In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3117

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

v.

NORTH GIBSON SCHOOL CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Evansville Division.

No. 98 C 168--Larry J. McKinney, Chief Judge.

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

 Before POSNER, COFFEY and RIPPLE, Circuit

Judges.

 RIPPLE, Circuit Judge. In December 1997,

the Equal Employment Opportunity

Commission ("EEOC") received charges of

age discrimination from two employees of

the North Gibson School Corporation

("NGSC"). The charges alleged that NGSC’s

early retirement plan ("ERP")

discriminated on the basis of age in

violation of the Age Discrimination in

Employment Act, as amended, 29 U.S.C.

sec. 621 et seq. ("ADEA"). The EEOC filed

this action against NGSC in September

1998; it sought monetary and injunctive

relief against NGSC on behalf of a group

of seven former and current employees.

The district court dismissed the claims

for injunctive relief as moot and later

granted summary judgment to NGSC with

respect to the claims for monetary

relief. For the reasons set forth in the

following opinion, we affirm the judgment

of the district court. 

I

BACKGROUND

A. Facts 

 In February or March 1997, Cathy Heck,

UniServ director for the Indiana State

Teachers Association and chief negotiator

for the North Gibson Education
Association, telephoned Sandra Nixon, the

superintendent of NGSC. Heck had learned

that a district court had held that the

Crown Point Community School

Corporation’s early retirement plan

discriminated against teachers and

administrators on the basis of age. See

EEOC v. Crown Point Comm. Sch. Corp., No.

2:93 CV 237, 1997 WL 54747 (N.D. Ind.

Jan. 2, 1997). In her conversation with

Nixon, Heck expressed concern that there

also might be a problem with NGSC’s ERP

contained in the master contract

("Contract") that had been negotiated by

NGSC and the North Gibson Education

Association ("the Union") in 1995. 

 At the time of the Crown Point decision,

NGSC’s ERP was similar to the plan that

had been rejected in Crown Point. The ERP

originally had been adopted in 1988 and

was amended in 1995, although the

amendments left it virtually unchanged.

To be eligible for early retirement

benefits, an employee had to be at least

fifty-five and not older than sixty-five

years old on June 30 of the year of

retirement, and he also must have

completed at least fifteen years of

service with NGSC by June 30 of the

retirement year./1

 On March 10, 1997, Heck wrote Nixon a

letter suggesting that the ERP may no

longer be appropriate and formally

requesting that NGSC and the Union

commence bargaining to rectify any

problems with the ERP./2 Nixon replied

that, pursuant to Article IV of the

Contract, NGSC believed it no longer was

bound by the ERP because it had a goodfaith belief that the ERP could be found

to be in violation of the law./3 In a

letter written on March 20, 1997, Nixon

also com-municated that the North Gibson

School Board agreed to begin negotiating

a new early retirement plan immediately. 

 The first negotiation meeting was held

on May 29, 1997, and the ERP was

terminated at that meeting. NGSC told the

Union bargaining committee that NGSC

would not permit anyone to retire under

the ERP. NGSC and the Union also agreed

to create a separately negotiated

retirement plan for Noel Loftin, an

employee who had expressed his wish to

retire after NGSC decided no longer to

honor the ERP. The Union and NGSC

continued negotiations on several
subsequent occasions. NGSC adopted a new

plan, modeled after Crown Point’s revised

plan, on February 25, 1998, and the new

plan was ratified by the Union on March

9, 1998. 

 On December 29, 1997, two teachers, Fred

Anthis and Lewis Schleter, filed charges

of age discrimination against NGSC with

the EEOC. The charges alleged that "[t]he

contract for Teachers and Administrators

provides that older retirees receive a

lesser percentage of their salaries for

their retirement pay, and that they

receive the retirement pay for a lesser

number of years than the younger retirees

do." R.15, Nixon Aff., Ex.1 at 2 & Ex.2

at 2. In the charges, neither Anthis nor

Schleter claimed that he had retired

under the ERP. Both were employed with

NGSC at the time they filed the charges

of discrimination.

 Anthis and Schleter each claim that they

would have retired in 1995 but for the

discriminatory nature of the ERP that was

in effect at that time. In 1994 or 1995,

Anthis and Schleter discussed together

that the ERP was discriminatory because

they were sixty years old, but they claim

that they did not realize they could file

charges of discrimination. At that time,

neither notified NGSC or the Union that

he intended or wished to retire. Anthis

and Schleter were aware, in March 1997,

that NGSC and the Union were negotiating

a new early retirement plan. They filed

charges with the EEOC in December 1997

only after they learned of the Crown

Point decision in August 1997.

