EEOC v. Jefferson County Sheriff's Department & Kentucky Retirement System,
6th Cir.
Petition for Rehearing
Filed October 11, 2005
                           No. 03-6437

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE SIXTH CIRCUIT       
                                                       
EQUAL EMPLOYMENT OPPORTUNITY
  COMMISSION,

               Plaintiff-Appellant,
v.                                                               

JEFFERSON COUNTY SHERIFF'S DEPARTMENT,
KENTUCKY RETIREMENT SYSTEMS, and
COMMONWEALTH OF KENTUCKY,

               Defendants-Appellees.              
      ______________________________________________________

     On Appeal from the United States District Court for the
                   Western District of Kentucky
                       Docket No. 99-00500
                     Hon. Jennifer B. Coffman
      ______________________________________________________

     PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
                      FOR REHEARING EN BANC
      ______________________________________________________

     JAMES L. LEE                       EQUAL EMPLOYMENT
     Deputy General Counsel             OPPORTUNITY COMMISSION
                                        Office of General Counsel
     LORRAINE C. DAVIS                  1801 L Street, N.W., Room 7046
     Acting Associate General Counsel   Washington, D.C.  20507
                                        (202) 663-4734
     CAROLYN L. WHEELER
     Assistant General Counsel

     DORI K. BERNSTEIN
     Attorney
                        TABLE OF CONTENTS
                                                             Page
                                 
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT PURSUANT TO RULE 35(b)(1). . . . . . . . . . . . . . .1

FACTUAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . .2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

     Rehearing En Banc is Necessary Because the Panel Decision is
     Inconsistent with Supreme Court Authority, Contravenes Congress's
     Intent to Prohibit Age Discrimination in Employee Benefits, and
     Conflicts with the Holdings of Four Sister Circuits.. . . .6
     
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ADDENDUM

     EEOC v. Jefferson County Sheriff's Dept., Kentucky Retirement Systems,
     and Commonwealth of Kentucky, No. 03-7437 (6th Cir., Sept. 19. 2005),
     slip opinion

CERTIFICATE OF SERVICE

                       TABLE OF AUTHORITIES
                                                             Page
                              CASES

Abrahamson v. Board of Educ. of Wappingers Falls Central School Dist.,
   374 F.3d 66 (2d Cir. 2004). . . . . . . . . . . . . . . .2, 12

Arizona Governing Committee v. Norris,
   463 U.S. 1073 (1983). . . . . . . . . . . . . . . . . 1, 9, 10

Arnett v. California Public Employees Retirement System, 
   179 F.3d 690 (9th Cir. 1999). . . . . . . . . . . . . . .2, 12

 Auerbach v. Board of Educ. of Harborfields Central School Dist.,
   136 F.3d 104 (2d Cir. 1998) . . . . . . . . . . . . . . .2, 12

EEOC v. Jefferson County Sheriff's Dept., Kentucky Retirement Systems,
   and Commonwealth of Kentucky, 
   No. 03-7437 (6th Cir., Sept. 19. 2005). . . . . . . . . passim

Hazen Paper v. Biggins,                                          
   507 U.S. 604 (1993) . . . . . . . . . . . . . . . . .7, 10, 14

Huff v. UARCO,
   122 F.3d 374 (7th Cir. 1997). . . . . . . . . . . . . . .2, 12

International Union, United Automobile, Aerospace & Agricultural 
   Implement Workers of America v. Johnson Controls,
   499 U.S. 187 (1991) . . . . . . . . . . . . . . . . . . . . .7

Jankovitz v. Des Moines Indep. Community School Dist., 
   421 F.3d 649 (8th Cir. 2005). . . . . . . . . . . . . . .2, 11

Los Angeles Dept. of Water and Power v. Manhart,
   435 U.S. 702 (1978) . . . . . . . . . . . . . . 1, 7, 8, 9, 10


                                                             Page

Lyon v. Ohio Education Association and Professional Staff Union, 
   53 F.3d 135 (6th Cir. 1995) . . . . . . 3, 4, 5, 6, 10, 11, 12

Public Employees Retirement System of Ohio v. Betts,
   492 U.S. 158 (1989) . . . . . . . . . . . . . . 1, 5, 6, 8, 11

Trans World Airlines v. Thurston,
   469 U.S. 111 (1985) . . . . . . . . . . . . . . . . . . .7, 14

