This Court has been down this road before. This petition relates to an enforcement action brought by the respondent, the U.S. Equal Employment Opportunity Commission, against the petitioner, Baltimore County, Maryland, under the Age Discrimination in Employment Act of 1967. See 29 U.S.C. §§ 621–634. The Commission alleges that the county has required employees older at enrollment in its defined-benefit pension plan to make larger contributions than similarly-situated employees younger at enrollment, and thus has discriminated unlawfully against the older enrollees because of their age. R.1; R.57. The district court originally granted summary judgment against the EEOC. R.101; App-1–6. The EEOC appealed, and this Court vacated and remanded. App-7–9. The district court has now granted summary judgment for the EEOC on liability. R.197; App-13–17.

The county would delay the damages phase of this litigation by invoking the extraordinary remedy of an interlocutory appeal under 28 U.S.C. § 1292(b). However, the district court’s non-final ruling on liability does not satisfy section 1292(b)’s stringent standards. The county’s petition essentially rehashes the same merits defense this Court has already rejected, albeit with a twist – a non-jurisdictional affirmative defense the county had never before raised in its motion to dismiss or its answer, during the first round of summary judgment briefing, or the last time this case was before this Court (either in briefing, or at oral argument, where this Court pressed the county’s counsel to justify the challenged practices).

When the county eventually raised this section-4(l) defense on remand, the district court properly rejected it. Section 4(l) of the ADEA allows employers to subsidize the retirement benefits they give to employees who retire before their normal retirement age. But it does not authorize the county to require older enrollees to make larger contributions than younger enrollees. The county has even conceded as much. And thus, while its section 4(l) defense may be “novel” (as the district court found), it actually adds nothing to this case. This Court should let this litigation play out to final judgment in the district court, where it belongs. The county will then be free to take a traditional appeal to correct any perceived errors in the district court’s rulings on liability and damages. But its current petition should be denied.

BACKGROUND

Section 4(a)(1) of the ADEA makes it “unlawful for an employer . . . [to] discriminate against any individual [at least forty years old] with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). For these purposes, the phrase “compensation, terms, conditions, or privileges of employment” includes “all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.” 29 U.S.C. § 630(l).

Baltimore County has a defined-benefit pension plan known as the Employees’ Retirement System (“ERS”). The county requires full-time employees under age 59 at enrollment to participate in the plan. When the county first set up the ERS in 1945, employees could begin receiving retirement benefits only upon reaching age 65. This retirement-eligibility age was later reduced to 60.

The retirement benefits the ERS pays out derive in part from mandatory contributions the employees make and from earnings on those employee contributions. At all times relevant here, the county calculated these required employee contributions based on the employee’s age at the time he or she enrolled in the plan[1]. Workers who were older at the time of enrollment had to contribute a higher percentage of their salary than workers who were younger at enrollment. [2] The county justified this age-based disparity in contribution rates by relying on the time value of money. Since older enrollees would reach retirement age sooner, their contributions would have less time to accrue the earnings that helped fund their benefits. It thus made economic sense to require these older workers pay more into the system than their younger counterparts.

However, the county changed the ERS in 1973 to allow employees to retire with full benefits after thrity years of service, regardless of age. (The county also later altered the plan to allow its public-safety personnel, including its correctional officers, to retire after twenty years of service, regardless of age.) Critically, the county did not ask its actuary to recalculate the employee contribution rates to account for these amendments. Even though retirement benefits were now no longer necessarily tied to age – and the time value of money thus no longer justified requiring disparate contribution rates – the county continued to require older enrollees to pay more for the same retirement benefit.

On June 6, 2007, the county changed its pension system again. Under the new system, employees hired after June 30, 2007, contribute to the ERS at a flat rate, regardless of their age at the time of enrollment. However, all employees hired before this change continue to contribute at rates determined by their age at the time of enrollment, with older enrollees contributing more than younger enrollees.