 After receiving the charges that Anthis

and Schleter had filed against NGSC, the

EEOC sent a "Notice of Charge of

Discrimination" to Nixon in early January

1998. Id., Ex.1 at 1 & Ex.2 at 1. After

NGSC responded to the charges, both

parties proposed conciliation agreements

that were rejected by the other party. On

July 20, 1998, the EEOC notified NGSC

that it would make no further efforts at

conciliation.

B. Proceedings in the District Court

 On September 3, 1998, the EEOC filed a

complaint with the district court in

which it alleged that NGSC had engaged in

unlawful employment practices in

violation of the ADEA by discriminating
against employees age fifty-six and older

through its ERP. In its prayer for

relief, the EEOC requested both monetary

damages and permanent injunctive relief

for a group of individuals who suffered

discrimination under NGSC’s ERP./4 The

group of individu-als consisted of seven

employees, including Anthis and Schleter.

The other five employees retired prior to

the ERP’s termination, but none of the

five filed a grievance or charges with

NGSC, the Union, or the EEOC. 

 NGSC filed a motion to dismiss all of

the EEOC’s claims under Federal Rules of

Civil Procedure 12(b)(1) and (6), which

the district court denied in part and

granted in part. The district court

denied the motion to dismiss the claims

for monetary damages, suggesting that a

motion for summary judgment would be a

more appropriate procedural vehicle for

addressing those claims. 

 With respect to the claims for

injunctive relief, the district court

granted NGSC’s motion to dismiss. The

court reasoned that the EEOC’s request

for an injunction restraining

discriminatory policies and practices was

moot because the allegedly discriminatory

ERP had been discontinued in May 1997,

and the EEOC had no reasonable

expectation that a discriminatory plan

would be reinstated./5

 The district court later granted NGSC’s

motion for summary judgment on the EEOC’s

claims for monetary relief. The court

held that the EEOC must base a claim for

individual monetary relief on a timely,

individual charge of discrimination. The

court reasoned that the EEOC was in

privity with the individuals for whom it

sought relief; if the individuals were

time-barred from bringing the claims, the

EEOC also was barred from bringing the

claims. The court acknowledged that the

EEOC’s right to sue in its own name is

independent of an individual’s right to

sue and that the EEOC’s role in

preventing employment discrimination

serves a public interest broader than

that of an individual. However, the court

believed that the public interest served

by the EEOC’s suit for compensation for

individual teachers was minimal and did

not outweigh the need to conform to the

statutory time limits established for

individual claims./6 
 Turning to the circumstances of this

case, the court determined that none of

the employees had filed timely charges

that could serve as a basis for the

EEOC’s claim because five of the

employees never filed charges and Anthis’

and Schleter’s charges were untimely. 

II

DISCUSSION

A. Monetary Relief

 We review the district court’s decision

to grant summary judgment de novo. See

Thomas v. Pearle Vision, Inc., 251 F.3d

1132, 1136 (7th Cir. 2001). Summary

judgment is proper when "there is no

genuine issue as to any material fact and

. . . the moving party is entitled to a

judgment as a matter of law." Fed. R.

Civ. P. 56(c); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). To

determine whether a genuine issue of

material fact exists, we must construe

all facts and draw all reasonable

inferences in the light most favorable to

the nonmoving party. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

 The EEOC submits that the district court

improperly granted summary judgment to

NGSC on the claims for monetary relief on

behalf of the seven employees. The EEOC

contends that it has independent

authority to file suit under the ADEA to

recover damages on behalf of individual

employees, and it is therefore irrelevant

whether any of the teachers in this case

filed timely charges. Alternatively, the

EEOC argues that a reasonable jury could

have found that Anthis’ and Schleter’s

charges were timely, and, as a result,

the other five employees could have

piggybacked their claims onto Anthis’ and

Schleter’s claims. We examine each

argument in turn.

 1. Timely Charges as a Basis for the

EEOC’s Suit

 Under the ADEA, the EEOC has the power

to investigate violations, to sue on

behalf of aggrieved individuals, and to

institute injunctive proceedings. See 29

U.S.C. sec.sec. 626(a) & (b). In EEOC v.
United States Steel Corp., 921 F.2d 489,

496 (3d Cir. 1990), our colleagues in the

Third Circuit noted that this power

encompasses two distinct roles--

vindicating specific private claims and

protecting the public interest. When the

EEOC "seeks individualized benefits under

the ADEA for particular grievants, . . .

the Commission functions to that extent

as their representative." U.S. Steel, 921

F.2d at 496. Consequently, courts have

held that the EEOC is precluded from

seeking monetary relief for individuals

who are barred from seeking the same

relief themselves because their claims

have been adjudicated or are subject to

arbitration agreements./7 See EEOC v.

