U.S. Equal Employment Opportunity Commission v. Baltimore County (202 F. Supp. 3d 499, 2016)

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge

In April of 1999 and January of 2000, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued Notices of Charge of Discrimination to Baltimore County on behalf of two Baltimore County correctional officers who alleged that Baltimore County’s employee pension plan, and employee plan contribution rates, discriminated against them based on their ages. See EEOC v. Baltimore Cty., et al., 747 F.3d 267, 271 (4th Cir.2014), cert. denied sub nom. Baltimore Cty. v. EEOC, — U.S. -, 135 S.Ct. 436, 190 L.Ed.2d 328 (2014). The County timely denied these charges and provided the EEOC with all requested information, including its actuary’s cost justification for the employee contribution rates. With no further inquiry from the EEOC, five and one half years passed until March of 2006 when the EEOC issued a notice that the County’s pension plan violated the Age Discrimination in Employment Act of 1967 (“ADEA”). Another year and one half passed before the EEOC brought this action against Baltimore County (“Defendant” or the “County”) in September of 2007, alleging violations of the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621, et seq. See generally Am. Compl., ECF No. 57. Specifically, the EEOC has alleged that “[since] at least January 1, 1996, [the] County has engaged in unlawful employment practices by requiring Wayne A. Lee, Richard J. Bosse, and a class of similarly situated [County employees at least forty years of age] to pay higher contributions than those paid by younger individuals to Defendant’s pension plan,” in violation of 29 U.S.C. §§ 623(a)(1) & (i)(l). Id. at ¶ 14. Via Memorandum Opinion and Order dated October 17, 2012, Judge Benson E. Legg of this Court “grant[ed] partial summary judgment in favor of the EEOC on the issue of liability.” EEOC v. Baltimore Cty., No. L-07-2500, 2012 WL 5077631, at *1 (D.Md. Oct. 17, 2012). Judge Legg’s ruling was subsequently affirmed by the United States Court of Appeals for the Fourth Circuit and remanded “for further proceedings to address the issue of damages.” EEOC v. Baltimore Cty., et al., 747 F.3d 267, 274-75 (4th Cir.2014).

There is no dispute in this case that the Union Defendants have bargained for the County’s pension plan contribution rates from the 1970s through the present and in fact “acquiesce[d]” to “or even support[ed]” those rates. Mem. Supp. EEOC Mot., p. 16, ECF No, 241-1. Additionally, as discussed infra, the parties and all six Union Defendants have approved a plan for the gradual equalization of contribution rates under the County’s pension plan. The terms of that plan have since been incorporated into a Joint Consent Order Regarding Injunctive Relief, signed by this Court on April 26, 2016. (ECF No. 238). However, the EEOC contends that both retroactive and prospective monetary damages are mandatory in this case and are still necessary to compensate older County employees for the excess contributions they have previously made to the County’s discriminatory pension plan and will continue to make over the next two years as the pension plan’s contribution rates are gradually equalized. The County argues that neither retroactive nor prospective monetary relief is mandatory and that neither form of relief is warranted in this case.

Currently pending before this Court is the EEOC’s Motion for Determination on Availability of Retroactive and Prospective Monetary Relief (ECF No. 241). The parties’ submissions have been reviewed, and a hearing on the pending Motion was held before this Court on July 29, 2016. At that hearing, counsel for the EEOC1 acknowledged to this Court that the EEOC’s delay of eight years in filing this action “trouble[d]” him. Hearing Tr., at M-72. This Court finds that the EEOC’s eight-year delay in prosecuting this case and its present position on the issue of damages are more than “troubling]” and are in fact untenable. Counsel for the County have represented that the County’s retroactive liability alone could total $19 million. County Response, p. 24, ECF No. 243. The EEOC has conceded “that the amount of an award of monetary relief in this case could be substantial, that ‘[Retroactive liability could be devastating for pension funds,’ and that the ‘harm would fall on innocent third parties,’ including county tax payers, as well as current and retired employees.” Mem. Supp. EEOC Mot., p. 20, ECF No. 241-1 (quoting City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 722-23, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978)). For the reasons stated herein, the EEOC’s Motion for Determination on Availability of Retroactive and Prospective Monetary Relief (ECF No. 241) is DENIED. Neither retroactive nor prospective monetary relief is mandatory under the Age Discrimination in Employment Act (“ADEA”) and, under the circumstances of this case, neither form of relief is appropriate. Even if retroactive monetary relief were mandatory, a closer question than prospective relief, this Court would still decline to award retroactive relief in this case due to the EEOC’s unreasonable delay in pursuing its claims. Accordingly, neither retroactive nor prospective monetary relief is available in this case. As a result of the Joint Consent Order (ECF No. 238), there are no further issues in this case. After over seventeen years, this matter is now concluded.

BACKGROUND

The facts of this case are set forth fully in EEOC v. Baltimore Cty., 747 F.3d 267, 270 (4th Cir.2014); EEOC v. Baltimore Cty., No. L-07-2500, 2012 WL 5077631, at *1 (D.Md. Oct. 17, 2012); and EEOC v. Baltimore Cty., 593 F.Supp.2d 797, 799 (D.Md.2009).

In 1945, Defendant Baltimore County (“Defendant” or the “County”) established a mandatory Employee Retirement System (the “pension plan” or “ERS”) for all “general” County employees, under which employees were eligible to retire and receive pension benefits at age 65, regardless of them length of employment. EEOC v. Baltimore Cty., 747 F.3d 267, 270 (4th Cir.2014). The County planned to fund half of the ERS on its own and relied on employee contributions to fund the other half. Id. The County required employees to contribute to the ERS over the course of their employment at contribution rates calculated by the County’s actuarial firm, Buck Consultants. Id.

To ensure that employee contributions were sufficient to fund the Plan, Buck Consultants “based its calculations for employee contribution rates on the number of years that an employee would contribute to the plan before being eligible to retire at age 65.” Id. “Using the retirement age of 65, Buck ultimately concluded that older employees who enrolled in the plan should contribute a higher percentage of their salaries, because their contributions would earn interest for fewer years than the younger employees’ contributions.” Id. The County adopted the Buck Consultants calculations and, accordingly, “the older that an employee was at the time of enrollment [in the ERS], the higher the rate that the employee was required to contribute.” Id.

