Britt v. E.I. DuPont de Nemours & Co., Inc.

Decision Date25 July 1985
Docket NumberNo. 84-2237,84-2237
Citation768 F.2d 593
Parties38 Fair Empl.Prac.Cas. 833, 37 Empl. Prac. Dec. P 35,415, 54 USLW 2104, 6 Employee Benefits Ca 1912 Londo F. BRITT; Elmo P. Compton, Jr.; James F. Compton; Thomas W. Grogan; Joseph R. Hundley, Jr.; Woodrow W. Lancaster; Donald G. Marshall; Opal M. Ramsey; Pauline M. Ross; Pauline S. Smith; Claucey A. Vaughn; Louise M. Arnold, Plaintiffs, and Gilbert F. Barker, Jr.; Nancy Bousman; Edna H. Carter; Ellis J. Carter; Thomas B. Cline; George D. Gauldin; Callie G. Gray; Dorothy G. Howell; Lonnie E. Kapp; James L. Lawrence; Gerald I. Martin; James F. Martin; Wilma O. Moore; George R. Pack; Thomas O. Rakes; Christine J. Stone; Irvin W. Stone; Chester Y. Thomas; Evelyn R. Thomas; Dorothy F. Tolbert; Dewell M. Williams; Thomas D. Williams; Nellie M. Taylor, Appellants, v. E.I. DuPONT de NEMOURS & COMPANY, INC.; Martinsville Nylon Employees' Council Corp., Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Anthony P. Giorno, Stuart, Va., for appellants.

Lewis T. Booker, Richmond, Va., John F. Lawless, New York City; Hunton & Williams, Richmond, Va., for E.I. DuPont de Nemours.

Fred D. Smith, Jr., Hartley & Smith, P.C. Martinsville, Va., for Martinsville Nylon Employees' Council Corp.

Alfred Miller, Steven S. Honigman, Peter N. Greenwald, Miller, Singer & Raives, P.C., New York City, on brief, for amicus curiae.

Before PHILLIPS and MURNAGHAN, Circuit Judges, Walter E. HOFFMAN, Senior United States District Judge, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge:

This is an appeal by certain pension-eligible employees of DuPont de Nemours & Co. (DuPont) from a judgment dismissing their action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621, et seq. The issue is whether conditioning the availability of a general severance pay program for these claimants upon their acceptance of a deferral of pension benefits violated their rights under the ADEA. We agree with the district court that it did not, and we affirm.

I

In order to facilitate a reduction in the work force at its Martinsville, Virginia plant, DuPont instituted a so-called Voluntary Reduction of Force (VROF) program. Designed to preserve jobs for younger employees with little seniority while at the same time fully honoring vested seniority and lay-off rights, 1 the program offered severance pay based upon seniority as an inducement to voluntary retirements. As originally set up, the VROF program was not offered at all to pension-eligible employees, that is, employees over the age of fifty with fifteen years of work experience with DuPont. When the local union raised the issue, DuPont modified the program to extend it to pension-eligibles, but on the condition that they accept a deferral of certain pension benefits that otherwise would be received upon their leaving DuPont's employment.

A group of pension-eligible employees (Barker) filed suit against DuPont and the local union under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 623(a). They claimed that DuPont violated the Act by conditioning pension-eligible employees' participation in the VROF program on acceptance of deferral of pension benefits. And they claimed that the union violated Sec. 623(c)(3) of the Act by causing DuPont to discriminate on the basis of age. Specifically, the claims were that the VROF severance pay program represents a benefit or privilege of employment within the meaning of Sec. 623(a) of the ADEA and that discrimination on the basis of pension eligibility is equivalent to discrimination on the basis of age. The district court granted summary judgment for DuPont and the union, finding that as a matter of law Sec. 623(f)(2) immunized any discrimination on the basis of age in this case because the VROF was a bona fide seniority system. 2

We affirm, but on the alternative basis that, as a matter of law, DuPont's actions did not constitute discrimination on the basis of age. We therefore do not reach the issue of whether DuPont would have a valid Sec. 623(f)(2) defense.