Harris Chernin, Inc., 10 F.3d 1286, 1291

(7th Cir. 1993) (holding that the EEOC’s

claim for individual monetary relief was

barred by res judicata because the

individual on whose behalf the EEOC

brought suit previously had been

dismissed for failure to file a timely

charge of discrimination); see also EEOC

v. Kidder, Peabody & Co., 156 F.3d 298,

300-01 (2d Cir. 1998) (holding that the

EEOC’s claim for individual monetary

relief was precluded by a prior

arbitration agreement between the

employee and the employer); U.S. Steel,

921 F.2d at 496-97 (holding that the

EEOC’s claim for individual monetary

relief was barred by res judicata). 

 In these cases, we, along with the

Second and Third Circuits, have

emphasized the distinctive enforcement

scheme of the ADEA, which places the EEOC

in privity with the individual for whom

it seeks relief. Under the statute, the

EEOC steps into the shoes of the

individual because "the right of any

person to bring such action shall

terminate upon the commencement of an

action by the Equal Employment

Opportunity Commission to enforce the

right of such employee under [the ADEA]."

29 U.S.C. sec. 626(c)(1); see also

Kidder, 156 F.3d at 302; Harris Chernin,

10 F.3d at 1291; U.S. Steel, 921 F.2d at

494. As the Third Circuit has noted, in

this respect, the drafters of the ADEA

consciously departed from the enforcement

scheme of Title VII, which does not

terminate the rights of the employee once

the EEOC has brought suit. See U.S.

Steel, 921 F.2d at 494 n.4. Indeed, in

U.S. Steel, the Third Circuit suggested

that Congress would have preserved the
individual’s right to bring a complaint

in some other fashion if it had not

believed that the EEOC would represent

the interests of the individual. See id.

at 495. It is this privity, created by

the ADEA’s distinctive enforcement

scheme, that precludes the EEOC from

seeking monetary relief that is not

available to the individual.

 In Harris Chernin, we held that the EEOC

could not seek back pay, liquidated

damages, and reinstatement under the ADEA

on behalf of an employee whose individual

claim already had been adjudicated. See

Harris Chernin, 10 F.3d at 1291. Prior to

the EEOC’s suit, the employee had filed a

complaint that was dismissed by the

district court on summary judgment

because the claim was barred by the

statute of limitations in effect at that

time. See id. at 1288. We held that the

EEOC, because it was the employee’s

representative, was barred by res

judicata from subsequently seeking

monetary relief on his behalf. See id. at

1291. We adopted the Third Circuit’s

reasoning in U.S. Steel that, "’if a

person first litigates in his own behalf,

that person may be precluded from

claiming any of the benefits of a

judgment in a subsequent action that is

brought or defended by a party

representing him.’" Id. (quoting U.S.

Steel, 921 F.2d at 493). Because we

accepted the Third Circuit’s

determination that there is privity

between the EEOC and individuals for whom

it seeks individual benefits, we held

that individuals were precluded from

obtaining individualized relief in a

subsequent EEOC action based on the same

claims. See id. at 1290-91; see also U.S.

Steel, 921 F.2d at 496.

 In Kidder, the EEOC sought back pay and

liquidated damages on behalf of nine

employees. See Kidder, 156 F.3d at 300.

The Second Circuit held that, under the

ADEA, the EEOC was barred from bringing

an action for monetary relief on behalf

of an individual who had signed a binding

arbitration agreement with the employer.

See id. at 300-01. The court also relied

on the distinctive enforcement scheme of

the ADEA and noted that "circuit courts

have uniformly held that the EEOC may not

seek monetary relief in the name of an

employee who has waived, settled, or

previously litigated the claim." Id. at
301.

 In contrast, the same courts recognize

the EEOC’s right to pursue injunctive

relief to vindicate broader concerns

affecting the public interest. In making

this distinction, the courts have

distinguished claims for injunctive

relief from those for individual monetary

damages by contrasting the high level of

public interest served when the EEOC

seeks an injunction with the minimal

public interest served by an individual

monetary award. When the EEOC sues on its

own behalf to obtain an injunction that

prohibits discrimination, it promotes the

public interest because its "interests

are broader than those of the individuals

injured by discrimination." Harris

Chernin, 10 F.3d at 1291. "’[T]he ADEA is

designed not only to address individual

grievances, but also to further important

social policies’ such as deterrence of

employment discrimination and prevention

of future discrimination through classwide relief." Kidder, 156 F.3d at 302

(quoting Gilmer v. Interstate/Johnson

Lane Corp., 500 U.S. 20, 27 (1991)). 

 Our reasoning in Harris Chernin, shared

by our sister circuits in the cases that

we just have discussed, is applicable to

the situation before us. An individual

must have filed timely charges of

discrimination with the EEOC in order to

file a claim of discrimination himself.