The County modified the terms of the ERS several times. Most notably, in 1973 “[t]he County.. .added an alternative term of retirement eligibility that permitted general employees to retire after 30 years of service irrespective of their age.” Id. The County lowered the employee contribution rates once in 1977 “based on expected increases to the rate of return on invested contributions.” Id. at 271. However, “[t]his reduction did not alter the fact that rates were based on an employee’s age at the time of plan enrollment and were higher for older employees.” Id.

“In 1999 and 2000, two County correctional officers, Wayne A. Lee and Richard J. Bosse, Sr., aged 51 and 64, respectively, filed charges of discrimination with the EEOC alleging that the County’s plan and disparate contribution rates discriminated against them based on their ages.” Id. The County has indicated that it “denied the charges and supplied EEOC with all the information it requested, including the cost justification from its actuary for the employee contribution rates.” County Response, p. 5, ECF No. 243 (citing Joint Appendix 321-403). However, “[ajfter an unexplained hiatus of 5 and ½ years, on March 6, 2006, the EEOC issued Determination Letters finding that the County’s retirement system violated the ADEA.” Id. (citing Joint Appendix 72-75).

The parties were unsuccessful in reaching a conciliation agreement, and the EEOC filed the present action in 2007— eight years after the first charge of discrimination was filed. See generally Am. Compl., ECF No. 57. The EEOC has alleged that “[since] at least January 1,1996, [the] County has engaged in unlawful employment practices by requiring Wayne A. Lee, Richard J. Bosse, and a class of similarly situated [County employees at least forty years of age] to pay higher contributions than those paid by younger individuals to Defendant’s pension plan,” in violation of 29 U.S.C. §§ 623(a)(1) & (i)(l). Id. at ¶ 14.

On January 21, 2009, Judge Benson E. Legg of this Court granted the County’s Motion for Summary Judgment and ordered that this case be closed. See EEOC v. Baltimore Cty., et al., 593 F.Supp.2d 797 (D.Md.2009). Judge Legg reasoned that “the ADEA does not prohibit employer actions when the motivating factor is something other than the employee’s age.” Baltimore Cty., 593 F.Supp.2d at 800 (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). Judge Legg concluded that the County’s contribution rates did not violate the ADEA because they were “actually motivated not by age, but by the pension status—i.e. the number of years until retirement eligibility—of older new-hires.” Id. Furthermore, Judge Legg analogized the present case to the Supreme Court’s decision in Kentucky Retirement Sys. v. EEOC, 554 U.S. 135, 128 S.Ct. 2361, 171 L.Ed.2d 322 (2008), in which the Court held that “[w]here an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was ‘actually motivated’ by age, not pension status.” Id. at 801. Judge Legg held that the factors underlying the Supreme Court’s decision in Kentucky Retirement Systems “applied] equally to the instant situation,” and, accordingly, concluded that the County had not violated the ADEA. Id. at 802.

The EEOC argued that the contribution scheme was invalid under the Supreme Court’s decisions in Ariz. Governing Comm. v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983) and Los Angeles Dep’t of Water and Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), two Supreme Court cases invalidating retirement plans under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., “that paid equal retirement benefits to men and women of the same age, seniority, and salary, but required female employees to make larger monthly contributions.” Id. at 802. However, Judge Legg distinguished Manhart and Norris from the present case on the grounds that “those decisions involved situations where an employer facially discriminated against its employees on the basis of sex, a protected category.” Id. “In contrast,” he concluded, “Baltimore County’s system is based not on age—a protected category—but on the number of years an employee has until reaching retirement age.” Id.

The United States Court of Appeals for the Fourth Circuit subsequently vacated Judge Legg’s ruling, holding that a genuine issue of material fact remained as to whether the County’s “contribution rates [were] justified by permissible financial considerations.” EEOC v. Baltimore Cty., 385 Fed.Appx. 322, 325 (4th Cir.2010). The Court reasoned as follows:

[U]nder the express terms of the ERS, 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. 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. However, the forty-year-old must contribute 5.57% of his annual salary while the twenty-year-old need only contribute 4.42%. This disparity is not justified by the time value of money because both employees contribute for the same twenty years.

Accordingly, the Fourth Circuit remanded this case for further proceedings consistent with its opinion. Id. at 326. On remand, Judge Legg proceeded to grant partial summary judgment for the EEOC on the issue of liability. EEOC v. Baltimore Cty., No. L-07-2500, 2012 WL 5077631, at *1 (D.Md. Oct. 17, 2012). He characterized “[t]he problem identified by the Fourth Circuit” as “an unintended consequence, resulting from the interaction of two separate and independently lawful provisions of the County Code enacted decades apart.” Baltimore Cty., 2012 WL 5077631 at *3. Judge Legg observed the following:

It is clear from the record that the age-based contribution rates, when put in place in 1945 until modified in 1977, were fully justified by the time value of money rationale identified by this Court in its prior opinion. Using projected years until retirement, Buck calculated the percentage of an employee’s pay that would be required to fund approximately one-half of his or her retirement benefit. Because all employees were eligible to retire at age 65, age served as a proxy for years until retirement. Thus, notwithstanding the fact that the ERS nominally based an employee’s contribution rate on the age at which he or she was hired, years until retirement was the real determining factor. In 1973 the County, at no additional cost to employees, added a generous early retirement option based on years of service. Such a benefit is explicitly authorized by § 4(Z) of the ADEA, which provides that no violation occurs solely because “a defined benefit plan... provides for... payments that constitute the subsidized portion of an early retirement benefit.” 29 U.S.C.- § 623(7 )(l)(A)(ii)(I). A secondary effect of this provision, however, was to decouple an employee’s age from his or her years until retirement. Age of retirement is no longer yoked to chronological age because some employees take early retirement while others do not. Id.