Correctional Officers Richard Bosse and Wayne Lee, who had been hired before this change, each filed a charge of discrimination with the EEOC complaining that the ERS violated the ADEA because it required older employees to make greater contributions than younger employees. On September 18, 2007, the EEOC filed this suit against the county on behalf of Bosse, Lee, and a class of similarly-situated employees who were aged 40 or older, were hired before July 1, 2007, and thus were required to pay the higher contribution rates because of their age at enrollment. The EEOC alleged (among other claims not relevant here) that the county’s actions violated section 4(a)(1) of the ADEA. R.57 at 5 ¶ 14; see 29 U.S.C. § 623(a)(1). The Commission seeks relief for the county’s violations starting in 1996. R.57 at 5, ¶ 14. The county and the EEOC later filed cross-motions for summary judgment. R.92–93.

On January 21, 2009, the district court granted summary judgment in favor of the county. R.100–101; App-1–6. The district court concluded that the ERS imposed disparate contribution rates not because of age, but because of the time value of money. The district court reasoned that the “requirement that older new-hires pay higher contributions is based on the number of years a new-hire has until reaching normal retirement age and how long it will take to accumulate a sufficient reserve to fund the new-hire’s life annuity,” which is “an economic – not age-based – consideration.” R.100 at 6; App-4. Thus, the district court ruled, because the “County was actually motivated not by age, but by the pension status – i.e. the number of years until retirement eligibility – of older new-hires, . . . the ERS does not violate Section 4(a)(1) of the ADEA.” Id. at 8; App-5. The EEOC appealed. R.106.

In June 2010, this Court vacated and remanded. App-9. Citing Kentucky Retirement Systems v. EEOC, 554 U.S. 135 (2008), this Court made clear that the EEOC could not succeed on its claim without showing that age “‘actually motivated’” the county’s disparate treatment. App-9 (quoting Ky. Ret., 554 U.S. at 141). In addition, citing Gross v. FBL Financial Services, 557 U.S. 167, 177 (2009), this Court explained that age must be the “but-for” cause of the disparate treatment. App-9. Applying this standard, this Court concluded that the district court had erred in granting summary judgment for the county.

This Court held that it was “unable to determine as a matter of law that the contribution rates are justified by permissible financial considerations.” App-9. The Court recognized that under the county’s pre-2007 plan, “two new-hires with the same number of years until retirement age, and therefore the same time value of money, can be required to pay different contributions into the ERS.” Id. For example, “if a twenty-year-old new-hire and a forty-year-old new-hire enroll in the ERS as correctional officers at the same time, they have the same number of years until retirement eligibility,” but “the forty-year-old must contribute 5.57% of his annual salary while the twenty-year-old need only contribute 4.42%.” Id. This Court concluded that “[t]his disparity is not justified by the time value of money because both employees contribute for the same twenty years.” Id. This Court noted that at oral argument, counsel for the county “offered no explanation when questioned about this scenario.” Id. at n.4.

The Court then ruled that the district court’s grant of summary judgment to the county had rested “solely on this faulty premise.” App-9. The Court thus vacated the grant of summary judgment. It then remanded for the district court to determine whether the disparity in contribution rates could be justified by other permissible financial considerations. Id.

On remand, the county continued to insist that the “time value of money” justified the ERS’s disparate contributions rates, despite this Court’s clear ruling to the contrary. See, e.g., R.175-1 at 2 (asserting that “the member contribution rates under the plan were based on a legally permissible consideration until July 2007, i.e., the time value of money”); R.187 at 1, 5. The county read this Court’s ruling as merely “question[ing] the time value of money rationale.” R.175-1 at 4; see also id. at 15 (alleging that this Court viewed its hypothetical involving the twenty-year-old contributing at 4.42% and the forty-year-old contributing at 5.57% as only “potentially inconsistent” with a valid “time value of money” rationale (emphasis added)).

