Page(s)

Cases

14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009)............................ 29, 30

Addison v. Huron Stevedoring Corp.,
204 F.2d 88 (2d Cir. 1953).................................................................... 13

Air Line Pilots Association, International v. Trans World Airlines, Inc., 713 F.2d 940 (2d Cir. 1983), reversed in part on other grounds, 469 U.S. 111 (1985)................................................................................................................... 30

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)............................................................ 27, 28, 31, 36

Arizona Governing Committee v. Norris,
463 U.S. 1073 (1983)................................................................. 31, 32, 34

Arnett & EEOC v. California Public Employees Retirement System, No. 95-3022 (N.D. Cal. Jan. 29, 2003)....................................................................... 40

Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945)......................... 13

Castle v. Sangamo Weston, Inc.,
837 F.2d 1550 (11th Cir. 1988)............................................... 17, 20, 21

Citizens to Save Spencer County v. EPA,
600 F.2d 844 (D.C. Cir. 1979)............................................................... 19

City of Los Angeles, Department of Water and Power v. Manhart, 435 U.S. 702 (1978)........................................................................................... 31, 32, 33

Coffey v. Braddy, 834 F.3d 1184 (11th Cir. 2016).................................. 24

Duke v. Uniroyal Inc., 928 F.3d 1413 (4th Cir. 1991)..................... 22, 37

EEOC v. Baltimore County,
593 F. Supp. 2d 797 (D. Md. 2009)........................................................ 5

EEOC v. Baltimore County, 747 F.3d 267 (4th Cir. 2014)...................... 6

EEOC v. Board of Governors of State Colleges & Universities,
957 F.2d 424 (7th Cir. 1992)................................................................. 29

EEOC v. Brown & Root, Inc., 725 F.2d 348 (5th Cir. 1984)................. 42

EEOC v. Ford Motor Co., 732 F.2d 120 (10th Cir. 1984)...................... 42

EEOC v. Independent School District No. 2174 of Pine River, Minn., No. 04-4087 (D. Minn. Oct. 26, 2005)............................................................... 40

EEOC v. Independent School District No. 482 of Little Falls, Minn., No. 04-4086 (D. Minn. Mar. 7, 2005)............................................................... 40

EEOC v. Independent School District No. 834 of Stillwater, Minn., No. 05-2908 (D. Minn. Aug. 18, 2006)....................................................................... 40

EEOC v. Massey Yardley Chrysler Plymouth, Inc.,
117 F.3d 1244 (11th Cir. 1997)............................................................ 16

EEOC v. Minnesota Department of Commerce,
No. 11-2746 (D. Minn. Nov. 9, 2011)................................................... 40

EEOC v. Minnesota Department of Corrections,
702 F. Supp. 2d 1082 (D. Minn. 2010), aff’d, 648 F.3d 910 (8th Cir. 2011)................................................................................................................... 40

EEOC v. Minnesota Department of Human Resources,
No. 11-678 (D. Minn. Apr. 7, 2011)...................................................... 40

EEOC v. Minnesota Department of Public Defense,
No. 12-205 (D. Minn. Apr. 26, 2012)................................................... 40

EEOC v. Navy Federal Credit Union,
424 F.3d 397 (4th Cir. 2005)................................................................. 23

EEOC v. Puerto Rico,
No. 04-2030 (D.P.R. Sept. 22, 2008).................................................... 40

EEOC v. University of Puerto Rico,
No. 06-1660 (D.P.R. Jan. 27, 2010)..................................................... 40

Florida v. Long, 487 U.S. 223 (1988).......................................... 31, 32, 34

Goldstein v. Manhattan Industries, Inc.,
758 F.2d 1435 (11th Cir. 1985)...................................................... 20, 21

Horn v. Duke Homes, Division of Windsor Mobile Homes, Inc.,
755 F.2d 599 (7th Cir. 1985)................................................................. 36

Hot Wax, Inc. v. Turtle Wax, Inc.,
191 F.3d 813 (7th Cir. 1999)................................................................. 22

Kingdomware Technologies, Inc. v. United States,
136 S. Ct. 1969 (2016)........................................................................... 14

Kirsch v. Fleet Street, Ltd.,
148 F.3d 149 (2d Cir. 1998).................................................................. 43

Leftwich v. Harris–Stowe State College,
702 F.2d 686 (8th Cir. 1983)................................................................. 21

Leigh v. Engle, 858 F.2d 361 (7th Cir. 1988).................................... 32, 33

Lorillard v. Pons, 434 U.S. 575 (1978)............................................. passim

Loveless v. John’s Ford, Inc.,
232 F. App’x 229 (4th Cir. 2007).......................................................... 17

Lyons Partnership, L.P. v. Morris Costumes, Inc.,
243 F.3d 789 (4th Cir. 2001)................................................................. 22

Maxfield v. Sinclair International,
766 F.2d 788 (3d Cir. 1985).................................................................. 15

Menominee Indian Tribe of Wisconsin v. United States,
614 F.3d 519 (D.C. Cir. 2010)............................................................... 27

Missel v. Overnight Motor Transportation Co.,
126 F.2d 98 (4th Cir.), aff’d, 316 U.S. 572 (1942).............................. 13

Mowbray v. Kozlowski, 914 F.2d 593 (4th Cir. 1990)............................ 19

Occidental Life Insurance Co. of California v. EEOC,
432 U.S. 355 (1977)......................................................................... 27, 28

Palasota v. Haggar Clothing Co.,
499 F.3d 474 (5th Cir. 2007)................................................................. 37

Petrella v. Metro-Goldwyn-Mayer, Inc.,
134 S. Ct. 1962 (2014)........................................................................... 26

Purcell v. Seguin State Bank & Trust Co.,
999 F.2d 950 (5th Cir. 1993)................................................................. 43

Ray Communications, Inc. v. Clear Channel Communications, Inc., 673 F.3d 294 (4th Cir. 2012)................................................................................. 23

Rodriguez v. Farm Stores Grocery, Inc.,
518 F.3d 1259 (11th Cir. 2008)............................................................ 43

In re Rowe, 750 F.3d 392 (4th Cir. 2014)................................................. 14

Sailor v. Hubbell, Inc., 4 F.3d 323 (4th Cir. 1993)................................. 42

Seneca Coal & Coke Co. v. Lofton,
136 F.2d 359 (10th Cir. 1943).............................................................. 14

