                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 16-2216


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

            Plaintiff – Appellant,

      v.

BALTIMORE COUNTY,

            Defendant – Appellee,

      and

BALTIMORE COUNTY FEDERATION OF PUBLIC EMPLOYEES, FMT,
AFT, AFL-CIO; BALTIMORE COUNTY FEDERATION OF PUBLIC HEALTH
NURSES; BALTIMORE COUNTY PROFESSIONAL FIRE FIGHTERS
ASSOCIATION INTERNATIONAL ASSOCIATION FIRE FIGHTERS LOCAL
1311-AFL-CIO; BALTIMORE COUNTY LODGE NO. 4 FRATERNAL ORDER
OF POLICE INCORPORATED; BALTIMORE COUNTY SHERIFF’S OFFICE
FRATERNAL ORDER OF POLICE/LODGE NUMBER 25; AMERICAN
FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, Local
#921,

            Defendants.


Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:07-cv-02500-RDB)


Argued: October 26, 2017                                  Decided: September 19, 2018


Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and SHEDD, Senior Circuit
Judge.
Vacated and remanded by published per curiam opinion.


ARGUED:        Paul D. Ramshaw, Office of General Counsel, U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant.
James Joseph Nolan, Jr., BALTIMORE COUNTY OFFICE OF LAW, Towson,
Maryland, for Appellee. ON BRIEF: James L. Lee, Deputy General Counsel, Jennifer
S. Goldstein, Associate General Counsel, Office of General Counsel, U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant.
Michael E. Field, County Attorney, Paul M. Mayhew, Assistant County Attorney,
BALTIMORE COUNTY OFFICE OF LAW, Towson, Maryland, for Appellee.




                                         2
PER CURIAM:

      The Equal Employment Opportunity Commission (EEOC) appeals the order of the

district court denying its request under the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 621 et seq., for retroactive monetary relief from Baltimore County,

Maryland (the County). For the following reasons, we vacate and remand.



                                             I.

      This case is now before us for a third time. 1 In the first appeal, we reversed a grant

of summary judgment in favor of the County and remanded the case for the district court

to determine whether the contribution rates of the County’s age-based employee

retirement benefit plan (the plan) were permissible based on financial considerations or

whether they violated the ADEA. See E.E.O.C. v. Balt. Cty., 385 F. App’x 322 (4th Cir.

2010). On remand, the district court concluded that the County violated the ADEA by

imposing disparate plan contribution rates based on age. See E.E.O.C. v. Balt. Cty., 747

F.3d 267 (4th Cir. 2014). The district court awarded partial summary judgment in favor

of the EEOC on the issue of liability. Id. In the second appeal, we affirmed the award of

summary judgment to the EEOC and remanded for consideration of damages. See id.

      The parties later approved a strategy for the gradual equalization of contribution

rates under the plan and entered into a Joint Consent Order Regarding Injunctive Relief,

      1
         We do not recite the facts underlying the claim of age discrimination because
they are not relevant to this appeal. A detailed explanation of the facts can be found in
our previous opinion, E.E.O.C. v. Balt. Cty., 747 F.3d 267, 270–72 (4th Cir. 2014).


                                             3
which the district court approved. The order did not resolve claims for monetary relief

and expressly indicated that the availability of such relief would be addressed by the

court at a later date.

       The court ultimately denied the EEOC’s motion for retroactive monetary relief, in

the form of back pay, and closed the case. 2 The court concluded that it had the discretion

under the enforcement provision of the ADEA, 29 U.S.C. § 626(b), to wholly deny back

pay. Alternatively, the court stated that, even if back pay were a mandatory remedy, the

court would deny the relief pursuant to its equitable powers because of the EEOC’s

years-long delay in bringing the action. The EEOC now appeals.



                                            II.

       The County argues that the district court properly exercised its discretion under the

ADEA, 28 U.S.C. § 626(b), in denying the EEOC an award of back pay. 3 In the County’s

view, the ADEA grants courts broad authority “to grant such legal or equitable relief as

may be appropriate,” including the denial of back pay. 29 U.S.C § 626(b). In contrast, the

EEOC points to the incorporation into the ADEA of certain provisions of the Fair Labor

Standards Act (FLSA), which mandate that violators “shall be liable” for back pay. See


       2
         The district court also denied the EEOC’s motion seeking prospective monetary
relief. The EEOC does not appeal this portion of the ruling.
       3
         Back pay generally encompasses the compensation an employee would have
received but for the employer’s violation of the ADEA. Palasota v. Haggar Clothing Co.,
499 F.3d 474, 482–83 (5th Cir. 2007), order clarified (Sept. 27, 2007).


