EEOC v. City of Independence, Missouri (8th Cir.)
Reply brief
May 25, 2006

      ____________________________________________________

             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE EIGHTH CIRCUIT
      ____________________________________________________                                

                     Nos. 05-4489, 05-4490
      ____________________________________________________                                

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
     PlaintiffAppellant,

     and

RICHARD HOPKINS,
     PlaintiffIntervenorAppellant,

v.

CITY OF INDEPENDENCE, MISSOURI,
     DefendantAppellee.

      ____________________________________________________

        On Appeal from the United States District Court
              for the Western District of Missouri
      ____________________________________________________

              REPLY BRIEF OF THE EQUAL EMPLOYMENT
              OPPORTUNITY COMMISSION AS APPELLANT
      ____________________________________________________

JAMES L. LEE
Deputy General Counsel

LORRAINE C. DAVIS
Acting Associate General Counsel

VINCENT J. BLACKWOOD
Assistant General Counsel

ELIZABETH E. THERAN
Attorney

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C.  20507
(202) 663-4720

TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 20
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 21

                      TABLE OF AUTHORITIES
                             CASES

Betts v. Hamilton County Board of Mental Retardation & Developmental
 Disabilities, 897 F.2d 1380 (6th Cir. 1990). . . . . . . . . . 11

Broaddus v. Florida Power Corp., 145 F.3d 1283 (11th Cir. 1998)6 n.1

City of Los Angeles Department of Water & Power v. Manhart, 
 . . . . . . . . . . . . . . . . . . . . . . 435 U.S. 702 (1978)8

Corning Glass Works v. Brennan, 417 U.S. 188 (1974). . . . . .8-9

Curtis v. Electronics & Space Corp., 113 F.3d 1498 (8th Cir. 1997)13

DiBiase v. SmithKline Beecham Corp., 48 F.3d 719 (3d Cir. 1995)7-8

EEOC v. McDonnell Douglas Co., 191 F.3d 948 (8th Cir. 1999). 5, 6

Erie County Retirees Association v. County of Erie, 
 . . . . . . . . . . . . . . . . .220 F.3d 193 (3d Cir. 2000)4, 5

Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1098 (8th Cir. 1982)13

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). . . . . . passim
Jones v. Department of Transportation, 
 . . . . . . . . . . . .295 F.3d 1298 (Fed. Cir. 2002)17-18 & n.5

Lorillard v. Pons, 434 U.S. 575 (1978) . . . . . . . . . .7-8 n.2

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)3

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)7-8 n.2

UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) . . . . . 7, 8

                                
                            STATUTES
5 U.S.C.  6331-34 (2000) . . . . . . . . . . . . . . . . . . 18

Age Discrimination in Employment Act of 1967, 29 U.S.C.  621 et seq..passim
                             RULES
Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . 20
Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . 20
Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . 20