Judge Legg concluded that “after the County adopted the early retirement option, the different contribution rates charged to different employees are explained by age rather than pension status.” Id. at *5. Therefore,, he reasoned, “[pension status... cannot be the driving factor behind the disparate treatment, which is directly linked to an employee’s age.” Id. Judge Legg held that “because age [was] the ‘but-for’ cause of the disparate treatment, the ERS violated the ADEA.” Id. (quoting Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)). However, Judge Legg granted the County leave to file an interlocutory appeal on the issue of liability, concluding that “the question presented [was] a novel one,” and that “the magnitude of the effort [related to the damages phase' of the case] counseled] in favor of making certain that the effort is necessary before it is undertaken.” Dec. 7, 2012 Letter Order, p. 4, ECF No. 206. The Fourth Circuit affirmed Judge Legg’s ruling on appeal and remanded this case “for further proceedings to address the issue of damages.” EEOC v. Baltimore Cty., et al., 747 F.3d 267, 274-75 (4th Cir.2014).

The parties and all six unions (“Union Defendants”) representing the County employees participating in the ERS have since agreed to a Joint Consent Order (ECF No. 238), which includes a plan for equalization of pension plan contribution rates over the next two years. That Joint Consent Order, with respect to the injunc-tive portion of this case and the equalization of member contribution rates, has now been entered by this Court. However, the Order indicated that the “EEOC intended] to seek retroactive monetary relief from the County for individuals harmed by the pension practice found to be unlawful by this Court, and also intended] to seek prospective monetary relief from the County for employees who may be harmed by’ the phase-in of age-neutral contribution rates_” Joint Consent Order, p., 6, ECF No. 238. This Court subsequently directed the parties to brief the “question of any damages to be awarded either retroactively or prospectively,” and a hearing on that question was held before this Court on July 29, 2016. Letter Order, ECF No. 237.

ANALYSIS

I. A Retroactive Award of Compensation for Amounts Owing .is Not Mandatory Under the Age Discrimination in Employment Act (“ADEA”)

The Equal Employment Opportunity Commission (“EEOC”) argues that this Court “must award retroactive relief to Wayne A. Lee, Richard J. Bosse, and the class of similarly situated aggrieved individuals.” Mem. Supp. EEOC Mot., p. 3, ECF No. 241-1. Specifically, the EEOC requests an award of “amounts owing,” i.e. “the amounts of contributions of employees age 40 or over, who were required to participate in .[Baltimore County’s Early Retirement System (“ERS”) ], in excess of the amounts they would have contributed if age were not a factor in employee contribution rates.” Id. at 5.

Section 626 of the Age Discrimination in Employment Act (“ADEA”), the ADEA’s enforcement provision, provides the following:

The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

29 U.S.C. § 626(b). Additionally, Section 216 of the Fair Labor Standards Act (“FLSA”), incorporated into the ADEA’s enforcement provision supra , provides the following:

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. 29 U.S.C. § 216(b).

The EEOC contends that “[t]he [United States] Supreme Court has interpreted these provisions as depriving the courts of discretion in awarding compensation for monetary harm resulting from an ADEA violation.” Mem. Supp. EEOC Mot., p. 3, ECF No. 241-1. The EEOC relies primarily on Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), in which the Supreme Court held that “in a private action under the ADEA a trial by jury [is] available where sought by one of the parties.” Lorillard, 434 U.S. at 585, 98 S.Ct. 866. In reaching that conclusion, the Supreme Court in Lorrilard compared the plain language of the ADEA’s enforcement provisions to the enforcement provisions of the FLSA, under which the “right to a jury trial in private actions” was “well established,” and Title YII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., “which petitioner [Loril-lard] maintain[ed] d[id] not provide for jury trials.” Id. at 580-585, 98 S.Ct. 866. The Court ultimately concluded that “by directing that actions for lost wages under the ADEA be treated as actions for unpaid minimum wages or overtime compensation under the FLSA.. .Congress dictated that the jury trial right then available to enforce that FLSA liability would also be available in private actions under the ADEA.” Id. at 582-83, 98 S.Ct. 866. Additionally, the Court observed that “[t]he word ‘legal’ is a term of art: [i]n cases in which legal relief is available and legal rights are determined, the Seventh Amendment provides a right to jury trial.” Id. at 583, 98 S.Ct. 866 (citing Curtis v. Loether, 415 U.S. 189, 195-96, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974)). Accordingly, the Court inferred that “by providing specifically for ‘legal’ relief’ under the ADEA, “Congress... intended that there would be a jury trial on demand to ‘enforc[e],. .liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation.’ ” Id. (quoting 29 U.S.C. § 626(b)). .

The Supreme Court identified “significant differences” between “the remedial provisions” of Title VII and the ADEA. Id. at 584, 98 S.Ct. 866. While “Congress specifically provided for both ‘legal and equitable relief in the ADEA, “legal” relief was “not authorize^]... in so many words under Title VIL” Id. Additionally, the Court observed that “the ADEA incorporates the FLSA provision that employers ‘shall be liable’ for amounts deemed unpaid minimum wages or overtime compensation, while under Title VII, the availability of backpay is a matter of equitable discretion.” Id. at 584, 98 S.Ct. 866. Finally, “rather than adopting the procedures of Title VII for ADEA actions, Congress rejected that course in favor of incorporating the FLSA procedures even while adopting Title' VU’s- substantive prohibitions.” Id. at 584-85, 98 S.Ct. 866. Therefore, the Court concluded that “even if [Lorrilard] is correct that Congress did not intend there to be jury trials under Title VII, that fact sheds no light on congressional intent under the ADEA.” Id. at 585, 98 S.Ct. 866.

The EEOC further contends that “[t]he Fourth Circuit has likewise ruled that monetary relief under the ADEA is a mandatory legal remedy.” Mem. Supp. EEOC Mot., p. 5, ECF No. 241-1. The EEOC cites Loveless v. John's Ford, Inc., 232 Fed.Appx. 229, 239 (4th Cir.2007) (unpublished) (per curiam) (concluding that “a liquidated damages award [w]as mandatory. . .where [the plaintiff was] a prevailing plaintiff relying on a jury finding of a willful violation of the ADEA by [his employer].”); Fariss v. Lynchburg Foundry, 769 F.2d 958, 964 (4th Cir.1985) (“The ‘amounts owing' under the ADEA, § 626(b) [including ‘job-related benefits’] are legal damages, unlike the equitable remedies directing employment, reinstatement and promotion.”); and Sailor v. Hubbell, Inc., 4 F.3d 323, 325-26 (4th Cir.1993) (“[A] back pay award given under the ADEA is a legal remedy.”).

