-58. Indeed, "[m]ere continuity of
employment, without more, is insufficient
to prolong the life of a cause of action
for employment discrimination." Id. at
257; cf. Florida v. Long, 487 U.S. 223,
239 (1988) ("It is not correct to
consider payments of [pension] benefits
based on a retirement that has already
occurred as a sort of continuing
violation.").

Without addressing this body of case law
or providing support for its own
proposition, the EEOC asserts that the
retirement of David Specht on August 1,
1997, constitutes a discriminatory
application of the ERP within the limita
tions period sufficient to satisfy the
requirements of the continuing violation
doctrine. Specht submitted a formal
letter of intent to retire on March 31,
1997. He retired on August 1, 1997, after
teaching through the end of the summer
school session. Based on Specht’s
payments, it appears that his benefits
had been calculated under the ERP. He
received his first payment on October 1,
1997.

The precedent we have just discussed
establishes that, with respect to
retirement plans, the discriminatory act
occurs on the date on which it becomes
clear that the employee will retire
pursuant to the terms of the
discriminatory plan, regardless of
whether he continues to work past that
date. Cf. Mogley v. Chicago Title Ins.
Co., 719 F.2d 289, 290 (8th Cir. 1983)
(per curiam) (holding that the
limitations period began to run from the
time the employee received a letter
notifying him that he could accept early
retirement rather than face termination,
even though his retirement was not
effective until seven months later).
Notably, the EEOC has offered no evidence
to indicate that an employee’s last day
of employment has any effect whatsoever
on the application of the ERP or the
calculation of the employee’s benefits.
Cf. Long, 487 U.S. at 239 (holding that,
in the pension fund context, the
discriminatory act is the calculation of
benefits fixed under a contract between
the employer and retiree and that each
payment of benefits did not constitute a
continuing violation). Indeed, the
evidence of record, including the
testimony of Heck and Nixon, as well as
various documents, suggests the contrary.

According to the terms of the ERP, a
teacher electing to take early retirement
had to notify NGSC of his "intent to
claim the early retirement benefit no
later than June 1 of the school year
preceding the year" he wished to begin
receiving benefits. R.149, Ex.6 at 41.
Specht provided this notification in
March 1997 when he gave Nixon his letter
expressing his intent to retire under the
ERP. At that time, Specht was on notice
that he was retiring pursuant to the
discriminatory ERP and that the amount of
his benefits would be less than those of
younger retirees. It was on this date
that the discriminatory act occurred, and
Specht’s subsequent retirement in August
was merely an inevitable consequence of
that act. Thus, Specht’s August
retirement does not establish that the
ERP was applied in August, and it does
not support a continuing violation.

The EEOC offers the retirement of one
other teacher, Noel Loftin, in its
attempt to establish a continuing
violation. However, the EEOC’s argument
with respect to Loftin is more flawed
than its argument concerning Specht. In
early May 1997, Loftin expressed to Nixon
his intent to retire and was told that
NGSC was not accepting retirements at
that time. During subsequent phone
conversations and at the May 29, 1997
meeting, Nixon and Heck discussed the
need "to create some kind of a retirement
plan for [Loftin] that was not the
current contract." R.148 at 26 (quotation
marks omitted). During May and June 1997,
Loftin and NGSC negotiated an
individualized early retirement
agreement, and, on June 19, 1997, Loftin
tendered his resignation. On June 24,
1997, Loftin accepted an early retirement
benefit package of $64,958.16 (he would
have received $64,958.15 under the ERP),
and, on June 30, 1997, he retired. Like
Specht, he received his first payment on
October 1, 1997.

Although the EEOC contends that Loftin’s
retirement extended the application of
the ERP into the limitations period, its
argument fails because Loftin’s benefits
were calculated under a separately
negotiated agreement in June 1997.
Loftin’s final benefits package was only
one cent greater than the benefits
package he would have received under the
ERP; however, the EEOC has offered no
evidence to suggest that age was indeed a
factor in determining Loftin’s early
retirement benefits, as it would have
been under the discriminatory ERP. In
addition, all of the negotiations,
including Loftin’s acceptance of the
benefits agreement, took place prior to
July 2, 1997. Thus, there is no evidence
to suggest either that Loftin’s
retirement occurred under the ERP or that
he retired within the relevant statutory
period.

This record will not support a
determination that either Specht or
Loftin retired under the ERP within the
limitations period. Therefore, the EEOC
is unable to demonstrate that there was a
continuing violation that would render
Anthis’ and Schleter’s charges timely.
Because no other teacher filed charges,
the EEOC has no timely filed charge on
which to base its claims for monetary
damages./9 Conse-quently, the district
court correctly granted summary judgment
for NGSC on those claims.

