Pennington v. Western Atlas Inc ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0044P (6th Cir.)
File Name: 00a0044p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

ALEX PENNINGTON; HAROLD
Plaintiffs- Appellees/ 
GENE CUNNINGHAM,

Cross-Appellants, 
Nos. 98-6398/6416

>
v. 


Defendant-Appellant/ 
WESTERN ATLAS, INC.,
Cross-Appellee. 

1
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 94-00146—William O. Bertelsman, District Judge.
Argued: November 3, 1999
Decided and Filed: February 7, 2000
Before: KEITH, NORRIS, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Gregory P. Rogers, TAFT, STETTINIUS &
HOLLISTER, Cincinnati, Ohio, for Appellant. Teresa L.
Cunningham, Florence, Kentucky, for Appellees.
ON BRIEF: Gregory P. Rogers, TAFT, STETTINIUS &
1
2 Pennington, et al. v. Nos. 98-6398/6416
Western Atlas, Inc.
HOLLISTER, Cincinnati, Ohio, Joseph E. Conley, Jr.,
BUECHEL, CONLEY & SCHUTZMAN, Crestview Hills,
Kentucky, for Appellant. Teresa L. Cunningham, Florence,
Kentucky, for Appellees.
_________________
OPINION
_________________
CLAY, Circuit Judge. In Case No. 98-6398, Defendant,
Western Atlas, Inc., appeals from the district court’s judgment
ordering Defendant to pay Plaintiff, Harold Gene
Cunningham, wages and benefits in the amount of $348,090,
including interest, while also ordering Defendant to pay
Plaintiff, Alex Pennington, wages and benefits in the amount
of $135,002, including interest, in relation to the jury verdict
finding that Defendant violated § 510 of the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1140. In Case No. 98-6416, Plaintiffs cross-appeal
from the jury verdict rendered on December 15, 1997, finding
no liability on the part of Defendant in relation to Plaintiffs’
claims brought under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq. For the reasons set
forth below, the district court’s judgment is AFFIRMED in
Case No. 98-6398 as well as in Case No. 98-6416.
STATEMENT OF FACTS
Procedural History
Plaintiffs, former employees of Defendant Western Atlas,
Inc., were laid off from their jobs and their employment
terminated effective September of 1993. Plaintiffs filed suit
against Defendant on August 24, 1994, alleging that their lay-
offs were in violation of the ADEA and ERISA § 510.
Plaintiff Cunningham also alleged that Defendant
misclassified him as an exempt employee under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and
18 Pennington, et al. v. Nos. 98-6398/6416 Nos. 98-6398/6416 Pennington, et al. v. 3
Western Atlas, Inc. Western Atlas, Inc.
CONCLUSION that Defendant failed to pay him overtime in accordance with
his alleged non-exempt status.
For the above stated reasons, the district court’s judgment
is AFFIRMED in Case No. 98-6398 as well as in Case No. A jury trial ensued on December 8-12, and December 15,
98-6416. 1997, where, at the close of the evidence, the court granted
judgment as a matter of law for Defendant and against
Plaintiff Cunningham on his FLSA claim, finding that
Cunningham was exempt from statutory overtime
requirements as a matter of law.
The jury returned its verdict on December 15, 1997, and
found for Defendant on Plaintiffs’ claims brought under the
ADEA. Acting as an advisory jury on Plaintiffs’ claims
brought under ERISA § 510, the jury found in favor of
Plaintiffs concluding that Defendant laid them off in order to
interfere with their pension rights. The district court adopted
the jury’s advisory verdict, stating that “[i]f there was no right
to a jury on the ERISA claim, the Court will consider the jury
to be an advisory jury . . . and hereby adopts its findings as
those of the Court.” (J.A. at 67.) By agreement of the parties,
the district court fixed damages on the ERISA verdicts in the
amount of $348,090 in favor of Cunningham, and in the
amount of $135,002 in favor of Pennington.
Defendant moved for post-trial relief on the ERISA claim
under Fed. R. Civ. P. 50(b) and/or 52(b), as well as for the
district court make specific findings of fact and conclusions
of law regarding its decision pursuant to Fed. R. Civ. P. 52(a).