                             STATUTES

Age Discrimination in Employment Act of 1967,
   29 U.S.C.  621 et. seq. . . . . . . . . . . . . . . . . . .1
   29 U.S.C.  623(f)(2) . . . . . . . . . . . . . . . . . . . .5

Older Workers Benefit Protection Act,
   101 Pub. Law 433, 104 Stat. 978 (Oct. 16, 1990) . . . .1, 5, 6
   29 U.S.C.  621 note. . . . . . . . . . . . . . . . . . .1, 11
   29 U.S.C.  623(f)(2)(B)(i) . . . . . . . . . . . . . . . . 14

Title VII of the 1964 Civil Rights Act,
   42 U.S.C.  2000e et. seq. . . . . . . . . . . . . . . . . .8

                      RULES AND REGULATIONS

Fed. R. App. P. 35(b)(1)(A). . . . . . . . . . . . . . . . . . .1

Fed. R. App. P. 35(b)(1)(B). . . . . . . . . . . . . . . . . . .2

6 Cir. R. 35(c). . . . . . . . . . . . . . . . . . . . . . . . .7

                       LEGISLATIVE HISTORY

H.R. Rep. No. 664, 101st Cong., 2d Sess. (1990). . . . . . . . 11

               STATEMENT PURSUANT TO RULE 35(b)(1)          
     The Equal Employment Opportunity Commission (EEOC) petitions for
rehearing en banc because the panel decision is inconsistent with decisions of the
Supreme Court governing facial discrimination in the context of employee benefit
plans, Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 166
(1989); Arizona Governing Committee v. Norris, 463 U.S. 1073, 1079-81(1983); 
Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 716 (1978); and
contravenes Congress's purpose in amending the Age Discrimination in
Employment Act (ADEA), 29 U.S.C.  621 et. seq., with the Older Workers
Benefit Protection Act (OWBPA), 101 Pub. Law 433, 104 Stat. 978 (Oct. 16,
1990), to prohibit employers from denying or paying fewer benefits to older
employees than to similarly situated younger workers, unless the age-based
distinction is cost-justified or otherwise permitted by a statutory exception or
affirmative defense.  See 29 U.S.C.  621 note.  En banc consideration is therefore
necessary to secure and maintain conformity of this court's decisions with
Supreme Court authority and congressional intent.  Fed. R. App. P. 35(b)(1)(A).
     Rehearing en banc is further warranted because this case involves a question
of exceptional importance:  Whether the use of age in an employee benefit plan to
disqualify an employee from a particular benefit or to calculate benefits in a
manner that disfavors older workers demonstrates discrimination because of age
within the meaning of the ADEA.  See Fed. R. App. P. 35(b)(1)(B).  The panel
decision conflicts with the authoritative decisions of every other federal appellate
court that has addressed the issue.  See Jankovitz v. Des Moines Indep. Community
School Dist., 421 F.3d 649 (8th Cir. 2005); Abrahamson v. Board of Educ. of
Wappingers Falls Central School Dist., 374 F.3d 66 (2d Cir. 2004); Arnett v.
California Public Employees Retirement System, 179 F.3d 690 (9th Cir. 1999);
Huff v. UARCO, 122 F.3d 374 (7th Cir. 1997); Auerbach v. Board of Educ. of
Harborfields Central School Dist., 136 F.3d 104 (2d Cir. 1998).