Skalka v. Fernald Environmental Restoration Management Corp., 178 F.3d 414 (6th Cir. 1999)......................................................................................... 43

Smith v. Caterpillar, Inc., 338 F.3d 730 (7th Cir. 2003)........................ 24

Syvock v. Milwaukee Boiler Manufacturing Co.,
665 F.2d 149 (7th Cir. 1981)................................................................. 16

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)................ 12

Tyler v. Union Oil Co. of California,
304 F.3d 379 (5th Cir. 2002)................................................................. 17

White v. Daniel, 909 F.2d 99 (4th Cir.1990)..................................... 23, 26

Whittlesey v. Union Carbide Corp.,
742 F.2d 724 (2d Cir. 1984)............................................................ 20, 21

Statutes and Rules

28 U.S.C. § 1291............................................................................................ 1

28 U.S.C. § 1331............................................................................................ 1

28 U.S.C. § 1343(a)(4)................................................................................... 1

28 U.S.C. § 1345............................................................................................ 1

Age Discrimination in Employment Act of 1967,
29 U.S.C. §§ 621–634..................................................................... passim

.... 29 U.S.C. § 626(b)........................................................................... passim

Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq............ passim

.... 29 U.S.C. § 216(b)........................................................................... passim

.... 29 U.S.C. § 216(c)................................................................................... 14

.... 29 U.S.C. § 216(e)................................................................................... 14

Title VII of the Civil Rights Act of 1964

.... 42 U.S.C. §§ 2000e–2000e-17....................................................... passim

Employees Retirement Income Security Act of 1974...................... 32, 33

Fed. R. App. P. 4(a)(1)(B).............................................................................. 1

Other Authorities

Barbara T. Lindemann & Paul Grossman, Employment Discrimination Law (5th ed.).................................................................................................... 16

Statement of Jurisdiction

Acting pursuant to authority granted in 29 U.S.C. §§ 626 and 216, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) brought this lawsuit to enforce the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621–634. The district court had subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1345.

The district court issued a decision in October 2012 ruling that Baltimore County was violating the ADEA, and in March 2014 this Court affirmed that decision and remanded for proceedings on relief. The district court issued a decision on August 24, 2016, denying the Commission any monetary relief. That decision disposed of all parties’ claims, and this Court accordingly has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

The Commission filed its notice of appeal on October 19, 2016, within the 60 days allowed by Fed. R. App. P. 4(a)(1)(B).

Statement of the Issues

1. Is back pay a mandatory legal remedy under the ADEA?

2. Did the district court err in ruling that its decision denying any monetary relief was justified by the unions’ actions, the Supreme Court’s Title VII pension decisions, and/or laches?

3. Even if back pay is a discretionary equitable remedy under the ADEA, did the district court abuse its discretion in denying all monetary relief?

Statement of the Case

Baltimore County maintains a compulsory defined-benefit pension plan for its employees. The county deducts a percentage of each employee’s salary from his or her paychecks as that person’s contributions to the pension fund. For employees hired before July 1, 2007, the percentage deducted varies based on how old the employee was when he or she enrolled in the plan. Joint Appendix 63–64 (“JA-63–64”). The county deducts a higher percentage from an employee’s salary if the employee was older when hired, resulting in lower take-home pay. For example, if the employee was 20 years old when he enrolled in the plan, the county has until recently deducted only 4.42% of his salary as his contribution to the plan. But if the employee was 58 years old when he enrolled in the plan, the county has until recently deducted 7.65% of his salary as his contribution. JA-56.[1]

The county adopted its pension plan in 1945. At that time employees could retire and receive pension benefits only when they became 65 years old. The county required employees who were older when hired to contribute a larger percentage of their salary because their contributions would be earning compound interest for fewer years. JA‑63.

Over the decades, the county made various changes to its retirement plan. As relevant here, the county permitted its employees to retire with normal (i.e., unreduced) retirement benefits not only when they reached the plan’s normal retirement age (which was reduced to 60), but also when they had worked for a certain number of years. The county permitted its law enforcement officers, for example, to retire after 30 years of service in 1959 and after 20 years of service in the late 1980s. And in 1973 the county permitted its general employees to retire after 30 years of service. JA-63, 73. But the county failed to assess the impact of these changes on the age-based contribution rates. The county had imposed the age-based contribution rates in 1945 based on the (then true) assumption that the employees would retire only upon reaching the normal retirement age. After the changes described above, this was no longer true. Starting in the late 1980s, for example, a police officer hired at age 20 and an officer hired on the same day at age 40 could each retire after completing 20 years of service, but the county still required the officer who started at age 40 to make larger contributions for the same pension. JA-61.

A county corrections officer filed an ADEA charge with the EEOC in 1999, and another corrections officer filed a similar charge in 2000. The officers alleged that the larger contributions that the county required them to make discriminated against them on the basis of their age. JA-56. The Commission notified the county of the charges and asked the county to justify the higher contribution rates. The county supplied information in 2000 and 2001. The Commission, however, did not complete its investigation promptly. JA-24.[2]

In March 2006 the Commission issued a determination finding an ADEA violation against the class of employees who were 40 or older when they enrolled in the pension plan. JA-24. The Commission engaged in an effort to resolve the dispute informally, but conciliation failed, and the Commission sued the county in September 2007. JA-4, 24. In January 2009, the district court granted the county summary judgment. EEOC v. Baltimore Cty., 593 F. Supp. 2d 797 (D. Md. 2009); JA-56–59. The court ruled that the disparate contribution rates were motivated not by age but by “pension status”—the number of years the enrollee was from reaching normal retirement age—and that the higher contribution rates required of employees older when hired were justified by the time value of money. JA-57–59. The Commission appealed, pointing out that the county no longer linked retirement eligibility solely to age, and in June 2010 this Court reversed, ruling that the higher contribution rates were not justified by the time value of money, at least with respect to employees of different ages who were hired at the same time and could retire after completing the same number of years of service. JA-60–62.

In October 2012, the district court granted the Commission summary judgment as to liability, ruling that the county had not pointed to any non-age-based financial considerations that justified the higher contributions required of employees who were older when hired. JA-63–67. This Court granted the county’s request for an interlocutory appeal of that order and affirmed the district court decision in March 2014. EEOC v. Baltimore Cty., 747 F.3d 267, 270 (4th Cir. 2014); JA-72–77. The Supreme Court denied the county’s petition for certiorari. Baltimore Cty. v. EEOC, 135 S. Ct. 436 (2014).

