Equal Employment Opportunity Commission v. North Gibson School Corportation
 00-3117

 UNITED STATES COURT OF APPEALS
 FOR THE SEVENTH CIRCUIT

 No.  00-3117

 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

  Plaintiff-Appellant,
 v.

 NORTH GIBSON SCHOOL CORPORATION,

  Defendant-Appellee.

 On Appeal from the United States District Court
 for the Southern District of Indiana, Evansville Division
 Honorable Larry J. McKinney, Judge

 REPLY BRIEF OF THE EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION AS APPELLANT

        GWENDOLYN YOUNG REAMS
        Associate General Counsel

        PHILIP B. SKLOVER
        Associate General Counsel

        CAROLYN L. WHEELER
        Assistant General Counsel

        PAULA R. BRUNER
        Attorney

        EQUAL EMPLOYMENT OPPORTUNITY
         COMMISSION
        1801 L Street, N.W., Rm. 7044
        Washington, DC 20507
        (202) 663-4731

 TABLE OF CONTENTS

 TABLE OF AUTHORITIES ii

 ARGUMENT 1

 CONCLUSION 22

 CERTIFICATE OF COMPLIANCE

 CERTIFICATE OF SERVICE
 TABLE OF AUTHORITIES

 CASES

 Albermarle Paper Co. v. Moody,
  422 U.S. 405 (1975) 7

 Alden v. Maine,
  527 U.S. 706 (1999) 20

 Bailey v. Canan,
  82 F.Supp.2d 966 (S.D. Ind. 2000) 21

 Board of Trustees Hamilton v. Landry,
  638 N.E.2d 1261 (Ind.App.1994) 20

 Braaksma v. Wells Community Hosp.,
  98 F.Supp.2d 1026 (N.D. Ind. 2000) 21

 Barnes v. Anne Arundel Cty. Bd. of Educ.,
  2000 WL 979108 (D.Md. July 14, 2000) 21

 Chakonas v. City of Chicago,
  42 F.3d 1132 (7th Cir. 1994) 19

 EEOC v. American & Efird Mills, Inc.,
  964 F.2d 300 (4th Cir. 1992) 6, 19

 EEOC v. City of Colleges of Chicago,
  944 F.2d 339 (7th Cir. 1991) 19

 EEOC v. ElginTeachers Ass'n,
  658 F.Supp. 624 (N.D. Ill. 1987) 14

 EEOC v. Gladieux Refinery Inc.,
  631 F. Supp. 927 (N.D. Ind. 1986) 5

 EEOC v. Harris Chernin, Inc.,
  10 F.3d 1286 (7th Cir. 1993) 5, 6, 13

 EEOC v. Harvey L. Walner & Assocs.,
  1995 WL 470233 *3 (N.D. Ill. 1995),
  aff'd, 91 F.3d 963 (7th Cir. 1996) 4
 EEOC v. Harvey L. Walner & Assocs.,
  91 F.3d 963 (7th Cir. 1996) 6, 18

 EEOC v. Hickman Mills Consolidated School District No. 1,
  99 F.Supp.2d 1070 (W.D. Mo. 2000) 21

 EEOC v. Ilona of Hungary, Inc.,
  108 F.3d 1569 (7th Cir. 1997) 9, 12, 14

 EEOC v. Johnson & Higgins, Inc.,
  91 F.3d 1529 (2d Cir. 1996) 5

  EEOC v. Kidder Peabody,
  156 F.3d 298 (2d Cir. 1998) 12, 14

 EEOC v. Maryland Cup,
  785 F.2d 471 (4th Cir. 1986) 18

 EEOC v. New York Times Broadcasting Serv., Inc.,
  542 F.2d 356 (6th Cir. 1976) 9, 13

 EEOC v. Tire Kingdom Inc.,
  80 F.3d 449 (11th Cir.1996) 3, 6

 EEOC v. United Ins. Co. of Am.,
  666 F. Supp. 915 (S.D. Miss. 1986) 4

 EEOC v. Waffle House,
  193 F.3d 805 (4th Cir. 1999) 18, 19

 Gary A. v. New Trier High School Dist.,
  796 F.2d 940 (7th Cir.1986) 21

 General Tel. Co. v. EEOC,
  446 U.S. 318 (1980) 7

 Gilmer v. Interstate/Johnson Lane Corp.,
  500 U.S. 20 (1991) 5

 Henn v. National Geographic Society,
   819 F.2d 824 (7th Cir.),
   cert. denied, 484 U.S. 964 (1987) 17, 18

 Holman v. State of Indiana,
  211 F.3d 399 (7th Cir. 2000) 12

 Horowitz v. Board of Educ. of Avoca,
  2000 WL 1100858 (N.D. Ill. June 7, 2000) 19, 21

 International Bhd. of Teamsters v. United States,
  431 U.S. 324 (1977) 7

 Jenkins v. McKeithen,
  395 U.S. 411 (1969) 12

 Kimel v. Florida Board of Regents,
  528 U.S. 62, 120 S.Ct. 631 (2000) 2, 20

 Lorance v. AT&T Technologies, Inc.,
  490 U.S. 900 (1989) 8

 Martin v. Consultants & Administrators, Inc.,
  966 F.2d 1078 (7th Cir. 1992) 15, 17

 McKennon v. Nashville Banner Pub. Co.,
  513 U.S. 352 (1995) 7, 8

 Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
  429 U.S. 274 (1977) 21

 Narin v. Lower Merion School Dist.,
  206 F.3d 323 (3d Cir.2000) 21

 Solon v. Gary Community School Corp.,
  180 F.3d 844 (7th Cir. 1999) 1, 9, 11, 12, 17, 18

 Sprogis v. United Air Lines,
  444 F.2d 1194, 1202 (7th Cir.),
   cert. denied, 404 U.S. 991 (1971) 9

