Cowlishaw v. Armstrong Rubber Co., 76 C 884.

• Decision Date: 26 April 1978
• Docket Number: No. 76 C 884.,76 C 884.
• Citation: 450 F. Supp. 148
• Parties: Henry W. COWLISHAW, Plaintiff, v. ARMSTRONG RUBBER COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of New York

450 F. Supp. 148

Henry W. COWLISHAW, Plaintiff, v. ARMSTRONG RUBBER COMPANY, Defendant.

No. 76 C 884.

United States District Court, E. D. New York.

April 26, 1978.

Thomas J. Lilly, New York City (Doran, Colleran, O'Hara & Dunne, New York City, of counsel), for plaintiff.

William J. Doyle (Brotman & Dolin, New York City, and Wiggin & Dana, New Haven, Conn., of counsel), for defendant.

MEMORANDUM and ORDER

DOOLING, District Judge.

Certain of the procedural and background data are set forth in the Memorandum and Order of January 28, 1977, and will not be repeated.

The question presented is whether defendant is entitled to summary judgment in this Age Discrimination in Employment Act of 1967 case.

Plaintiff, then aged 62 and a district sales manager of defendant earning $12,896 a year, was laid off effective June 30, 1974, with 60 days severance pay and 11/12ths of three weeks vacation, and with a retirement allowance provided under the company's long established retirement plan. The plaintiff's retirement was made effective July 1, 1974; his entitlement, on the option that he exercised under the retirement plan, based on eleven years of continuous service with defendant, amounted to $86.79 a month guaranteed for a period of 20 years to himself or in the event of his death to a beneficiary named by plaintiff. Of the options available to plaintiff at his retirement date the largest monthly income would have been $109.17 payable for the life of plaintiff. Under defendant's retirement plan "Normal Retirement Date" is the first day of the month coincident with or next following a participant's sixty-fifth birthday. Under the plan (Section 5.01) each participant was "expected to retire on his normal retirement date", and

"may continue on in employment after said date only at the request of the Participant i. e., the employee and with the consent of the Board of Directors of the Employer or the Committee."

The retirement plan, established in 1943, has, at least since 1963, provided for the voluntary or involuntary retirement of employees commencing at age fifty-five. The provision presently in effect (Section 5.04) provides in part:

"A Participant who shall have attained his fifty-fifth (55th) birthday and has completed at least ten (10) full years of continuous employment may retire or may be retired on any date earlier than his normal retirement date. Such a Participant, upon retirement shall be entitled to receive a monthly retirement benefit, the amount of which shall, at the Participant's election, consist of either: (1) a deferred monthly pension . . . or (2) an immediate monthly pension . ."

The provision particularly applicable to plaintiff (Section 5.04, par. 4) reads:

"A Participant who shall have attained his sixty-second (62nd) birthday and has completed at least ten (10) full years of continuous employment may retire or may be retired on any date earlier than his normal retirement date. Such a Participant, upon retirement, shall be entitled to receive a monthly retirement benefit . . . based upon his years of employment and compensation to the date of his early retirement . . .."

Participation in the retirement plan was voluntary. The whole cost of the plan was borne by the defendant employer.

The plaintiff has served interrogatories and supplementary interrogatories which have been fully and carefully answered by the defendant. There is no ground for questioning the verity of the answers to the interrogatories or their completeness, but, strictly, they are not "binding" on plaintiff; he has not admitted their verity, or taken this occasion to argue any inferences that might be drawn from a careful analysis of the voluminous data that the defendant has produced. It should be said at once, however, that the data are such as to indicate that, if there is an issue of fact on the point that must be determined, the data go far to indicate that defendant would be able to show that plaintiff's termination was not motivated or controlled by his age but by other business factors not weighted by a consideration of defendant's age. It is an inference that defendant's termination might have been deferred in order to assure that his inevitably modest pension at least reflected eleven full years of retirement benefit credits. For example the answers indicate that defendant terminated seven district sales managers involuntarily during the year of defendant's termination, and that of these men the oldest had been born in 1906 and was therefore sixty-eight and the youngest had been born in 1948 and had been in the job for almost two years. The median age of the seven laid off or discharged was forty-seven. One man was twenty-five, three were in their forties, one was fifty-four and two were in their sixties. The man other than plaintiff who was in his sixties was sixty-eight and had been continued in service at his own request and with company permission after he attained normal retirement age.