Early in 2016, the county negotiated new collective bargaining agreements with the six unions that represent the employees. These CBAs phase out the age discrimination in the pension contribution rates over two-plus years, with the rates becoming discrimination-free for all employees on July 1, 2018. JA-82. The district court entered a joint consent order in April 2016 directing the county to use the newly negotiated contribution rates, while preserving the Commission’s right to seek retroactive and prospective monetary relief for the employees harmed by the discriminatory rates. JA-78–95.

The Commission then asked the court to declare that the county was liable for monetary relief for those employees who had to pay more into the pension system because of their age at hire. On August 24, 2016, the court ruled that the Commission may not obtain any monetary relief from the county. JA-21–46. The court first ruled that the pre-judgment back pay relief the Commission seeks here is discretionary under the ADEA, not mandatory. JA-26–33. Nor, the court ruled, is the relief the Commission sought for post-judgment harm mandatory. JA-33–35. The court then exercised its discretion to deny any monetary relief, relying on three factors: (a) The Supreme Court’s Title VII[3] pension decisions state that retroactive relief should ordinarily not be awarded against pension plans. JA-35–41. (b) The six unions representing the employees negotiated and approved the rate changes in 1977 and 2016. JA-41–42. (c) Even if monetary relief is normally mandatory, the court would decline to award any in this case because of the Commission’s unreasonable delay in filing this lawsuit—that is, the more than eight years that passed between when the Commission received the first charge and when it filed this lawsuit. JA-42–45.

Summary of Argument

The district court’s entire ruling is infected by the court’s legal error regarding the nature of a back pay award under the ADEA. When Congress enacted the ADEA, it chose to adopt the remedial scheme in the Fair Labor Standards Act (“FLSA”). Back pay is a mandatory legal remedy under the FLSA, and it is therefore a mandatory legal remedy under the ADEA. Disregarding this, the district court ruled that even though the county has been found liable for violating the ADEA and is continuing to do so, the court had discretion to deny any back pay.

In denying all relief, the district court also relied on laches, the unions’ conduct, and the Supreme Court’s Title VII pension decisions. The district court’s rulings in each area should be rejected. First, laches, an equitable doctrine, is not available to reduce legal damages, and even if it were available here, the district court abused its discretion in applying it to eliminate all monetary relief. Second, the employees’ unions cannot bargain away the employees’ individual statutory rights, and the unions’ participation in collective bargaining does not relieve the county of liability for violating the ADEA. Third, the Supreme Court’s Title VII decisions addressed the availability of a discretionary remedy and therefore do not apply to mandatory back pay awards under the ADEA; and even if they did apply, the factors that the Supreme Court relied on to deny retroactive relief in those cases are not present here. Finally, even if back pay were a discretionary equitable remedy under the ADEA, the district court abused its discretion in denying all monetary relief in this case.

Accordingly, this Court should vacate the district court’s order and remand the case to the district court to allow the parties to conduct discovery and litigate the relief issues following the normal rules and procedures, which already incorporate several significant safeguards against an excessive back pay award that might imperil the financial stability of the fund.

Argument

I. This Court Should Vacate the District Court’s Order Denying the Commission Any Monetary Relief.

A. Back pay is a mandatory legal remedy under the ADEA.

The district court erred in ruling that back pay is a discretionary remedy under the ADEA. First, the district court ignored the relevant statutory text. The first sentence of § 626(b) of the ADEA, 29 U.S.C. § 626(b), Addendum-1 (“Add-1”), directs courts to enforce the act “in accordance with the powers, remedies, and procedures provided in [section 216(b)–(d)]” of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. Section 216(b) states:

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.

29 U.S.C. § 216(b) (emphasis added), Add-2. This means that an employer who violates the ADEA “shall be liable” for back pay and—potentially—liquidated damages, as § 626(b) goes on to explain. See 29 U.S.C. § 626(b), Add-1 (“Amounts owing to a person as a result of a violation of this chapter [i.e., the ADEA] shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter.”).

Although the district court quoted these sections, JA-27, it never addressed the meaning of the statutory words “shall be liable” in § 216(b). Instead, the court relied solely on the fourth sentence of § 626(b), which authorizes courts to “grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter.” Add‑1. But Congress expressly stated that employers who violate the ADEA “shall be liable” for back pay, Add-2, and basic principles of statutory interpretation establish that this means that back pay is an automatic and mandatory remedy for ADEA violations.

In drafting the ADEA, Congress considered several remedial options and decided to incorporate, with some modifications, the FLSA’s remedial scheme. See Lorillard v. Pons, 434 U.S. 575, 577–78 (1978) (describing the alternative proposals Congress considered). The Lorillard Court ruled that where the ADEA adopted an FLSA provision, the ADEA provision should be interpreted the same way its FLSA counterpart had traditionally been interpreted. Id. at 581–82. This follows, the Court reasoned, from the general rule that

where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.

Id. at 581. “That presumption is particularly appropriate here,” the Court pointed out,

since, in enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undesirable or inappropriate for incorporation.

Id. “This selectivity that Congress exhibited in incorporating provisions and in modifying certain FLSA practices,” the Court concluded, “strongly suggests that but for those changes Congress expressly made, it intended to incorporate fully the remedies and procedures of the FLSA.” Id. at 582; see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 (1985) (manner in which FLSA is interpreted is relevant to ADEA interpretation). Accordingly, interpretation of the words “shall be liable” in the ADEA’s remedial scheme should start with the interpretation of those words in the FLSA’s remedial scheme.

For many years prior to Congress’s enacting the ADEA in 1967, the courts had ruled that awarding the amounts owing for unpaid minimum wages and unpaid overtime under the FLSA was mandatory. For example, the Supreme Court stated in Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945):

The provisions of the [FLSA] . . . are mandatory in form. In terms they direct that the employer shall not employ a worker longer than the specified time without payment of overtime compensation and that upon violation of this provision, the employer shall be liable for statutory wages and liquidated damages.