 Weihoff v. GTE Directories Corp.,
  61 F.3d 588 (8th Cir. 1995) 4

 STATUTES

 29 U.S.C.  217 10
 29 U.S.C. 255 3

 42 U.S.C.  2000e-5(b) 4

 42 U.S.C.  2000e-8(a) 4

 Pub.L.No. 102-166, 115,105 Stat. 1071,1079 (1991) 3

 ARGUMENT

  In its opening brief, the Commission argued that the district court
  erred in granting summary judgment for North Gibson School Corporation
  ("North Gibson") on its ADEA claims for monetary damages.  The Commission
  contended that the district court erred in holding that the filing of
  a timely charge was necessary for the Commission to seek and obtain
  damages for seven individuals.  We argued that the agency has the
  authority to litigate claims under the ADEA independent of the filing of
  a charge, timely or otherwise, and that monetary relief for individuals,
  particularly when they could not have obtained such relief themselves,
  does serve the public interest.  EEOC Br. at 17-25.  The Commission also
  contended that even if a timely charge were required, a reasonable jury
  could find that a timely charge had been filed since retirement benefits
  were paid pursuant to North Gibson's 1995 discriminatory retirement
  plan ("ERP") as late as October 1997, two months prior to the filing
  of EEOC charges by Fred Anthis and Lewis Schleter in December 1997.
  Id. at 25-28.  Finally, the Commission contended that the district
  court erred in dismissing its claims for injunctive relief to prevent
  future age discrimination against Anthis and Schleter who remain in
  North Gibson's employ.  The Commission argued that not only does the
  ADEA, through its incorporation of Fair Labor Standards Act provisions,
  expressly grants district courts the authority to enjoin an employer
  from withholding amounts owing to an individual aggrieved by a violation
  of the ADEA, but this Court reaffirmed the availability of that form of
  injunctive relief in Solon v. Gary Community School Corp., 180 F.3d 844,
  848-49 (7th Cir. 1999).  Id. at 28-31.
  In response, North Gibson asserts that the district court's dispositions
  of EEOC's requests for injunctive and monetary relief were correct.
  It argues that the district court properly dismissed the Commission's
  injunctive relief claim as moot.  North Gibson ("NG") Br. at 14-21. It
  argues, however, as an alternative basis for affirmance, that the court
  erred in finding that there is no statute of limitations applicable
  to the ADEA claims for relief brought by the EEOC.  Id. at 22-25. With
  respect to the summary judgment disposition, North Gibson contends that
  the district court correctly found that the EEOC cannot pursue monetary
  damages on behalf of individuals who have filed untimely charges or
  have waived their right to seek relief by not filing a charge at all
  because an action for monetary relief does not serve the public interest.
  Id. at 26-31.   It also contends that a reasonable jury could not have
  concluded that Anthis and Schleter filed timely charges because there
  are no disputed issues of fact for a jury to decide and the district
  court properly determined that no events following the discontinuance of
  the challenged plan extended the charge-filing period.   Id.  at 31-33.
  Finally, in attacking the Commission's authority to bring this ADEA
  action at all, North Gibson offers two legal arguments to support summary
  judgment against the EEOC that were either rejected or ignored by the
  district court.  First, North Gibson argues that the EEOC's ADEA claims
  should be barred by laches because the agency's delay in exercising
  its enforcement powers was unreasonable and prejudicial.  Id. at 34-41.
  Second, North Gibson argues that the EEOC's action is barred by Kimel
  v. Florida Board of Regents, 120 S.Ct. 631 (2000), because after the
  Supreme Court invalidated Congress's amendment extending the ADEA's
  coverage to states and its political subdivisions, "an ADEA claim cannot
  be brought against a local governmental entity."  Id. at 41-42.  Thus,
  it asserts that the district court erred in denying its second motion
  to dismiss and summary judgment can be upheld on this ground.
  For the reasons discussed below (and in its main brief), the Commission
  urges this Court to reverse the district court's erroneous decisions
  and remand the Commission's ADEA claims for further proceedings.
  1.  No Statute of Limitations Governs the EEOC's ADEA Action
  Although the district court correctly resolved this issue, North
  Gibson insists that the EEOC's ADEA suit should be dismissed because
  there must be some statute of limitations governing EEOC suits.
  NG Br. at 23.  As stated in the Commission's opening brief, there is
  no statute of limitations governing EEOC suits enforcing the ADEA.
  EEOC Br. at 18-20.  The 1991 Civil Rights Act plainly eliminated the
  two and three-year statute of limitations provisions that governed the
  Commission's (and private individuals') right to file an ADEA suit.
  See Pub.L.No. 102-166, 115,105 Stat. 1071,1079 (1991).  The 180-day
  charge filing period in Section 7(d)(1) of the ADEA applies only to an
  individual's right to file a civil suit.  EEOC v. Tire Kingdom, Inc.,
  80 F.3d 449, 451 (11th Cir. 1996).
  Despite the plain language of the statute, North Gibson argues that
  Congress's decision to eliminate the reference to the statute of
  limitations provision found in 29 U.S.C.255 because of its concern
  over the confusion created by different procedures for individuals
  asserting violations under Title VII and the ADEA does not support a
  determination that the EEOC is not subject to limitations.  NG Br. at 23.
  According to North Gibson, support for its position can be derived from
  "a simple reading"of the 1990 amendment to the Age Discrimination Claims
  Assistance Act of 1988 (ADCAA), and from two Title VII cases cited
  in its brief.  Id. at 23-25. Nothing in ADCAA or its 1990 amendments
  imposes an independent and overriding statute of limitations on the
  EEOC's authority to enforce the ADEA.  Congress amended ADCAA in 1990
  to restore ADEA claims which were lost due to delays in investigations
  conducted by the EEOC or state agencies.  While ADCAA was in effect,
  ADEA claims were subject to the two or three year limitations period
  for filing complaints that governed the EEOC and individual claimants.
  Weihoff v. GTE Directories Corp., 61 F.3d 588, 590 & n.2 (8th Cir. 1995).
  Thus, references in the legislative history to provisions then in effect
  are unsurprising, and certainly cannot bear the interpretation North
  Gibson imputes to them of an intent to override the plain text of a
  subsequent statutory enactment.
  Further, the Title VII district court opinions cited by North Gibson are
  unavailing.   These cases stand for the unremarkable proposition that the
  EEOC must adhere to substantive requirements of the statutes it enforces.
  See NG Br. at 25.  There, the courts merely declared that under
  Title VII the charge-filing requirement is a substantive requirement.
  EEOC v. Harvey L. Walner & Assoc., 1995 WL 470233 *3 (N.D.Ill. 1995),
  aff'd, 91 F.3d 963 (7th Cir. 1996); EEOC v. United Ins. Co. of Am., 666
  F.Supp. 915, 918 (S.D.Miss. 1986).   Unlike the ADEA, Title VII requires
  that a charge be filed before the EEOC can exercise its authority to