On September 21, 1998, the court issued its findings of fact
and conclusions of law, and denied Defendant’s motion for
judgment as a matter of law. Defendant filed a timely notice
of appeal on October 8, 1998, and Plaintiffs filed a cross-
appeal regarding their ADEA claim on October 16, 1998.
Facts
At the time of Plaintiffs’ lay-offs, Defendant was a wholly-
owned subsidiary of Littton Industries, Inc. Defendant was
comprised of several divisions, including the division in
which Plaintiffs were employed -- the Material Handling
4 Pennington, et al. v. Nos. 98-6398/6416 Nos. 98-6398/6416 Pennington, et al. v. 17
Western Atlas, Inc. Western Atlas, Inc.
Division (“MHD”). MHD sold material handling systems, benefit payments, and that the pattern of terminations was that
such as conveyor lines, to move packages and/or parts within more people over the age of fifty were terminated than would
warehouses for customers such as Federal Express and United be expected in a random process, so as to indicate that it was
Air Lines. Litton sold the MHD in November of 1996. more likely than not that Defendant was trying to cover-up its
true motivation in discharging Plaintiffs. See id.
Pennington began working for Defendant’s predecessor in
1956, and remained employed by Defendant until 1993, when As such, Defendant’s claim on this issue fails. See Manzer,
he was terminated as part of Defendant’s workforce 29 F.3d at 1084. We are further persuaded in our opinion by
reduction. At the time of Pennington’s termination, he earned the fact that an advisory jury rendered its decision in this case,
an annual salary of $29,708 and received health, pension and the credibility of witnesses is involved in ascertaining pretext,
life insurance benefits as part of his employment benefits and that this Court should give “due regard” to the jury’s
package. Pennington was sixty years old at the time of his determination of credibility. See Ellis, 177 F.3d at 505; Fed.
termination, but he had planned to work until the age of sixty- R. Civ. P. 52(a).
five. As a result of Pennington’s employment being
terminated at age sixty rather than age sixty-five, his pension Case No. 98-6416 -- Cross-Appeal
benefits were reduced by approximately one-half; therefore,
Pennington currently receives $7,692 per year in pension Plaintiffs cross appeal arguing that the jury’s verdict in
benefits and no health insurance benefits. Had Pennington favor of Defendant on Plaintiffs’ ADEA claim was against the
remained employed by Defendant until age sixty-five, he great weight of the evidence. In order to preserve a challenge
would have received twice the amount that he currently to a jury verdict as being against the great weight of the
receives in pension benefits for his life expectancy of 79 evidence, the appellant must have made a motion for a new
years. trial in district court. See Dixon v. Montgomery Ward, 783
F.2d 55 (6th Cir. 1986). Failure to do so precludes appellate
Cunningham began working for Litton Industries in 1966, review. Id. (quoting 6A J. Moore, J. Lucas, & G. Grotheer,
and was eventually promoted to senior mechanical engineer. Moore’s Federal Practice, ¶ 5915[3] at 59-326 to 327 (2d ed.
Cunningham was also terminated as a result of a workforce 1985) noting that “the discretionary power of the district court
reduction. Cunningham was fifty-nine years old at the time to give relief from an error of fact must first be invoked”).
of his termination in 1993, and like Pennington, had planned
to work until the age of sixty-five. At the time of his Here, Plaintiff failed to make a motion for a new trial or
termination, Cunningham earned an annual salary of $47,164, judgment notwithstanding the verdict in district court in
and received health, pension and life insurance benefits as relation to their claim that the jury’s verdict was against the
part of his employment benefits package. Cunningham great weight of the evidence. Therefore Plaintiffs’ claim is
currently receives $12,276 per year in pension benefits and no not properly before us – as conceded by Plaintiffs at oral
health insurance benefits. Had Cunningham remained argument. See Cone v. West Virginia Pulp & Paper, 330 U.S.
employed by Defendant until age sixty-five, he would have 212, 216 (1947) (“Determination of whether a new trial
received annual pension benefits in the amount of $23,548.75 should be granted or a judgment entered under Rule 50(b)
for his average life expectancy of 78.8 years. calls for the judgment in the first instance of the judge who
saw and heard the witnesses and has the feel of the case which
no appellate transcript can impart.”).
