rule in this case is the Policy Statement, which appears in conflict with the agency's litigation position. More significant, Puckett involved an express congressional choice to amend the ADEA, which is a different (though in many other respects similar) statute. This case, brought under Title VII, does not involve the construction of an express statutory command. As the Supreme Court has explained, "'The rules that apply to [pension] funds should not be applied retroactively unless the legislature has plainly commanded that result.'" Long, 108 S. Ct. at 2362 (quoting Manhart, 435 U.S. at 721). In short, Puckett does not speak to the statutory issue at hand.
Stripped of Puckett, the EEOC's briefs have given the Court no reason why August 1, 1983, should not be deemed the relevant liability date. However, in discussing whether the EEOC's prayer for relief is intolerably retroactive, the EEOC's briefs have addressed this issue indirectly, for the discussion concerning the scope of a permissible remedy confronts the question of how broadly to read Long. See Pl. Response, at 17-20; Pl. Amended Surreply, at 2-3; Pl. Letter Dated August 28, 1989, at 1.
The EEOC's best argument is to limit Long to its facts. The case then can be read to address only the liability date for the use of sex-based actuarial tables in the calculation of retirement benefits. See Pl. Response, at 15-16, 18. In litigation counsel's words, "This case does not deal with the complexities of sex-based actuarial tables, which were the subject matter in Long. . . . This case deals with a simple formula that gives men less pension credit than women. . . ." Pl. Letter Dated August 28, 1989, at 1.
In the face of this argument, this Court's task is to determine how generally the rule of Long is to be understood -- a task that by definition requires a thorough examination of the language of the case. See American Jewish Congress v. City of Chicago, 827 F.2d 120, 138 (7th Cir. 1987) (Easterbrook, J., dissenting). A beginning observation is that Long concerns itself not simply with the narrow facts of the controversy before it, but rather with the formulation of broad rules to govern pension disputes. For example, the Supreme Court took care to note that the surplus run by Florida's retirement system, and its consequent ability to absorb the shock of a retroactive benefit award, did not justify such relief, reasoning that that happenstance "should not control a decision that must be based on a broad principle." 108 S. Ct. at 2363. Concluding this thought, the Court reiterated its concern that "'important national goals [not] be frustrated by a regime of discretion'" that produced different results in different cases. Id. (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975)). Indeed, Long's entire raison d'etre was to bring uniformity to this area of the law.
As for the particular issue at hand, the Supreme Court gave every indication that it was not merely fashioning a rule to govern the use of sex-based actuarial tables. At the very beginning of the opinion, the Court stated the questions presented not in terms of actuarial tables, but of "benefit structures" and of whether persons who retired before the liability date "are entitled to adjusted benefits to eliminate any sex discrimination for all future benefit payments." Id. 108 S. Ct. at 2357 (emphasis supplied). The Court cautioned against applying a rule that "undermines the basic financial calculus of a pension plan that determines contribution rates to support a predicted level of payments." Id. 108 S. Ct. at 2364. The Court pointed out that an actuarially funded plan relies on a number of "essential assumptions," such as "a past assessment of an employee's expected years of service, date of retirement, average final salary, and years of projected benefits." Id. And note, with regard to the facts of this case, that the rate at which beneficiaries earned credit toward their pension is an assessment of expected years of service. Finally, the Court stated its holding broadly: "Liability may not be imposed for pre-Norris conduct." Id. 108 S. Ct. at 2359. " Norris informed covered employers with pension plans of the obligation under Title VII to provide payment levels, both for contributions and for benefits, that are nondiscriminatory as to sex." Id. 108 S. Ct. at 2363.
The EEOC's Policy Statement reflects this liberal understanding of Long. Although a headnote describes the statement as addressing when the Commission would "challenge the use of sex-based actuarial tables," the text of the statement belies this narrow description:
In summary, where a charging party challenges sex-based pension benefits, the Commission's position is as follows [with respect to defined benefit plans]: . . . If the charging party retired before August 1, 1983, he or she will be entitled to no relief because no liability may be imposed for pre-Norris conduct.
Pension Plan Guide (CCH) P 23,783W, at 25,189-11. The Court's underscoring is to emphasize the Policy Statement's broad view.
The Court agrees that Long establishes August 1, 1983, as the relevant liability date. This in turn creates a difficulty for the EEOC's case, because Homola, the charging party, retired on February 1, 1983, and, in the words of the EEOC's Policy Statement, "he . . . [is] entitled to no relief because no liability may be imposed for pre-Norris conduct." Id. Moreover, the EEOC has identified no other employees with service before July 2, 1965, who retired or will retire on or after August 1, 1983. Whether the charging party's ineligibility for relief is in itself fatal to the EEOC's case has not been briefed. However, because there have been disputes about the scope of discovery permitted to be taken, and because the Court is required to draw all reasonable inferences in favor of the nonmoving party, the Court will not grant summary judgment on this ground alone. Rather, for purposes of this analysis, the Court will assume the existence of male Bank employees with service before July 2, 1965, and who retired or will retire on or after August 1, 1983. The question then is whether these employees are entitled to pensions that do not take into account the sex-based crediting rates used before July 2, 1965.
The answer is that they are not. In Norris, the Court held that unisex actuarial tables need be used for the calculation of benefits only from the effective date of that decision. 463 U.S. at 1074-75 ("The Court holds . . . that all retirement benefits derived from contributions made after the decision today must be calculated without regard to the sex of the beneficiary."); id. at 1107 n. 12 ("Only benefits derived from contributions collected after the effective date of the judgment need be calculated without regard to the sex of the employee."); id. at 1111 (O'Connor, J., concurring) ("For contributions collected before the effective date of our judgment . . . I would allow employers and participating insurers to calculate the resulting benefits as they have in the past."). Accord Norris v. Arizona Governing Committee, 796 F.2d 1119, 1120-22 (9th Cir. 1986) (on remand); Probe v. State Teachers' Retirement System, 780 F.2d 776, 783 (9th Cir.), cert. denied, 476 U.S. 1170, 90 L. Ed. 2d 978, 106 S. Ct. 2891 (1986). Long reaffirmed this point of law (108 S. Ct. at 2364) -- a detail recognized by the EEOC's Policy Statement:
If the charging party retired after August 1, 1983, and the respondent immediately after Norris adopted unisex tables for all benefits derived from post-August 1, 1983 contributions, then the charging party will be entitled to no relief for the respondent's previous use of sex-based tables.