  investigate or file a lawsuit.  42 U.S.C. 2000e-5(b), 2000e-8(a).
  This charge-filing limitation on the EEOC's enforcement authority in
  Title VII cases has no bearing on the Commission's enforcement authority
  under the ADEA and the cited decisions expressing the courts' views
  that the charge-filing requirement implicates substantive rather than
  procedural rights cannot create an analogous right under the ADEA where
  Congress did not impose such a requirement.   Thus, the district court
  correctly stated the law on this issue and North Gibson's arguments to
  the contrary are patently frivolous.
  2.  The EEOC's Damages Claim is not Dependent on Timely Charges
  Although it disputes the district court's determination on the statute
  of limitations issue, North Gibson contends that the district court
  properly granted summary judgment on the EEOC's claims for monetary
  relief on behalf of individuals who had not filed timely charges or any
  charges at all.  The school corporation asserts that when the EEOC is
  seeking relief for such individuals, there is privity between the EEOC
  and the individuals and thus, an agency action on their behalf must
  be "in the public's interest because it unfairly affects substantive
  rights of the employer."  NG Br. at 27; 26-29.  Applying that reasoning,
  North Gibson argues that the court properly concluded that the EEOC's
  action did not serve the public interest.   These arguments must fail.
  As discussed in the Commission's opening brief, the district court erred
  when it decided that the Commission's claims for monetary relief were
  time-barred because the action was not supported by timely charges. EEOC
  Br. at 21-25.  As the Supreme Court and this Court have recognized, the
  Commission's authority to investigate and secure relief for violations of
  the ADEA is not dependent on the filing of a charge of discrimination,
  timely or otherwise.  See Gilmer v. Interstate/Johnson Lane Corp.,
  500 U.S. 20, 28 (1991) (upholding EEOC's authority to investigate
  individual's age discrimination claim even though individual was
  barred from bringing private action because his claim was subject
  to arbitration); EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291
  (7th Cir. 1993) ("EEOC has right to sue independent of any private
  plaintiff's rights"); EEOC v. Gladieux Refinery Inc., 631 F.Supp. 927
  (N.D.Ind. 1986) (EEOC's investigatory power under the ADEA is unaffected
  by untimely filed employee charges).  Other federal courts have reached
  this same conclusion. See EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529,
  1536-37 (2d Cir. 1996) (holding that EEOC was authorized to file suit to
  recover monetary and injunctive relief for individuals who had retired
  under a discriminatory retirement plan, but had not filed charges and
  did not consider themselves victims of discrimination); Tire Kingdom,
  80 F.3d at 451 (EEOC has power to investigate under ADEA even if
  underlying age discrimination charge is untimely since no language in
  the statute conditions its investigatory power on filing of a charge);
  EEOC v. American & Efird Mills, Inc., 964 F.2d 300, 303 (4th Cir. 1992)
  ("[n]othing in the language of [the ADEA], or in the incorporated
  language of the other statutes, hinges EEOC authority on the filing of
  a valid employee charge").
  Acknowledging this independent authority, this Court has only limited
  the EEOC's authority to seek monetary relief and reinstatement on behalf
  of individuals under the ADEA to instances where the individuals have
  previously litigated their discrimination claims and further relief
  was barred by principles of res judicata.  Harris Chernin, 10 F.3d
  at 1291. To date, this Court has not extended its decision in Harris
  Chernin  to encompass individuals who have settled, arbitrated or
  waived their claims.  Consequently, North Gibson's reliance on Harris
  Chernin to bar this action is misplaced because none of the claimants
  have filed private actions for monetary damages against North Gibson.
  EEOC Br. at 21-22.
  Finally, even if Harris Chernin were read to create a requirement that
  an EEOC claim for damages must be justified by independent proof of
  a "public interest" to be served by such relief, the district court
  erred in holding that there could be no such interest in this case.
  See NG Br. at 30-31.  As this Court observed in a Title VII case,
  through its enforcement, "EEOC acts both for the benefit of specific
  individuals and 'to vindicate the public interest in preventing
  employment discrimination.'" Harvey Walner, 91 F.3d 963, 968 (7th
  Cir. 1996) (quoting General Tel. Co. v. EEOC, 446 U.S. 318, 326
  (1980)).  Compensating victims for losses suffered as a result
  of the defendant's discrimination is one of the primary goals of
  enforcing anti-discrimination statutes.  McKennon v. Nashville Banner
  Pub. Co., 513 U.S. 352, 358 (1995) (deterrence is one object of these
  [anti-discrimination] statutes; compensation for injuries caused by the
  prohibited discrimination is another); International Bhd. of Teamsters
  v. United States, 431 U.S. 324, 364 (1977) (deterrence and compensatory
  purposes are "equally important"); Albermarle Paper Co. v. Moody,
  422 U.S. 405, 417-18 (1975)(noting that monetary damages encourages
  compliance and making discrimination victims whole).  Such make-whole
  relief restores the victim to the position he would have been in but for
  the discrimination.  McKennon, 513 U.S. at 362 (object of compensation
  is to restore the employee to the position he or she would have been
  in absent the discrimination).  Hence, contrary to North Gibson's
  assertions, the fact that the EEOC seeks compensation for seven
  victims who were subject to discrimination because of North Gibson's
  ERP does not make the Commission's enforcement efforts insignificant to
  the public interest.  Notably, the Supreme Court has stated that the
  remedial objectives of the ADEA are furthered when it is established
  that the employer has discriminated against even one employee.  Id. at
  358. ("[t]he private litigant who seeks redress for his or her injuries
  vindicates both the deterrence and the compensation objectives of the
  ADEA").  Having brought this ADEA action on behalf of seven individuals
  who suffered compensable injuries, the EEOC's enforcement of the ADEA
  and vindication of their rights would greatly serve the public interest.
  This litigation has disclosed "patterns of noncompliance resulting from
  a misappreciation of the Act's operation or entrenched resistance to its
  commands, either of which can be of industry-wide significance." Id. at
  358-59 ("incidents or practices that violate national policies respecting
  nondiscrimination in the work force is itself important").  In addition,
  compensation of these victims would further the remedial aim of the ADEA.
  In contrast, having determined that North Gibson has violated the law
  and affected the rights of many, barring recovery of monetary relief for
  them on the mistaken belief that such remedy does not serve the public
  interest would undermine "the ADEA's objective of forcing employers
  to consider and examine their motivations, and of penalizing them for
  employment decisions that spring from age discrimination."  Id. at 362.