16 Pennington, et al. v. Nos. 98-6398/6416 Nos. 98-6398/6416 Pennington, et al. v. 5
Western Atlas, Inc. Western Atlas, Inc.
13. Coons, who worked with Cunningham from 1982 Cunningham’s pension and medical costs to Defendant
through 1992, testified that he had never witnessed would have been $7,110 per year for fiscal years 1994-1997.
Cunningham disrupting the workplace. Pennington’s pension and medical costs to Defendant would
Furthermore, Cunningham had performed contract have been $2,256 per year for fiscal years 1994-1997.
work for Acculift since his termination from Defendant’s ten-year pension and medical costs savings on all
Western Atlas, and, while at Acculift, Cunningham older employees offered early retirement during the
met all schedules. “downsizing” was $12,262,176.71.
14. Flaig, who also worked with Cunningham, testified In 1992, Keith Wheeler, President of the MHD, and
that Cunningham met schedules, worked on CAD, Barbara Carr, a Human Resources Department employee,
always maintained a professional attitude, and did asked Steven Parsley, the manager of Systems Analysis
not disrupt the workplace. Engineering, to modify a Lotus spreadsheet that sorted
employee information by name, birth date, date of hire,
(J.A. at 78-79 (transcript cites omitted).) Accordingly, as whether the employee smoked, and the employee’s benefit
found by the district court, and as supported by the record, program information. Wheeler and Carr informed Parsley
Plaintiffs did not merely rely upon their prima facie evidence that they were interested in reducing salaries and medical
that their discharge resulted in a decrease in pension benefits costs and that they were not concerned about lawsuits. In that
and that Defendant had been looking for ways to decrease its same year, Plaintiff Cunningham and three other senior
costs associated with employee benefits, to show that project engineers were left in the engineering department.
Defendant’s proffered reasons for terminating Plaintiffs were The head of the engineering department, Jim Gable, told
a mere pretext. Rather, Plaintiffs came forward with Cunningham and the other three engineers that they were
additional evidence which specifically rebutted Defendant’s marked for lay-off, but that their names were removed from
alleged reasons for terminating each Plaintiff. the list on the advice of Litton’s lawyers. In 1993, all four of
the senior project engineers either took an early retirement or
Plaintiffs’ evidence offered to rebut Defendant’s alleged were terminated as part of Defendant’s alleged reduction in
reasons consisted of the type one evidence as well as the type workforce plan. One of the senior project engineers, Mr.
two evidence described in Manzer. That is to say, evidence Shirley, took an early retirement, but was then hired back by
that Defendant’s claims were factually false, as well as Defendant as a contractor receiving no benefits associated
evidence that circumstances were such that it was more likely with his pay.
than not that Defendant had an improper motive in
discharging Plaintiffs. See Manzer, 29 F.3d at 1084. For Also in 1992, Bill Hines was hired by Litton to “interface
example, Plaintiffs offered evidence by way of performance with employees” and to recruit new employees; in 1993,
appraisals that their supervisors rated their work above quality Hines actively recruited at Georgia Tech and other institutions
or excellent just one year to a few months before their for openings in the engineering department. In February of
discharge, so as to indicate that Defendant’s claims that 1993, Defendant hired twenty-four new employees.
Pennington received low evaluations and Cunningham did not
finish his work on time or use the state of the art equipment Hines prepared a reduction in workforce memorandum
were false. See id. Plaintiffs also introduced evidence to entitled “HIGH RISK” which flagged employees by salary,
show that Defendant was seeking to cut costs associated with age, disability, premature births of children, surgeries, and
6 Pennington, et al. v. Nos. 98-6398/6416 Nos. 98-6398/6416 Pennington, et al. v. 15
Western Atlas, Inc. Western Atlas, Inc.
exemption status. Plaintiff Cunningham’s name was on the Accordingly, we hold that, in order to make this type of
“HIGH RISK” list and his age was highlighted. Hines rebuttal showing, the plaintiff may not rely simply upon
testified that Defendant’s Human Resources department made his prima facie evidence but must, instead, introduce
the selections of which employees would be terminated in additional evidence of age discrimination.