Id. at 710–11 (emphasis added) (referring to 29 U.S.C. §§ 207(a), 216(b)); see also id. at 707 (“No one can doubt but that to allow waiver of statutory wages by agreement would nullify the purposes of the [FLSA].”); Addison v. Huron Stevedoring Corp., 204 F.2d 88, 95 (2d Cir. 1953) (FLSA overtime award should not be reduced by applying doctrine of de minimis non curat lex). Similarly, the courts had held that awarding liquidated damages was also mandatory. See, e.g., Missel v. Overnight Motor Transp. Co., 126 F.2d 98, 110–11 (4th Cir.) (holding that liquidated damages are mandatory under the FLSA), aff’d, 316 U.S. 572 (1942); Seneca Coal & Coke Co. v. Lofton, 136 F.2d 359, 363 (10th Cir. 1943) (“Liquidated damages granted by Section 16(b) for violations of Sections 6 and 7 of the [FLSA] are mandatory, and not discretionary with the courts.”).[4]

Back pay is mandatory under the FLSA because Congress said employers who violate that statute “shall be liable,” and as courts have ruled both before and after 1967, “‘shall’ is ‘mandatory’ and ‘normally creates an obligation impervious to judicial discretion.’” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977 (2016) (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)). Congress used both “shall” and “may” in § 216,[5] and “[w]hen a statute distinguishes between ‘may’ and ‘shall,’ it is generally clear that ‘shall’ imposes a mandatory duty.” Id.; see also In re Rowe, 750 F.3d 392, 397 (4th Cir. 2014) (“‘[W]hen the same Rule uses both “may” and “shall,” the normal inference is that each is used in its usual sense—the one act being permissive, the other mandatory.’”) (quoting Anderson v. Yungkau, 329 U.S. 482, 485 (1947)).

Since an award of unpaid minimum wages or overtime pay is mandatory under the FLSA and Congress adopted the FLSA remedy into the ADEA, back pay is a mandatory remedy under the ADEA. See Lorillard, 434 U.S. at 581–82 (ADEA provision adopted from the FLSA should be interpreted as the FLSA provision was). The Lorillard Court, for example, granted ADEA plaintiffs the right to a jury trial even though it had not granted that right to Title VII plaintiffs. The Court justified this different treatment by pointing to the “significant differences” between the two laws’ remedial schemes, including that “the ADEA incorporates the FLSA provision that employers ‘shall be liable’ for amounts deemed unpaid minimum wages or overtime compensation, while under Title VII, the availability of backpay is a matter of equitable discretion.” 434 U.S. at 584; see also Maxfield v. Sinclair Int’l, 766 F.2d 788, 794 (3d Cir. 1985) (the reasons for the Title VII rule that Social Security benefits received by plaintiffs should not be deducted from their back pay awards apply even more in ADEA cases, “because unlike Title VII, backpay under the ADEA is not discretionary, since it incorporates the provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b) (1982), making backpay a mandatory element of damages. 29 U.S.C. § 626(b).”) (footnote omitted); EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1251–53 (11th Cir. 1997) (directing district court to increase the jury’s ADEA back pay award and citing Maxfield for the proposition that “back pay is ‘a mandatory element of damages’ under the ADEA”); 2 Barbara T. Lindemann & Paul Grossman, Employment Discrimination Law, p. 41‑102 (5th ed.) (“Lost wages . . . in ADEA cases are not subject to the equitable discretion of the court.”). But cf. Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 160 (7th Cir. 1981) (stating in ADEA case that “[a]n award of backpay is within the district judge’s discretion,” but citing only a Title VII case for that proposition); id. at 160–62 (addressing only issues affecting the amount of the back pay award, not whether the district court had discretion to award no back pay at all), overruled on other grounds, Coston v. Pitt Theatres, Inc., 860 F.2d 834, 835–37 (7th Cir. 1988).

In addition, this Court and others have held that liquidated damages are a mandatory remedy for willful ADEA violations. See Loveless v. John’s Ford, Inc., 232 F. App’x 229, 238 (4th Cir. 2007) (“[T]he applicable provision of the ADEA indicates that an award of liquidated damages is mandatory upon a finding of willfulness.”) (quoting 29 U.S.C. § 626(b) (“‘[L]iquidated damages shall be payable only in cases of willful violations of [the ADEA].’”) (emphasis in Loveless)); Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 401 (5th Cir. 2002) (“We hold that the plain language of the statutes requires the interpretation that liquidated damages in an amount equal to the back pay award are mandatory upon a finding of willfulness [under the ADEA].”); Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir. 1988) (if the jury finds the ADEA violation willful, the judge lacks discretion to deny liquidated damages). Section 216(b) treats back pay and liquidated damages the same, stating in one sentence that an employer who violates the statute “shall be liable” for both remedies. 29 U.S.C. § 216(b). The decisions holding liquidated damages a mandatory remedy for willful ADEA violations therefore strongly support the mandatory nature of back pay for all ADEA violations as well.

The only remaining question is whether the fourth sentence in § 626(b), the sentence authorizing courts to “grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter,” Add-1, alters the mandatory nature of the back pay remedy established in the first sentence of § 216(b).[6] It does not.

At first blush the two sentences seem to contradict each other, with the first sentence of § 216(b) directing courts to award a prevailing plaintiff back pay as a matter of right, and the fourth sentence of § 626(b) giving courts discretion to award whatever legal or equitable relief they deem appropriate (and, presumably, to deny the legal or equitable relief they deem inappropriate). But when two provisions of a statute appear to conflict with each other, a court should construe them so that they are consistent and can each be given as much effect as possible. See Mowbray v. Kozlowski, 914 F.2d 593, 598 (4th Cir. 1990) (where two provisions seem to conflict, “we must try to give full effect to each of the statutory provisions at issue”); Citizens to Save Spencer Cty. v. EPA, 600 F.2d 844, 870 (D.C. Cir. 1979) (“[S]tatutory provisions, whenever possible, should be construed so as to be consistent with each other. . . . [T]he maximum possible effect should be afforded to all statutory provisions, and, whenever possible, none of those provisions rendered null or void.”).

The first sentence of § 216(b) and the fourth sentence of § 626(b) can best be reconciled by interpreting the latter as a number of courts have: to authorize courts to award other forms of relief in addition to the back pay and liquidated damages already mandated by the former. Lorillard, for example, stated that the fourth sentence authorizes courts addressing private ADEA claims to award injunctive relief, which courts addressing FLSA claims had granted only in suits brought by the Secretary of Labor. 434 U.S. at 581. See also Castle, 837 F.2d at 1561–63 (the fourth sentence of § 626(b) authorizes courts to award front pay and prejudgment interest on back pay—even in cases where the court is also awarding liquidated damages); Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th Cir. 1985) (the sentence shows that “reinstatement is the preferred remedy for discriminatory discharge”); Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir. 1984) (“We now hold specifically that [the fourth sentence of § 626(b)] permits a district court, in appropriate circumstances, to award front pay to victims of age discrimination.”).