                          INTRODUCTION
     The Commission alleges in this action that the City of Independence violated
the Age Discrimination in Employment Act ("ADEA") when it excluded Richard
Hopkins and all other employees who are sixty or more years old with five years of
service from receiving donations of sick leave pursuant to its Leave Donation
Program ("LDP").   The Commission also alleges that the City violated the ADEA by
constructively discharging Hopkins when it placed him in a position where he had no
reasonable choice but to retire earlier than he had planned in order to avoid forfeiting
all his benefits.  The district court granted summary judgment for the City on both
claims, holding that the City excludes older employees from receipt of leave
donations based on retirement eligibility, a factor which, although correlated with
age, is not age.  The district court also found that the Commission failed to establish
a claim of constructive discharge on the grounds that the City's treatment of Hopkins
did not amount to "intentionally creat[ing] a work environment so intolerable as to
compel a reasonable employee to quit."
     In our opening brief, we argued that the City's exclusion of retirement-eligible
employees from receiving leave donations is based on age because an employee's age
is a determinative factor in his exclusion.  As to constructive discharge, we argued
that a reasonable jury could find that Hopkins could have remained employed by the
City if he had been permitted to take advantage of the LDP or if he had been allowed
to utilize a full year's extended medical leave, as authorized by the City's policy. 
Accordingly, we argued, the jury could find that the City's age-based decision to
exclude Hopkins from the program effectively foreclosed all options for Hopkins
except retirement and resignation, and therefore constituted a constructive discharge.
      In its brief as Appellee, the City offers no response to our argument that an
adverse action based on an expressly age-based criterion constitutes age
discrimination, but instead simply reiterates the flawed rationale of the district court,
which we already addressed in our opening brief.  The City also argues that it should
not be held liable because it adopted its discriminatory leave donation program in
order to save money.  As to the constructive discharge issue, the City maintains that,
because it is free to terminate or force the resignation of any employee who has run
out of FMLA leave regardless of whether that employee has received donated leave
or is eligible for long-term disability benefits, Hopkins would have lost his job even
if he had not been excluded from the LDP. 
     We submit this reply brief to refocus the appeal on the legal issues raised and
to respond to the City's attempts to sidestep the fact that its exclusion of employees
who are retirement-eligible from receiving leave donations under the LDP is
manifestly based, at least in part, on their age.  We will also respond to the City's
contention that Hopkins was not constructively discharged because, even if he had
been eligible to receive donated leave, it would have found some other way to prevent
him from returning to work.
                            ARGUMENT
     1.    As we noted in our opening brief, the Supreme Court has held that an
employment decision is taken "because of . . . age" when the employee's age
"actually played a role in [the employer's decisionmaking] process and had a
determinative influence on the outcome."  Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 141 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993) (alterations in original)).   We explained in our opening brief that there
can be no question that Hopkins' age "played a role in," and "had a determinative
influence on," the City's decision to deny him access to donated leave.  As we
pointed out, the influence of age as a factor is graphically illustrated by the fact that
Hopkins became ineligible to receive donations of leave on his sixtieth birthday when
he became "too old," as his supervisor put it.  EEOC Opening Br. at 16-17.
     The City does not respond to this argument, or otherwise argue that Hopkins'
age did not play a determinative role in the decision to exclude him from receiving
leave donations under the LDP.  Instead, the City continues to insist, as it did below,
that the Commission's age discrimination claim is barred by Hazen Paper, where the