connection with the reduction in workforce plan. Plaintiffs’
expert witness, Dr. Harvery Rosen, testified that Defendant’s Manzer, 29 F.3d at 10842.
pattern of downsizing was not age neutral inasmuch as more
employees over the age of fifty were terminated than would Here, the district court found as follows regarding
be expected in a random process. Defendant’s proffered reasons for discharging Plaintiffs, and
Plaintiffs’ evidence to rebut those reasons:
Defendant’s stated reason for terminating Pennington was
that Pennington had the lowest evaluations in his department. 8. The defendant’s stated reason for terminating
However, Pennington’s former supervisors did not criticize Pennington was that he had the lowest evaluations in
his work performance, and Pennington’s former supervisor, his department.
Mike Vogt, could not recall any problems with Pennington’s
work. Notably, Pennington’s supervisor from 1982 through 9. Individuals from Western Atlas’ Human Resources
February of 1992, Robert Malone, thought that Pennington’s Department provided Pennington’s supervisor with
work was meticulous, gave Pennington satisfactory the names of the individuals to be laid off.
performance evaluations, and rated Pennington’s work as
“excellent.” 10. Pennington’s former supervisors had no criticism of
Pennington’s work. Indeed, Malone, Pennington’s
Defendant’s stated reasons for terminating Cunningham supervisor from 1982 through 1992, rated
was because he (1) did not meet schedules; (2) did not use Pennington’s work satisfactory to above satisfactory
Computer Aided Design technology; and (3) disrupted the and stated that his work was excellent.
workplace. However, David Gilkes, Cunningham’s
immediate supervisor, evaluated Cunningham’s performance 11. The defendant provided the following reasons for
as “above-quality work” in Cunningham’s 1993 performance selecting Cunningham for termination: (1) he did
evaluation. Cunningham’s co-worker, Randy Coons, worked not meet schedules; (2) he did not use Computer
with Cunningham from 1982 through 1992, and stated that he Aided Design (CAD); and (3) he disrupted the
never witnessed Cunningham disrupting the workplace. workplace.
Another co-worker, Robert Flaig, testified that Cunningham 12. Gilkes, Cunningham’s immediate supervisor,
met schedules, worked on the Computer Aided Design evaluated Cunningham as performing “above quality
technology, always maintained a professional attitude, and did work” on his 1993 evaluation.
not disrupt the workplace.
Defendant’s pension and savings program was a
combination of a 401K and standardized pension fund, where
Defendant contributed part of the funds and, during an 2
Kline also dealt with the requirements for showing pretext; however,
employee’s final years of employment, Defendant’s the plaintiff in Kline brought claims under the ADEA as well as under
Title VII. See 128 F.3d at 339, 349-51.
14 Pennington, et al. v. Nos. 98-6398/6416 Nos. 98-6398/6416 Pennington, et al. v. 7
Western Atlas, Inc. Western Atlas, Inc.
show that an employer’s alleged legitimate reason for its contributions escalated.1 The record indicates that Defendant
adverse action against the plaintiff was a mere pretext: contributed to Pennington and Cunningham’s pension funds.
To make a submissible case on the credibility of his ANALYSIS
employer’s explanation, the plaintiff is required to show
by a preponderance of the evidence either (1) that the Case No. 98-6398 – Appeal
proffered reasons had no basis in fact, (2) that the
proffered reasons did not actually motivate his discharge, Defendant argues that the district court erroneously
or (3) that they were insufficient to motivate discharge. concluded that Defendant was motivated by its specific intent
The first type of showing is easily recognizable and to interfere with Plaintiffs’ pension benefits when it laid
consists of evidence that the proffered bases for the Plaintiffs off from their jobs. We disagree.
plaintiff’s discharge never happened, i.e., that they are
factually false. The third showing is also easily This Court reviews a district court’s findings of fact for
recognizable and, ordinarily, consists of evidence that clear error, and a district court’s conclusions of law de novo.