                        FACTUAL STATEMENT
     In this action to enforce the ADEA, the EEOC claims that the benefit plan
administered by Kentucky Retirement Systems (KRS) for public employees
discriminates against older workers because of age in the following ways:  (1) by
disqualifying otherwise eligible employees from disability retirement because they
become disabled after reaching normal retirement age, (i.e., age 55 for employees
in hazardous jobs and age 65 for employees in non-hazardous jobs); and (2) by
paying lower disability retirement benefits to an older worker who, other than age,
is similarly situated to a younger worker in every respect relevant to calculate
benefits (i.e., job, compensation, years of service, disability).  See EEOC v.
Jefferson County Sheriff's Dep't, et al., No. 03-6437 (6th Cir. 2005) ("slip op.") at
2-3.  On cross-motions for summary judgment, the district court ruled that "the
EEOC has failed to show how this retirement plan's age elements are
discriminatory, either facially or through disparate treatment combined with
intent,'" and dismissed the suit.  Id. at 4.
     A panel of this Court held it was bound by Circuit precedent to affirm
summary judgment against the EEOC.  "Affirmance is required," the panel ruled,
"because this case is not materially distinguishable from Lyon v. Ohio Education
Association and Professional Staff Union, 53 F.3d 135 (6th Cir. 1995), in which we
upheld an early retirement plan that attributed unworked years to younger workers
in order to calculate benefits."  Id. at 4.  The panel reasoned that because "[t]he use
of age in the [KRS] plan is indistinguishable from the use of age in the early
retirement plan at issue in Lyon, which was held not to violate the ADEA," id. at
2, the KRS "plan cannot be held to violate the ADEA."  Id. at 6.  "Under both
plans," the panel noted, "certain younger employees (those below the standard
retirement age) are eligible to receive credit for additional years of service that
they did not in fact work, with the result that a younger employee receives greater
retirement benefits than an older employee with the identical final or average
salary and years of actual service." Id.  Notwithstanding the plan's use of age to
pay fewer benefits to older employees who were otherwise identical to younger
workers in every relevant respect, the panel held that "[u]nder Lyon, . . . the EEOC
has failed to demonstrate discriminatory intent, and [KRS] was entitled to
summary judgment."  Id.
     While compelled to follow binding Circuit precedent, the panel openly
questioned the rationale and holding of Lyon on a number of grounds.  As a
factual matter, the panel recognized, the "retirement plan in Lyon explicitly used
age to calculate benefits" by awarding "credit for the years remaining before age
62" to employees who retired before reaching that age, while providing that
"[e]mployees over age 62 were not entitled to credit years."  Id. at 6.  Pursuant to
these provisions, the panel determined, "there was disparate treatment because of
age," and discriminatory "[i]ntent arguably should be inferred from the employer's
knowledge concerning its own plan."  Id.  In the panel's view, however, "[s]uch an
argument . . . is foreclosed by Lyon."  Id.  
     Further, while the Lyon Court considered the "absence of any reference to
actions by [plan sponsors to be] telling,'" id. (quoting Lyon, 53 F.3d at 139), the
panel pointed out that "the only action that will ever be taken in cases involving
retirement plans  as opposed to individual adverse actions  is the action of
writing the policy."  Id.  As a legal matter, the panel perceived that "Lyon could
also perhaps be criticized for its reliance on the observation that the very purpose
of offering an early retirement incentive plan is to "buy out" expensive workers,'"
id. (quoting Lyon, 53 F.3d at 139), since, "[u]nder a disparate treatment analysis,
the presence of a justification for age discrimination does not, ipso facto, make
that type of discrimination not actionable."  Id.  
     The panel acknowledged, moreover, that "Congress's intent in enacting the
[OWBPA], which amended the ADEA, appears to have been to make schemes
such as the [KRS] plan unlawful unless cost-justified."  Id. at 6-7.  Quoting the
legislative history and statutory preamble, the panel explained that "the OWBPA
was passed to overrule Public Employees Retirement System of Ohio v. Betts, 492
U.S. 158 (1989), which involved a retirement plan similar in many respects to the
[KRS] plan," in that both plans disqualify from disability retirement  employees
who become disabled after reaching normal retirement age.  Slip op. at 7.  The
panel explained that the "Supreme Court did recognize that the PERS plan was
facially discriminatory because it renders covered employees ineligible for
disability retirement once they have attained age 60,'" id. (quoting Betts, 492 U.S.
at 166), but decided that "the PERS plan would not be held to violate the ADEA,
despite the fact that it based benefits on age, unless the plaintiff proved
subterfuge," under an exception then codified in ADEA section 4(f)(2).  Id.
     The panel understood that "Congress thought the plan in Betts violated the
ADEA, unless it was cost-justified as provided for in a new, codified exception,"
enacted in the OWBPA.  Id. at 8.  Noting that both the Betts and KRS plans
disqualify employees at normal retirement age from disability retirement, the panel
reasoned:  "If Congress thought that the plan in Betts violated the ADEA, then it
could be argued that Congress would think that the [KRS] plan violates the
ADEA."  Id.  Because the "legislative history of the OWBPA was . . . available at
the time that Lyon was decided," however, the panel found it an inadequate basis
"to distinguish this case from Lyon" and justify departing from precedent.  Id.

                             ARGUMENT
     Rehearing En Banc is Necessary Because the Panel Decision is
     Inconsistent with Supreme Court Authority, Contravenes Congress's
     Intent to Prohibit Age Discrimination in Employee Benefits, and
     Conflicts with the Holdings of Four Sister Circuits.