The district court quoted select passages from four appellate decisions that seemed to stress a district court’s broad discretion in awarding relief in ADEA cases. JA-30–31. But none of the decisions held that district courts have the discretion to deny back pay under the ADEA. Rather, they affirmed or directed back pay awards and interpreted the fourth sentence of § 626(b) as authorizing courts to award other forms of relief in addition to back pay and liquidated damages. Castle, 837 F.2d at 1561–62 (reversing the district court’s reduction of liquidated damages, quoting the sentence, and vacating the district court’s denial of front pay); Goldstein, 758 F.2d at 1448 (interpreting the sentence to allow reinstatement); Whittlesey, 742 F.2d at 728 (interpreting the sentence to allow award of front pay); Leftwich v. Harris–Stowe State Coll., 702 F.2d 686, 693–94 (8th Cir. 1983) (directing the district court to award back pay), abrogated in part on other grounds by Ludlow v. BNSF Ry Co., 788 F.3d 794, 804–05 (8th Cir. 2015). Thus these decisions support construing the fourth sentence to authorize courts to award other forms of relief in addition to back pay and liquidated damages, not—as the district court mistakenly concluded—to allow district courts to reduce back pay or deny it altogether.[7]

B. The district court improperly ruled that monetary relief here is totally barred by laches.

Applying the doctrine of laches, the district court ruled that because the Commission delayed in suing the county, it should recover no monetary relief from the county. The district court erred in deeming laches available to reduce or eliminate legal damages. And even if laches were available here, the district court abused its discretion in ruling that laches justifies denying the Commission all monetary relief.

In the first place, laches is an equitable doctrine that is not properly applied to a legal damages remedy like ADEA back pay. See, e.g., Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 797 (4th Cir. 2001) (“[L]aches is a doctrine that applies only in equity to bar equitable actions, not at law to bar legal actions.”). Other courts have sometimes applied laches to legal remedies, see, e.g., Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 822 (7th Cir. 1999) (“[A]lthough laches is an equitable doctrine, courts increasingly apply it in cases at law in which plaintiffs seek damages.”), but this Court has not, unless the statute specifically authorizes doing so. See, e.g., Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294, 300 (4th Cir. 2012) (party defending trademark infringement claim may rely on laches, as the Lanham Act authorizes it). The ADEA contains no authorization to apply laches.

Even if laches were available to reduce an ADEA back pay award, the district court abused its discretion in ruling that it justifies denying all monetary relief here. Laches requires the defendant to prove “‘(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.’” EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 409 (4th Cir. 2005) (quoting White v. Daniel, 909 F.2d 99, 102 (4th Cir.1990)). The defendant must show that it suffered harm that was caused by the plaintiff’s unreasonable delay. White, 909 F.2d at 102 (requiring “harm caused by detrimental reliance on the plaintiff’s conduct”). The courts recognize two types of prejudice: where the delay hampered the defendant’s ability to defend itself against the plaintiff’s claim, and where the delay significantly increased the monetary relief that the plaintiff can be awarded. See Smith v. Caterpillar, Inc., 338 F.3d 730, 733–35 (7th Cir. 2003). Here, the county has suffered no prejudice to its ability to defend itself, and any back pay liability that has accrued since 2007 was not caused by the Commission’s delay in suing.

Courts have found prejudice to the defendant’s ability to defend itself when, for example, because of the plaintiff’s delay in suing, witnesses important to the defendant’s defense have died, can no longer be located, or have moved and are not subject to subpoena, or documents significant to defendant’s defense are no longer available. See, e.g., Coffey v. Braddy, 834 F.3d 1184, 1191 (11th Cir. 2016) (“unclear memories and incomplete documents” prevented defendant from establishing its compliance); Smith, 338 F.3d at 733–34 (important witnesses and documents had become unavailable and memories had faded).

The county may argue that it was prejudiced because neither the county nor its actuary had retained the work papers that the actuary created in 1945 to justify the age-based contribution rates that the county’s pension system adopted that year. (The discriminatory rates that the Commission is challenging in this action derived in significant part from those 1945 rates.) For two reasons, however, the loss of those work papers does not count as the prejudice required for laches. First, the 1945 work papers are not relevant to the Commission’s claim. The Commission does not allege that the plan’s contribution rates were unlawful in 1945. Rather, it maintains that they became unlawful when the county permitted its employees to retire after 20 or 30 years of service. JA-65. Second, the county has not shown that the work papers were available in 1999. If they were not available in 1999, when the first charge was filed, their unavailability in 2006, when the Commission issued its determination, or in 2007, when the Commission sued, was not caused by the Commission’s delay in filing this lawsuit. The county has not shown that any document or witness significant to its defense became unavailable because of the delay in the Commission’s investigation.

This Court stated in White that a defendant is aided in establishing prejudice “‘by the inference of prejudice warranted by the plaintiff’s delay.’” White, 909 F.2d at 102 (quoting Giddens v. Isbrandtsen Co., 355 F.2d 125, 128 (4th Cir. 1966) (a maritime tort case)). While a court may justifiably infer prejudice from significant delay when the plaintiff’s claim arises out of actions that the defendant took long before the plaintiff sued, this inference is not proper where, as here, the plaintiff is challenging a written policy or current practice. Cf. Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1972–74 (2014) (plaintiff’s delay in suing does not create a laches defense where plaintiff is seeking relief for current and ongoing violations).

The county argued below that the EEOC’s delay in suing substantially increased the county’s monetary exposure. Under the doctrine of laches, the district court could have acknowledged and remedied this prejudice by barring the Commission from obtaining back pay that accrued during the period of unreasonable administrative delay. The Commission’s delay in investigating, however, did not increase the county’s back pay liability for the period starting when the Commission issued its letter of determination. After that determination, the Commission engaged in the required conciliation and then sued, and since then the parties have been litigating the Commission’s claim. The Commission did not unreasonably delay the conciliation or the litigation, so laches provides no basis for denying relief for the period since March 2006. Moreover, the rationale underlying the doctrine of laches is to protect defendants from having to defend stale claims, Menominee Indian Tribe of Wisconsin v. United States, 614 F.3d 519, 531 (D.C. Cir. 2010), and the Commission’s claim here—that the county has been requiring the victims to make unlawfully high contributions since 1996—is hardly stale. On the contrary, it is a current and ongoing violation.