Contrary to the EEOC’s representations, no court has held that a retroactive award of compensation for amounts owing is mandatory under the Age Discrimination in Employment Act (“ADEA”). The Fourth Circuit in Loveless concluded only that liquidated damages were mandatory “in th[at] case” because a jury had determined that the plaintiff, Loveless, was discharged “on the basis of his age” and that his employer’s “conduct was a willful violation of the ADEA.” See Loveless, 232 Fed.Appx. at 239-240 (emphasis added). “Liquidated damages are available under the ADEA in an amount equal to other damages where the employer is guilty of ‘willful violations.’” Fariss v. Lynchburg Foundry, 769 F.2d 958, 967 (4th Cir.1985) (quoting 29 U.S.C. § 626(b)). However, the Fourth Circuit in Loveless said nothing about whether those “other damages,” including “back pay” or retroactive “amounts owing” are mandatory. At this Court’s July 29, 2016 hearing, counsel for the EEOC posed the question, “[h]ow could liquidated damages be mandatory if back pay isn’t?” Hearing Ti\, at M-36. He argued that “[i]t doesn’t make any sense logically for one to be mandatory and the other not to be,” although he cited no authority in support of that position. Id. While the Fourth Circuit did address “amounts owing” and “back pay” in Fariss and Sailor, the Court concluded only that they were “legal,” as opposed to “equitable,” remedies. See Fariss, 769 F.2d at 964; Sailor, 4 F.3d at 325-26. Here, Defendant Baltimore County (“Defendant” or the “County”) does not contest that the retroactive monetary relief sought by the EEOC is a “legal” remedy. See Cty. Response, p. 3, ECF No. 243. Rather, the County argues that the ADEA’s enforcement provisions plainly grant this Court discretion to award “ ‘such legal and equitable relief as may be appropriate.’” Id. (quoting 29 U.S.C. § 626(b)) (emphasis added).

Likewise, the Supreme Court’s decision in Lorrilard does not directly support the EEOC’s position. The question before the Supreme Court in Lorrilard was whether a right to a jury trial existed in private actions brought under the ADEA, not whether any remedy available under the ADEA was or was not mandatory. See Lorrilard, 434 U.S. at 585, 98 S.Ct. 866. While the Court did contrast the ADEA’s enforcement provisions with Title VII's enforcement provisions, under which “back-pay is a matter of equitable discretion,” the Court did not hold that a retroactive award of compensation for amounts owing is mandatory under the ADEA. See id., at 584, 98 S.Ct. 866. Additionally, the Court contrasted sections of the ADEA and FLSA, under which back pay is mandatory, observing the following:

[I]n enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undesirable or inappropriate for incorporation. For example, in construing the enforcement sections of the FLSA, the courts had consistently declared that in-junctive relief was not available in suits by private individuals but only in suits by the Secretary. Powell v. Washington Post Co., 105 U.S.App.D.C. 374, 267 F.2d 651 (1959); Roberg v. Henry Phipps Estate, 156 F.2d 958, 963 (CA2 1946); Botve v. Judson C. Burns, Inc., 137 F.2d 37 (CA3 1943). Congress made plain its decision to follow a different course in the ADEA by expressly permitting “such.. .equitable relief as may be appropriate to effectuate the purposes of [the ADEA] including without limitation judgments compelling employment, reinstatement or promotion” “in any action brought to enforce” the Act. § 7(b), 29 U.S.C. § 626(b) (emphasis added). Similarly, while incorporating into the ADEA the FLSA provisions authorizing awards of liquidated damages, Congress altered the circumstances under which such awards would be available in ADEA actions by mandating that such damages be awarded only where the violation of the ADEA is willful. Finally, Congress expressly declined to incorporate into the ADEA the criminal penalties established for violations of the FLSA.

Lorillard, 434 U.S. 575, 581-82, 98 S.Ct. 866 (1978). Furthermore, the Supreme Court specifically cited the language in the ADEA’s enforcement provision that the County claims grants this court discretion to award retroactive relief: “[I]n any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter.” Id. at 579, 98 S.Ct. 866, n. 5. The Supreme Court has not indicated that its holding in Lorrilard invalidated, or in any way interfered with, this provision.

On the contrary, several United States Circuit Courts of Appeal have subsequently confirmed that the ADEA grants courts broad discretion to award appropriate remedies for ADEA violations. The United States Court of Appeals for the Second Circuit in Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727-28 (2d Cir.1984) observed the following:

While the enforcement provisions of the ADEA were generally modeled after the remedies in the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 211(b), 216, and 217, which were incorporated by reference into the ADEA’s § 626(b), see Lorillard v. Pons, 434 U.S. 575, 577-78, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), congress did more than merely incorporate that statute’s back pay and limited in-junctive remedies. It expressly authorized the district courts to grant an ADEA claimant

such legal or equitable relief as may be appropriate to effectuate the purposes of [the act], including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts [owing to a person as a result of the violation of the ADEA]. 29 U.S.C. § 626(b).

Guided by this broad grant of remedial authority, we have previously encouraged district judges in this circuit :to fashion remedies designed to ensure that victims of age discrimination are made whole. Getter v. Markham, 635 F.2d 1027, 1036 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981).

Whittlesey, 742 F.2d at 727-28. Similarly, the United States Court of Appeals for the Eleventh Circuit concluded as follows in Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir.1988):

Once a verdict has been rendered in favor of an ADEA plaintiff, Sec. 7(b), 29 U.S.C. Sec. 626(b), authorizes the district court to “grant such legal or equitable relief as may be appropriate to effectuate the purposes of [the Act], including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts [owing a person as a result of the violation of the ADEA].” This is a broad grant of remedial authority, [citing Whittlesey, 742 F.2d at 727]. The selection of remedies is a matter of the trial court’s discretion, so long as the relief granted is consistent with the purposes of the ADEA.