other employees, particularly employees not in the Tucker v. Calloway County Bd. of Educ., 136 F.3d 495, 503
protected class, were not fired even though they engaged (6th Cir. 1998). “‘In all actions tried upon the facts without
in substantially identical conduct to that which the a jury or with an advisory jury, the court shall find the facts
employer contends motivated its discharge of the specially and state separately its conclusions of law
plaintiff. These two types of rebuttals are direct attacks thereon. . . . Findings of fact, whether based on oral or
on the credibility of the employer’s proffered motivation documentary evidence, shall not be set aside unless clearly
for firing plaintiff and, if shown, provide an evidentiary erroneous, and due regard shall be given to the opportunity of
basis for what the Supreme Court has termed “a the trial court to judge of the credibility of the witnesses.’”
suspicion of mendacity.” See Ellis v. Diffie, 177 F.3d 503, 505 (6th Cir. 1999) (quoting
Fed. R. Civ. P. 52(a)). “A finding is ‘clearly erroneous’ when
The second showing, however, is of an entirely although there is evidence to support it, the reviewing court
different ilk. There, the plaintiff admits the factual basis on the entire evidence is left with a firm and definite
underlying the employer’s proffered explanation and conviction that a mistake has been committed.” United States
further admits that such conduct could motivate v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
dismissal. The plaintiff’s attack on the credibility of the
proffered explanation is, instead, an indirect one. In such In Smith v. Ameritech, this Court announced the
cases, the plaintiff attempts to indict the credibility of his requirements that a plaintiff must meet in order to state a
employer’s explanation by showing circumstances which claim under ERISA § 510 as follows:
tend to prove that an illegal motivation was more likely
than that offered by the defendant. In other words, the
plaintiff argues that the sheer weight of the circumstantial
evidence of discrimination makes it “more likely than 1
Defendant argues on appeal that the pension fund was over-funded;
not” that the employer’s explanation is a pretext, or a however, as noted by Plaintiffs, Defendant does not support this argument
coverup. with statistical data for the year in question -- 1993; rather, Defendant
uses data reflecting the status of the fund in 1995, after Plaintiffs and
other employees were terminated or took early retirements. (J.A. at 172.)
8 Pennington, et al. v. Nos. 98-6398/6416 Nos. 98-6398/6416 Pennington, et al. v. 13
Western Atlas, Inc. Western Atlas, Inc.
To state a claim under § 510, the plaintiff must show that the district court did not err in concluding that Plaintiffs
that an employer had a specific intent to violate ERISA. established a prima facie case under ERISA § 510, which
In the absence of direct evidence of such discriminatory brings us to Defendant’s alternative argument; namely, even
intent, the plaintiff can state a prima facie case by if the district court was correct in finding that Plaintiffs
showing the existence of (1) prohibited employer established a prima facie case, the district court erred in
conduct (2) taken for the purpose of interfering (3) with concluding that Defendant’s alleged reasons for Plaintiffs’
the attainment of any right to which the employee may discharge were pretextual.
become entitled.
B. Whether Plaintiffs Established that Defendant’s
Although . . . not classif[ied] . . . as part of the Alleged Reasons for Their Terminations were a Mere
plaintiff’s prima facie case, . . . a plaintiff must show a Pretext to Allow Defendant to Interfere with
causal link between pension benefits and the adverse Plaintiffs’ Retirement Benefits
employment decision. In order to survive [the]
defendants’ motion for summary judgment, [the] plaintiff Defendant argues in the alternative that the district court
must come forward with evidence from which a erred in concluding that Defendant’s articulated reasons for
reasonable jury could find that the defendants’ desire to Plaintiffs’ layoffs were pretextual. Specifically, Defendant
avoid pension liability was a determining factor in [the] contests the following conclusion of law made by the district
plaintiff’s discharge. . . . [I]n an interference claim, the court:
alleged illegal activity will have a causal connection to
the plaintiff’s ability to receive an identifiable benefit. 3. The defendant proffered the following reasons for
selecting the plaintiffs for termination: poor
129 F.2d 857, 865 (6th Cir. 1997) (internal quotation marks performance, disrupting the workplace, and failing
and citations omitted). to use CAD. The plaintiffs offered substantial
evidence (stated above) that the plaintiffs were in
Here, the district court concluded that “it is not really fact above average performers, did not disrupt the
disputed that the plaintiffs have established a prima facie case workplace and did in fact use CAD. The court, with
[of interference under § 510]. By terminating the plaintiffs at the aid of an advisory jury, disbelieved the proffered
ages 59 and 60, the defendant avoided paying the additional reason[s] for discharge.
benefits to which the plaintiffs would have become entitled.
