John Kowal v. Ferndale Area School District, et al.

The U.S. Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, (2013) and Gross v. FBL Financial Services, Inc., (2009), inter­ preted the statutory language “because” in 42 U.S.C. § 2000e-3(a), and “because of’ in 29 U.S.C. § 623(a)(1), respectively, as requiring a plaintiff to prove but-for causation. Because age is the only factor that prevented Kowal’s eligibility to receive the healthcare benefit, the plan is “arbitrary” and thus renders the sick leave incentive plan clearly and facially discriminatory in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. and the Older Workers Benefit Protection Act which state that “It is unlaw­ ful to discriminate against a person because of his or her age with respect to any . . . benefits ...” The Questions Presented are:

1. Whether the prerequisite, referenced by Ferndale in its denial of healthcare benefits to Kowal, in Ferndale’s “Sick Leave Incentive,” which states “(v) the retirement shall occur before the employee attains the age of eligibility for Medicare”, violates the provisions of the ADEA, 29 U.S.C. § 621 et seq. and the OWBPA, and specifically violated the “ButFor” test, which states that causation exists only when the result would not have occurred without the accused party’s conduct.

2. Whether Ferndale clearly, explicitly, and delib­ erately violated 29 U.S.C. § 623(f)(2)(B)(i), which states that a bona fide employee benefit plan must, for each benefit plan, “the actual amount of payment made or cost incurred on behalf of an older worker is no less