Supreme Court held that an employment decision based on pension vesting was not
based on age because the date of an employee's pension vesting was based on years
of service, which, the Court observed, merely "correlates" with age.  Appellee Br. at
21-22.   However, as we pointed out in our opening brief, Hazen Paper held that an
employer does not discriminate on the basis of age within the meaning of the ADEA
"when the employer's decision is wholly motivated by factors other than age."  EEOC
Opening Br. at 17 (quoting Hazen Paper, 507 U.S. at 611 (emphasis added)).  We
noted that the City's exclusion of employees eligible for normal retirement, all of
whom are by definition sixty or older, from receiving donations of leave under the
LDP is not "wholly motivated by factors other than age."  Id. at 17-18.  The City does
not argue on appeal that the exclusion of Hopkins and other retirement-eligible
employees was wholly motivated by factors other than age.
     Instead, the City argues that, under Hazen Paper, when, as in this case, years
of service is "a determining factor" in an employment decision, that decision is ipso
facto not based on age.  Appellee Br. at 23 (citing Erie County Retirees Ass'n v.
County of Erie, 220 F.3d 193 (3d Cir. 2000)).  This argument makes no sense.  As we
pointed out in our opening brief, courts have consistently held, both before and after
Hazen Paper, that a decision is based on age when it is based in part on age and in
part on a factor, such as years of service, that is merely correlated with age.  See
EEOC Opening Br. at 18-19 (citing cases).  In fact, the Third Circuit in Erie County
articulated exactly the same reading of Hazen Paper as the Commission's here,
finding that, because Medicare status is directly based on the employee's age, it is a
"direct proxy for age."  220 F.3d at 211.  The court offered "years of service,"
standing alone, as an example of a factor that may merely correlate with age within
the meaning of Hazen Paper, but it did not remotely suggest that any age-based
employment decision can be saved from constituting age discrimination simply by
tacking "years of service" on to an explicitly age-based criterion.  Id.
     In its brief, the City also proffers that the EEOC's position is "fundamentally
flawed because the City has employees over the age of sixty (60) who are eligible for
donated leave."  Appellee Br. at 25.  As we already explained in our opening brief,
this argument rests on faulty logic, and in no way undermines the fact that the City's
application of the LDP to individuals sixty or over is discriminatory.  See EEOC
Opening Br. at 20-21.  The City also reiterates the points made by the district court
with respect to the precedent cited by the EEOC and this Court's interpretation of
Hazen Paper.  See Appellee Br. at 22-25.  These arguments were already addressed
in our opening brief, and we will not repeat them here.  See EEOC Opening Br. at 18-
20; see also AARP Amicus Br. at 7, 9-11.  
     We briefly respond, however, to the City's mischaracterization of this Court's
decision in EEOC v. McDonnell Douglas Co., 191 F.3d 948 (8th Cir. 1999). 
Contrary to the assertion in the City's brief (Appellee Br. at 22), the McDonnell
Douglas decision does not sanction discrimination based on retirement eligibility in
all circumstances, nor does it hold that it never violates the ADEA.  As we noted in
our opening brief, this Court observed in McDonnell Douglas that, following Hazen
Paper, "employment decisions motivated by factors other than age (such as salary,
seniority, or retirement eligibility), even when such factors correlate with age, do not
constitute age discrimination."  191 F.3d at 952 (emphasis added).  The defendant
makes the same mistake with respect to its understanding of McDonnell Douglas that
it made with respect to Hazen Paper, discussed above: It fails to account for the
distinction drawn in Hazen Paper (and McDonnell Douglas) between employment
decisions based on factors that simply "correlate" with age, but are in fact "wholly
motivated by factors other than age," and employment decisions that are at least
partially age-based, like the one at issue here.  Nothing in McDonnell Douglas
suggests that a decision to deny employees access to a benefit based on retirement
eligibility does not violate the ADEA where, as here, retirement eligibility is
explicitly based on age.<1>
 