     The EEOC claims that KRS facially discriminates by denying or paying
fewer disability retirement benefits to older workers because of age.  The panel
affirmed summary judgment against the EEOC because the KRS plan "is
materially indistinguishable from the early retirement incentive plan in Lyon,"
which "explicitly used age to calculate benefits" and required "disparate treatment
because of age," slip op. at 6, yet "was held not to violate the ADEA."  Id. at 2.
The rationale and holding of Lyon, applied here in the context of disability
retirement benefits, cannot be reconciled with Supreme Court authority,
congressional intent, or the decisions of other federal Courts of Appeals.  The
EEOC therefore requests rehearing en banc "to bring to the attention of the entire
Court a precedent-setting error of exceptional public importance."  6 Cir. R. 35(c).
     The Supreme Court has repeatedly affirmed that intentional discrimination
based on a protected trait (such as age) is established where an employer "relied
upon a formal, facially discriminatory policy requiring adverse treatment of
employees with that trait."  Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993),
citing, e.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); Los
Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 704-118 (1978).  In
such cases, the terms of the policy furnish direct evidence that "the employee's
protected trait actually played a role in [the employer's decisionmaking process'
and had a determinative influence on the outcome," Hazen Paper, 507 U.S. at 610,
and there is no need to demonstrate, in addition, that the employer relied on
negative stereotypes or harbored discriminatory animus in establishing the facially
discriminatory policy.  See International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America v. Johnson Controls, 499 U.S. 187,
199 (1991) ("Whether an employment practice involves disparate treatment
through explicit facial discrimination does not depend on why the employer
discriminates but rather on the explicit terms of the discrimination.").
     In the context of employee benefit plans, the Supreme Court has decided on
three occasions that facial discrimination was established where the plan by its
terms required disparate treatment based on a protected characteristic.  In each
case, the Court determined that the disparate treatment dictated by the terms of an
employee benefit plan established facial discrimination and required no further
evidence of unlawful intent or discriminatory animus.  In Betts, the Court
considered a retirement plan that excluded from disability retirement workers who,
because of age, were eligible for service retirement.  As the panel acknowledged,
the Supreme Court in Betts recognized that this exclusion  which is functionally
the same as the KRS plan's disqualification of employees above normal retirement
age from disability retirement  "was facially discriminatory because it renders
covered employees ineligible for disability retirement once they have attained age
60.'"  Slip op. at 7 (quoting Betts, 492 U.S. at 162) (emphasis added).
     In Manhart, the Supreme Court considered whether a retirement plan that
paid equal monthly retirement benefits to "men and women of the same age,
seniority, and salary," but required female employees to make larger monthly
contributions to the pension fund "than the contributions required of comparable
male employees," discriminated because of sex within the meaning of Title VII. 
435 U.S. at 705.  In setting a higher contribution rate for female employees, the
Court acknowledged, the employer had not relied on gender-based stereotypes or
"a fictional difference between men and women," but instead based its decision on
"a generalization that the parties accept as unquestionably true: Women, as a class,
do live longer than men."  Id. at 708.  Notwithstanding the fact that prohibited
stereotypes played no role in the decision to require larger contributions from
women, the Court ruled that this "practice on its face discriminated against
individual employees because of their sex."  Id. at 716 (emphasis added).
     Similarly, in Arizona Governing Committee v. Norris, 463 U.S. 1073
(1983), the Court examined "whether it is discrimination because of . . . sex' to
pay a retired woman lower monthly benefits than a man who deferred the same
amount of compensation." Id. at 1079.  Under the plan at issue, "a man receive[d]
larger monthly payments than a woman who deferred the same amount of
compensation and retired at the same age, because [sex-based mortality] tables
classify annuitants on the basis of sex and women on average live longer than
men."  Id. at 1073.  Citing its conclusion in Manhart "that a plan requiring women
to make greater contributions than men discriminates because of . . . sex' for the
simple reason that it treats each woman in a manner which but for [her] sex would
[have been] different,'" the Court reasoned that "the classification of employees
on the basis of sex is no more permissible at the pay-out stage of a retirement plan
than at the pay-in stage."  Id. at 1081 (quoting Manhart, 435 U.S. at 711) (internal
quotations omitted).
     The panel decision, in its criticism of Lyon, implicitly acknowledges the
principles animating these Supreme Court decisions.  In suggesting "that the
application of the ADEA to benefit plans should be distinguished from the
application of the ADEA to individual firings of the type at issue in Hazen Paper,"
the panel recognized a difference between "cases involving retirement plans,"
where "the only action that will ever be taken . . . is the action of writing the
policy," and "individual adverse actions."  Slip op. at 6.  The Supreme Court in
Hazen Paper identified this same distinction between two methods of establishing
disparate treatment, comparing cases where the employer "relied upon a formal,
facially discriminatory policy requiring adverse treatment of employees with [a
protected] trait," with those where the employer was "motivated by the protected
trait on an ad hoc, informal basis." Hazen Paper, 507 U.S. at 610.  Consistent with
Supreme Court authority, the panel recognized that where disparate treatment is
dictated by the terms of an employee benefit plan, discriminatory "[i]ntent . . .
should be inferred from the employer's knowledge concerning its own plan," but
understood that "[s]uch an argument is . . . foreclosed by Lyon."  Slip op. at 6.  
     The panel also determined that the Lyon decision foreclosed consideration
of "Congress's intent . . . to make schemes such as the [KRS] plan unlawful unless
