Riva v. Com. of Mass., Civ. A. No. 94-10277-EFH.

• Decision Date: 29 December 1994
• Docket Number: Civ. A. No. 94-10277-EFH.
• Citation: 871 F. Supp. 1511
• Parties: Albert RIVA, Nancy Pentland and Robert G. Keenan, Individually and on behalf of all persons similarly situated, Plaintiffs, v. The COMMONWEALTH OF MASSACHUSETTS, the Public Employee Retirement Administration, the Boston Retirement Board and the Andover Retirement Board, Defendants.
• Court: U.S. District Court — District of Massachusetts

871 F. Supp. 1511

Albert RIVA, Nancy Pentland and Robert G. Keenan, Individually and on behalf of all persons similarly situated, Plaintiffs, v. The COMMONWEALTH OF MASSACHUSETTS, the Public Employee Retirement Administration, the Boston Retirement Board and the Andover Retirement Board, Defendants.

Civ. A. No. 94-10277-EFH.

United States District Court, D. Massachusetts.

December 29, 1994.

COPYRIGHT MATERIAL OMITTED

Harold L. Lichten, Bryan C. Decker, Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C., Boston, MA, for Albert Riva, Nancy Pentland.

Christina Duddy, Grady & Dwyer, Boston, MA, for Robert G. Keenan.

Bryan C. Decker, Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, Boston, MA, for Lawrence Rochon.

Thomas O. Bean, Atty. General's Office, Boston, MA, for Com. of Mass., Public Employee Retirement Admin.

Carol E. Nesson, Boston Retirement Bd., Boston, MA, for City of Boston.

Douglas I. Louison, Merrick and Louison, Devra G. Bailin, Hovey, Urbelis, Fieldsteel & Bailin, Boston, MA, for Town of Andover.

Devra G. Bailin, Hovey, Urbelis, Fieldsteel & Bailin, Carol E. Nesson, Boston Retirement Bd., Boston, MA, for the Boston Retirement Bd.

Douglas I. Louison, Merrick and Louison, Boston, MA, for the Andover Retirement Bd.

MEMORANDUM AND ORDER

HARRINGTON, District Judge.

This matter is before the Court on cross-motions for summary judgment. Plaintiffs Albert Riva, Nancy Pentland and Robert Keenan claim that a Massachusetts statute, Mass.Gen.L. ch. 32, § 7(2)(b½), unlawfully reduces their disability payments in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Both the plaintiffs and defendants (The Commonwealth of Massachusetts, The Public Employee Retirement Administration, The Boston Retirement Board, and The Andover Retirement Board) have submitted a Joint Statement of Facts and have agreed that no material facts are in dispute. As such, summary judgment is appropriate.

I. Material Facts

The plaintiffs are retired public workers in Massachusetts who retired as a result of jobrelated injuries.

Plaintiff Albert Riva was employed by the City of Boston from August, 1982 until April, 1992. In 1990, Riva suffered an injury on the job which led to his permanent disability. Riva retired on accidental disability pursuant to Mass.Gen.L. ch. 32, § 7 in April, 1992, after he had reached the age of fifty-five but before he had accrued ten years of creditable service in the state public employee retirement scheme. By letter dated August 19, 1992, the Boston Retirement Board sent Mr. Riva and his counsel a letter with an attachment advising him of the applicability of Mass.Gen.L. ch. 32, § 7(2)(b½) to his benefit payments. The Boston Retirement Board implemented Mass.Gen.L. ch. 32, § 7(2)(b½), thereby reducing the amount of Riva's monthly accidental disability retirement allowance from approximately $2,130 per month to approximately $775 per month, effective as of August 31, 1993, the last day of the month in which Riva attained the age of sixty-five. On September 30, 1993, Riva filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC").

Plaintiff Nancy Pentland was employed by the Town of Andover from February, 1981 until she retired on November 30, 1988. Pentland retired on accidental disability pursuant to Mass.Gen.L. ch. 32, § 7 after she had reached the age of fifty-five but before she had accrued ten years of creditable service in the state public employee retirement scheme. In November, 1988, the Andover Retirement Board began to pay Pentland a monthly accidental retirement allowance in accordance with Mass.Gen.L. ch. 32, § 7. By letter dated December 3, 1991, the Town of Andover Contributory Retirement Board advised Pentland that it would implement the provisions of Mass.Gen.L. ch. 32, § 7(2)(b)½) and reduce the amount of her monthly retirement allowance on the last day of the month in which she attained the age of sixty-five. The Town of Andover Contributory Retirement Board implemented § 7(2)(b½), thereby reducing the amount of Pentland's monthly accidental disability retirement allowance from approximately $1,980 per month to approximately $830 per month, effective as of October 31, 1993, the last day of the month in which Pentland attained age sixty-five. On October 5, 1993 and November 2, 1993, Pentland filed a charge of discrimination with the EEOC.