Castle, 837 F.2d at 1561; see also Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 693 (8th Cir.1983) (“The ADEA provides legal and equitable remedies.... The Act affords the district court discretion to fashion appropriate relief, and its remedy can be set aside only if that discretion is abused”); Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th Cir.1985) (“[T]he selection of remedies for an ADEA violation is a matter of the trial court’s discretion, so long as the relief granted is consistent with the purposes of the Act [citing Leftwich, 702 F.2d at 693].”). The EEOC has cited no case holding that this Court lacks discretion to deny retroactive relief for amounts owing, nor has the EEOC cited any case in which a retroac-five award was an appropriate remedy for a discriminatory pension plan.

The parties have only cited three cases where, like here, an employer’s pension plan was found to violate a federal anti-discrimination statute. See Florida v. Long, 487 U.S. 223, 108 S.Ct. 2354, 101 L.Ed.2d 206 (1988); Arizona Governing Comm. for Tax Deferred Annuity & Deferred Comp. Plans v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983); City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). Although all three cases involved violations of Title VII of the Civil Rights Act of 1964, as opposed to the ADEA violation at issue here, their unique status as pension plan cases was central to those opinions. None of those cases held that retroactive monetary relief was mandatory. On the contrary, they emphasized that retroactive awards have the capacity to devastate pension systems. See, e.g., Manhart, 435 U.S. at 722, 98 S.Ct. 1370 (“Courts have [] shown sensitivity to the special dangers of retroactive Title VII awards in this field.... Retroactive liability could be devastating for a pension fund. The harm would fall in large part on innocent third parties.”); Norris, 463 U.S. at 1106-07, 103 S.Ct. 3492 (“As in Manhart, holding employers liable retroactively would have devastating results.. .the cost would fall on the state of Arizona.”); Long, 487 U.S. at 236, 108 S.Ct. 2354 (“Retroactive awards, applied to every employer-operated pension plan that did not anticipate our decision, would impose financial costs that would threaten the security of both the funds and their beneficiaries.”)- All three cases ultimately held that retroactive relief was inappropriate.

No court has interpreted the enforcement provision of the Age Discrimination in Employment Act, 29 U.S.C. § 626(b), as requiring that retroactive monetary relief be awarded for ADEA violations. The United States Supreme Court has stated that the rules governing pension funds “should not be applied retroactively unless the legislature has plainly commanded that result.” Manhart, 435 U.S. at 721, 98 S.Ct. 1370. The ADEA’s enforcement provision provides that “court[s] shall have jurisdiction to grant such legal or equitable relief as may be appropriate_” 29 U.S.C. § 626(b). This broad grant of authority has been repeatedly confirmed by the United States Circuit Courts of Appeal. See, e.g., Whittlesey, 742 F.2d at 727—28; Castle, 837 F.2d at 1561.

Additionally, none of the three United States Supreme Court eases to consider a retroactive monetary award where an employer’s pension fund violated a federal anti-discrimination statute have held that a retroactive award was mandatory. On the contrary, all three cases have held that a retroactive monetary award was not appropriate, owing to the unique burdens that retroactive awards place on pension plans. See Long, 487 U.S. 223, 108 S.Ct. 2354; Norris, 463 U.S. 1073, 103 S.Ct. 3492; Manhart, 435 U.S. 702, 98 S.Ct. 1370. For these reasons, a retroactive award of compensation for amounts owing is not mandatory under the Age Discrimination in Employment Act. However, even if retroactive relief were mandatory under the ADEA, this Court would still not award retroactive relief in this case due to the EEOC’s unreasonable delay in pursuing its claims. As discussed infra, the doctrine of laches authorizes a court to bar a plaintiff from recovering damages where that plaintiff has unreasonably delayed prosecution of his or her claims and has prejudiced the defending party. Moreover, the United States Supreme Court has specifically held in Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 373, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) that federal courts have the power to “restrict or even deny backpay relief’ where the EEOC has “inordinately]” delayed filing the action.

II. A Prospective Award of Compensation for Amounts Owing is Not Mandatory Under the Age Discrimination in Employment Act (“ADEA”)

In addition to retroactive monetary relief, the EEOC also requests that this Court “award prospective monetary relief to the class of aggrieved individuals who will continue to pay at discriminatory rates until the age-neutral rates are ultimately phased in.” Mem. Supp. EEOC Mot., p. 6, ECF No. 241-1. The EEOC argues that this prospective relief “must be considered ‘amounts owing’... and thus an element of mandatory relief.” Id.

As explained supra, the EEOC has failed to demonstrate that retroactive monetary relief is mandatory under the ADEA. The ADEA’s enforcement provision grants this Court discretion to award “such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter....” 29 U.S.C. § 626(b). Courts have characterized this provision as a “broad grant of remedial authority,” Whittlesey, 742 F.2d at 727-28, and “a matter of the trial court’s discretion,” Goldstein, 758 F.2d at 1448. As to prospective relief, the United States Court of Appeals for the Fourth Circuit has specifically concluded that “whether front pay is to be made available to a plaintiff under the ADEA is a matter left to the discretion of the trial judge who must consider a host of factors.” Duke v. Uniroyal Inc., 928 F.2d 1413, 1424 (4th Cir.1991); see also Sailor v. Hubbell, Inc., 4 F.3d 323, 325-26 (4th Cir. 1993) (“[injunction, reinstatement, and front pay are equitable forms of relief under the ADEA.”); Loveless, 232 Fed.Appx. at 238 (“Whether an award of front pay should be made... rests squarely within the trial court’s discretion”). Other United States Circuit Courts of Appeal have held the same. See Goldstein, 758 F.2d at 1448-49 (“an award of front pay—i.e., prospective lost earnings—may be an appropriate remedy in an age discrimination suit_”) (emphasis added); Whittlesey, 742 F.2d at 728 (The ADEA’s “broad grant of remedial authority”.,. “permits a district court, in appropriate circumstances, to award front pay to victims of age discrimination.”) (emphasis added).