In addition, for the first time – roughly four years after it filed a motion to dismiss and its answer, and over a year after this Court heard oral argument on the validity of the ERS under the ADEA – the county raised a brand new (non-jurisdictional) affirmative defense. In a memorandum in support of its renewed motion for summary judgment on remand, the county asserted that the years-of-service retirement option (allowing employees to retire after twenty or thirty years of service regardless of age) constituted “subsidized early retirement benefits” permitted by section 4(l) of the ADEA. R.175-1; see 29 U.S.C. § 623(l)(1)(A)(ii)(I). The county argued that its service-based retirement option, first instituted in 1973, fit within the ADEA’s statutory safe harbor for employer-funded early retirement incentives. R.175-1 at 27–32; R.187 at 13–16. The county then claimed that because the disparate contributions rates were justified by the time value of money and the years-of-service option constitutes a lawful section-4(l) early retirement benefit, none of its actions had run afoul of the ADEA. According to the county, “the suggestion that the existence of two legally permissible plan provisions when combined somehow result[s] in a violation of the ADEA is plainly illogical.” R.175-1 at 3.

The Commission filed its own motion for summary judgment on liability and opposed the county’s motion, including its newly-minted section-4(l) defense. The Commission explained that the county’s service-based retirement option constituted normal retirement benefits, not early retirement benefits within the meaning of section 4(l). The Commission pointed to extensive record evidence as support. The Commission also argued that, in any event, section 4(l) does not authorize employers to require their older workers to make higher contributions for pension benefits – the only claim at issue here. R.180 at 7–20.

The district court entered summary judgment as to liability for the Commission. R.196–197; App-13–17. It found that the ERS contribution rates “expressly rely on age,” R.196 at 8; App-16, and that “the ERS is facially discriminatory,” R.196 at 9; App-16.

Focusing on the question this Court directed it to address on remand, the district court concluded that the county simply could not “adduce non-age-related financial considerations that justify the disparity in contribution rates between older and younger workers.” R.196 at 5; App-15. It noted that on remand the county had been given an opportunity to conduct full discovery (including a comprehensive rule 30(b)(6) deposition of the firm that has been the ERS’s actuary since its inception), and still “has come forward with no evidence demonstrating why two workers with the same number of years until retirement eligibility should be required to contribute to the ERS at different rates.” Id.

The district court observed that the “time value of money” may have justified the disparate contribution rates up until 1973, before the county amended the plan to provide for eligibility based on years of service. R.196 at 6; App-15. But that amendment to the ERS “decouple[d] an employee’s age from his or her years until retirement.” Id. Critically, the district court determined, the county did not adjust the contribution rates to reflect this change to the plan. And “[t]he County has never submitted calculations that attempt to demonstrate that requiring higher contributions from older workers could be financially justified after the early retirement option was added.” Id. at 6–7; App-15. [3]

The district court stated that the county’s “generous early retirement option based on years of service . . . is explicitly authorized by § 4(l) of the ADEA . . . .” R.196 at 6; App-15 (quoting 29 U.S.C. § 623(l)(1)(A)(ii)(I)). However, the court then also concluded that “[t]his provision of the ADEA, which authorizes employers to subsidize employees’ early retirement benefits, does not authorize employers to charge older hires a greater contribution rate than younger hires for the non-subsidized portion of their retirement benefit.” R.196 at 6; App-15.

The county asked the district court to certify this ruling for interlocutory appeal under 28 U.S.C. § 1292(b) and to stay further proceedings. R.200. The EEOC opposed the county’s motion. R.201. On December 7, 2012, the district court certified the ruling and stayed all proceedings until further notice. R.206; App-19–22. The district court indicated that the county’s section 4(l) defense raised a “novel” issue, justifying certification. R-206 at 3–4; App-21–22. This petition followed.

ARGUMENT

Permission to appeal should be denied because Baltimore County has not shown that this is an exceptional case justifying interlocutory review.

Ordinarily, courts of appeals have jurisdiction over only “final decisions of the district courts.” 28 U.S.C. § 1291; see also U.S. v. Meyers, 593 F.3d 338, 344 (4th Cir. 2010). Section 1292(b) of the Judicial Code provides a limited exception to this finality requirement by granting the courts of appeals discretion to entertain an appeal from an interlocutory order when the district court has determined that the order involves “a controlling question of law as to which there is substantial ground for difference of opinion” and that “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).