cost-justified," because the "legislative history of the OWBPA," which
unequivocally manifests this congressional purpose, "was . . . available at the time
that Lyon was decided."  Id. at 6-8; see, e.g., 29 U.S.C.  621 note (finding "as a
result of [Betts], legislative action is necessary to restore the original congressional
intent in passing and amending the [ADEA], which was to prohibit discrimination
against older workers in all employee benefits except when age-based reductions
in employee benefit plans are justified by significant cost considerations"); H.R.
Rep. No. 664, 101st Cong., 2d Sess. 34 (1990) ("[U]nder this bill, and subject to
the exceptions contained in the bill that are discussed below, the only justification
for age discrimination in an employee benefit is the increased cost in providing the
particular benefit to older individuals."). 
     At least four other Circuits have decided that age-based distinctions in
benefits pursuant to an employee benefit plan demonstrate a prima facie case of
discrimination under the ADEA, which the employer can rebut by showing that
the challenged practice is justified under a statutory exception or affirmative
defense.  See Jankovitz v. Des Moines Independent Community School Dist., 421
F.3d 649, 653 (8th Cir. 2005) (holding benefit plan provision "that an employee is
ineligible for early retirement benefits . . . if he or she is over the age of 65 . . . is . .
. discriminatory on its face . . . [and] intent to discriminate can be presumed");
Abrahamson v. Board of Educ. of Wappingers Falls Central School Dist., 374
F.3d 66, 72-73 (2d Cir. 2004) (terms of early retirement incentive plan that limited
eligibility to an employee's first year of eligibility for service retirement, defined
as a combination of age and years of service, established "prima facie case of age
discrimination under the ADEA"); Arnett v. California Public Employees
Retirement System, 179 F.3d 690, 695-96 (9th Cir. 1999) (plan's formula for
calculating disability retirement by awarding the lesser of 50% of final
compensation or the amount the employee would have received in service
retirement benefits had he continued to work to normal retirement age "stated a
disparate treatment claim" under ADEA); Auerbach v. Board of Educ. of
Harborfields Central School Dist., 136 F.3d 104, 109-112 (2d Cir. 1998)
(retirement incentive plan that provided additional benefits for teachers who
retired during first year they were retirement-eligible, defined as 55 or older with
20 years of service, "established a prima facie case of age discrimination," which
employer rebutted by showing plan was voluntary and comported with statutory
purposes); Huff v. UARCO, 122 F.3d 374, 387-88 (7th Cir. 1997) (early retirement
plan that denied option to receive lump-sum payout of pension contributions to
employees once they became eligible for early retirement at age 55 with 10 years
of service "draws an express line between workers over [55] and those under" and
therefore stated ADEA claim "of disparate treatment").  No federal appellate court,
other than this Court in Lyon and the panel decision, has found no prima facie
evidence of age discrimination in an employee benefit plan that denies or pays
fewer benefits to older employees solely because they become disabled at or near
normal retirement age.
     While conceding that "the difficulties with the Lyon rationale and holding
might warrant a different result in this case were the Lyon case not controlling in
this Circuit," the panel noted  that "such a different result would also have its
troubling aspects."  Id. at 8. "Assuming that each worker desires to accumulate a
working-life's worth of retirement benefits," the panel remarked, "an employer
might reasonably want to provide employees with assurance that such a working
life's worth' will be accumulated, against the risk that the employee will become
disabled during his or her period of employment."  Id.  The panel was unable to
discern "how, absent a scheme like Kentucky's, such a benefit could be provided
without violating the ADEA."  Id.
     Congress, however, specified in the statutory text "how . . . such a benefit
could be provided without violating the ADEA."  Id.  The panel was cognizant
that "the presence of a justification for age discrimination" in an employee benefit
plan "does not, ipso facto, make that type of discrimination not actionable."  Id. 
Rather, the lawfulness of any age-based differences in benefits provided pursuant
to an employee benefit plan depends on whether the discrimination is permissible
under an explicit statutory exemption or affirmative defense.  See Hazen Paper,
507 U.S. at 612 (ADEA "requires the employer to ignore an employee's age
(absent a statutory exemption or defense)"); cf. Thurston 469 U.S. at 122 ("our
inquiry cannot end" with finding transfer policy facially discriminates based on
age where employer asserted "policy is justified by two of ADEA's five
affirmative defenses").  In this case, KRS asserted the affirmative defense
provided by 29 U.S.C.  623(f)(2)(B)(i), and sought to prove that the difference in
benefits paid to older employees who retire due to disability is cost-justified and
therefore not unlawful, "but the district court declined to address the defense,"
having found no prima facie evidence of age discrimination.  See slip op. at 8.  If
Kentucky demonstrates that it costs as much to provide benefits to a younger
employee as to an older worker, the plan will be declared lawful under the ADEA.
     Alternatively, of course, Kentucky could eliminate its use of age to
disqualify older employees from disability retirement, or as a factor in calculating
the amount of disability benefits an employee is entitled to receive.  An employer
that wishes to "provide employees with assurance" of receiving "a working life's
worth'" of retirement benefits, "against the risk that the employee will become
disabled" before he or she was planning to retire, id., is free to designate a certain
number of years (such as either 20, or twice an employee's actual years of service,
or any other fixed number) as a "working life's worth" and award that to any
employee who, regardless of age,  meets the eligibility requirements.  What the
ADEA forbids is to assume that an employee's "working life" will end at a certain
age and that, absent disability, he would retire on that date.  Thus, unless cost-
justified or otherwise permitted, the ADEA makes it unlawful to deny or pay fewer
benefits to an employee solely because he is at or near normal retirement age.