The plaintiffs in Duke v. Uniroyal, Inc. sued their former employer, alleging that they were discharged on the basis of their age in violation of the ADEA. Duke, 928 F.2d at 1416. The United States District Court for the Eastern District of North Carolina “submitted to the jury the issues of whether front pay [was] to be awarded and the amount.” Id. at 1421. Two of the plaintiffs, Duke and Fox, were awarded back pay, and “the jury made separate awards of front pay for anticipated lost income and benefits from the date of trial until retirement.” Id. at 1423. On appeal, the United States Court of Appeals for the Fourth Circuit vacated the jury verdict with respect to front pay and remanded the case “for the court to reconsider the total equitable remedies available.. .including the possibilities of reinstatement, front pay, a combination, or, if appropriate, no remedy.” Id. at 1424-25. The Fourth Circuit instructed the trial court to “consider a host of factors, including whether reinstatement [was] practical.” Id. at 1424. The Court further remarked that “[t]he appropriate method for addressing the difficult question of providing a remedy which anticipates potential future losses requires ' an analysis of all the circumstances existing at the time of trial for the purpose of tailoring a blend of remedies that is most likely to’ make the plaintiff whole. The beginning point under the ADEA for preventing future loss is reinstatement.” Id. at 1423. Although the plaintiffs in this case do not allege wrongful termination and reinstatement has not been requested, this Court has followed the Fourth Circuit’s guidance infra by weighing the EEOC’s request for prospective monetary relief against the “total equitable remedies available” and “all the circumstances existing at the time of trial.” Specifically, this Court concludes that prospective relief is not appropriate in part because the Union Defendants have bargained for the County’s contribution rates on behalf of County employees since the 1970s and because the EEOC, the County, and the Union Defendants have already reached a settlement in this case with respect to injunctive relief, under which contribution rates will be equalized over the next two years. Additionally, this Court has considered infra a “host of factors” specifically relevant to pension plan cases, identified by the Supreme Court in Man- hart, Norris, and Long, all of which suggest that prospective relief is not warranted in this case.

The EEOC objects that the requested prospective relief is not “front pay5’ because it is “not a remedy for past discrimination for "‘poténtial’ loss, but rather for current, on-going age discrimination that will certainly persist until July 1, 2018, by operation of the Joint Consent Order.” Mem. Supp. EEOC Mot., p. 6, ECF No. 241-1. The EEOC' contends that “[t]he amounts owing between now and July 2018 are readily calculable, without need for speculation concerning lost future earnings or the possibility of windfall payments.” Id. However, the EEOC fails to cite an authority indicating that prospective relief is mandatory, and not discretionary like front pay, simply because the amounts requested are “readily calculable” as opposed to “potential.” On the contrary, front pay is not always speculative,, but can be used to fill in a finite period of lost wages. The Fourth Circuit specifically observed in Duke that “front pay.. .can be awarded to complement a deferred order of reinstatement or to bridge a time when the court concludes the plaintiff is reasonably likely to obtain other employment... [i]f a plaintiff is close to retirement, front pay may be the only practical approach.” Duke, 928 F.2d at 1424.

Furthermore, this Court has identified several authorities which suggest" that “front pay” and “prospective relief' are one in the same. See Vergès v. Va. Highlands Cmty. College, No. 1:16CV00005, 2016 WL 3024170, at *3, 2016 U.S. Dist. LEXIS 68546 at *6 (W.D.Va. May 25, 2016) (“Count II of the Complaint asserts a claim against Couch under 42 U.S.C. § 1983 for violation of the ADEA. Count II seeks prospective injunctive relief in the form of reinstatement or front pay in lieu of reinstatement, as well as attorneys’ fees, costs, and expert witness fees.”) (emphasis added); 8-103E Business Organizations with Tax Planning § 103E.09 (2015) (“Front pay is a prospective monetary award of future .lost earnings that applies whenever reinstatement is inappropriate or infeasible.”) (emphasis added); 7-F17 Civil Rights Actions § F17.07 (2015) (“I instruct you that if the plaintiff persuades you that the defendant has violated the ADEA you may award the plaintiff prospective damages, sometimes called front pay.”). For these reasons,, a prospective award of compensation for amounts owing is not mandatory under the Age Discrimination in Employment Act.

III. Neither Retroactive Nor Prospective Monetary Relief is Available in this Case

A. The Factors Identified in the United States Supreme Court’s Pension Fund Cases—Manhart, Norris, and Long—Counsel Against a Monetary Award

As discussed supra, the 'parties have cited only three eases discussing the availability of retroactive relief where an employer’s pension fund contribution scheme has been found to violate a federal anti-discrimination statute. See Manhart, 435 U.S. 702, 98 S.Ct. 1370; Norris, 463 U.S. 1073, 103 S.Ct. 3492; Long, 487 U.S. 223, 108 S.Ct. 2354. In all three cases, the United States Supreme Court has held that retroactive relief is not appropriate. The United States Court of Appeals for the Ninth Circuit has characterized these cases as indicating a “clear Supreme Court disapproval of retroactive relief in pension cases.” Retired Pub. Employees’ Ass’n of Cal. Chapter 22 v. State of Cal., 799 F.2d 511, 514 (9th Cir.1986). The parties have cited no case, nor has this Court located one, addressing the availability of prospective relief for the period of time during which an employee contribution equalization plan is implemented. However, as discussed supra, this Court has discretion “to grant [either form of relief] as may be appropriate” to enforce the ADEA. See 29 U.S.C. § 626(b).

In City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), the United States Supreme Court held that the Los Angeles Department of Water and Power’s requirement that female employees make larger contributions to its pension fund than male employees violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. See Manhart, 435 U.S. at 704-717, 98 S.Ct. 1370. Although the Department’s contribution rates were based on the simple fact that women live longer than men, the Court concluded that “[a]n employment practice that requires 2,000 individuals to contribute more money into a fund than 10,000 other employees simply because each of them is a woman, rather than a man, is in direct conflict with both the language and the policy of [Title VII].” Id. at 711, 98 S.Ct. 1370.