II

The purpose of the VROF program was to offer employees a substitute, in the form of severance pay, that would compensate them for giving up their right to keep their jobs under the layoff provisions of the collective bargaining agreement. Since the program was wholly voluntary, only those workers who valued the severance pay at least as highly as the right to continue work would take advantage of the program.

We hold simply that no discrimination within contemplation of the ADEA resulted to pension-eligible employees by virtue of the condition imposed for their eligibility to participate in the VROF program. No older employees have lost their jobs or been deprived of any benefit of employment in a discriminatory manner under the program. No employee, old or young, lost the right to work by virtue of the VROF program, because all employees had a choice of whether to take the severance pay option. Nor do payments under the VROF program represent a fringe benefit; they are essentially simply a wage substitute intended to compensate an employee who gives up his contract right to work.

Barker relies primarily on EEOC v. Westinghouse Electric Corp., 725 F.2d 211 (3d Cir.1983); and EEOC v. Borden's, Inc., 724 F.2d 1390 (9th Cir.1984), both of which found that denial of severance pay and layoff income benefits to employees eligible for retirement benefits upon plant closings violated the ADEA. Barker's claim is readily distinguishable from the claims raised in those cases. 3

When an employer gives severance pay or related benefits to employees as part of a plant closing, no relationship exists between the value of the job given up and the value of the benefit. Severance pay in that context is an arbitrarily determined amount that can be thought of as a fringe benefit rather than compensation for not working. In contrast, DuPont's...

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9 cases
  • E.E.O.C. v. Westinghouse Elec. Corp., 86-1226
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 2 Febrero 1989
    ...by Westinghouse as support for its position that the option plans do not violate the ADEA are inapposite. In Britt v. E.I. DuPont de Nemours & Co., Inc., 768 F.2d 593 (4th Cir.1985), the court held that DuPont's Voluntary Reduction of Force (VROF) program did not violate the ADEA. Unlike We......
  • Nolan v. Otis Elevator Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • 26 Febrero 1986
    ...v. Independent School Dist. No. 709, supra, 742 F.2d at 467 (emphasis in original). The point was left open in Britt v. E.I. Dupont de Nemours & Co., 768 F.2d 593 (4th Cir.1985), where the court noted that "[w]e do not reach the issue of whether all bona fide voluntary retirement systems ar......
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    • Court of Appeals of Arizona
    • 19 Agosto 2004
    ......Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 ...2213, 2214, 2220; Hazen Paper Co. v. Biggins, 507 U.S. 604, 610-13, 113 S.Ct. ... The Patterson analysis was followed in Britt v. E.I. DuPont de Nemours & Co., Inc., 768 F.2d ......
  • Gerner v. Cnty. of Chesterfield
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 16 Marzo 2012
    ...Id. The district court cited and quoted Hishon, but ignored this crucial teaching. Instead, the court relied on Britt v. E.I. DuPont de Nemours & Co., 768 F.2d 593 (4th Cir.1985), Jones v. Reliant Energy–ARKLA, 336 F.3d 689, 692 (8th Cir.2003), and Cooney v. Union Pacific Railroad Co., 258 ......
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1 books & journal articles
  • Full Disclosure by Governmental Issuers: Protection Against Liability
    • United States
    • Colorado Bar Association Colorado Lawyer No. 16-1, January 1987
    • Invalid date
    ...Pacific Tea Co., 618 F.Supp. 115 (N.D. Ohio 1985); EEOC v. Westinghouse Electric Corp., 725 F.2d 211 (3d Cir. 1983). 13. Britt v. DuPont, 768 F.2d 593 (4th Cir. 1985). 14. Crownover v. Sears, Roebuck & Co., 594 F.2d 565 (6th Cir. 1979). 15. Palmateer v. International Harvester Co., 85 Ill.A......

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