However, this Court long ago cautioned that section 1292(b) “was to be confined to exceptional cases.” Medomsley Steam Shipping Co. v. Elizabeth River Terminals, Inc., 317 F.2d 741, 743 (4th Cir. 1963). It “should be used sparingly” and “its requirements must be strictly construed.” Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989). Further, the Supreme Court has noted that even where, as here, the district judge certifies the order under section 1292(b), the appellant still “has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (internal punctuation omitted). The immediate appeal of a certified question “is an extraordinary remedy, which may be granted or denied at the sole discretion of the court of appeals.” Fannin v. CSX Transp., Inc., 873 F.2d 1438, 1989 WL 42583 at *2 (4th Cir. 1989); see also Pres. & Dirs. of Georgetown Coll. v. Madden, 660 F.2d 91, 97 (4th Cir. 1981) (even if the district court certifies the order, the appeal does not proceed unless the court of appeals permits it to).

Baltimore County cannot satisfy section 1292(b)’s stringent standards. The district court’s summary judgment order on liability is simply not the sort of exceptional ruling that calls out for this Court’s immediate action. Thus, this Court should exercise its discretion to deny the county’s petition and let this litigation proceed to final judgment in the district court. See Coopers, 437 U.S. at 475 (noting that appellate courts can deny review under section 1292(b) for any reason whatsoever, including “docket control”).

1. There is no “controlling question of law.”

For this Court to allow appeal under section 1292(b), it must conclude the order certified involves a “controlling question of law.” The district court framed the issue as “whether a defined benefit pension plan violates the ADEA if it requires employees to contribute disparate percentages of their wages based on the age at which they entered the plan, despite the fact that all employees are eligible to retire after a fixed number of years of service” and whether “the County’s Plan fits within the ADEA’s [section-4(l)] safe harbor provision . . . .” R.206 at 3. That is not a “controlling question of law” within the meaning of section 1292(b).

As this Court has explained, “the kind of question best adapted to discretionary interlocutory review is a narrow question of pure law . . . .” Fannin, 1989 WL 42583 at *5 (emphasis added); see also Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 195 (4th Cir. 2011) (finding the “controlling question of law” criterion met since the Court was “faced with a pure question of law”). Questions requiring this Court to apply case-specific facts do not qualify. See Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 677 (7th Cir. 2000) (“The idea was that if a case turned on a pure question of law, something the court of appeals could decide quickly and cleanly without having to study the record, the court should be enabled to do so without having to wait till the end of the case.”).

Resolving whether the ERS includes an “early retirement incentive” within the meaning of section 4(l) of the ADEA – let alone whether, even if it does, that exempts the county from ADEA liability here – will not involve purely legal inquiries. If this Court grants the county’s permission to appeal, it will have to master a massive factual record, trace the legislative and actuarial history of the ERS, and wade into – among many other factual disputes between the parties – whether the county itself historically has considered the years-of-service option a section-4(l) early retirement incentive. The briefing below at summary judgment shows just how fact-intensive this issue is. See, e.g., R.175-1 at 27–32; R.180 at 7–20; R.187 at 13–18.

In finding the section 4(l) question “controlling,” the district court noted that if this Court “holds that the County’s Plan fits within the ADEA’s safe harbor provision, then the action would be terminated.” R.206 at 3. However, this Court has found that a question cannot be “controlling” unless its “resolution will be completely dispositive of the litigation, either as a legal or practical matter, whichever way it goes.” Fannin, 1989 WL 42583, at *5 (emphasis added). “The mere fact that its resolution at this time may save pre-trial and trial effort and expense is not determinative; that of course can be said of any interlocutory appeal.” Id. (citing Palandjian v. Pahlavi, 782 F.2d 313, 314 (1st Cir. 1986)) (emphasis in Fannin). The county in its motion for certification conceded that it could not satisfy this condition. It acknowledged that even a reversal by this Court could merely “result in . . . a remand for further proceedings on the issue of liability.” See R.200-1 at 8. The district court’s liability ruling thus does not contain a section 1292(b) “controlling question of law.”