                                             4
29 U.S.C. §§ 216(b), 626(b). In light of this language, and because back pay is a

mandatory, legal remedy under the FLSA, the EEOC urges us to adopt the same

interpretation of the ADEA. Accordingly, the EEOC contends that the district court

lacked the discretion to decline to award back pay. We agree with the EEOC, and

conclude that a retroactive monetary award of back pay under the ADEA is mandatory

upon a finding of liability.

       We review this issue of statutory interpretation de novo. United States v. Ide, 624

F.3d 666, 668 (4th Cir. 2010). “Our first step in interpreting a statute is to determine

whether the language at issue has a plain and unambiguous meaning with regard to the

particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). If the

statute is unambiguous, “our inquiry into Congress’ intent is at an end, for if the language

is plain and the statutory scheme is coherent and consistent, we need not inquire further.”

William v. Gonzales, 499 F.3d 329, 333 (4th Cir. 2007). 4 “[I]n looking to the plain

meaning, we must consider the context in which the statutory words are used because

‘[w]e do not . . . construe statutory phrases in isolation; we read statutes as a

whole.’” Ayes v. U.S. Dep’t of Veterans Affairs, 473 F.3d 104, 108 (4th Cir. 2006)

(quoting United States v. Morton, 467 U.S. 822, 828 (1984)).

       With this rule in mind, we turn to the plain language of the statute. The ADEA

enforcement provision reads, in relevant part:


       4
        We have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.


                                             5
      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 FLSA, which Congress incorporated

into the ADEA’s enforcement provision, provides:

      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).

      As an initial matter, we observe that the ADEA is a remedial statute enacted “to

promote employment of older persons based on their ability rather than age; to prohibit

arbitrary age discrimination in employment; [and] to help employers and workers find

ways of meeting problems arising from the impact of age on employment.” 29 U.S.C. §

621(b); see Long v. Sears Roebuck & Co., 105 F.3d 1529, 1541 (3d Cir. 1997) (“It is


                                             6
impossible to view the ADEA as anything other than a federal remedial statute.”). As a

remedial statute, we employ a “standard of liberal construction [to] accomplish

[Congress’] objects.” Urie v. Thompson, 337 U.S. 163, 180 (1949).

      Because Congress adopted the enforcement procedures and remedies of the FLSA

into the ADEA, we construe the ADEA consistent with the cited statutory language in

and judicial interpretations of the FLSA. Back pay is, and was at the time Congress

passed the ADEA, a mandatory legal remedy under the FLSA. See 29 U.S.C. § 216(b)

(“Any employer who violates the [FLSA] shall be liable to the employee or employees

affected in the amount of their unpaid minimum wages, or their unpaid overtime

compensation.” (emphasis added)); Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 711

(1945) (“[U]pon violation of [the FLSA for failure to pay overtime compensation], the

employer shall be liable for statutory wages.” (emphasis added)). And we presume that

Congress was aware of judicial interpretations of the FLSA when drafting associated

provisions of the ADEA. See Santoro v. Accenture Fed. Servs., LLC, 748 F.3d 217, 224

(4th Cir. 2014) (“Congress is presumed to act with awareness of a judicial interpretation

of a statute.”). Accordingly, in enacting the ADEA, Congress would have been aware that

retroactive monetary damages, such as back pay, were mandatory remedies under the

FLSA, and intended to incorporate such mandatory remedies into the ADEA. See id.; see

also Maxfield v. Sinclair Int’l, 766 F.2d 788, 794 (3d Cir. 1985) (“[U]nlike Title VII,

backpay under the ADEA is not discretionary, since it incorporates the provision of the

[FLSA], making backpay a mandatory element of damages.”).



                                           7
       The Supreme Court has applied a similar analysis in interpreting a different

portion of the ADEA. In Lorillard v. Pons, the Court was presented with the question

whether ADEA plaintiffs were entitled to a jury trial. 434 U.S. 575, 577 (1978). In

answering this question, the Court first looked to the procedural provisions of the statute

and noted that Congress directed “that the ADEA be enforced in accordance with the

‘powers, remedies, and procedures’ of the FLSA.” Id. at 580 (quoting 29 U.S.C. §

626(b)). Given this Congressional direction, the Court reasoned, when the ADEA

adopted an FLSA provision, that ADEA provision should be interpreted the same way its

FLSA counterpart traditionally had been interpreted. Id. at 580–82 (“[When], as here,

Congress adopts a new law incorporating sections of a prior law, Congress normally can

be presumed to have had knowledge of the interpretation given to the incorporated law, at

least insofar as it affects the new statute.”). When the ADEA was enacted, “it was well

established that there was a right to a jury trial in private actions pursuant to the FLSA.”

Id. at 580. The Court thus granted the ADEA plaintiffs the right to a jury trial. See id. at

582–83 (“[B]y 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.”).