See 29 U.S.C. sec. 626(d). Despite this

filing requirement, the EEOC asks us to

hold that it may bring suit for monetary

damages even when none of the individuals

on whose behalf it sues have filed timely

charges. Because of the distinctive

enforcement scheme of the ADEA, however,

the EEOC is in privity with the NGSC

teachers, and it represents their

interests in this claim for monetary

relief. As their representative, the EEOC

is barred from seeking individual

benefits that the employees would be

unable to pursue on their own. 

 Although the EEOC’s suit against NGSC is

not barred by res judicata, as the suit

in Harris Chernin was, the circumstances

in Harris Chernin nevertheless support

the decision we reach today.

Procedurally, the employee in

HarrisChernin took a step that the seven

individuals represented by the EEOC here

did not take--the employee brought suit
on his own prior to being represented by

the EEOC. However, five of the NGSC

teachers never filed charges of

discrimination, and, as we will discuss

in the next section, the charges filed by

the remaining two teachers were untimely.

If any of the individuals from NGSC had

attempted to bring suit in the district

court based on untimely or nonexistent

charges, the claim would have been

dismissed by the district court for a

failure to comply with the statutory

filing requirement. At that point, the

seven would be in the same position as

the employee in Harris Chernin, and the

prohibition Harris Chernin placed on the

EEOC’s subsequent relitigation of the

same claims would apply squarely. 

 2. The Timeliness of Anthis’ and

Schleter’s Charges 

 Because the EEOC does not have

independent authority to bring claims for

monetary relief, it may only maintain its

suit for damages if it can establish that

a charge of discrimination was filed

timely. Anthis and Schleter were the only

NGSC employees who filed charges. They

filed those charges on December 29, 1997.

Because Indiana is a non-deferral state

for purposes of establishing the

statutory period within which an employee

must file charges of age discrimination,

see Daugherity v. Traylor Bros., Inc.,

970 F.2d 348, 350 n.2 (7th Cir. 1992),

Anthis’ and Schleter’s charges had to be

filed within 180 days of the unlawful

employment practice, see 29 U.S.C. sec.

626(d)(1). This 180-day period began on

July 2, 1997, and the EEOC must

demonstrate that a discriminatory act

occurred subsequent to that time. 

 As early as 1994 or 1995, Anthis and

Schleter were on notice that the ERP

discriminated against them. Around that

time, they discussed the fact that they,

being sixty years old, would receive

lower early retirement benefits than a

fifty-five-year-old teacher with the same

number of years of service. However,

neither indicated to NGSC that he was

considering retirement nor did either

file charges with the EEOC. The ERP was

terminated by NGSC at the May 29, 1997

negotiation meeting between NGSC and the

Union. Based on this information alone,

it appears that the discriminatory acts
occurred before the 180-day period and

that the charges therefore were untimely.

 Nevertheless, under the "continuing

violation" doctrine, the EEOC may "’get

relief for a time-barred act by linking

it with an act that is within the

limitations period.’" Miller v. Am.

Family Mut. Ins. Co., 203 F.3d 997, 1003

(7th Cir. 2000) (quoting Speer v. Rand

McNally, 123 F.3d 658, 663 (7th Cir.

1997)). A continuing violation may exist

when the employer has an express, openly

espoused, discriminatory policy that was

in effect during the limitations period.

See Place v. Abbott Labs., 215 F.3d 803,

808 (7th Cir. 2000), cert. denied, 121 S.

Ct. 768 (2001); Stewart v. CPC Int’l,

Inc., 679 F.2d 117, 121 (7th Cir. 1982).

However, the continuing violation

doctrine does not apply when a timebarred incident cannot be linked with an

incident that occurred within the

statutory period or when the time-barred

incident alone should have triggered the

plaintiff’s awareness that his rights had

been violated. See Simpson v. Borg-Warner

Auto., Inc., 196 F.3d 873, 875-76 n.1

(7th Cir. 1999).

 The Supreme Court has explained that a

facially discriminatory policy

discriminates each time that it is

applied. See Lorance v. AT&T Techs.,

Inc., 490 U.S. 900, 912 & n.5 (1989)./8

The Court also has made clear, though,

that the "proper focus is upon the time

of the discriminatory acts, not upon the

time at which the consequences of the

acts became most painful." Del. State

Coll. v. Ricks, 449 U.S. 250, 258 (1980)