  Alternatively, even if the EEOC's monetary claims had to be based on
  timely charges, the Commission has identified discrete instances of
  alleged discrimination within the relevant time period upon which it can
  base its complaint.  On summary judgment, the facts are to be viewed
  in the light most favorable to the nonmovant, in this case the EEOC.
  Anthis and Schleter filed their ADEA charges with the EEOC on December
  31, 1997.  To be timely, North Gibson's discriminatory plan must have
  been in operation at least 180 days prior to the filing of their charges,
  which means discrimination must have occurred on or around June 30, 1997.
  To show that their charges were timely, the EEOC submitted evidence
  that North Gibson's discriminatory plan may have been still in effect
  on or after July 1, 1997.  The EEOC offered evidence that the union
  negotiator believed that the terms of the plan would remain in effect
  until a new plan was approved.  EEOC Br. at 27.  Additionally, because it
  is settled law that a facially discriminatory policy discriminates each
  time it is applied, Lorance v. AT&T Technologies, Inc., 490 U.S. 900,
  912 n.5 (1989), and North Gibson concedes that David Specht was paid
  retirement benefits pursuant to its unlawful age-based retirement plan
  as late as October 1997,  NG Br. at 32; A12, a reasonable jury could
  conclude that discrimination was ongoing.  Further, as the Commission
  argued in its opening brief, a reasonable jury also find that the
  benefits paid to Noel Loftin after he retired on June 30, 1997 were
  effectively payments under the discriminatory plan.  EEOC Br. at 27-28.
  Thus, summary judgment on this basis was inappropriate.
  3.  Anthis and Schleter are Entitled to Injunctive Relief
  The Commission acknowledges that North Gibson no longer has a
  discriminatory ERP in effect, but maintains that injunctive relief
  is still warranted.  "[T]he express language of the ADEA, as well as
  this Court's precedent, establishes that a court may award injunctive
  relief to ensure that employees who choose not to retire because
  of the discriminatory terms of an early retirement plan receive the
  full amount of benefits available under the plan." EEOC Br. at 29.
  Since Anthis and Schleter chose not to retire under North Gibson's
  discriminatory ERP, despite their eligibility, the Commission is
  entitled to injunctive relief on their behalf consistent with the
  remedy upheld by this Court in Solon v. Gary Community School Corp.,
  180 F.3d 844 (7th Cir. 1999).  EEOC Br. at 30-31.  Several factors weigh
  in favor of imposing this injunction.  In addition to the fact that the
  elimination of the discriminatory policy did not afford the claimants
  full relief, there is a strong possibility that North Gibson and the
  union could engage in future discrimination.  Key officials, such as
  the union chief negotiator Cathy Heck and North Gibson's superintendent
  Sandy Nixon, were central to the development and implementation of the
  discriminatory plan, are still in control of the negotiation process for
  future retirement plans, and have aided North Gibson's efforts to avoid
  the remedial consequences of the discriminatory plan. EEOC v. Ilona of
  Hungary, Inc., 108 F.3d 1569, 1579 (7th Cir. 1997) (injunctive relief
  is particularly appropriate where the "individuals who were found to
  have discriminated remain the defendant's primary decision-makers").
  Accord See EEOC v. New York Times Broadcasting Serv., Inc., 542 F.2d
  356, 361 (6th Cir. 1976) ("we agree with the EEOC that the voluntary
  changes effectuated by the defendant, as salutary as they may be, do not
  render moot the questions presented in the litigation or make judicial
  sanctions inappropriate"); Sprogis v. United Air Lines, 444 F.2d 1194,
  1202 (7th Cir.), cert. denied, 404 U.S. 991 (1971) (injunctive relief
  is proper to erase problems that elimination of discriminatory policy
  did not accomplish).
  In rebuttal, North Gibson contends that EEOC is now pressing a "new"
  argument for injunctive relief--namely that the court should order
  North Gibson to pay to Anthis and Schleter the maximum benefits to
  which they would have been entitled under the discriminatory plan when
  they do retire--and that the EEOC waived that argument since it was
  not raised in the district court and EEOC did not cite or argue Solon
  to the district court.  NG Br. at 17-19.
 However, the Commission's request for an injunction to protect the
 retirement benefits to which Anthis and Schleter would have been entitled
 but for North Gibson's discriminatory ERP, is not new.  At all times
 during the course of this litigation, the EEOC has made clear that it
 sought  relief necessary to make whole those individuals whose early
 retirement benefits were or are being unlawfully withheld as a result
 of the discriminatory ERP.  Make-whole relief includes restraining the
 continued withholding of amounts owing, with prejudgment interest, and
 providing affirmative relief to all individuals adversely affected by the
 discriminatory plan necessary to eradicate the effects of its unlawful
 practices.  See, e.g., R.1 at 3; R.20 at 5.  Moreover, the Commission
 expressly stated in its opposition to North Gibson's first dismissal
 motion, that it was seeking relief pursuant to section 217 of the ADEA
 because it authorizes a district court to restrain an employer from "any
 withholding payment of minimum wages or overtime compensation." R.20 at 5
 (quoting 29 U.S.C.  217).  Thus, the Commission's current argument for
 injunctive relief for Anthis and Schleter is identical to the claims it
 pressed in the district court.
   Next, North Gibson asserts that the EEOC's "new" argument is without
   merit because Solon is factually distinguishable.  It argues that
   Solon is irrelevant to this case because the Gary school corporation
   in Solon had not abandoned its ERP, as North Gibson had, and thus
   the district court in that case was not faced with a situation where
   there was no current discriminatory plan in effect.  NG Br. at 19.
   In addition, it asserts that the Gary School Corporation did not
   challenge on appeal the injunction imposed by the district court,
   thus the Solon Court did not address the issue raised by the EEOC in
   this appeal.  Id.  Despite those differences, Solon remains instructive
   on the type of relief available to Anthis and Schleter as current North
   Gibson employees and thus, the distinguishable aspects of  Solon do not
   make it inapplicable to the instant case or undermine the Commission's
   argument that injunctive relief for Anthis and Schleter is not moot.
   Similar to Anthis and Schleter, the claimants in Solon included teachers
   who opted to continue to work even though they were eligible to retire
   and receive the maximum benefits.  This Court noted that while "teachers
   and administrators who choose not to retire suffer no loss in position,
   salary, or other benefits, . . . and almost certainly earn more in
   salary and benefits by continuing to work than they have forfeited
   by declining to retire at 58," Solon, 180 F.3d at 853, the point is
   "not that they were never eligible for the incentives, but that the
   terms of the plans put them to an unlawful choice" of either retiring
   sooner than they had planned or continuing to work and forfeiting some