2. There is no “substantial ground for difference of opinion.”

But even if the county’s section-4(l) argument could be construed as a controlling legal question, there is no “substantial ground for difference of opinion” as to whether this statutory safe harbor applies here. The district court correctly characterized this as a “novel” issue. It is so novel, in fact, that there is no authority for the county’s interpretation and application of section 4(l). The county points to none (other than its say-so), acknowledging this “presents an issue of first impression not only in this Circuit, but in all other Circuits . . . .” Pet. at 12. That falls short of the necessary section-1292(b) showing. See, e.g., Flor v. BOT Fin. Corp. (In re Flor), 79 F.3d 281, 284 (2d Cir. 1996) (warning that “the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion”); White v. Nix, 43 F.3d 374, 378 (8th Cir. 1994) (noting that a “dearth of cases” doesn’t count).[4]

By its terms, section 4(l) provides a defense for claims challenging an employer’s practice of subsidizing retirement benefits for employees who retire early. Employers usually provide early retirement benefits to reduce their payroll costs by encouraging the employees who tend to be more senior and more highly paid to retire before their normal retirement age. When an employer allows its employees to retire before their normal retirement age, actuarial principles call for those retirement benefits to be reduced (by, for example, 0.5% a month). S. Rep. 101-263, at 20; H.R. Rep. 101-664, at 37. To increase the incentive to retire early, some employers eliminate that actuarial reduction in whole or in part. Section 4(l) refers to that augmentation of the retirement benefit (i.e., the elimination of the actuarial reduction) as “the subsidized portion of an early retirement benefit.” Id. Congress recognized that such subsidized early retirement benefits appear to violate the ADEA, since the recipients are given a benefit that is actuarially more valuable than the benefit similarly-situated employees who do not retire early (and will be older when they retire) will receive. Congress adopted section 4(l) to authorize employers to provide these subsidized early retirement benefits, free of fears of possible ADEA liability. Id.

The ERS’s service-based-retirement provisions do not constitute this type of section-4(l) early retirement benefit Congress had in mind. The ERS allows employees to retire after twenty or thirty years of service, rather than a certain number of years before their normal retirement age. Further, there is no evidence in the record that the county adopted the service-based-retirement option to cut its payroll costs. Rather, the record suggests that the county adopted these provisions to satisfy the employees’ demands for them.

Even more important, the ERS (and related) documents do not characterize the service-based-retirement provisions as an “early retirement” program. Rather, they describe them as a “normal retirement” or “normal service retirement” program.[5] And even in this litigation, until the county raised its new section-4(l) defense on remand, the county and its actuary usually referred to the plan’s service-based-retirement provisions as part of the employees’ “normal service retirement age” or “normal retirement age,” not as an “early retirement” benefit. See R.180 at 17; R.92 at 8, 38.[6] Further, the ERS documents do contain a provision labeled “early retirement,” but that provision establishes a plan like the one Congress had in mind when adopting section 4(l): it allowed employees to retire before reaching their normal service retirement age, but with a 5% reduction for each year they retire early. R.180, Ex. 15, at EEOC 9021, 9087, 9129.

Moreover, even if the county’s years-of-service option constitutes an early retirement benefit under section 4(l), that still would be no defense to the EEOC’s claim here. The Commission alleges that the ERS imposes disparate contribution rates that violate the ADEA because they require older enrollees to make larger contributions than younger enrollees. Section 4(l) deals solely with the permissibility of the employer’s additional contributions to the early retirement benefit. But, as the district court here recognized, section 4(l) does not permit employers to require employees older at enrollment to make larger contributions to the plan. The county essentially conceded as much in district court. It acknowledged that it “has never contended that it can require (nor did it require) older new members to contribute at a higher rate because it offers a fully subsidized early retirement benefit.” R.187 at 14 (emphasis added). Rather, the county explained, “[i]t required older new members to contribute at a higher rate based on the time value of money rationale.” Id.

Of course, this is the very same “time value of money” rationale this Court has already rejected. The county contends otherwise, arguing, as it did on remand repeatedly, that this Court “did not question the district court’s finding with respect to the time value of money determination . . . .” Pet. 3; see also R.175-1 at 2, 4, 15, 27; R.187 at 1, 3, 5. The county misreads this Court’s ruling. This Court categorically stated that the challenged disparity in contribution rates “is not justified by the time value of money.” App-9 (emphasis added). This Court thus has already reviewed – and rejected – the crux of the county’s section 4(l) defense. See id. (“Though the [district] court gave various reasons why the ERS was not motivated by age, each reason relies on this ‘time value of money’ rationale” and “[b]ecause the district court’s holding rests solely on this faulty premise, we must vacate the summary judgment.”). This Court should decline to give the county a second (discretionary) bite at the appellate apple on this issue, which this Court has already decided.