B. Injunctive Relief
 The EEOC submits that the district court
erred when it granted NGSC’s motion to
dismiss the claims for injunctive relief
sought on Anthis’ and Schleter’s behalf.
The EEOC recognizes that the ERP is no
longer in effect, but it contends that
its claims are not moot because Anthis
and Schleter are not receiving the early
retirement benefits they would have
received but for the ERP. The EEOC
contends that, under the ADEA, 29 U.S.C.
sec. 626(b) (incorporating 29 U.S.C. sec.
217), the district court has the express
authority to enjoin NGSC from withholding
retirement benefits that Anthis and
Schleter could have received absent a
violation of the ADEA.

We believe that the district court
correctly dismissed the EEOC’s claim for
injunctive relief against the "continued
withholding of amounts owing" to Anthis
and Schleter. R.1 at 3-4. As we already
have discussed, we recognize that the
EEOC can pursue broad injunctive relief
even when it is barred from seeking
individual monetary damages. See Harris
Chernin, 10 F.3d at 1291. However, in the
cases in which this injunctive relief was
allowed, the EEOC was seeking broad,
class-wide, prospective injunctions. The
EEOC’s "interests in determining the
legality of specific conduct and in
deterring future violations are distinct
from the employee’s interest in a
personal remedy." Goodyear, 813 F.2d
1539, 1542 (9th Cir. 1987). In Kidder,
the EEOC was not barred from seeking
injunctive relief that furthered
"’important social policies’ such as
deterrence of employment discrimination
and prevention of future discrimination
through class-wide relief." Kidder, 156
F.3d 302 (quoting Gilmer, 500 U.S. at
27). Similarly, we allowed the EEOC to
seek an injunction that would enjoin the
employer from "engaging in any employment
practice which discriminates because of
age," even when the EEOC could not pursue
monetary relief for the employee. Harris
Chernin, 10 F.3d at 1291 (quotation marks
omitted). The Third Circuit recognized
that, in contrast with the minimal public
interest served by an individual suit,
the EEOC protects "a broader interest by
seeking to enjoin discrimination
affecting an entire class." U.S. Steel,
921 F.2d at 496. The Ninth Circuit noted
that the EEOC, when seeking to enjoin the
employer from "future discrimination or
retaliation" against its employees,
"’promotes public policy and seeks to
vindicate rights belonging to the United
States as sovereign.’" Goodyear, 813 F.2d
at 1543 (emphasis in original) (quoting
EEOC v. Occidental Life Ins. Co., 535
F.2d 533, 537 (9th Cir. 1976)).

Notably, the same courts that have
confirmed the right of the EEOC to seek
broad injunctive relief explicitly have
disallowed an award of back pay to the
individuals who could not have sought
that relief themselves. See Kidder, 156
F.3d at 302 (holding that the public
interest in back pay is minimal when an
individual has "freely contracted away,
waived or unsuccessfully litigated a
claim"); Harris Chernin, 10 F.3d at 1291
(holding that the EEOC is barred from re
covering back pay for an employee who
already litigated his claim); Goodyear,
813 F.2d at 1543 (holding that the EEOC’s
claim for individual back pay was on
"different footing" than its claims for
injunctive relief and that the claim was
moot because the employee had contracted
away her right to back pay). In the
present case, the retirement benefits the
EEOC seeks to obtain through injunctive
relief for Anthis and Schleter serve the
same function as an award of back pay.
The same considerations obtain whether
the EEOC seeks this relief through
monetary damages or through an
injunction. We see no reason, and the
EEOC has offered none, why the EEOC
should be able to obtain through an
injunction what the courts have refused
to grant it directly. The district court
is empowered to grant the relief sought
by the EEOC under 29 U.S.C. sec. 217, a
provision of the Fair Labor Standards
Act, which is incorporated by reference
into the ADEA under 29 U.S.C. sec.
626(b). However, in order to give effect
to the structure of the ADEA as enacted
by Congress, we must look to the ADEA in
its entirety in order to interpret the
incorporation of sec. 217. See United
States v. Cleveland Indians Baseball Co.,
121 S. Ct. 1433, 1443 (2001) ("It is, of
course, true that statutory construction
is a holistic endeavor and that the
meaning of a provision is clarified by
the remainder of the statutory scheme . .
. [when] only one of the permissible
meanings produces a substantive effect
that is compatible with the rest of the
law." (quotation marks omitted)). The
ADEA requires individual charges of
discrimination and provides statutory
periods for filing the charges. The
distinctive enforcement scheme of the
ADEA prohibits the EEOC from obtaining
monetary relief for individuals who
cannot obtain that relief themselves
because they have not filed timely
charges. Thus, we cannot interpret the
provision of the ADEA that authorizes
injunctive relief in such a way as to
allow the EEOC to avoid that prohibition
by obtaining the same relief in the form
of an injunction.