However, the Supreme Court in Man-hart held that an “award of retroactive relief to the entire class of female employees and retirees” was not appropriate. Id. at 718-723, 98 S.Ct. 1370. While the Department’s contribution rates were ultimately found to violate Title VII, the Supreme Court acknowledged “that conscientious and intelligent administrators of pension funds, who did not have the benefit of the extensive briefs and arguments presented to [the Court], may well have assumed that a program like the Department’s was entirely lawful.” Id. at 720, 98 S.Ct. 1370. “The courts had been silent on the question, and the administrative agencies had conflicting views... [a]s commentators ha[d] noted, pension administrators could reasonably have thought it unfair-or even illegal-to make male employees shoulder more than their ‘actuarial share’ of the pension burden.” Id. Accordingly, the Supreme Court interpreted the Department’s failure to correct its pension fund contribution scheme as a sign “not of its recalcitrance, but of the problem’s complexity.” Id. Accordingly, the Court concluded that “[t]here [was] no reason to believe that the threat of a backpay award [was] needed to cause other administrators to amend their practices to conform to [its] decision.” Id. at 720-721, 98 S.Ct. 1370.

The Court further noted “the potential impact which changes in rules affecting insurance and pension plans may have on the economy” and observed the following:

Fifty million Americans participate in retirement plans other than Social Security. The assets held in trust for these employees are vast and growing-more than $400 billion was reserved for retirement benefits at the end of 1976 and reserves are increasing by almost $50 billion a year. These plans, like other forms of insurance depend on the accumulation of large sums to cover contingencies. The amounts set aside are determined by a painstaking assessment of the insurer’s likely liability. Risks that the insurer foresees will be included in the calculation of liability, and the rates or contributions charged will reflect that calculation. The occurrence of major unforeseen contingencies, however, jeopardizes the insurer’s solvency and, ultimately, the insureds’ benefits. Drastic changes in the legal rules governing pension and insurance funds, like other unforeseen events, can have this effect. Consequently, the rules that apply to these funds should not be applied retroactively unless the legislature has plainly commanded that result.

Id. at 721-22, 98 S.Ct. 1370. “Although Title VII [had been] enacted in 1964 [fourteen years prior to the Manhart decision],” the Court was sensitive to the fact that “this [was] apparently the first litigation challenging contribution differences based on valid actuarial tables.” The Court concluded as follows:

Retroactive liability could be devastating for a pension fund. The harm would fall in large part on innocent third parties. If, as the courts below apparently contemplated, the plaintiffs’ contributions are recovered from the pension fund, the administrators of the fund will be forced to meet unchanged obligations with diminished assets. If the reserve proves inadequate, either the expectations of all retired employees will be disappointed or current employees will be forced to pay not only for their own future security but also for the unanticipated reduction in the contributions of past employees.

Id. at 722-23, 98 S.Ct. 1370. Accordingly, the Court held that retroactive relief was not appropriate. Id.

Five years later, the Supreme Court held in Arizona Governing Comm. for Tax Deferred Annuity & Deferred Comp. Plans v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983) that the State of Arizona had violated Title VII by offering its employees the option of receiving retirement benefits from one of several companies selected by the State, all of which paid women lower monthly benefits than men who had made the same retirement contributions. Norris, 463 U.S. at 1075-86, 103 S.Ct. 3492. However, the Court concluded that “this finding of a statutory violation provide[d] no basis for” retroactive relief, which “would be both unprecedented and manifestly unjust.” Id. at 1105, 103 S.Ct. 3492. Even though the Manhart decision had placed employers on notice that male-female disparities in pension fund contribution rates violate Title VII, the Court reiterated its position in Manhart that “a retroactive remedy would have had a potentially disruptive impact on the operation of the employer’s pension plan” and concluded that the Norris case “presented] no different considerations.” Id. at 1106, 103 S.Ct. 3492. The Court reasoned as follows:

Manhart did put all employer-operated pension funds on notice that they could not. “requir[e] that men and women make unequal contributions to [the] fund,”... but it expressly confirmed that an employer could set aside equal contributions and let each retiree purchase whatever benefit his or her contributions could command on the “open market” .... Given this explicit limitation, an employer reasonably could have assumed that it would be lawful to make available to its employees annuities offered by insurance companies on the open market.

As in Manhart, holding employers liable retroactively would have devastating results. The holding applies to all employer-sponsored pension plans, and the cost of complying with the District Court’s award of retroactive relief would range from $817 to $1260 million annually for the next 15 to 30 years.... In this case, the cost would fall on the State of Arizona. Presumably other state and local governments also would be affected directly by today’s decision. Imposing such unanticipated financial burdens would come at a time when many States and local governments are struggling to meet substantial fiscal deficits. Income, excise and property taxes are being increased. There is no justification for this Court, particularly in view of the question left open in Manhart, to impose this magnitude of burden retroactively on the public. Accordingly, liability should be prospective only. Id. at 1106-1107, 103 S.Ct. 3492 (internal citations omitted).

In Florida v. Long, 487 U.S. 223, 108 S.Ct. 2354, 101 L.Ed.2d 206 (1988) the United States Supreme Court again considered whether retroactive relief was available for beneficiaries of the State of Florida’s optional employee pension plan, which was nondiscriminatory as to contributions, but had provided greater benefits to male beneficiaries than female beneficiaries prior to the Court’s decision in Norris. See Long, 487 U.S. at 226-28, 108 S.Ct. 2354. The Court announced the following test:

We have identified three criteria for determining whether retroactive awards are appropriate in Title VII pension cases involving the use of sex-based actuarial tables.... The first is to examine whether the decision established a new principle of law, focusing, in this context, on whether Manhart clearly defined the employer’s obligations under Title VII with respect to benefits payments. The second criterion is to test whether retroactive awards are necessary to the operation of Title VII principles by acting to deter deliberate violations or grudging compliance. The third is to ask whether retroactive liability will produce inequitable results for the States, employers, retirees, and pension funds affected by our decision.

Id. at 230, 108 S.Ct. 2354. With respect to the first criteria, the Supreme Court rejected the lower court’s position that the Manhart decision had “placed Florida on notice that optional pension plans offering sex-based benefits violated Title VII.” Id. at 230-233, 108 S.Ct. 2354. The Court concluded that its “references to contributions, as distinct from benefits payments” and recognition of “the potential for interaction between an employer-operated pension plan and pension plans available in the marketplace” in its Manhart opinion “left some doubt regarding [Manhart’s] command.” Id. at 231, 108 S.Ct. 2354. The Court indicated that it was “[n]ot until Norris, decided five years after Manhart,” that they “address[ed] the matter of unequal benefits payments and the open market exception.” Id. at 232, 108 S.Ct. 2354. “Thus, some questions left open by Manhart were answered in Norris.” Id. at 233, 108 S.Ct. 2354. The Court indicated that “[o]ur close division in the later case, however, suggests that application of the earlier law to differential benefits was far from obvious.” Id. “In view of the substantial departure from existing practice that Manhart ordered,” the Supreme Court concluded that “pension fund administrators could rely with reasonable assurance on its express qualifications and conclude that it was confined to cases of sex-based contributions.” Id. Therefore, “Florida’s continuance of the optional plans until the Norris decision d[id] not justify imposition of a retroactive award.” Id. at 235, 108 S.Ct. 2354.