In refusing to allow any award of back pay, the district court invoked Occidental Life Insurance Co. of California v. EEOC, 432 U.S. 355 (1977). JA-45. Occidental Life and Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), on which Occidental Life relied, were both Title VII cases. They held that a district court may reduce or deny back pay, a discretionary remedy under Title VII, if a plaintiff’s inordinate delay in suing “significantly handicapped” the defendant’s ability to defend itself against the claim. Occidental Life, 432 U.S. at 373; Albemarle Paper, 422 U.S. at 424–25. Since they dealt with a discretionary remedy under Title VII, these cases have no application to a mandatory back pay award under ADEA. But even if the rule they state authorized a district court to reduce or deny a back pay award when it is mandatory, as it is here, the district court’s decision to deny any back pay in this case was improper because, as discussed supra, the Commission’s delay in bringing this action did not significantly hamper the county’s ability to defend itself against the Commission’s age discrimination claim. Absent this significant handicap, the district court’s order was as improper under Occidental Life as it was under laches.

C. The district court erred in ruling that the unions’ actions here relieved the county of liability for monetary relief.

The unions’ involvement in negotiating and adopting the new contribution rates in 1977 and 2016 provides no grounds for eliminating the county’s liability for monetary relief in this case. The district court cited no authority for its ruling. The court justified its ruling by pointing out that the unions represent the employees and act on their behalf, they do not give up favorable provisions without demanding other favorable provisions in return, and they signed the new CBAs and the consent order and represented to the court that the new CBAs benefit their members. JA-41–42.

The district court misconceived the role that unions play in ADEA litigation. The district court acted on the assumption that the unions own the employees’ ADEA rights and can bargain those rights away in exchange for other rights and benefits, and that the employees are bound by their unions’ actions in this respect. The opposite is true. An employee’s ADEA rights are the employee’s individual rights, and the employee’s union lacks the power to compromise those rights or bargain them away. That was underscored in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 265 (2009), an ADEA case in which the Court affirmed that “federal antidiscrimination rights may not be prospectively waived” in a CBA. See also EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424, 431 (7th Cir. 1992) (stating that “it is well established that unions cannot waive employees’ ADEA . . . rights through collective bargaining”).

Thus if a union enters a CBA that violates the ADEA, that is not a ground for relieving the employer of liability. On the contrary, in such situations the court can find the employer and the union jointly liable for the discrimination. See, e.g., 14 Penn Plaza, 556 U.S. at 272 (“[A] labor union may be held jointly liable with an employer under federal antidiscrimination laws for discriminating in the formation of a collective-bargaining agreement.”); Air Line Pilots Ass’n, Int’l v. Trans World Airlines, Inc., 713 F.2d 940, 956 (2d Cir. 1983) (“When a union becomes a party to a discriminatory provision in a collective bargaining agreement binding the employer to an unlawful practice, the union’s conduct in aiding and abetting the employer to discriminate against employees renders it independently liable for violation of the ADEA.”), reversed in part on other grounds, 469 U.S. 111 (1985). The district court accordingly erred in ruling that the unions’ involvement relieves the county of liability for its continuing discrimination in contribution rates.

D. The district court misapplied the Supreme Court’s Title VII pension decisions.

The district court ruled that the three Supreme Court decisions denying plaintiffs back pay relief in Title VII challenges to public pension plans—City of Los Angeles, Department of Water and Power v. Manhart, 435 U.S. 702 (1978); Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983); and Florida v. Long, 487 U.S. 223 (1988)—“counsel against” awarding back pay in this case. JA-41. The district court erred by ignoring the important distinctions between those Title VII cases and this ADEA enforcement action.

In the first place, back pay awards are not mandatory under Title VII. Manhart, 435 U.S. at 718 (“Title VII does not require a district court to grant any retroactive relief.”). Albemarle Paper established a presumption that back pay should normally be awarded, but also “held that backpay was not to be awarded automatically in every case.” Manhart, 435 U.S. at 719 (citing Albemarle Paper, 422 U.S. at 424). In the ADEA, however, Congress chose to adopt the FLSA’s remedial scheme, where back pay is a mandatory legal remedy, rather than Title VII’s, where it is not. See Lorillard, 434 U.S. at 584. The district court therefore erred in ruling that Manhart, Norris, and Long apply to ADEA back pay awards. Cf. Leigh v. Engle, 858 F.2d 361, 364 (7th Cir. 1988) (rejecting defendants’ reliance on Manhart in an ERISA case in part because Manhart “is a Title VII case, construing that statute’s unique retroactive relief provisions”).

Equally important, Manhart, Norris, and Long announced legal principles that revolutionized the pension industry. Most or all pensions incorporated the actuarial principles that the Court declared unlawful in Manhart and Norris, and they would have faced potentially ruinous liability if retroactive relief were available. See Manhart, 435 U.S. at 722 (noting that fifty million citizens participated in pension plans, and stating, “Retroactive liability could be devastating for a pension fund.”). The Court recognized, moreover, that “conscientious and intelligent administrators of pension funds . . . may well have assumed” not only that their plans were lawful, but also that any attempt to amend the plans to alleviate the problems the female employees faced would itself be unlawful. Manhart, 435 U.S. at 719–20 (“[P]ension administrators could reasonably have thought it unfair—or even illegal—to make male employees shoulder more than their ‘actuarial share’ of the pension burden.”). The Court also believed that the pension plans affected by its decisions would comply with the law promptly and needed no incentive to do so. See Manhart, 435 U.S. at 720–21 (“There is no reason to believe that the threat of a backpay award is needed to cause other administrators to amend their practices to conform to this decision.”).

None of these considerations are present here. There is no evidence that most other pension plans—or indeed any other pension plan—requires employees to make larger contributions to the fund if they were older when hired. The legal principle announced in this case will therefore presumably not affect any pension plan other than Baltimore County’s. Nor has the county shown that “conscientious and intelligent pension plan administrators” had any reasonable basis for believing that the county’s scheme was lawful or that amending the plan to eliminate the harm to those older when hired would have been unlawful. Indeed, the decisions of the district court in 2012 and this Court in 2014 did not announce new ADEA law. Cf. Leigh, 858 F.2d at 364–65 (rejecting defendants’ reliance on Manhart in an ERISA case in part because the rule that established defendants’ liability in Leigh was not a “fundamental change” in the law).