     2.  The City also argues that its exclusion of employees who are eligible for
normal retirement from receiving leave under the LDP is not unlawful because the
City had "justifiable reasons" for adopting the policy.  Appellee Br. at 25-28. 
However, even if the City's proffered justifications are true, they do not authorize
the City to achieve what may be otherwise legitimate ends by engaging in age
discrimination in violation of the ADEA.  Moreover, the City's own account of
how its denial of leave donations to employees over sixty serves its purported
cost-saving purpose makes little sense.
     As the Supreme Court has observed, when an employer maintains an
explicitly discriminatory policy that implicates a protected class, the reasons
behind that policy cannot serve to justify the discrimination.  UAW v. Johnson
Controls, Inc., 499 U.S. 187, 199 (1991) (under Title VII, "[w]hether 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");<2> see also DiBiase v. SmithKline
Beecham Corp., 48 F.3d 719, 726 (3d Cir. 1995) (in ADEA case, observing that
the reasons behind employer's "facial" discrimination are immaterial "because, in
a facial disparate treatment case, the protected trait by definition plays a role in the
decision-making process, inasmuch as the policy explicitly classifies people on
that basis.  Thus, when the policy itself displays the unlawful categorization, the
employee is relieved from independently proving intent.").  The Court has also
stated repeatedly that an employer's interest in saving money or minimizing costs
does not justify discrimination based on a protected characteristic.  E.g., Johnson
Controls, 499 U.S. at 210 ("The extra cost of employing members of one sex []
does not provide an affirmative Title VII defense for a discriminatory refusal to
hire members of that gender."); City of Los Angeles Dep't of Water & Power v.
Manhart, 435 U.S. 702, 716-17 (1978) (holding that practice of requiring female
employees to make larger contributions to pension plan, based on presumed
greater longevity of women, "on its face, discriminated against every individual
woman employed by the Department"; observing that "neither Congress nor the
courts have recognized [a cost justification defense] under Title VII"); Corning
Glass Works v. Brennan, 417 U.S. 188, 205 (1974) (under the Equal Pay Act,
holding that employer's payment of lower wages to women based on women's
willingness to work for less "may be understandable as a matter of economics, but
its differential nevertheless became illegal once Congress enacted into law the
principle of equal pay for equal work"). 
     In any case, even if the City's reasons for adopting its discriminatory policy
with respect to leave donations were relevant to the liability issue, the reasons
articulated by the City in its brief make little sense without reference to age-based
stereotypes about older employees' willingness and/or ability to return to work
after a catastrophic illness or injury.  As the City admits in its brief, its
fundamental concern about costs and abuse with respect to the LDP relates to an
employee's taking the full six months' worth of donated leave, "all the while
adding to his or her retirement pool," and then retiring and not returning to work at
all.  Appellee Br. at 27.  However, the very nature of the LDP's target audience 
i.e., employees who "have exhausted all paid leave and are experiencing a
catastrophic, debilitating, or long-term illness or injury requiring an extended
absence from work," I J.A. 100 (City Personnel Policies and Procedures Manual
("PPPM"), Art. VI, sec. D, at 41)  involves a population at risk of never being
able to return to work, regardless of the employee's age.<3> Nonetheless, under the
LDP, City employees under sixty are free to continue "adding to [their] retirement
pools" while out on donated leave, even if they ultimately never return to work,
but employees sixty or over are not.
     In excluding the vast majority of its employees sixty or older from receiving
leave donations, the City apparently assumes that it is these older employees who
either will be too feeble to return to work after being out on medical leave or will
be particularly prone to "abuse" the leave and retirement system.  Indeed, this is
exactly the accusation the City levels at Hopkins in its brief, calling him a "prime
example [of] why regular retirement eligible employees should not be eligible for
donated leave" because, even had he been allowed to receive donated leave, he
would have been "forced" to retire or quit in May 2003.  Appellee Br. at 27.  This
characterization is particularly egregious in light of the undisputed record
evidence that Hopkins was willing to remain on unpaid leave until he was
medically cleared to return to work, and that it was the City that forced him to
retire, rather than choosing to extend that unpaid leave, in April 2003.  See, e.g., I
J.A. 212 (Craig aff.  13-15); II J.A. 306 (Blick fax of 3/14/03), 354 (Warlen
letter of 3/27/03), 397 (Hopkins letter of 4/4/03), 480 (Hopkins aff. of 7/19/05).  
     In fact, the choice that the City gave Hopkins graphically reflects a very
significant way in which older employees are disadvantaged by the City's choice
