541 F.2d 1040 (4th Cir. 1976), 74-2171, Chastang v. Flynn & Emrich Co.

Docket Nº:74-2171 to 74-2174.
Citation:541 F.2d 1040
Party Name:Vincent R. CHASTANG, Appellee, v. FLYNN AND EMRICH COMPANY et al., Appellants, The Equitable Trust Company, Defendant. Vincent R. CHASTANG, Appellant, v. FLYNN AND EMRICH COMPANY et al., Appellees. Frank UGIANSKY, Appellee, v. FLYNN AND EMRICH COMPANY et al., Appellants, The Equitable Trust Company, Defendant. Frank UGIANSKY, Appellant, v. FLYNN AN
Case Date:June 10, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1040

541 F.2d 1040 (4th Cir. 1976)

Vincent R. CHASTANG, Appellee,

v.

FLYNN AND EMRICH COMPANY et al., Appellants,

The Equitable Trust Company, Defendant.

Vincent R. CHASTANG, Appellant,

v.

FLYNN AND EMRICH COMPANY et al., Appellees.

Frank UGIANSKY, Appellee,

v.

FLYNN AND EMRICH COMPANY et al., Appellants,

The Equitable Trust Company, Defendant.

Frank UGIANSKY, Appellant,

v.

FLYNN AND EMRICH COMPANY et al., Appellees.

Nos. 74-2171 to 74-2174.

United States Court of Appeals, Fourth Circuit

June 10, 1976

Argued Feb. 3, 1976.

Page 1041

David S. Cordish, Baltimore, Md. (Cordish & Cordish, Baltimore, Md., on brief) for Flynn & Emrich Co. et al.

Harry Goldman, Jr., Baltimore, Md., for Chastang and Ugiansky.

Ramon V. Gomez, Atty., E. E. O. C., Washington, D. C. (Abner V. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel and Lutz Alexander Prager, Attys., E. E. O. C., Washington, D. C., on brief), for amicus curiae.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WINTER, Circuit Judge.

WINTER, Circuit Judge:

Alleging that a profit sharing and retirement plan which provided differing benefits to male and female participants illegally discriminated on the basis of sex, Vincent R. Chastang and Frank Ugiansky brought suit against their employer, Flynn & Emrich Company (Company), the individuals comprising the members of the Profit Sharing Trust Committee (the Committee), and the corporate trustee under the plan, The Equitable Trust Company (Equitable). The district court found that the plan illegally discriminated against male employees. It awarded to plaintiffs as damages the difference between the amount of benefits they received and those that would be paid to similarly situated females; it dismissed Equitable from the suit; and it declined to award plaintiffs attorneys' fees. Plaintiffs,

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the Company and the individual defendants have appealed. We affirm except with respect to the dismissal of Equitable.

I.

In December, 1943, the Company established a non-contributory retirement plan for salaried employees. It executed an "Employees' Profit Sharing and Retirement Trust Agreement" (the plan) under which the Company makes contributions of a portion of its profits, if any, into a fund from which payments are made to salaried employees upon their retirement. The fund is administered by the Committee, which is and has been comprised primarily of officers and/or directors of the Company. Equitable acts as corporate trustee for the plan. The duties of the trustee are confined to record keeping, investing funds and paying out benefits in accordance with instructions given it by the Committee.

While the plan permits early retirement for male and female employees, males, prior to 1970, faced greater obstacles than females in qualifying for full benefits in the event they elected early retirement. The obstacles were derived from the provisions of the plan as to when an employee's interest in the fund became vested or non-forfeitable. 1 Beginning at the end of her second year of employment, 10% of a woman's proportionate share of the fund established by the plan would become non-forfeitable for each year of her employment. Thus, at the end of eleven years, 100% of her proportionate interest in the fund would have become non-forfeitable, and she would receive full benefits if she retired at any time thereafter. By contrast, only 5% of a man's proportionate interest in the fund would become non-forfeitable for each year of employment after the first two years. Further, after a man had accumulated a 50% non-forfeitable interest in his proportionate share of the fund, the percentage would generally not increase unless he worked until age 65, 2 at which time a male employee became entitled to full benefits based upon a 100% non-forfeitable interest.

Chastang was employed by the Company in February, 1937, and retired effective July 25, 1968, at the age of 52. Ugiansky was employed by the Company in January, 1951, and retired effective March 24, 1969, at the age of 42. 3 Each man received only 50% of his proportionate share of the retirement fund. After filing complaints with the Equal Employment Opportunity Commission and receiving "right to sue" letters, each brought suit in district court alleging that the plan unfairly discriminated against male employees.

II.

It is well settled that retirement benefits are within the " compensation, terms, conditions, or privileges of employment" covered by § 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). Rosen v. Public Service Electric & Gas Co., 477 F.2d 90 (3 Cir. 1973); Bartmess v. Drewrys U. S. A., Inc., 444 F.2d 1186 (7 Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 274, 30 L.Ed.2d 252 (1971). See also Gilbert v. General Electric Co., 519 F.2d 661, 663 (4 Cir.), cert. granted, 423 U.S. 822, 96 S.Ct. 36, 46 L.Ed.2d 39 (1975); Peters v. Missouri-Pacific R. R. Co., 483 F.2d 490 (5 Cir.), cert. denied, 414 U.S. 1002, 94 S.Ct. 356, 38 L.Ed.2d 238 (1973). These cases all proceed on the well established "business necessity" test established in Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971), and Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Martin Marietta held that under Title VII, disparate treatment on the basis of sex is sustainable only if the employer can show that the disparity is required either by

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"business necessity" or by a bona fide occupational qualification reasonably necessary to the normal operation of the business. Of course, in the instant case there is no claim that only women can perform the duties of the positions covered by the plan.

The Company and the individual defendants argue that the...

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