CONCLUSION

It seems the county seeks interlocutory appeal simply to speed up appellate review of the merits, hoping that it might avoid what it fears may be a “lengthy, costly, and complex damages phase of the case . . . .” R.200-1 at 3. Acknowledging it had few other options (e.g., a motion for reconsideration seemed futile and rule 54(b) did not apply), the county admitted that seeking permission to appeal under section 1292(b) seemed like its best bet. Id. at 5. But section 1292(b) is not a fast-forward button for impatient parties, to be pressed when all else fails. The county will have ample opportunity to appeal adverse rulings on the merits and damages in due course, and as of right, at the end of the case. See Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009) (emphasizing the “general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered”) (internal quotation marks omitted). For now though, because the county has not demonstrated that the order certified meets section 1292(b)’s stringent requirements, or that this is an exceptional case necessitating immediate appellate review, its petition should be denied.

[1] The county’s public-safety employees had to enroll when they were hired. Other county employees had to enroll within two years of being hired.

[2] For example, if the new enrollee was 20, the contribution rate was 4.42% of salary. At 30, a new enrollee’s contribution rate is 4.80%. New enrollees at age 40 had to contribute 5.57%. By age 50, new enrollees contributed 6.61%. And if a new enrollee was 58, he or she would have to contribute 7.65%.

[3] The county had argued (as it does now in its petition, Pet. 9), that there is no authority that compelled it to recalculate the employee contribution rates when it added the service-based-retirement options. R.175-1 at 31. The authority that compelled the county to recalculate the rates is the ADEA itself, as amended by the Older Workers Benefit Protection Act, which stated that the OWBPA’s employee-benefit-plan amendments would govern state and county pension plans, and which gave states and counties two years to bring their pension plans into compliance. Pub. L. 101-433, § 105(c). This two-year window would have given the county ample time to bring its pension plan into compliance with the law while taking into account all legitimate financial considerations and maintaining its legitimate objective of providing the enhanced benefit of a service-based retirement option.

[4] The county points to EEOC v. Waffle House, 193 F.3d 805 (4th Cir. 1999), rev’d and remanded, 534 U.S. 279 (2002), as an example of an “issue of first impression” that this Court decided on interlocutory appeal. Pet. at 13–14. It neglects to mention that this Court reviewed Waffle House pursuant to 9 U.S.C. § 16(a)(1) (allowing interlocutory appeals as of right from orders denying petitions to compel arbitration) – not section 1292(b). See 193 F.3d at 808; see also May v. Higbee Co., 372 F.3d 757, 762 (5th Cir. 2004) (§ 16(a)(1) creates a “general, congressionally mandated rule that anti-arbitration decisions are immediately appealable”).

[5] The county code, which governs the ERS, states: “[T]he normal service retirement age [for general employees hired before July 1, 2007]. . . shall be the age of sixty (60) with five (5) years of creditable service or at [sic] the age at which the member completes thirty years of creditable service, whichever is earlier.” Baltimore County Code, § 5-1-213(a)(2) (emphasis added) (available at http://www.amlegal.com/library/md/baltimoreco.shtml) .

[6] The plan summaries distributed to employees described the service-based-retirement options as constituting “normal service retirement.” R.180, Ex. 15, at EEOC 9020. A memorandum of understanding between the county and the firefighters’ union defined “normal retirement age” as, among other things, “25 years of creditable service.” R.180, Ex. 19, at EEOC 10247, § 17.2. The rule 30(b)(6) witness for the county’s actuary testified that the “normal retirement age” under the ERS includes solely-service-based retirement. R.180, Ex. 21 (Driscoll 30(b)(6) dep.) at 556. And some of the actuary’s annual plan valuations characterized service-based retirement the same way: as “normal retirement.” R.180, Ex. 24, at EEOC 8375–78, 1436–39, 1329–30.