2 pages. Excerpt: Justice Kennedy filed a dissenting opinion arguing that the Kentucky plan presented a 'straightforward act of discrimination on the basis of age.' Id., dissent slip op. at 3. The opinion criticized the majority for basing its decision on policy arguments that do not follow a clear rule of law. Justice Kennedy warned that '[b]y embracing the approach rejected by the en banc panel and all other Courts of Appeals that have addressed this issue, this Court creates unevenness in administration, unpredictability in litigation, and uncertainty as to employee rights once thought well settled.' Id., dissent slip op. at 2.