   of the early retirement incentives.  Id.  Thus, Solon makes clear in
   this case that Anthis and Schleter could have suffered a cognizable and
   redressable injury as a result of North Gibson's ERP even though they
   did not retire while it was still in effect.  Further, to the extent
   that Gary School Corporation complained that the plaintiffs who had not
   retired under discriminatory plan had been given a "windfall" because
   they were awarded "the right to receive the benefits" offered by its
   discriminatory ERP, this Court stated that such relief "may simply
   be the price Gary Schools has to pay . . . for establishing an early
   retirement plan which turns on the employee's age."  Id. at 855-56.
   In other words, this Court resolved that the injunctive relief ordering
   the payment of damages was appropriate.  Applying those conclusions
   to this case, the Solon Court's analysis strongly suggests that
   the Commission's claim for injunctive relief on behalf of Anthis
   and Schleter is viable and thus cannot be moot.  Ilona of Hungary,
   108 F.3d at 1578-80 (once employment discrimination has been shown,
   district judges have broad discretion to issue injunctions addressed to
   the proven conduct and recreate the conditions and relationships that
   would have existed if the unlawful discrimination had not occurred).
   Accord EEOC v. Kidder Peabody, 156 F.3d 298, 303 (2d Cir. 1998)
   (under ADEA, "the EEOC remains armed with the power to seek injunctive
   relief which calls in many cases for continuing judicial oversight
   of employers").
  Finally, North Gibson also argues that injunctive relief for Anthis
  and Schleter is unavailable because the EEOC has not proven they
  chose not to retire while the discriminatory plan was in effect.
  NG Br. at 20.  Of course this argument relies on a fundamental
  misreading of the Commission's burden in response to a motion
  to dismiss.  See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969)
  ("[f]or purposes of a motion to dismiss, the material allegations
  of the complaint are taken as admitted[; a]nd, the complaint is to
  be liberally construed in favor of plaintiff"); Holman v. State of
  Indiana, 211 F.3d 399, 402 (7th Cir. 2000) (same).  Even though, as
  North Gibson contends, in 1995 neither Anthis nor Schleter informed
  North Gibson of its desire to retire<1> or filed a grievance with the
  union or the EEOC challenging the discriminatory plan, NG Br. at 20,
  accepting the factual allegations as true and making all reasonable
  inferences in favor of the EEOC, the Commission's injunctive relief
  claim on their behalf still should have survived dismissal.  Indeed,
  North Gibson concedes that its challenged plan was in effect during
  Anthis and Schleter's employment and has never contended they were not
  eligible to retire in 1995.  Id.  Further, both teachers alleged that
  they would have retired in 1995 but for the discriminatory plan and
  in fact continued to work despite being retirement-eligible.  Finally,
  both ultimately raised their concerns in a formal fashion because they
  eventually filed charges with the EEOC alleging that North Gibson's
  ERP discriminated on the basis of age.  Hence, viewing the facts in the
  light most favorable to the EEOC, Anthis and Schleter could have been
  victims of discrimination entitled to the same injunctive relief the
  district court awarded to the Solon claimants and the EEOC should have
  been given a chance to prove their entitlement, despite the fact that
  North Gibson discontinued its discriminatory plan.  See Harris Chernin,
  10 F.3d at 1292 (reversing summary judgment on injunction claim because
  EEOC is entitled to prove "Chernin discriminated against Rosenthal and
  whether, if it did, it acted willfully or under such circumstances that
  an injunction would be appropriate"); cf. New York Times, 542 F.2d at 362
  (upholding issuance of injunctive relief despite employer's voluntary
  elimination of discriminatory practices and fact that claimant on
  whose behalf case was brought "was not damaged by defendant's refusal
  to hire her even assuming that the decision was based upon sex").
  This conclusion is not defeated by North Gibson's argument that the
  EEOC has conceded in other cases that when the alleged discrimination
  discontinues, injunctive relief is not available or because, damages in
  the form of payment of those retirement benefits that were unlawfully
  withheld would be the appropriate relief.  Id. at 20-21.  Indeed, North
  Gibson's argument that the EEOC cannot distinguish its concession in EEOC
  v. ElginTeachers Ass'n, 658 F.Supp. 624 (N.D.Ill. 1987), from the facts
  of this case misses the mark.  In Elgin, the Commission acknowledged that
  the Association was no longer discriminating against pregnant teachers
  through the challenged provisions of the Association's collective
  bargaining agreement, and thus the court concluded that EEOC's claim
  for injunctive relief was moot.  Id. at 626. In this case, despite the
  discontinuance of North Gibson's ERP, the EEOC has never conceded that
  school corporation is not still discriminating against its former and
  current teachers because it still withholds full retirement benefits
  from those who did and could have retired under the discriminatory plan.
  Similarly, North Gibson's reliance on Kidder Peabody is misplaced. In
  Kidder, the EEOC sought monetary relief and reinstatement for investment
  bankers who had been terminated on the basis of age.  156 F.3d at 300.
  When Kidder discontinued its investment banking operations, the
  EEOC stipulated that it no longer sought injunctive relief since a
  nonexistent division cannot discriminate.  Id.  Here, even though the
  discriminatory retirement policy has been abandoned, the union and the
  school corporation that participated in its development and enforcement
  still exist.  Further, two of the individuals on whose behalf the
  Commission has brought suit remain employed by the school district.
  See Ilona of Hungary, 108 F.3d at 1579 (injunctive relief is justified
  where the individuals who discriminated remain the defendant's primary
  decision-makers and the victim remains in the defendant's employ).
  Therefore, these cases do not negate the Commission's position that
  Anthis and Schleter are entitled to an injunction that protects them
  from future discrimination in the form of reduced payments rather than
  the maximum benefits to which they would have been entitled under the
  challenged plan but for discrimination.
  4.  The Commission's Claims Are Not Barred by Laches
  Although the district court apparently rejected this argument, North
  Gibson urges this Court to hold that this action is barred by the
  doctrine of laches in that the monetary relief the EEOC sought would
  only benefit private individuals.  It argues that the EEOC's lawsuit was
  unreasonably delayed and prejudicial because the EEOC knew or should have
  known that North Gibson had a discriminatory ERP earlier than December
  1997, and it "did nothing to educate Indiana School Corporations or
  prevent them from adopting and/or using alleged discriminatory ERPs." NG
  Br. at 34.  In addition, it argues that the "EEOC's interests in this
  litigation are purely self-centered without regard for a just result,