The issue, here, is whether the plaintiffs established the (J.A. at 82.) Defendant claims that the district court erred in
necessary causal link between the pension benefits and the so concluding “because the disbelief of the proffered
adverse employment decision.” (J.A. at 81-82.) Having so reason[s] by the Court (and the advisory jury) is simply a
concluded, the district court then addressed whether disagreement with Western’s business judgment – Plaintiffs
Defendant advanced a legitimate reason for terminating did not show pretext under the test established by Manzer v.
Plaintiffs, and whether Plaintiffs sufficiently rebutted the Diamond Shamrock, 29 F.3d 1078, 1083-84 (6th Cir. 1994)
alleged legitimate reason for discharge. The court further and Kline v. Tennessee Valley Authority, 128 F.3d 337 (6th
concluded as follows: Cir. 1997)[.]” We disagree.
In Manzer, a case brought under the ADEA, this Court
explained what evidence a plaintiff must adduce in order to
12 Pennington, et al. v. Nos. 98-6398/6416 Nos. 98-6398/6416 Pennington, et al. v. 9
Western Atlas, Inc. Western Atlas, Inc.
discharge was motivated by the defendant’s intent to interfere 3. The defendant proffered the following reasons for
with the plaintiff’s retirement benefits. Id. at 457-58. selecting the plaintiffs for termination: poor
performance, disrupting the workplace, and failing
Unlike in Rush, the evidence in the instant case established to use CAD. The plaintiffs offered substantial
that Defendant was aware that terminating Plaintiffs before evidence (stated above) that the plaintiffs were in
the age of sixty-five would interfere with an established fact above average performers, did not disrupt the
retirement benefit (the amount of annual pension funds workplace and did in fact use CAD. The court, with
received) – i.e., the additional annual pension funds received the aid of an advisory jury, disbelieved the proffered
by Plaintiffs had they worked until sixty-five-years of age was reason for discharge.
known to both Plaintiffs and Defendant alike. Evidence of
Defendant’s knowledge that they were interfering with 4. Once a plaintiff has disproved the defendant’s
Plaintiffs’, as well as other employees’ benefits, was noted by proffered reason for termination, the fact finder is
the district court in its findings of fact: entitled to infer a discriminatory reason for such
termination. Kline v. Tennessee Valley Authority,
15. In 1992, Keith Wheeler, President of the Material 128 F.2d [sic] 337 (6th Cir. 1997). In this case, the
Handling Systems Group, and Barbara Carr, a plaintiff[s] offered evidence to disprove the
Human Resources Department employee, asked defendant’s stated reason[s] for termination. The
Steven Parsley, the manager of Systems Analysis court, with the aid of an advisory jury, chooses to
Engineering, to modify a Lotus spreadsheet that infer that a desire to reduce pension liability was a
sorted employee information by name, birth date, determining factor in the plaintiffs’ discharge.
date of hire, whether the employee smoked, and
benefit program information. (J.A. at 82.)
16. Wheeler and Carr told Parsley that they wanted to A. Whether Plaintiffs Established a Prima Facie Case
reduce salaries and medical costs and that they were Under ERISA § 510
not concerned about lawsuits.
On appeal, Defendant claims that the district court’s
17. According to plaintiffs’ expert witness, Dr. Harvey conclusion that Plaintiff established a prima facie case of
Rosen, the pattern of terminations during the interference was erroneous. Relying upon Humphreys v.