Although the data indicate that on any view of the law defendant's prospects at a trial on the merits are very high, the question on the present motion is not that. It is whether, in the light of the statute and the controlling case law, the involuntary early retirement of an employee pursuant to the terms of a regularly established and long-standing pension plan on a pension that on no contingency of election among alternatives could much exceed one-tenth the employee's salary at retirement date can ever be found to be an unlawfully discriminatory discharge under ADEA.

United Air Lines, Inc. v. McMann, 1977, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402, does not settle the point. Whatever the United plan was in terms, it had in fact been administered as, and was considered by the Court of Appeals and the Supreme Court as, a plan requiring retirement at the age of sixty. No question of early retirement at the employer's option was presented.

The Court decided that a mandatory retirement age of sixty in a regularly adopted plan that antedated the ADEA was valid as applied to a person retired at the uniformly applied mandatory retirement age of sixty. The Court held that Section 623(f)(2) was meant not only to outlaw discrimination in the hiring of workers less than 65 years of age but too old to participate in an established pension plan by authorizing a quoad hoc discrimination in terms of hiring (98 S.Ct. at 450, fn. 8), but also to validate bona fide pension plans that provided for retirement before 65 without proving industrial justification for the age choice.¹ It must be inferred that the Court did not give consideration to the circumstance that in the particular industry an age below sixty may have been considered "a bona fide occupational qualification reasonably necessary to the normal operation of the particular business" within the meaning of Section 623(f)(1). The argument of Mr. Justice White, concurring, was that if United Air Lines' means of systematically discriminating against people when they reached sixty was to adopt a mandatory retirement plan, the fact that it adopted the plan before the statute was enacted would not prevent it from being discriminatory if it was so in objective fact. Mr. Justice White considered that the plan was safe from challenge because it was a good faith plan in that it provided substantial retirement allowances and the statute does not forbid involuntary retirements pursuant to a bona fide plan. Mr. Justice Stewart considered that since the plan was admittedly bona fide (in some sense of the word), it could not either be a subterfuge or an attempt to evade the Act, since it antedated the Act.

It is not possible to say that McMann definitely intended to adopt Zinger v. Blanchette, 3rd Cir. 1977, 549 F.2d 901. The majority did not deal with the point made by Mr. Justice Marshall, dissenting, that to permit retirement before sixty-five is to contemplate the possibility that on the same day that A is retired at sixty-two with impunity no matter what his job-fitness, B cannot be denied work because he is sixty-two if he is competent to do the work for which he applies, and is the only, or the best qualified applicant for the vacancy.

Brennan v. Taft Broadcasting Co. 5th Cir. 1974, 500 F.2d 212, found no violation of ADEA in Taft's retirement of an employee, Jones, at age sixty pursuant to the provisions of a plan which had a sixty year normal retirement date but which also provided for later retirement with company approval and for early retirement (at any time after age fifty) at Taft's option. The plan had been in existence for about seven years when Jones was retired and his benefits amounted to about $15,000. The Court found that the plan was a bona fide plan and that its date of adoption, three or four years before the statute was enacted, eliminated any notion that it was adopted as a subterfuge or evasion. The Court also concluded that having retired Jones under the plan, Taft was not required to hire him back again when he applied for work.

Zinger v. Blanchette, 3rd Cir. 1977, 549 F.2d 901 which, arguably, was cited with at least limited approval in McMann, dealt with an employer of Penn Central who was involuntarily retired one year before the customary retirement age of sixty-five. Zinger's early retirement cost him $834 a year in retirement allowance. He was a thirty-one year employee at the time of retirement, and, under the somewhat complicated railroad pension provisions applicable to employees of Zinger's class, he could be retired at the company's option at any time between his attaining age sixty and his normal retirement date. Zinger conceded that the Penn Central arrangements constituted a bona fide retirement plan but argued that it was nevertheless a subterfuge. The Court rejected the argument that the plan could not have been a subterfuge because it antedated the statute; it decided that the retirement was lawful because permitted by the statute...