Finally, we also believe that the
district court correctly dismissed as
moot any claim the EEOC brought for broad
injunctive relief to enjoin the future
use of a discriminatory early retirement
plan by NGSC. The EEOC has not identified
a currently discriminatory plan nor has
the EEOC suggested that it has a
reasonable expectation that a
discriminatory plan will be adopted by
NGSC in the future. See City of Erie v.
Pap’s A. M., 529 U.S. 277, 287 (2000);
United States v. W.T. Grant Co., 345 U.S.
629, 633 (1953).

The district court properly granted
NGSC’s motion to dismiss the EEOC’s
claims for injunctive relief./10

Conclusion

For the reasons set forth in this
opinion, we affirm the judgment of the
district court.

AFFIRMED

FOOTNOTES

/1 The benefits were calculated by multiplying three
factors: the number of years of service (a maxi-
mum of twenty), a percentage taken from a chart
in the ERP, and the starting salary for a teacher
with a master’s degree in the year of retirement.
The percentage in the equation was assigned
according to the year of retirement and the age
of the teacher at the time of retirement. For
example, in the first year of retirement, the
assigned percentage was 2.5 for a fifty-five year
old, 1.5 for a fifty-nine year old, and 1 for a
sixty-four year old. As a result, the amount of
yearly benefits decreased as the teacher’s age
increased. In addition, early retirement benefits
were paid for a maximum of ten years. A fifty-
five year old would receive ten years of bene-
fits, but a sixty-four year old would receive
only one year of benefits. Consequently, the ERP
provided lower benefits to older employees be-
cause of their age.

/2 In her deposition, Heck stated that she held this
belief because her supervisor had notified her of
the decision in Crown Point. She then reviewed
the early retirement plans of the school dis-
tricts she monitored, and, because NGSC’s ERP was
so similar to Crown Point’s, she wrote to Nixon
to suggest that a new ERP should be negotiated.
/3 Article IV, Part A of the Contract provides that,
"[r]egardless of any other provision of this
agreement or any supplemental agreement, the
Board shall not be required to incur any finan-
cial obligations which it may hereafter, in good
faith, find or determine to be contrary to law;
and neither party shall be bound by any provision
of this agreement which it may hereafter, in good
faith, determine or find to be contrary to law."
R.149, Ex.6 at 6.

/4 In its prayer for relief, the EEOC requested that
the court:

A. Grant a permanent injunction enjoining [NGSC]
from engaging in any employment practice which
discriminates on the basis of age against indi-
viduals 40 years of age and older.

B. Order [NGSC] to institute and carry out
policies, practices and programs which provide
equal employment opportunities for individuals 40
years of age and older, and which eradicate the
effects of its past and present unlawful employ-
ment practices.

C. Order [NGSC] to make whole those individuals
whose early retirement benefits were or are being
unlawfully withheld as a result of the acts
complained of above, by restraining the continued
withholding of amounts owing, with prejudgment
interest, in amounts to be determined at trial.

D. Order [NGSC] to make whole all individuals
adversely affected by the unlawful practices
described above, by providing the affirmative
relief necessary to eradicate the effects of its
unlawful practices.

R.1 at 3-4.

/5 The court also noted that, under 29 U.S.C. sec.
626(b), it had the authority to "order the re-
straint of the continued withholding of the
amounts due" to the employees if and when the
EEOC proved the alleged discrimination. R.59 at
12. However, the court distinguished this statu-
tory remedy from injunctive relief and held that
the remedy under sec. 626(b) did not necessitate
an injunction. In the district court’s view, the
statutory remedy available under sec. 626(b)
rendered the EEOC’s separate request for an
injunction unnecessary and moot.

/6 The district court further determined that the
public interest in a monetary recovery was mini-
mal because (1) the damages would be awarded
directly to the teachers, (2) NGSC already had
abandoned the discriminatory ERP, (3) NGSC under-
stood the need to remedy discrimination and
already had adopted an apparently nondiscrimina-
tory plan, (4) the deterrent effect would be
minimal because two other early retirement plans
recently had been held in violation of the ADEA,
and (5) the financial cost imposed on local
taxpayers undermined the beneficial impact on the
public interest.

