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 ..."

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 "But- For" 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 than that made or incurred on behalf of a younger worker ..."

3. Whether a retiree, who delayed accepting a healthcare benefit proposal by a de minimis, non- statutory deadline, can be excused under the doctrine of equitable tolling, and retroactive benefits be restored, if it was to perforin due-diligence while waiting for the EEOC to complete its investigation into retirees ' charge of age discrimination.

4. Whether a local government, Ferndale Area School District, violated the excessive fines clause of the Eighth Amendment when the Third Circuit opinion stated that "Although the School Board approved a waiver to offer Kowal the HRA proposal, Kowal did not accept that offer before it expired. "

5. Whether a local government, Ferndale Area School District, taking and keeping the monetary value of an earned medical benefit as a windfall, violates the Takings Clause of the Fifth Amendment to the United States Constitution.

6. Whether the lower court violated Kowal 's right to the equal protections guaranteed by the Fourteenth Amendment and the anti-discriminations provisions of 42 U.S.C. § 1983.

Whether the prerequisite in Ferndale's 'Sick Leave Incentive' violates the ADEA and OWBPA