Next, the Supreme Court ruled that “[t]he second and third criteria of retro-activity analysis also supported] [its] determination that Norris, and not Man-hart, provides the appropriate date for determining liability and relief.” Id. The Court concluded that “retroactivity [was] not required” “to further the purposes of Title YII” because “Florida acted immediately after.. .Norris and modified its optional pension plans to . provide equal monthly benefits” and because “[t]here [was] no evidence that employers in general ha[d] not complied with the Title VII requirements... announced in Manhart and extended in Norris.” Id. Finally, the Court concluded, “as in Manhart and Norris, that the imposition of retroactive liability on the States, local governments, and other employers that offered sex-based pension plans to their employees [was] inequitable.” Id. Quoting Manhart, the Court observed that “‘the rules that apply to these funds should not be applied retroactively unless the legislature has plainly commanded that result’” and “that Congress had, in fact, stressed the importance of ‘making only gradual and prospective changes’ in the legal rules governing pension plans.” Id. at 236, 108 S.Ct. 2354 (quoting Manhart, 435 U.S. at 720-23, 98 S.Ct. 1370). The respondents in Long argued “that Florida’s pension administrators had ‘actual notice from internal memoranda and discussions’ that the continuation of the sex-based optional pension plans after Manhart violated Title VII.” Id. (citation omitted). However, the Supreme Court rejected this argument, concluding that “the question whether Manhart placed employers on notice of Title VU’s requirements cannot turn on the internal debates of one pension fund’s administrators... [and that] [t]he meaning and scope of a decision do not rest on the subjective interpretations of discrete, affected persons and their legal advisers.” Id. at 237, 108 S.Ct. 2354.

Like in Manhart, Baltimore County had reason to believe that its pension plan contribution scheme was entirely lawful prior to the determination of liability in the present case. When the County implemented its 30 year early retirement option in 1973, no one advised the County that adding that option would “decouple” the time value of money from the contribution rates, causing the scheme to violate the ADEA. In fact, Buck Consultants, the County’s actuarial consultant, advised the County in 1988 that the contribution rates did not violate the ADEA. See Joint Appendix 17-19, Furthermore, in response to the charges of age discrimination filed against the -County in 1999 and 2000, the County sought the advice of its actuary, Buck Consultants, who specifically advised the County in August of 2000 that “a bona-fide employee benefit plan does not discriminate against older employees, even if older employees must pay more for their benefit, so long as older employees do not have to bear a greater percentage of the cost of the benefit than a younger employee.” Id. at 6-10. Therefore, like in Man-hart, there is “no reason to believe that the threat of a backpay award is needed to cause other administrators to amend their practices.” Manhart, 435 U.S. at 720-21, 98 S.Ct. 1370. While this Court ultimately held that the County’s contribution rates were unlawful, the fund’s administrators “did not. have the benefit of the extensive briefs and arguments” presented to this Court and “may well have assumed that” their contribution scheme “was entirely lawful.” Id. at 720, 98 S.Ct. 1370.

In fact, Judge Legg of this Court initially granted summary judgment for the County on the issue of liability in this case. As discussed supra, Judge Legg held that the County’s contribution scheme was not unlawful because “the ADEA does not prohibit employer actions when the motivating factor is something other than the employee’s age.” Baltimore Cty., 593 F.Supp.2d at 800. Furthermore, Judge Legg analogized the facts of this case to the Supreme Court’s decision in Kentucky Retirement Sys. v. EEOC, 554 U.S. 135, 128 S.Ct. 2361, 171 L.Ed.2d 322 (2008), in which the Court held that “[w]here an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was ‘actually motivated’ by age, not pension status.” Id. at 801. While the EEOC objects that the Supreme Court’s decisions in Manhart, Norris, and Long should have put the County on notice that its contribution scheme was discriminatory, Judge Legg of this Court also distinguished two of those cases in his initial opinion granting summary judgment for the County. While Manhart and Norris “involved situations where an employer facially discriminated against its employees on the basis of sex,” Judge Legg remarked that the “County’s system [was] based not on age... but on the number of years an employee ha[d] until reaching retirement age.” Id. at 802.

The issue presented in this case was a novel one, as evidenced by its complex history. See Long, 487 U.S. at 233, 108 S.Ct. 2354 (“[o]ur close division.. .suggests that application of the earlier law to differential benefits was far from obvious.”) Id. Judge Legg of this Court initially granted summary judgment for the County on the issue of liability, his judgment was vacated by the Fourth Circuit, then Judge Legg granted summary judgment for the EEOC on remand. The EEOC has failed to produce any case, prior to this one, where there was a decoupling of the time value of money concept from contribution rates as the result of the implementation of an employer-funded, early retirement option. See Manhart, 435 U.S. at 722, 98 S.Ct. 1370 (“Although Title VII [had been] enacted in 1964 [fourteen years prior to the Manhart decision],” the Court was sensitive to the fact that “this [was] apparently the first litigation challenging contribution differences based on valid actuarial tables.”)

The EEOC contends that the County should have been on notice of the unlawfulness of its contribution scheme following a 1999 letter from Buck Consultants, indicating concern about the impact of new regulations on its contribution rates. See August 24, 1999 Letter, ECF No. 241-2. However, the stated purpose of that letter was to review recent changes in the Internal Revenue Code, “to address several lingering issues,” and to provide “a summary of statutory rights.” Id. Additionally, the letter only discussed “Other Concerns-Age” in three paragraphs, out of eight pages, and never expressly indicated that the rates were illegal or should be calcul