  the public's interest or the promotion of the principles embodied in
  the ADEA."  Id. at 40.   Accordingly, it concludes, the doctrine of
  laches should apply.  Id. at 41.  This argument lacks merit.
  The defense of laches requires a showing of (1) unreasonable delay on
  the part of the plaintiff in filing suit and (2) harm or prejudice
  to the defendant's ability to present an adequate defense. Martin
  v. Consultants & Administrators, Inc., 966 F.2d 1078, 1091 (7th
  Cir. 1992).  Here, the elements of laches cannot be satisfied because
  there was no unreasonable delay in filing the EEOC's ADEA action
  against North Gibson.<2>  In December 1997, the EEOC received charges
  from Anthis and Schleter alleging that North Gibson had a retirement
  plan that discriminated on the basis of age.  See A45-46.  Following an
  investigation and conciliation efforts, the EEOC filed this ADEA action
  against North Gibson on September 3, 1998, less than a year after the
  filing of the charges.  Prior to the discrimination charges filed by
  Anthis and Schleter, the EEOC had no information or knowledge about the
  discriminatory early retirement provisions used by North Gibson. In
  dispute, North Gibson argues the EEOC delayed unreasonably in filing
  suit because the EEOC knew or should have known that North Gibson had
  a discriminatory ERP earlier than December 1997 since the agency was
  involved in litigation challenging the ERPs of other Indiana school
  corporations since May 1992 and since in June 1996, Ira Horall,
  a teacher employed by North Gibson, filed an ADEA charge alleging
  that he was being forced to retire and the school board allegedly was
  offering a "good deal" for those at retirement age.  NG Br. at 34-38.
  Contrary to North Gibson's assertions, neither the Commission's knowledge
  of discriminatory ERPs used by other Indiana school corporations nor
  Horall's EEOC charge provided such information.  Indeed, nothing in the
  Crown Point litigation implicated North Gibson's ERP, and the court's
  ruling that Crown Point's  ERP violated the ADEA did not issue until
  January 2, 1997, only eleven months prior to the EEOC's investigation
  of Anthis' and Schleter's charges.  Further, North Gibson's contention
  that the EEOC should have prevented other Indiana school corporations
  from adopting or using discriminatory ERPs because it knew that Crown
  Point's superintendent had shared its contract with his colleagues in
  Locke and Porter Township and that the plan was a "prototype" in the
  area lacks logic.  The sharing of the discriminatory plan with two
  school corporations does not necessarily lead to the conclusion that
  the plan was shared with or adopted by North Gibson and the existence
  of a discriminatory prototype is not in itself an ADEA violation.
  Moreover, even if "by the end of 1995, the EEOC had filed its Complaint
  in Crown Point" and had charges pending against Middlebury, Hanover,
  and Gary Community School Corporations, these distinct violations,
  even lumped together, do not provide notice that overall Indiana school
  corporations, and particularly North Gibson, had early retirement plans
  that discriminated on the basis of age. Cf. Martin, 966 F.2d at 1086
  (information that suggests "something is awry" does not constitute actual
  or constructive knowledge of a violation).   Indeed, the absence of any
  evidence that the adoption of this illegal language by Indiana school
  corporations was common practice is demonstrated by the fact that when
  Cathy Heck, a UniServ Director for the Indiana State Teachers Association
  ("ISTA") received a memorandum about the Crown Point decision, she
  reviewed the collective bargaining agreements of the ISTA affiliates
  she represented and only found two affiliates, one of which was North
  Gibson, with ERPs similar to the one in Crown Point.  NG Br. at 9-10.
  Finally, Horall's ADEA charge against North Gibson provided no basis upon
  which the EEOC could conclude North Gibson used a discriminatory ERP.
  In contrast to the charges filed by Anthis and Schleter, Horall's
  complaint that he had been "forced to retire" or that he had been told
  North Gibson offered a "good deal" for retirees did not suggest that the
  terms of the ERP itself were themselves discriminatory or age-based.
  Rather, his claim of age discrimination suggested that North Gibson
  "'manipulated the options so that [he] was driven to early retirement
  not by its attractions but by the terror of the alternative.'" Solon,
  180 F.3d at 851 (quoting Henn v. National Geographic Soc'y, 819 F.2d 824,
  829 (7th Cir.), cert. denied, 484 U.S. 964 (1987)).  Hence, Horall's
  allegations were not equivalent to the claims raised in this case,
  where the EEOC is not contending that anyone was pressured to retire
  early or suffered a detriment in their employment conditions, such
  as a loss in pay or position, because they chose to continue to work
  rather than retire.  Rather, the Commission's claim "is that the way in
  which eligibility for participation in the [ERPs] is defined by age is
  in itself discriminatory."  Solon, 180 F.3d at 851.   Therefore, there
  was no reason to request North Gibson's ERP during the investigation of
  Horall's 1996 charge and no reason to suspect that the ERP violated the
  ADEA until Anthis' and Schleter's charges were filed in December 1997.
  Cf. Henn, 819 F.2d at 828 (because an "offer of early retirement is
  beneficial to the recipient, there is no reason to treat every early
  retirement as presumptively an act of age discrimination").  Even if
  there was a reason to request the ERP when investigating Horall's charge,
  the filing of a suit a mere 18 months after that charge was filed does
  not constitute an unreasonable delay.
  Given these circumstances, the filing of the Commission's action against
  North Gibson in September 1998, nine months after the 1997 charges were
  filed and less than two years after the first court ruling on this issue,
  cannot be reasonably viewed as unreasonable.  Congress gave the EEOC the
  authority to litigate selectively those cases which it believes will have
  the most significant public impact, EEOC v. Waffle House, 193 F.3d 805,
  810 (4th Cir. 1999), and this Court discourages EEOC investigations that
  appear to be "fishing expeditions. Cf. Harvey Walner, 91 F.3d at 971-72
  ("discovery is not to be used as a fishing expedition"); EEOC v. Maryland
  Cup, 785 F.2d 471, 479 (4th Cir.1986) (Congress did not intend EEOC to
  use its investigatory subpoena powers to conduct fishing expeditions).
  Accordingly, the Commission's decision to investigate North Gibson after
  it received charges explicitly alleging that its ERP was discriminatory
  was prudent because, as this Court has acknowledged:
 workers rely on early retirement programs, just as they rely on the
 validity of seniority systems.  Early retirement is a valued contractual
 right, something many employees work for and look forward to.  A suit
 challenging an early retirement system could result - as this suit did
 - in an employer's decision to scuttle its early retirement plan rather
 than face more litigation and greater potential liability.  This would
 deprive long-term employees of a valuable benefit they had every right
 to expect to receive.