Finally, the county has demonstrated that it needs an incentive to comply with the law. The district court held in October 2012 that the county is violating the ADEA, but the county did not promptly eliminate the violation. Even after this Court affirmed the district court in March 2014, the county continued to violate the act, and it is still doing so today. Cf. Long, 487 U.S. at 237 (stating that the case before the Court “would have been an altogether different one” if Florida “had continued to use sex-based actuarial tables to calculate benefits” after the Court had declared that unlawful in Norris). The district court therefore erred in ruling that the Supreme Court’s Title VII pension decisions counsel against awarding back pay in this action.

Even if this Court rules that the Supreme Court’s Title VII pension cases do apply here, those cases do not justify rendering the county immune from all monetary liability. The district court found the county liable for violating the ADEA in October 2012. This Court affirmed that ruling in March 2014, and the Supreme Court denied certiorari in November 2014. Even if the county did not realize when the Commission issued its 2006 determination that it was unlawful to make some employees contribute more to the pension fund because of their age at hire, it certainly knew after this Court’s 2014 decision that its contribution rates were unlawful. At the very latest it knew this after the Supreme Court denied certiorari. Once the county knew its contribution rates were unlawful, it should have moved as rapidly as possible to obey the law, but it did not do this. Also, once the county knew, none of the policy considerations that led the Supreme Court to deny retroactive relief in the Title VII pension cases suggested that monetary relief should be denied for future violations. Conscientious and intelligent plan administrators no longer had any ground for believing that the contribution rates were lawful. The county continued to take larger deductions from the salaries of those who had been older when hired, and the county knew when it took those deductions that they were unlawful. Thus we are not talking here about deductions—like those in the Title VII pension cases—that were reasonably thought lawful when made but became unlawful because of a later change in the law. Moreover, the county’s decision to continue taking the unlawful deductions demonstrated that the county needed a monetary incentive to cease its unlawful conduct.

E. Even if back pay is a discretionary remedy under the ADEA, the district court abused its discretion in denying all monetary relief.

We demonstrated supra at pages 10–21 that back pay is a mandatory legal remedy under the ADEA. However, if this Court concludes otherwise and rules that back pay is a discretionary equitable remedy under the ADEA, the district court still abused its discretion in denying all monetary relief here.

If back pay is a discretionary remedy under the ADEA as it is under Title VII, courts should presumably follow the rules that govern back pay under Title VII. A district court finding a violation of Title VII should deny back pay

only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.

Albemarle Paper, 422 U.S. at 421. See also Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc., 755 F.2d 599, 606 (7th Cir. 1985) (“Because a denial of back pay undercuts Congress’ directive to afford the plaintiff ‘complete relief,’ back pay must be awarded unless ‘special factors’ are shown.”) (Title VII) (quoting Stewart v. General Motors Corp., 542 F.2d 445, 451 (7th Cir.1976)).

Here the county has been violating the ADEA since it first allowed its employees to retire after completing a set number of years of service.[8] The district court found the county liable for violating the act in October 2012, and this Court affirmed that liability finding in March 2014. Rather than eliminating the violation, however, the county continues today to deduct unlawfully large contributions from some employees’ paychecks and does not plan to stop violating the law until July 2018. The violation has harmed many employees, and one of the principal purposes of the ADEA is to make the victims whole. See Duke v. Uniroyal Inc., 928 F.3d 1413, 1423 (4th Cir. 1991) (the district court should tailor “a blend of remedies that is most likely to make the plaintiff whole”); Palasota v. Haggar Clothing Co., 499 F.3d 474, 488 (5th Cir. 2007) (“The central purpose of the ADEA is ‘mak[ing] the individual victim of discrimination whole.’”) (quoting Julian v. City of Houston, 314 F.3d 721, 728 (5th Cir. 2002)).

The Commission delayed completing its investigation of the charges filed in this case, but it issued its letter of determination in March 2006 and began conciliation with the county. The district court therefore had discretion under laches to deny back pay that accrued during the Commission’s unjustified delay. But the Commission’s delay in investigating did not continue to prejudice the county once the Commission issued its determination. See supra pp. 26–27. The Supreme Court’s three Title VII pension cases denied all retroactive relief, but even if those decisions applied to the ADEA, the Court’s rationale for denying retroactive relief in those cases does not support denying all back pay relief here because this case did not announce a fundamental change in ADEA law, it did not revolutionize the pension industry, and the county has demonstrated that it needs an incentive to persuade it to conform its conduct to the law. See supra pp. 31–36.

II. This Court Should Remand for Discovery and Trial

All this Court need do is vacate the district court’s order denying all monetary relief and remand for discovery and trial. Baltimore County may argue that this Court should impose special rules to protect the county from an award that would significantly impair the financial stability of the fund. But the district court has not entered such an award and it may never do so. Accordingly, this Court should allow the parties to litigate the monetary relief due following the normal rules and procedures. Those rules and procedures already incorporate significant safeguards against an excessive back pay award.

On remand, the district court should first allow the parties to conduct discovery relevant to the amount of back pay due, discovery the Commission has not yet been permitted to conduct. After discovery has been completed, the Commission will determine the amount of relief it will seek or the formula it will ask the jury to adopt for the purpose of determining individual back pay awards.

This discretionary decision by the Commission is the first safeguard against an excessive award. The Commission has a track record of seeking reasonable ADEA back pay awards from public pension plans. The Commission has filed more than thirty ADEA lawsuits against public pension plans. It has secured back pay relief in each of those actions, see, e.g., EEOC v. Minnesota Department of Corrections, 702 F. Supp. 2d 1082, 1086–91 (D. Minn. 2010) (holding that defendant’s pension plan violated the ADEA and awarding damages that accrued over more than five years), aff’d, 648 F.3d 910 (8th Cir. 2011), and in almost all of those actions the defendants consented to the relief awarded.[9] The defendants presumably would not have consented to these awards if they had deemed them unreasonable or if the awards threatened the financial stability of the funds.

The Commission submits to this Court that it will seek reasonable monetary relief in this case, as it has in its other ADEA actions against public entities. For example, because of the Commission’s delay in investigating this case, the Commission does not intend to seek back pay that accrued before March 2006, when the Commission issued its letter of determination and began the statutorily mandated conciliation with the county. Moreover, depending on the evidence adduced during discovery, the Commission may be willing to limit further the amount it seeks. For example, it may limit the time period for each victim’s back pay accrual.