       The legislative history of the ADEA also indicates that Congress acted with

particular precision in crafting the statute. For example, Congress considered multiple

options in determining how to implement the enforcement procedures and remedies of

the ADEA. One option was to authorize the Secretary of Labor to issue cease-and-desist

                                              8
orders but not grant a private right of action. Id. at 578 (citing S. 830, H.R. 4221, 90th

Cong., 1st Sess. (1967)). Another option was simply to adopt the normal enforcement

provisions of the FLSA, permitting suits by either the Secretary of Labor or the aggrieved

individual. Id. (citing S. 788, 90th Cong., 1st Sess. (1967)). A third option was to adopt

the statutory pattern of Title VII of the Civil Rights Act of 1964 and utilize the EEOC. Id.

Ultimately, Congress chose to treat “violations of the ADEA . . . as violations of the

FLSA,” and established two enforcement mechanisms—a suit by the Secretary of Labor 5

or by the individual plaintiff. Id. at 578–79. However, unlike the enforcement provisions

of the FLSA, Congress required an individual suing under the ADEA to “give notice to

the Secretary of Labor of his intention to sue” in order for the Secretary to have an

opportunity “to eliminate the alleged unlawful practice through informal methods.” Id. at

580. The right of an individual to file suit terminated if the Secretary commenced an

action on his behalf. Id. This legislative history further suggests that Congress

consciously chose to incorporate the powers, remedies, and procedures of the FLSA into

the ADEA.

       And finally, we disagree with the County’s reliance on a trilogy of Title VII

pension decisions issued by the Supreme Court: City of L.A., Dep’t of Water & Power v.

Manhart, 435 U.S. 702 (1978); Ariz. Governing Comm. for Tax Deferred Annuity &

Deferred Comp. Plans v. Norris, 463 U.S. 1073 (1983); and Florida v. Long, 487 U.S.


       5
        Enforcement authority was transferred from the Secretary of Labor to the EEOC
in 1978. Reorg. Plan No. 1 of 1978, 92 Stat. 3781 (1978).


                                             9
223 (1988). In all three instances, the Supreme Court held that retroactive monetary

awards are discretionary under Title VII. The Court declined to award any retroactive

monetary relief based on the unique burdens that retroactive awards place on employee

pension plans.

       Notably, however, a back pay award under Title VII is a discretionary equitable

remedy that a court may select in awarding relief to a plaintiff. Lorillard, 434 U.S. at 584

(“[T]he 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.”); see also Albemarle

Paper Co. v. Moody, 422 U.S. 405, 410 (1975); Curtis v. Loether, 415 U.S. 189, 197

(1974). In contrast, as previously discussed, back pay awards under the ADEA are

mandatory legal remedies, the amount of which is to be determined by a fact finder. See

Sailor v. Hubbell, Inc., 4 F.3d 323, 326 (4th Cir. 1993) (holding that the “appropriate

amount of back pay” due under the ADEA is a question for the jury); Duke v. Uniroyal

Inc., 928 F.2d 1413, 1424-25 (4th Cir. 1991) (recognizing back pay as a legal remedy

under the ADEA but characterizing an award of front pay under the ADEA as an

equitable remedy left to the discretion of the court because it has a “restitutionary

nature”). In light of the fundamental difference in the nature of back pay under the two

statutes, we conclude that the Supreme Court’s decisions in Manhart, Norris, and Long

do not govern our interpretation of the ADEA.

       For these reasons, we hold that retroactive monetary awards, such as the back pay

sought here, are mandatory legal remedies under the ADEA upon a finding of liability.

                                            10
                                           III.

       Our conclusion is not altered by the County’s contention that the EEOC unduly

delayed in the investigation, which delay the EEOC concedes was unreasonable. This

multi-year delay caused the County to incur substantial additional back pay liability.

Exercising its prosecutorial discretion, the EEOC has represented to this Court that the

EEOC “will not seek monetary relief for the excessive deductions that the [C]ounty made

before the [EEOC] issued its letter of determination.” Op. Br. 5 n.2; see Massachusetts v.

E.P.A., 549 U.S. 497, 527 (2007) (“As we have repeated time and again, an agency has

broad discretion to choose how best to marshal its limited resources and personnel to

carry out its delegated responsibilities.”). The EEOC has further represented that it has

secured reasonable back pay awards from public pension plans in over thirty ADEA

lawsuits and that it will do the same here. Thus, the EEOC’s actions in this case do not

affect our analysis here. 6



                                           IV.

       We vacate the opinion of the district court and remand for a determination of the

amount of back pay to which the affected employees are entitled under the ADEA.

                                                           VACATED AND REMANDED


       6
        In light of the EEOC’s concessions and its decision not to seek back pay for the
period of the delay, we need not decide whether the equitable doctrine of laches or the
Supreme Court’s holding in Occidental Life Insurance Co. of California v. E.E.O.C., 432
U.S. 355 (1977), applies to this case.


                                           11