to bar them from receiving leave donations: In the face of catastrophic illness or
injury, and needing time for recovery, they are required to relinquish any hope of
returning to work in order to obtain any benefit whatsoever.  Employees like
Hopkins, who genuinely want to return to work, are instead coerced into
conforming to the City's stereotype of older employees who just want to retire,
while younger employees remain free to return to work if they are able to do so. 
This constitutes age discrimination.  See, e.g., Betts v. Hamilton County Bd. of
Mental Retardation & Developmental Disabilities, 897 F.2d 1380, 1383 (6th Cir.
1990) (on remand from Supreme Court, holding that local government violated the
ADEA by requiring employees sixty or over who were medically unable to work
to choose between unpaid medical leave and length-of-service retirement, whereas
employees under sixty could also opt for disability retirement, under which they
would remain county employees and would be entitled to return to work if
medically able).
     3.  We argued in our opening brief that there is sufficient evidence to
support a finding that Hopkins was constructively discharged because, as a
consequence of the City's decision to bar him from accepting leave donations, he
had no reasonable choice but to retire.  We argued that, based on the evidence in
the record, a reasonable juror could find that, if Hopkins had been allowed to
participate in the LDP, he would have received sufficient donated leave to carry
him over until his application for long-term disability was granted.  EEOC Br. at
23-25.
     The City does not dispute our contention that, if they had not disqualified
him from participating in the LDP, Hopkins could have obtained enough donated
leave to carry him until he was granted long-term disability.  Instead, they now
argue that, even if Hopkins had received sufficient donated leave, they could have
prevented him from using it by denying his request for a leave of absence;
similarly, they assert that, even if Hopkins had been granted long-term disability
before he had retired, they could still have denied him unpaid leave, forcing him to
retire.  Appellee Br. at 29-31, 35-36.  According to the City, the EEOC's
constructive discharge claim fails because Hopkins was not "guaranteed" that he
would be able to keep his job even if he had not been excluded from the LDP.  The
City goes on to state categorically, but without any citation to evidence in the
record, that it would have denied Hopkins a leave of absence even if he had
obtained sufficient donated leave or long-term disability benefits to cover his
absence.  The City's argument is both legally and factually erroneous.
     First, it is not necessary for the EEOC to establish that it is certain that
Hopkins would have been able to keep his job but for the City's discriminatory
policy; it is enough to show that a jury reasonably could have found that he would
have remained employed.  See, e.g., Gibson v. Mohawk Rubber Co., 695 F.2d
1093, 1098 (8th Cir. 1982) (holding that ADEA plaintiff could recover back pay
for period after the defendant closed the facility at which he worked because,
based on the evidence presented, "the jury reasonably could have found that
Mohawk would have retained Gibson after it closed its West Helena facility"); cf.
Curtis v. Electronics & Space Corp., 113 F.3d 1498, 1505-06 (8th Cir. 1997) (in
context of determining front pay, noting that the elimination of the plaintiff's
former position does not render front pay unavailable because "the question is
whether [the plaintiff] would have remained at ESC absent the discrimination"; in
light of evidence presented to jury, "[t]he burden was on ESC to overcome the
presumption that [the plaintiff] would have remained with the company but for the
discrimination").  Accordingly, we have not argued that Hopkins' receipt of leave
donations under the LDP would have guaranteed that he could have kept his job. 
We have argued, however, that it is reasonably likely, given the evidence in the
record, that Hopkins would not have been forced to retire if he had been permitted
to receive donated sick leave via the LDP.  Notwithstanding the City's
unsupported assertion that Hopkins would have been denied leave in any event,
the record contains sufficient evidence to support a finding that Hopkins would
have been permitted to use his donated leave to keep his job.
     Because the City's argument to the contrary is not tethered to any evidence
with regard to its actual practices, it is free to offer at least two different rationales
for preventing Hopkins from using donated leave if he had obtained it.  Both
rationales suffer from the same flaws: they are inherently implausible and they are
inconsistent with the evidence in the record.  First, insofar as the City is
suggesting that employees who receive donated leave are nonetheless routinely
denied authorization to use the leave and avoid involuntary separation from
employment, that would be highly implausible on its face.  Even if an employee
has no entitlement to continued employment with the City while he uses donated
leave, the LDP would be a cruel joke if the City regularly prevents eligible
