De Loraine v. MEBA Pension Trust, 72 Civ. 4427.

• Decision Date: 21 February 1973
• Docket Number: No. 72 Civ. 4427.,72 Civ. 4427.
• Citation: 355 F. Supp. 89
• Parties: Joseph De LORAINE, Plaintiff, v. MEBA PENSION TRUST, representing the National Marine Engineers' Beneficial Association; and Mildred Killough, Individually and in her capacity as Administrator of the MEBA Pension Trust, Defendants.
• Court: U.S. District Court — Southern District of New York

355 F. Supp. 89

Joseph De LORAINE, Plaintiff, v. MEBA PENSION TRUST, representing the National Marine Engineers' Beneficial Association; and Mildred Killough, Individually and in her capacity as Administrator of the MEBA Pension Trust, Defendants.

No. 72 Civ. 4427.

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

February 21, 1973.

E. Judson Jennings, Legal Services for the Elderly Poor, New York City, for plaintiff.

Proskauer, Rose, Goetz & Mendelsohn, New York City by Morton M. Maneker and David A. Leff, New York City, for defendants.

OPINION

TYLER, District Judge.

Pleading that he is a marine engineer who wishes to return to work, plaintiff has sued MEBA Pension Trust, alleged to represent members of the National Marine Engineers' Beneficial Association, and its administrator, to recover compensatory and punitive damages. Basing his claims on The Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., plaintiff asserts that defendants in 1970, under regulations adopted by MEBA Pension Trust, improperly treated his decision to "temporarily" retire in 1964 as "permanent and binding". Defendants have moved for summary judgment on the grounds, inter alia, that this suit is time-barred as a matter of law, that neither defendant comes within the scope and sanctions of the 1967 statute and that as a matter of record plaintiff voluntarily and finally retired in 1964. Plaintiff has cross-moved for partial summary judgment on the issues of liability.

According to plaintiff, he is presently 54 years of age and fully qualified and fit to handle a position as a marine engineer. In 1964, he had accumulated twenty years of pension time under his union's pension plan. Thus, at age 46, he retired, and signed the following document:

"DECLARATION OF RETIREMENT

FROM

MARITIME INDUSTRY

I, Joseph De Loraine, hereby certify that I have withdrawn and shall remain completely withdrawn during my retirement from any employment aboard any vessel documented under the laws of the United States or aboard any vessel covered by any collective bargaining agreement with the Association and any employment in the Association Locals or Plans.

* * * * * *

A return to employment as noted above, without written permission from the Trustees, shall be penalized in accordance with MEBA Pension Trust Regulations."

The relevant regulations provided in 1964, and so provide today, that, to be eligible for a pension, an employee must completely retire; return to employment without penalty is possible only if permission to do so is given by the Trustees. The regulations are silent, however, as to whether such permission may subsequently be withdrawn by the Trustees.

In 1968, with the permission of the Trustees of MEBA, plaintiff returned to work after having collected pension benefits since 1964. Upon return to work, his pension payments stopped. Then, in 1970, as plaintiff asserts, ". . . the pension regulations were amended, to provide that my election to stop work temporarily in 1964 was permanent and binding, and further overruling and nullifying the decision in 1968 to permit me to return to full-time active employment." More precisely, the Trustees passed a resolution in December of 1970, purporting to revoke the permission previously granted to all persons who had so requested to return to employment covered by the pension regulations.

After reciting these facts, plaintiff alleges that although the 1970 regulation changes were "technically promulgated by the board of trustees" of MEBA, eight of the board members were union representatives, one of whom, the union president, was and is the chairman of the board. Thus, in effect, plaintiff claims that the union rammed through the regulation changes in 1970 for the purpose of discriminating against "older workers" such as himself, although he names neither the union nor its representatives as defendants in this suit. Defendant Killough, as Administrator of the Trust, flatly denies that she or the Trust is the agent of any employer or employee organization, or that the regulations in 1970 were motivated as alleged.

The Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., prohibits discrimination because of age by employers, employment agencies, and labor organizations. Plaintiff, in his brief in opposition to defendants' motion for summary judgment herein, argues forcefully that the defendant pension trust is a labor organization, or at least has discriminated "acting by and with the union and its representatives" in the manner challenged. He asserts, moreover, that retirement plans are subject to the prohibitions of the Act, citing Hodgson v. American Hardware Mutual Insurance Co., 329 F.Supp. 225 (D.Minn.1971).

The statutory language, which is reasonably clear, indicates that the pension trust in question is not a labor organization in this context. Section 630(d) reads:

"The term

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