 EEOC v. City of Colleges of Chicago, 944 F.2d 339, 343 (7th Cir. 1991).
 Therefore, because any "delay" the EEOC incurred in filing its action is
 justified, the inconveniences North Gibson suffered in defending against
 this suit should not bar the EEOC's claims.<3>
  5.  Kimel is Inapplicable
   North Gibson argues that the EEOC's action is barred by  Kimel because
   the Supreme Court invalidated Congress's 1974 Amendment to the ADEA,
   and thus local government entities, such as school corporations in
   the state of Indiana, cannot be sued for ADEA violation.   See NG
   Br. at 41-42.  This argument is completely baseless.<4>   First,
   Kimel precluded private
 individuals, and in particular state employees, not federal agencies from
 suing states for ADEA violations.  Kimel, 120 S.Ct. at 650 (holding that
 "in the ADEA, Congress did not validly abrogate the States' sovereign
 immunity to suits by private individuals").  Thus, Kimel does not apply
 to ADEA suits by the EEOC.  See Alden v. Maine, 527 U.S. 706, 755 (1999)
 ("[i]n ratifying the Constitution, the States consented to suits brought
 by other states or by the Federal Government").
  If, however, the EEOC's claims for monetary relief were somehow deemed
  "private" in nature because only seven claimants would be compensated,
  and thus the Commission's action were treated as if it were a suit
  by private individuals (a result that would be erroneous for all
  the reasons discussed herein and in the Commission's opening brief),
  North Gibson would have to demonstrate that it is entitled to Eleventh
  Amendment immunity to avoid liability for damages arising from the ADEA
  violations.  This it cannot do.  See Alden, 527 U.S. at 756 (sovereign
  immunity bars suits against States but not against lesser entities,
  such as municipal corporations); Board of Trustees Hamilton v. Landry,
  638 N.E.2d 1261, 1263 (Ind.App.1994) (Indiana school corporation was
  not arm of state entitled to Eleventh Amendment immunity).  In like
  manner, North Gibson cannot draw any support from what it considers
  the "well reasoned opinion" in Bailey v. Canan, 82 F.Supp.2d 966, 978
  (S.D.Ind. 2000) based on its holding that, with respect to ADEA suits,
  "federal courts do not have jurisdiction over local government entities."
  NG Br. at 42.  Unlike the instant action, Bailey was a private ADEA suit
  against a city, and its holding that, based on Kimel, it "appear[ed]"
  to lack jurisdiction to decide a private individual's age discrimination
  claims, Bailey, 82 F.Supp.2d at 978, falls far short of "well reasoned."
  In fact, because the opinion lacks any substantive analysis, another
  district court in Indiana declined to follow its holding.  See Braaksma
  v. Wells Community Hosp., 98 F.Supp.2d 1026, 1030 (N.D.Ind. 2000)
  (declining to adopt holding in Bailey because that "court did not engage
  in any analysis before concluding that it did not have jurisdiction
  over an ADEA suit against the City of Muncie").  Moreover, contrary to
  the holding in Barnes v. Anne Arundel Cty. Bd. of Educ., 2000 WL 979108
  (D.Md. July 14, 2000), that a local county board education was immune
  from an ADEA suit, most courts, including this Court, have declined
  to extend Eleventh Amendment immunity to local school districts and
  boards. See, e.g., Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
  429 U.S. 274, 280 (1977) (holding that an Ohio city school board did not
  enjoy Eleventh Amendment immunity, because the board was "more like a
  county or city than ... like an arm of the State" and under state law,
  school districts were "political subdivisions," which were not included
  in the legal definition of "State"); Gary A. v. New Trier High School
  Dist., 796 F.2d 940, 945 (7th Cir.1986) (Illinois school district and
  board);  Horowitz, 2000 WL 1100858*3 (despite Kimel, school boards in
  Illinois do not enjoy Eleventh Amendment protection); also see Narin
  v. Lower Merion School Dist.,206 F.3d 323, 331, n.6 (3d Cir.2000)
  (Pennsylvania school district); EEOC v. Hickman Mills Consolidated
  School District No. 1, 99 F.Supp.2d 1070, 1080  (W.D. Mo. 2000) (Kimel
  is inapplicable because school districts are not entitled to Eleventh
  amendment immunity).  Therefore, considering North Gibson's assertion
  of Eleventh Amendment immunity largely relies on its misapprehension
  of the Supreme Court's decision in Kimel, the district court properly
  rejected North Gibson's claim of sovereign immunity and denied its
  motion to dismiss.