                            CONCLUSION
     For the foregoing reasons, the EEOC respectfully urges this Court to grant
rehearing en banc.
     Respectfully submitted,                           

     JAMES L. LEE                  ___________________________
     Deputy General Counsel             DORI K. BERNSTEIN
                                   Attorney
     LORRAINE C. DAVIS             
     Acting Associate General Counsel   EQUAL EMPLOYMENT
                                     OPPORTUNITY  COMMISSION
     CAROLYN L. WHEELER       Office of General Counsel
     Assistant General Counsel          1801 L Street, N.W., Room 7046
                                   Washington, D.C.  20507

                             ADDENDUM


EEOC v. Jefferson County Sheriff's Dept., Kentucky Retirement Systems, and
Commonwealth of Kentucky, No. 03-7437 (6th Cir., Sept. 19. 2005), slip opinion
                                 

                      CERTIFICATE OF SERVICE

     I hereby certify that two copies of this petition for rehearing were mailed, 

first class, postage prepaid, on this 11th  day of October, to the following:

                    Robert D. Klausner
                    Klausner & Kaufman, PA
                    10059 NW 1st CT
                    Plantation, Florida  33324

                    Mitchell L. Perry
                    Office of the Jefferson County Attorney
                    531 Court Place
                    Suite 1001 Fiscal Court Building
                    Louisville, Kentucky  40202
     
                    C. Joseph Beavin, James D. Allen, Lizabeth Ann Tully
                    Stoll, Keenon & Park
                    300 W. Vine Street
                    Suite 2100
                    Lexington, Kentucky  40507-1801

                    D. Brent Irvin
                    Attorney General - Civil & Environmental Law Division
                    700 Capitol Avenue
                    Frankfort, Kentucky  40601-3449


                              _________________________
                              Dori K. Bernstein
                              Attorney

                              EQUAL EMPLOYMENT OPPORTUNITY  
                               COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W., Room 7046
                              Washington, D.C.  20507
                              (202) 663-4734