(emphasis in original) (quotation marks

and citation omitted) (holding that the

limitations period on the plaintiff’s

discrimination claim began to run from

the time he was given notice that he

would not receive tenure, not from the

time he actually was terminated); see

also Chardon v. Fernandez, 454 U.S. 6, 8

(1981) (per curiam) (holding that the

limitations period began to run from the

time the plaintiffs were given notice of

their termination, even though the

plaintiffs continued to work after that

date). We have held that, in the context

of mandatory retirement programs, the

statute of limitations runs from the date

the employee is given notice that he will

be forced to retire upon reaching a

certain age, despite the fact that the
employee is not taken off the payroll

until some time after the notification

date. See Heiar v. Crawford County, 746

F.2d 1190, 1194 (7th Cir. 1984) (as

amended); see also Kuemmerlein v. Bd. of

Ed. of the Madison Metro. Sch. Dist., 894

F.2d 257, 259-60 (7th Cir. 1990) (holding

that the statute of limitations begins to

run on the date on which the plaintiffs

received notice of their termination, not

on their actual termination date); Mull

v. Arco Durethene Plastics, Inc., 784

F.2d 284, 290 (7th Cir. 1986) ("[T]he

significant date for purposes of Ricks

and the limitations period is that date

upon which the employee receives notice

of termination and not the date upon

which the termination becomes

effective."). The reasoning underlying

this principle is that the employee is

aware that he has been discriminated

against at the time the employer makes

clear to him that he will be subjected to

the discriminatory policy. The employee’s

eventual termination at a later date is

an inevitable consequence of the

discriminatory decision to terminate him;

it is not in itself a separate

discriminatory act. See Ricks, 449 U.S.

at 257-58. Indeed, "[m]ere continuity of

employment, without more, is insufficient

to prolong the life of a cause of action

for employment discrimination." Id. at

257; cf. Florida v. Long, 487 U.S. 223,

239 (1988) ("It is not correct to

consider payments of [pension] benefits

based on a retirement that has already

occurred as a sort of continuing

violation."). 

 Without addressing this body of case law

or providing support for its own

proposition, the EEOC asserts that the

retirement of David Specht on August 1,

1997, constitutes a discriminatory

application of the ERP within the limita

tions period sufficient to satisfy the

requirements of the continuing violation

doctrine. Specht submitted a formal

letter of intent to retire on March 31,

1997. He retired on August 1, 1997, after

teaching through the end of the summer

school session. Based on Specht’s

payments, it appears that his benefits

had been calculated under the ERP. He

received his first payment on October 1,

1997.

 The precedent we have just discussed

establishes that, with respect to
retirement plans, the discriminatory act

occurs on the date on which it becomes

clear that the employee will retire

pursuant to the terms of the

discriminatory plan, regardless of

whether he continues to work past that

date. Cf. Mogley v. Chicago Title Ins.

Co., 719 F.2d 289, 290 (8th Cir. 1983)

(per curiam) (holding that the

limitations period began to run from the

time the employee received a letter

notifying him that he could accept early

retirement rather than face termination,

even though his retirement was not

effective until seven months later).

Notably, the EEOC has offered no evidence

to indicate that an employee’s last day

of employment has any effect whatsoever

on the application of the ERP or the

calculation of the employee’s benefits.

Cf. Long, 487 U.S. at 239 (holding that,

in the pension fund context, the

discriminatory act is the calculation of

benefits fixed under a contract between

the employer and retiree and that each

payment of benefits did not constitute a

continuing violation). Indeed, the

evidence of record, including the

testimony of Heck and Nixon, as well as

various documents, suggests the contrary.

 According to the terms of the ERP, a

teacher electing to take early retirement

had to notify NGSC of his "intent to

claim the early retirement benefit no

later than June 1 of the school year

preceding the year" he wished to begin

receiving benefits. R.149, Ex.6 at 41.

Specht provided this notification in

March 1997 when he gave Nixon his letter

expressing his intent to retire under the

ERP. At that time, Specht was on notice

that he was retiring pursuant to the

discriminatory ERP and that the amount of

his benefits would be less than those of

younger retirees. It was on this date

that the discriminatory act occurred, and

Specht’s subsequent retirement in August

was merely an inevitable consequence of

that act. Thus, Specht’s August

retirement does not establish that the

ERP was applied in August, and it does

not support a continuing violation.

 The EEOC offers the retirement of one

other teacher, Noel Loftin, in its

attempt to establish a continuing

violation. However, the EEOC’s argument

with respect to Loftin is more flawed

than its argument concerning Specht. In
early May 1997, Loftin expressed to Nixon

his intent to retire and was told that

NGSC was not accepting retirements at

that time. During subsequent phone

conversations and at the May 29, 1997

meeting, Nixon and Heck discussed the

need "to create some kind of a retirement

plan for [Loftin] that was not the

current contract." R.148 at 26 (quotation

marks omitted). During May and June 1997,

Loftin and NGSC negotiated an

individualized early retirement

agreement, and, on June 19, 1997, Loftin

tendered his resignation. On June 24,

1997, Loftin accepted an early retirement

benefit package of $64,958.16 (he would

have received $64,958.15 under the ERP),

and, on June 30, 1997, he retired. Like

Specht, he received his first payment on

October 1, 1997. 