Western Atlas downsizing was not age neutral Bellaire Corp., 966 F.2d 1037 (6th Cir. 1992) and Rush v.
because more people age 50 and over were United Technologies, Otis Elevator Division, 930 F.2d 453
terminated than would be expected in a random (6th Cir. 1991), Defendant argues that “this Court repeatedly
process. has found that an employee’s incidental loss of the
opportunity to accrue additional benefits is not evidence of
(J.A. at 79.) unlawful ERISA interference with pension rights[,]” and thus,
the district court erroneously concluded that Plaintiffs
Therefore, Defendant’s reliance upon Rush is misplaced, as established a prima facie case simply because Defendant
is its reliance upon Humphreys, where Rush is distinguishable avoided paying additional pension benefits to Plaintiffs by
and Humphreys supports the district court’s conclusions and laying them off. Defendant contends that Plaintiffs failed to
inures to the benefit of Plaintiffs. Having so opined, we hold
10 Pennington, et al. v. Nos. 98-6398/6416 Nos. 98-6398/6416 Pennington, et al. v. 11
Western Atlas, Inc. Western Atlas, Inc.
present evidence of a specific intent by any of Defendant’s pension benefits and the adverse employment decision.” (J.A.
employees to violate § 510; or, said differently, that Plaintiffs at 81-82.) Accordingly, as in Humphreys, the district court
failed to present any evidence to show that Defendant’s desire did not err in concluding that Plaintiffs established a prima
to avoid pension liability was a determining factor in the facie case based upon the proximity of Plaintiffs’ discharge to
Plaintiffs’ discharge, and that the district court erroneously their age of receiving full retirement benefits.
concluded that Plaintiffs established a § 510 case in the
absence of such evidence. We are not persuaded otherwise by Defendant’s reliance
upon Rush v. United Technologies, Otis Elevator Division,
In Humphreys v. Bellaire Corp., 996 F.2d at 1043-45, this 930 F.2d 453 (6th Cir. 1991). Defendant claims that Rush
Court reviewed the district court’s grant of summary supports his position that the district court erred in concluding
judgment to a defendant corporation regarding the plaintiff’s that Plaintiffs established a prima facie § 510 case. However,
ERISA § 510 claim and, after setting forth the requirements upon close examination of Defendant’s argument, one
that the plaintiff had to meet in order to state a prima facie observes that Defendant is not quoting from the facts of Rush
case under § 510 as well as the burden shifting analysis which in his brief on appeal to this Court, but from a case issued by
a court must conduct after the plaintiff establishes a prima the United States Court of Appeals for the Fifth Circuit upon
facie case, the Court found as follows: which Rush relied. See Defendant’s Brief on Appeal at 14
(quoting Clark v. Reistoflex Co., 854 F.2d 762, 771 (5th Cir.
[The Plaintiff] met his burden of presenting evidence to 1988) without attribution to that case). Moreover,
support each of the elements of a prima facie case. He Defendant’s quotation from the Clark case is inaccurate to the
was discharged, and it was his testimony that his pension extent that Defendant added language from the Rush opinion
would have vested in two months and that this would to the Clark quote.
have cost the company a substantial amount. Although
it is no more than the bare minimum that a plaintiff must Defendant’s inaccurate and misleading argument aside, the
show to meet the prima facie case threshold, in this case facts of Rush are distinguishable from those of the instant
it satisfies that low threshold because, examining only case inasmuch as in Rush, the plaintiff was claiming that the
[the plaintiff’s] evidence, the proximity to vesting defendant discharged him in violation of § 510 in order to
provides at least some inference of intentional, prohibited keep the plaintiff from being eligible for the expanded early
activity. retirement benefits which became effective after the
plaintiff’s discharge. Rush, 930 F.2d at 457. However,
This holding, when juxtaposed against that the district court’s because the plaintiff failed to produce any evidence that
conclusion in the instant case, indicates that the district court anyone at the defendant company had knowledge that the
did not err in concluding that Plaintiff established a prima pension plan was going to be amended seven weeks after the
facie case under § 510. As stated, the district court found that plaintiff’s discharge, and because the plaintiff failed to
“it is not really disputed that the plaintiffs have established a produce any evidence that he had ever told anyone at the
prima facie case [of interference under § 510]. By company that he had planned to retire early if possible – in
terminating the plaintiffs at ages 59 and 60, the defendant fact, the plaintiff stated in his deposition that he may not have
avoided paying the additional benefits to which the plaintiffs retired early even if provided the opportunity, this Court
would have become entitled. The issue, here, is whether the concluded that the plaintiff failed to establish that his
plaintiffs established the necessary causal link between the