 CONCLUSION

  It is the function of the jury as the traditional factfinder in ADEA
  cases to weigh conflicting evidences and inferences.  Therefore, this
  Court should reverse the district court's erroneous decisions granting
  summary judgment on and dismissing the EEOC's ADEA claims and remand
  the case for further proceedings.
       Respectfully submitted,
 C. GREGORY STEWART
       General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       CAROLYN L. WHEELER
       Assistant General Counsel

       PAULA R. BRUNER
       Attorney

       EQUAL EMPLOYMENT OPPORTUNITY
       COMMISSION
       1801 L Street, N.W.  Rm. 7044
       Washington, D.C.  20507
       (202) 663-4731

 CERTIFICATE OF COMPLIANCE

  I certify that this brief complies with the type-volume limitation set
  forth in Fed. R. App. R. 3(a)(7)(B).  The brief contains 6,980 words.

        Paula R. Bruner
          CERTIFICATE OF SERVICE
  This is to certify that on December 27, 2000, two copies of the foregoing
  reply brief were mailed first class, postage prepaid, to the following
  counsel of record:
 Mary Lee Schiff, Esq.
    Wm. Michael Schiff, Esq.
          ZEIMER, STAYMAN, WEITZEL & SHOULDERS
 P.O. Box 916
    Evansville, Indiana 47706

       PAULA R. BRUNER
       Attorney
       EQUAL EMPLOYMENT OPPORTUNITY  COMMISSION
       1801 L Street, N.W., 7th Floor
       Washington, D.C. 20507
       (202) 663-4731

 December 27, 2000

 1  North Gibson's contention that the failure of Anthis
 and Schleter to notify North Gibson of their desire to retire under the
 1995 plan suggests they had no such intention is lacking.  According to
 Sandra Nixon, superintendent of North Gibson, such notification was
 required if an employee were electing to retire, not if an employee were
 foregoing the opportunity because he was deterred by the discriminatory
 terms of the plan. R.15, Nixon Aff. at 3.

 2  To demonstrate prejudice, North Gibson mentions that because of the
 EEOC's delay in bringing this action its liability for damages increased,
 "witnesses' memories have faded, witnesses have either passed away or
 moved out of town, and documents have either been destroyed or lost."
 NG. Br. at 39.

 3 North Gibson's reliance on Chakonas v. City of Chicago, 42 F.3d 1132,
 1136 (7th Cir. 1994), for the proposition that the law does not permit
 a plaintiff who is aware of his injury to wait until a court ruling is
 handed down, is ill-placed.  Chakonas refers to private individuals who
 are victims of discrimination and fail to pursue their rights within
 the statute of limitations period for filing a charge.  Despite North
 Gibson's contentions to the contrary, "the EEOC and charging parties are
 not interchangeable plaintiffs." Waffle House, 193 F.3d at 810-11. Unlike
 a private individual, the EEOC is not bound by any charge-filing period,
 and it has the power to investigate claims and bring actions independent
 of the statutory authority of individual employees to bring claims.
 American & Efird Mills, Inc., 964 F.2d at 301.  Thus, Chakonas has no
 application to this case.

 4 North Gibson's argument that the Supreme Court invalidated the
 entire 1974 Amendment is also erroneous.  NG Br. at 41.  As the
 district court in Horowitz v. Board of Educ. of Avoca, 2000 WL 1100858,
 *2-*3.(N.D. Ill. June 7, 2000), so aptly stated in rejecting a similar
 argument:

 In the instant case, Defendants would have us understand that the
 Kimel Court nullified the entire 1974 Amendment, . . . [and] urge us
 to interpret the Supreme Court's analysis of the limits placed by the
 Enforcement Clause on Congress's power to abrogate state immunity,
 as a general limitation on Congress's ability to apply the ADEA to
 government employers. Such a contention stretches the bounds of creative
 argumentation. While Kimel has announced that the Act is not a valid
 exercise of Congress's Enforcement Power, it does not follow that the Act
 is not valid at all, or that, as Defendants here inexplicably argue, the
 ADEA is invalid as it applies to local governments and school boards. *
 * * Individuals cannot sue a state perceived to be in violation of
 the ADEA. However, the other corners of this law remains as written,
 and employers who cannot claim Eleventh Amendment immunity can be held
 accountable to the substantive provisions of the Act by private cause
 of action.