 Although the EEOC contends that Loftin’s

retirement extended the application of

the ERP into the limitations period, its

argument fails because Loftin’s benefits

were calculated under a separately

negotiated agreement in June 1997.

Loftin’s final benefits package was only

one cent greater than the benefits

package he would have received under the

ERP; however, the EEOC has offered no

evidence to suggest that age was indeed a

factor in determining Loftin’s early

retirement benefits, as it would have

been under the discriminatory ERP. In

addition, all of the negotiations,

including Loftin’s acceptance of the

benefits agreement, took place prior to

July 2, 1997. Thus, there is no evidence

to suggest either that Loftin’s

retirement occurred under the ERP or that

he retired within the relevant statutory

period.

 This record will not support a

determination that either Specht or

Loftin retired under the ERP within the

limitations period. Therefore, the EEOC

is unable to demonstrate that there was a

continuing violation that would render

Anthis’ and Schleter’s charges timely.

Because no other teacher filed charges,

the EEOC has no timely filed charge on

which to base its claims for monetary

damages./9 Conse-quently, the district

court correctly granted summary judgment

for NGSC on those claims.

B. Injunctive Relief
 The EEOC submits that the district court

erred when it granted NGSC’s motion to

dismiss the claims for injunctive relief

sought on Anthis’ and Schleter’s behalf.

The EEOC recognizes that the ERP is no

longer in effect, but it contends that

its claims are not moot because Anthis

and Schleter are not receiving the early

retirement benefits they would have

received but for the ERP. The EEOC

contends that, under the ADEA, 29 U.S.C.

sec. 626(b) (incorporating 29 U.S.C. sec.

217), the district court has the express

authority to enjoin NGSC from withholding

retirement benefits that Anthis and

Schleter could have received absent a

violation of the ADEA. 

 We believe that the district court

correctly dismissed the EEOC’s claim for

injunctive relief against the "continued

withholding of amounts owing" to Anthis

and Schleter. R.1 at 3-4. As we already

have discussed, we recognize that the

EEOC can pursue broad injunctive relief

even when it is barred from seeking

individual monetary damages. See Harris

Chernin, 10 F.3d at 1291. However, in the

cases in which this injunctive relief was

allowed, the EEOC was seeking broad,

class-wide, prospective injunctions. The

EEOC’s "interests in determining the

legality of specific conduct and in

deterring future violations are distinct

from the employee’s interest in a

personal remedy." Goodyear, 813 F.2d

1539, 1542 (9th Cir. 1987). In Kidder,

the EEOC was not barred from seeking

injunctive relief that furthered

"’important social policies’ such as

deterrence of employment discrimination

and prevention of future discrimination

through class-wide relief." Kidder, 156

F.3d 302 (quoting Gilmer, 500 U.S. at

27). Similarly, we allowed the EEOC to

seek an injunction that would enjoin the

employer from "engaging in any employment

practice which discriminates because of

age," even when the EEOC could not pursue

monetary relief for the employee. Harris

Chernin, 10 F.3d at 1291 (quotation marks

omitted). The Third Circuit recognized

that, in contrast with the minimal public

interest served by an individual suit,

the EEOC protects "a broader interest by

seeking to enjoin discrimination

affecting an entire class." U.S. Steel,

921 F.2d at 496. The Ninth Circuit noted

that the EEOC, when seeking to enjoin the

employer from "future discrimination or
retaliation" against its employees,

"’promotes public policy and seeks to

vindicate rights belonging to the United

States as sovereign.’" Goodyear, 813 F.2d

at 1543 (emphasis in original) (quoting

EEOC v. Occidental Life Ins. Co., 535

F.2d 533, 537 (9th Cir. 1976)). 

 Notably, the same courts that have

confirmed the right of the EEOC to seek

broad injunctive relief explicitly have

disallowed an award of back pay to the

individuals who could not have sought

that relief themselves. See Kidder, 156

F.3d at 302 (holding that the public

interest in back pay is minimal when an

individual has "freely contracted away,

waived or unsuccessfully litigated a

claim"); Harris Chernin, 10 F.3d at 1291

(holding that the EEOC is barred from re

covering back pay for an employee who

already litigated his claim); Goodyear,

813 F.2d at 1543 (holding that the EEOC’s

claim for individual back pay was on

"different footing" than its claims for

injunctive relief and that the claim was

moot because the employee had contracted

away her right to back pay). In the

present case, the retirement benefits the

EEOC seeks to obtain through injunctive

relief for Anthis and Schleter serve the

same function as an award of back pay.

The same considerations obtain whether

the EEOC seeks this relief through

monetary damages or through an

injunction. We see no reason, and the

EEOC has offered none, why the EEOC

should be able to obtain through an

injunction what the courts have refused

to grant it directly. The district court

is empowered to grant the relief sought

by the EEOC under 29 U.S.C. sec. 217, a

provision of the Fair Labor Standards

Act, which is incorporated by reference

into the ADEA under 29 U.S.C. sec.