/7 In cases brought under Title VII and the Ameri-
cans with Disabilities Act ("ADA"), the EEOC also
is precluded from seeking monetary relief for
individuals who themselves are barred from bring-
ing the same suit because, in such circumstances,
the EEOC’s suit serves only a minimal public
interest. See, e.g., EEOC v. Waffle House, Inc.,
193 F.3d 805, 812-13 (4th Cir. 1999) ("When the
EEOC seeks ’make-whole’ relief for a charging
party, the federal policy favoring enforcement of
private arbitration agreements outweighs the
EEOC’s right to proceed in federal court because
in that circumstance, the EEOC’s public interest
is minimal, as the EEOC seeks primarily to vindi-
cate private, rather than public, interests."),
cert. granted, 68 U.S.L.W. 3726, 69 U.S.L.W.
3624, 3628 (U.S. Mar. 26, 2001) (No. 99-1823);
EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539,
1543 (9th Cir. 1987) (holding that the EEOC’s
claim on behalf of an individual is moot under
Title VII when the individual has settled the
claim because the public interest in a back pay
award is minimal); EEOC v. Kimberly-Clark Corp.,
511 F.2d 1352, 1361 (6th Cir. 1975) (suggesting
that a prior settlement may limit the scope of
the relief that the EEOC may seek for the private
benefit of individuals under Title VII).

In the specific context of arbitration agree-
ments, the Sixth Circuit created a split in the
circuits when it held that the EEOC is not barred
by a preexisting arbitration agreement from
seeking monetary relief on behalf of an individu-
al. Compare EEOC v. Frank’s Nursery & Crafts,
Inc., 177 F.3d 448, 462 (6th Cir. 1999), with
Waffle House, 193 F.3d at 813 (holding that an
arbitration agreement precluded the EEOC from
pursuing individual monetary relief in an ADA
case), and EEOC v. Kidder, Peabody & Co., 156
F.3d 298, 300-01 (2d Cir. 1998) (holding that "an
arbitration agreement between an employer and
employee precludes the EEOC from seeking purely
monetary relief for the employee under the ADEA
in federal court"). The Supreme Court has granted
certiorari in Waffle House.

/8 Lorance involved a Title VII challenge to an
allegedly discriminatory seniority system. "Al-
though Lorance’s specific holding has been abro-
gated by statute--42 U.S.C. sec. 2000e-5(e)(2)
now gives employees injured by the application of
a seniority system which has been adopted for an
intentionally discriminatory purpose in violation
of Title VII the option of measuring the limita-
tions period from the date of that application--
its reasoning remains persuasive outside of the
Title VII/intentionally discriminatory seniority
system context." Huels v. Exxon Coal USA, Inc.,
121 F.3d 1047, 1050 n.1 (7th Cir. 1997) (quota-
tion marks omitted).

/9 As a result of our conclusion, the EEOC’s "piggy-
backing" argument is moot. Piggybacking occurs
when individuals who have not filed charges or
who have filed untimely charges of discrimination
join an action in which at least one individual
has filed a timely charge that alleged class-wide
discrimination or that claimed to represent a
class of employees. See Anderson v. Montgomery
Ward & Co., 852 F.2d 1008, 1017 (7th Cir. 1988).
Assuming that piggybacking is appropriate in a
case brought by the EEOC, as opposed to a private
individual, see EEOC v. Ky. State Police Dep’t,
80 F.3d 1086, 1095 (6th Cir. 1996); EEOC v.
Wilson Metal Casket Co., 24 F.3d 836, 839-40 (6th
Cir. 1994), because Anthis’ and Schleter’s charg-
es were untimely, there are no charges onto which
the EEOC could piggyback the claims of the re-
maining five teachers.

/10 In addition to arguing that the EEOC is precluded
from bringing suit because the individuals it
represents are barred from doing so, NGSC raises
two alternative arguments. Both arguments fail.

First, NGSC asserts the doctrine of laches.
However, NGSC fails to raise a question of mate-
rial fact as to whether it has been materially
prejudiced by the alleged delay. See Jeffries v.
Chicago Transit Auth., 770 F.2d 676, 679 (7th
Cir. 1985).

Second, NGSC claims that it is entitled to
Eleventh Amendment sovereign immunity pursuant to
Kimel v. Florida Board of Regents, 528 U.S. 62
(2000). However, NGSC is not an arm of the state
government and therefore is not entitled to
Eleventh Amendment immunity. See Alden v. Maine,
527 U.S. 706, 756 (1999).