employees from using the leave their co-workers have donated to them by denying
them a leave of absence.  Indeed, there is no evidence in the record that the City
has ever forced an employee to retire or quit by refusing to authorize extended
medical leave while the employee had donated leave available.
     Moreover, all of the City employees who testified on the subject indicated
that medical leaves of absence were routinely granted, and expressed puzzlement
as to why Hopkins' leave was denied.  See EEOC Opening Br. at 24-25.  Debra
Craig, the City's HR Director, testified in her deposition that the City Manager
"can approve a request of extended [leave] time for up to one year."  II J.A. 475
(Craig dep. at 82-83).  According to Craig, a grant of one year's extended leave
from the date Hopkins' FMLA leave expired would have allowed him to come
back to work anytime before January 27, 2004.  Id. (Craig dep. at 83).  Craig
testified that she did not understand why the possibility of an extended leave was
not discussed with Hopkins.  II J.A. 475 (Craig dep. at 84-85).  Both Craig and
Lenear Brownlee, the HR specialist who worked with Hopkins on his leave issue,
also testified that they did not know of any other employees who had requested
additional leave through the City Manager and had had that request denied.  II J.A.
477 (Craig dep. at 105); 366 (Brownlee dep. at 41).  Even Larry Blick, the City
Manager at the time, testified in his deposition that he did not know whether he
would have granted Hopkins' request for additional leave if he had been presented
with it, which he had not.  I J.A. 201 (Blick dep. at 95-96).  All of this testimony
strongly suggests that the City does not routinely deny requests for medical leaves
that would permit employees to return to work after recovering from illness or
injury.
     The evidence also belies the City's position as to the treatment of its
employees out on long-term disability.  Yasmine Chapman, who had served as the
City's HR Director from 1991 through 1999, testified in her deposition that she
was not aware of any situation where the City had terminated an employee who
was out on long-term disability.  II J.A. 465 (Chapman dep. at 61).  Chapman also
testified that, while permanent separation options such as disability retirement may
be appropriate "if a person . . . never intends to return to work," "there's an option
that a . . . person on long-term disability could return to work if they're able to
perform the essential functions and the position is still available."  Id. 
     The City's assertion in its brief that Hopkins would not have been permitted
to use donated leave because of the particular facts of his case fares no better. 
Although the City, in its brief, claims that it based its various decisions with
respect to Hopkins' continued employment on his medical condition as of April
2003, the evidence in the record with respect to that condition does not support the
conclusions the City seeks to draw.  At the time the City made its decision not to
extend Hopkins' medical leave, his medical prognosis indicated that he would be
able to return to work within a matter of months.  The uncontroverted evidence in
the record reflects that Hopkins would have been able to return to work as of
October 2003, based on Hopkins' last incidence of VT in April 2003.<4>  I J.A. 276
(Berenbom letter at 2).  The City complains that, because Hopkins' return date had
been pushed back before, it could not be certain that he would be able to return in
October.  Appellee Br. at 33. However, there is nothing to suggest that this
uncertainty set Hopkins apart from other employees eligible for the LDP  i.e.,
employees unable to work because of "a catastrophic, debilitating, or long-term
illness or injury."  On the contrary, the medical evidence suggests that there was a
concrete reason to believe that the prediction that Hopkins would be able to return
in October was more reliable than the earlier prognosis: The addition of beta-
blockers to Hopkins' treatment regimen was expected to decrease the likelihood
that he would have further incidences of VT, as in fact it did.  I J.A. 275
(Berenbom letter at 1).
     In support of its argument that it would have declined to extend Hopkins'
leave of absence, even if he received donated leave or long-term disability
benefits, the City cites Jones v. Department of Transportation, 295 F.3d 1298
(Fed. Cir. 2002).  However, Jones does not support the City's position.  In that
case, the court held that the Department of Transportation acted appropriately in
terminating an employee who still had donated leave where he had been out for
over five years after suffering a brain aneurysm that "left [him] permanently
unable to perform the physical duties of a Criminal Investigator," noting that the
medical evidence reflected that there was "no foreseeable end" to his absence.  Id.
at 1301, 1309.  This unremarkable holding that it is not inappropriate to prevent an
employee from using donated leave where there is no prospect that he will ever
return to work hardly supports the City's assertion that it would have prevented
Hopkins from using donated leave where it was expected that he would soon be
able to resume his employment.<5>