626(b). However, in order to give effect

to the structure of the ADEA as enacted

by Congress, we must look to the ADEA in

its entirety in order to interpret the

incorporation of sec. 217. See United

States v. Cleveland Indians Baseball Co.,

121 S. Ct. 1433, 1443 (2001) ("It is, of

course, true that statutory construction

is a holistic endeavor and that the

meaning of a provision is clarified by

the remainder of the statutory scheme . .

. [when] only one of the permissible

meanings produces a substantive effect

that is compatible with the rest of the

law." (quotation marks omitted)). The
ADEA requires individual charges of

discrimination and provides statutory

periods for filing the charges. The

distinctive enforcement scheme of the

ADEA prohibits the EEOC from obtaining

monetary relief for individuals who

cannot obtain that relief themselves

because they have not filed timely

charges. Thus, we cannot interpret the

provision of the ADEA that authorizes

injunctive relief in such a way as to

allow the EEOC to avoid that prohibition

by obtaining the same relief in the form

of an injunction. 

 Finally, we also believe that the

district court correctly dismissed as

moot any claim the EEOC brought for broad

injunctive relief to enjoin the future

use of a discriminatory early retirement

plan by NGSC. The EEOC has not identified

a currently discriminatory plan nor has

the EEOC suggested that it has a

reasonable expectation that a

discriminatory plan will be adopted by

NGSC in the future. See City of Erie v.

Pap’s A. M., 529 U.S. 277, 287 (2000);

United States v. W.T. Grant Co., 345 U.S.

629, 633 (1953).

 The district court properly granted

NGSC’s motion to dismiss the EEOC’s

claims for injunctive relief./10

 

Conclusion

 For the reasons set forth in this

opinion, we affirm the judgment of the

district court.

AFFIRMED

FOOTNOTES

/1 The benefits were calculated by multiplying three

factors: the number of years of service (a maximum of twenty), a percentage taken from a chart

in the ERP, and the starting salary for a teacher

with a master’s degree in the year of retirement.

The percentage in the equation was assigned

according to the year of retirement and the age

of the teacher at the time of retirement. For

example, in the first year of retirement, the

assigned percentage was 2.5 for a fifty-five year

old, 1.5 for a fifty-nine year old, and 1 for a

sixty-four year old. As a result, the amount of

yearly benefits decreased as the teacher’s age

increased. In addition, early retirement benefits

were paid for a maximum of ten years. A fiftyfive year old would receive ten years of bene-
fits, but a sixty-four year old would receive

only one year of benefits. Consequently, the ERP

provided lower benefits to older employees because of their age.

/2 In her deposition, Heck stated that she held this

belief because her supervisor had notified her of

the decision in Crown Point. She then reviewed

the early retirement plans of the school districts she monitored, and, because NGSC’s ERP was

so similar to Crown Point’s, she wrote to Nixon

to suggest that a new ERP should be negotiated.

/3 Article IV, Part A of the Contract provides that,

"[r]egardless of any other provision of this

agreement or any supplemental agreement, the

Board shall not be required to incur any financial obligations which it may hereafter, in good

faith, find or determine to be contrary to law;

and neither party shall be bound by any provision

of this agreement which it may hereafter, in good

faith, determine or find to be contrary to law."

R.149, Ex.6 at 6.

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

the court:

A. Grant a permanent injunction enjoining [NGSC]

from engaging in any employment practice which

discriminates on the basis of age against individuals 40 years of age and older.

B. Order [NGSC] to institute and carry out

policies, practices and programs which provide

equal employment opportunities for individuals 40

years of age and older, and which eradicate the

effects of its past and present unlawful employment practices.

C. Order [NGSC] to make whole those individuals

whose early retirement benefits were or are being

unlawfully withheld as a result of the acts

complained of above, by restraining the continued

withholding of amounts owing, with prejudgment

interest, in amounts to be determined at trial.

D. Order [NGSC] to make whole all individuals

adversely affected by the unlawful practices

described above, by providing the affirmative

relief necessary to eradicate the effects of its

unlawful practices.

R.1 at 3-4.

/5 The court also noted that, under 29 U.S.C. sec.

626(b), it had the authority to "order the restraint of the continued withholding of the

amounts due" to the employees if and when the

EEOC proved the alleged discrimination. R.59 at

12. However, the court distinguished this statutory remedy from injunctive relief and held that
the remedy under sec. 626(b) did not necessitate

an injunction. In the district court’s view, the

statutory remedy available under sec. 626(b)

rendered the EEOC’s separate request for an

injunction unnecessary and moot.