The Commission has done nothing in this lawsuit to indicate that it will seek relief that will seriously damage the fiscal integrity of the county’s pension plan. The district court mentioned three times the $19 million figure that the county included in its moving papers. JA-22, 33 n.16, 41. The Commission has not requested $19 million in relief. (Indeed, the Commission has not yet been permitted to discover the records it would need to identify all of the employees harmed by the violation and formulate a relief request.) The Commission does not know how the county calculated the $19 million figure and lacks the information necessary to assess it, but notes that the county had an incentive to make the figure a disturbingly large one because it was arguing that a back pay award would destroy the plan.

The jury will provide a second safeguard. As this Court ruled in Sailor v. Hubbell, Inc., 4 F.3d 323 (4th Cir. 1993),

a back pay award given under the ADEA is a legal remedy, as is an award of liquidated damages. Accordingly, whether Hubbell is liable for discrimination against Sailor, as well as the appropriate amount of back pay and liquidated damages if Hubbell was found liable, were properly questions for a jury. The district court, therefore, erred in refusing Sailor a jury trial.

Id. at 325–26 (citations omitted); see also Lorillard, 434 U.S. at 583 (Congress’s description of back pay as “legal” relief supports right to jury trial). Thus when the Commission sues under the ADEA, it has a right to a jury determination of the back pay award. EEOC v. Ford Motor Co., 732 F.2d 120, 121 (10th Cir. 1984); EEOC v. Brown & Root, Inc., 725 F.2d 348, 349–50 (5th Cir. 1984). The jury in this case will not rule on liability, because that has already been determined. But the county and the Commission will each have the opportunity to present expert testimony to guide the jury in determining the amount of back pay due here, and the jury will choose the computation method it finds more accurate and proper here.

The third safeguard is the district court’s power to grant remittitur if the jury award cannot be supported by the record evidence. See, e.g., Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 424–26 (6th Cir. 1999) (jury’s ADEA back pay award exceeded maximum supported by the evidence because the jury failed to discount plaintiff’s future pension benefits to present value and mischaracterized them as back pay); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165–66 (2d Cir. 1998) (district court’s remittitur order was not abuse of discretion where jury’s ADEA back pay award was more than double what evidence supported); Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 959–60 (5th Cir. 1993) (jury’s ADEA back pay award of $250,000 was excessive because the evidence supported less than half that amount); cf. Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1266–69 (11th Cir. 2008) (district court must hold a new trial on damages in FLSA case because the court’s instruction on calculating damages was erroneous and the jury’s award far exceeded the amount supported by the evidence).

Thus this Court should vacate the district court’s order and give the parties the opportunity to litigate the relief issues following the normal rules and procedures, which already incorporate several safeguards against the excessive award that the county fears.

Conclusion

The district court ignored the “shall be liable” provision in § 216(b) and erred in ruling that the unions’ actions, the Supreme Court’s Title VII pension decisions, and/or the equitable doctrine of laches justify its decision immunizing the county from any monetary relief in this case, even though the county has been violating the ADEA for decades and is continuing to do so even after its contribution rates were declared unlawful by this Court. Even if back pay were a discretionary remedy under the ADEA, the district court abused its discretion by awarding no monetary relief at all. The Commission therefore respectfully urges this

Court to vacate the district court’s order and remand for further proceedings.

[1] As a result of the district court’s April 2016 consent order, see infra, these age-based disparities have been reduced or eliminated—depending on the union the employee belongs to—starting in July 2016. The figures in the text reflect the age-based disparities that were applied to employees hired before July 2007 during the period relevant to this lawsuit until the changes effected in July 2016.

[2] The Commission has conceded that this five-year delay in its investigation was unreasonable, and it will not seek monetary relief for the excessive deductions that the county made before the Commission issued its letter of determination.

[3] Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17.

[4] Congress amended the FLSA in 1947 to provide employers with an affirmative defense to the mandatory imposition of liquidated damages. Lorilllard, 434 U.S. at 581 n.8.

[5] See 29 U.S.C. § 216(c) (“The Secretary may bring an action”), § 216(e)(1)(A)(ii) (“a civil monetary penalty may be doubled”).

[6] The fourth sentence reads in full as follows:

In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

29 U.S.C. § 626(b), Add-1.

[7] In addition to seeking back pay for the excessive contributions that the employees older when hired have already made and will have had to make before final judgment, the Commission also sought interim prospective relief for the excessive contributions that those employees will have to continue making during the period between when judgment is entered and when the contribution rates will become non-discrimina-tory in July 2018. The district court erred in classifying this relief as front pay, which district courts have discretion to deny. The prospective relief the Commission sought is not an alternative to reinstatement, as front pay is, and the relief due can be calculated with precision, which is not true of front pay. Compare Duke v. Uniroyal Inc., 928 F.3d 1413, 1423–24 (4th Cir. 1991). This Court, however, need not address this issue because it will become moot in July 2018, and if this case is remanded, the Commission is unlikely to complete discovery and formulate its relief request before then.

[8] The county allowed police officers and firefighters to retire based on years of service in 1959 and allowed general employees to retire based on years of service in 1973. JA-73.

[9] See, e.g., the consent decrees entered in the following cases: EEOC v. Minn. Dep’t of Pub. Def., No. 12-205 (D. Minn. Apr. 26, 2012); EEOC v. Minn. Dep’t of Commerce, No. 11-2746 (D. Minn. Nov. 9, 2011); EEOC v. Minn. Dep’t of Human Res., No. 11-678 (D. Minn. Apr. 7, 2011); EEOC v. Univ. of P.R., No. 06-1660 (D.P.R. Jan. 27, 2010); EEOC v. Puerto Rico, No. 04-2030 (D.P.R. Sept. 22, 2008); EEOC v. Indep. Sch. Dist. No. 834 of Stillwater, Minn., No. 05-2908 (D. Minn. Aug. 18, 2006); EEOC v. Indep. Sch. Dist. No. 2174 of Pine River, Minn., No. 04-4087 (D. Minn. Oct. 26, 2005); EEOC v. Indep. Sch. Dist. No. 482 of Little Falls, Minn., No. 04-4086 (D. Minn. Mar. 7, 2005); Arnett & EEOC v. Cal. Pub. Emps. Ret. Sys., No. 95-3022 (N.D. Cal. Aug. 3, 2001, & Jan. 29, 2003).