       Because Hopkins was not totally or permanently disabled by his condition,
the record presents no basis for the City's assertion that it would have forced Hopkins
to retire or quit if he had donated leave available.  Likewise, based on Chapman's
testimony, a reasonable jury could conclude that the City would not have terminated
Hopkins' employment while he was out on long-term disability, in light of the fact
that it had never treated any other employee in this manner.  It is possible, in light of
the City's continued adherence to the view that older employees who experience
catastrophic illness or injury are either less capable of returning to work or more
prone to "gaming" the system than younger employees, that the City would have
denied Hopkins leave because he was eligible for retirement.  However, for all the
reasons discussed above and in our opening brief, that would constitute unlawful age
discrimination and would not provide a defense to the plaintiffs' claim of constructive
discharge.

                           CONCLUSION

     For the foregoing reasons and the reasons stated in the EEOC's opening brief,
the judgment of the district court should be reversed and the case remanded for
further proceedings.

                               
                              
                              Respectfully submitted,
                              
                              JAMES L. LEE
                              Deputy General Counsel
                              
                              LORRAINE C. DAVIS
                              Acting Associate General Counsel
                              
                              VINCENT J. BLACKWOOD
                              Assistant General Counsel
                              
                              
                              ______________________________
                              ELIZABETH E. THERAN
                              Attorney
                              U.S. EQUAL EMPLOYMENT
                              OPPORTUNITY COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W.
                              Washington, D.C. 20507
                              (202) 663-4720

                   CERTIFICATE OF COMPLIANCE
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                              Elizabeth E. Theran
                              Attorney
                              U.S. EQUAL EMPLOYMENT 
                              OPPORTUNITY COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W.
                              Washington, D.C. 20507

Dated:  May 25, 2006

                     CERTIFICATE OF SERVICE
     I, Elizabeth E. Theran, hereby certify that I filed one original and nine copies
of the foregoing brief and one copy of the digital version of the brief on diskette with
this Court this 25th day of May, 2006, by first-class mail, postage pre-paid.  I also
certify that I served two copies of the foregoing brief and one copy of the digital
version of the brief on diskette this 25th day of May, 2006, by first-class mail,
postage pre-paid, to the following counsel of record:

Counsel for PlaintiffIntervenor/       Counsel for Defendant/Appellee:
Appellant:                              Matthew Justin Gist, Esq.
Kevin A. Graham, Esq.                   Ensz & Jester, P.C.
Flook & Graham, P.C.                    2121 City Center Square
11 East Kansas St.                      1100 Main St.
Liberty, MO  64068                 Kansas City, MO  64105
(816) 792-0500                     (816) 474-8010

Counsel for Amicus Curiae AARP:
Jay E. Sushelsky, Esq.
AARP Foundation Litigation
601 E St., N.W.
Washington, DC 20049
(202) 434-2060

                                Elizabeth E. Theran
                                Attorney
                                U.S. EQUAL EMPLOYMENT 
                                OPPORTUNITY COMMISSION
                                Office of General Counsel
                                1801 L Street, N.W.
                                Washington, D.C. 20507

****************************************************************************
<<FOOTNOTES>>

<1> Much the same is true of Broaddus v. Florida Power Corp., 145 F.3d 1283 
(11th Cir. 1998), cited by the City in its brief.  See Appellee Br. at 22.  
At the end of a paragraph discussing Hazen Paper, the court observed, [t]he 
ADEA does not prohibit an employer from making an employment decision on the 
basis of higher salaries, increased benefits, pension status, or claims for 
medical expenses even though these characteristics are often correlated with 
an employees age.  Id. at 1287.  Insofar as the court went on to note that 
the ADEA is not concerned with employment decisions based on an employees 
increased use of or eligibility for benefits, id., this point simply has no 
bearing on this case.

<2> As the Supreme Court has observed, interpretations of substantive 
provisions of Title VII appl[y] with equal force in the context of age 
discrimination, for the substantive provisions of the ADEA were derived 
in haec verba from Title VII. Trans World Airlines, Inc. v. Thurston, 469 
U.S. 111, 121 (1985) (quoting Lorillard v. Pons, 434 U.S. 575, 584 (1978)).

<3> The medical criteria for receipt of leave donations are also the fatal 
flaw in the Citys argument that, if it were to allow 
regular-retirement-eligible employees to participate, [e]very regular
retirement eligible employee would have ability retire [sic] six months 
early.  Appellee Br. at 17.  Only employees eligible for regular retirement 
who have a qualifying medical condition would have an opportunity to use the 
LDP to retire six months early.

<4> The City does not concede that Hopkins could have returned to work on 
this date, Appellee Br. at 30 n.7, but it points to absolutely no evidence 
suggesting otherwise, and so, for summary judgment purposes, this inference 
must be drawn in favor of Hopkins.

<5> We also note that the plaintiff in Jones was a federal employee and the 
decision involved interpretation of the federal governments Voluntary Leave 
Transfer Program, 5 U.S.C.  6331-34 (2000), not the Citys LDP.  Because the 
terms of the federal leave transfer program have no bearing on the terms of the 
Citys program at issue here, the Citys reliance on the case for the 
proposition that donated leave does not guarantee continued employment would be 
questionable even if the facts of this case were similar to those in Jones.