/6 The district court further determined that the

public interest in a monetary recovery was minimal because (1) the damages would be awarded

directly to the teachers, (2) NGSC already had

abandoned the discriminatory ERP, (3) NGSC understood the need to remedy discrimination and

already had adopted an apparently nondiscriminatory plan, (4) the deterrent effect would be

minimal because two other early retirement plans

recently had been held in violation of the ADEA,

and (5) the financial cost imposed on local

taxpayers undermined the beneficial impact on the

public interest. 

/7 In cases brought under Title VII and the Americans with Disabilities Act ("ADA"), the EEOC also

is precluded from seeking monetary relief for

individuals who themselves are barred from bringing the same suit because, in such circumstances,

the EEOC’s suit serves only a minimal public

interest. See, e.g., EEOC v. Waffle House, Inc.,

193 F.3d 805, 812-13 (4th Cir. 1999) ("When the

EEOC seeks ’make-whole’ relief for a charging

party, the federal policy favoring enforcement of

private arbitration agreements outweighs the

EEOC’s right to proceed in federal court because

in that circumstance, the EEOC’s public interest

is minimal, as the EEOC seeks primarily to vindicate private, rather than public, interests."),

cert. granted, 68 U.S.L.W. 3726, 69 U.S.L.W.

3624, 3628 (U.S. Mar. 26, 2001) (No. 99-1823);

EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539,

1543 (9th Cir. 1987) (holding that the EEOC’s

claim on behalf of an individual is moot under

Title VII when the individual has settled the

claim because the public interest in a back pay

award is minimal); EEOC v. Kimberly-Clark Corp.,

511 F.2d 1352, 1361 (6th Cir. 1975) (suggesting

that a prior settlement may limit the scope of

the relief that the EEOC may seek for the private

benefit of individuals under Title VII).

 In the specific context of arbitration agreements, the Sixth Circuit created a split in the

circuits when it held that the EEOC is not barred

by a preexisting arbitration agreement from

seeking monetary relief on behalf of an individual. Compare EEOC v. Frank’s Nursery & Crafts,

Inc., 177 F.3d 448, 462 (6th Cir. 1999), with

Waffle House, 193 F.3d at 813 (holding that an

arbitration agreement precluded the EEOC from

pursuing individual monetary relief in an ADA

case), and EEOC v. Kidder, Peabody & Co., 156

F.3d 298, 300-01 (2d Cir. 1998) (holding that "an
arbitration agreement between an employer and

employee precludes the EEOC from seeking purely

monetary relief for the employee under the ADEA

in federal court"). The Supreme Court has granted

certiorari in Waffle House.

/8 Lorance involved a Title VII challenge to an

allegedly discriminatory seniority system. "Although Lorance’s specific holding has been abrogated by statute--42 U.S.C. sec. 2000e-5(e)(2)

now gives employees injured by the application of

a seniority system which has been adopted for an

intentionally discriminatory purpose in violation

of Title VII the option of measuring the limitations period from the date of that application--

its reasoning remains persuasive outside of the

Title VII/intentionally discriminatory seniority

system context." Huels v. Exxon Coal USA, Inc.,

121 F.3d 1047, 1050 n.1 (7th Cir. 1997) (quotation marks omitted).

/9 As a result of our conclusion, the EEOC’s "piggybacking" argument is moot. Piggybacking occurs

when individuals who have not filed charges or

who have filed untimely charges of discrimination

join an action in which at least one individual

has filed a timely charge that alleged class-wide

discrimination or that claimed to represent a

class of employees. See Anderson v. Montgomery

Ward & Co., 852 F.2d 1008, 1017 (7th Cir. 1988).

Assuming that piggybacking is appropriate in a

case brought by the EEOC, as opposed to a private

individual, see EEOC v. Ky. State Police Dep’t,

80 F.3d 1086, 1095 (6th Cir. 1996); EEOC v.

Wilson Metal Casket Co., 24 F.3d 836, 839-40 (6th

Cir. 1994), because Anthis’ and Schleter’s charges were untimely, there are no charges onto which

the EEOC could piggyback the claims of the remaining five teachers.

/10 In addition to arguing that the EEOC is precluded

from bringing suit because the individuals it

represents are barred from doing so, NGSC raises

two alternative arguments. Both arguments fail. 

 First, NGSC asserts the doctrine of laches.

However, NGSC fails to raise a question of material fact as to whether it has been materially

prejudiced by the alleged delay. See Jeffries v.

Chicago Transit Auth., 770 F.2d 676, 679 (7th

Cir. 1985).

 Second, NGSC claims that it is entitled to

Eleventh Amendment sovereign immunity pursuant to

Kimel v. Florida Board of Regents, 528 U.S. 62

(2000). However, NGSC is not an arm of the state

government and therefore is not entitled to

Eleventh Amendment immunity. See Alden v. Maine,

527 U.S. 706, 756 (1999).