Plaintiff Robert Keenan was employed by the City of Boston from December 18, 1989 until March 1, 1991. Mr. Keenan retired on accidental disability pursuant to Mass.Gen.L. ch. 32, § 7 after he had reached the age of fifty-five but before he had accrued ten years of creditable service in the state public employee retirement scheme. Effective February 20, 1993, the Boston Retirement Board began to pay Keenan a monthly accidental disability allowance in accordance with Mass. Gen.L. ch. 32, § 7. By letter dated June 22, 1994, the Boston Retirement Board advised Keenan and his counsel of the applicability of Mass.Gen.L. ch. 32, § 7(2)(b½) to his benefit payments at the time when Mr. Keenan turns sixty-five. Keenan's date of birth is August 10, 1937. Keenan filed a charge of discrimination with the EEOC on August 25, 1994.

This action was commenced by Plaintiffs Riva and Pentland by filing a complaint with the United States District Court on February 10, 1994. Plaintiff Keenan entered the case by way of an unopposed motion filed with the Court on August 10, 1994.¹

II. Relevant Statutory Provisions

Chapter 32 of the Massachusetts General Laws provides the statutory scheme for retirement systems and pensions of public employees in the Commonwealth. Section 7 of Chapter 32, entitled "Accidental disability retirement," sets forth the scheme applicable to public employees who are injured on the job and choose to retire on accidental disability.

In general, employees who retire on accidental disability, such as plaintiffs, receive a yearly pension equal to 72 percent of their annual rate of regular compensation as of the date the injury was sustained, or 72 percent of the average annual rate of their regular compensation for the twelve-month period for which they last received regular compensation immediately preceding the effective date of their retirement allowance, whichever is greater. Mass.Gen.L. ch. 32, § 7(2)(a)(ii).

In 1987, the Massachusetts legislature added Mass.Gen.L. ch. 32, § 7(2)(b½).² That section provides, in general, that a person who had accrued less than ten years of creditable service at the time of his accidental disability retirement, and who was at least fifty-five years old at the time of such retirement, would have the amount of his disability pension adjusted on the last day of the month he turned sixty-five to an amount equal to the amount he would receive if he were retired for superannuation.³ As a result, when Section 7(2)(b½) applies, an employee's disability benefits are reduced when he turns sixty-five.

The ADEA was enacted in 1967 by Congress to address the problem of discrimination based on age in the workplace. The law prohibited discrimination in the "terms, conditions and privileges" of employment on the basis of age. 29 U.S.C. § 623(a). Under Section 4(f) of the Act, 29 U.S.C. § 623(f)(2), however, age-based employment decisions taken pursuant to "the terms of ... any bona fide employee benefit plan such as retirement, pension, or insurance plan, which is not subterfuge to evade the purposes of this Act ..." are exempt from the provisions of the ADEA. In 1989, the Supreme Court in Public Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 177-182, 109 S.Ct. 2854, 2866-69, 106 L.Ed.2d 134 (1989), held that the ADEA exempts all provisions of a bona fide employee benefit plan from the purview of the ADEA, unless the employee demonstrates that a benefit plan provision is subterfuge for discrimination in the non-fringe-benefit aspects of the employment relationship.

In response to Betts, Congress enacted the Older Workers Benefit Protection Act ("OWBPA") on October 16, 1990, P.L. 101-433. The OWBPA overturned Betts by amending the ADEA so as to prohibit discrimination against older workers in all employee benefits except when justified by cost considerations. See 29 U.S.C. § 623.

The OWBPA did not, however, apply to the States, their political subdivisions, instrumentalities or agencies until October 16, 1992. In addition, Section 105(e) of the OWBPA provides that the changes to the ADEA wrought by the OWBPA do not apply to certain series of existing benefit payments:

CONTINUED BENEFIT PAYMENTS —

Notwithstanding any other provision of this section, on and after the effective date of this title and the amendments made by this title, ... this title and the amendments made by this title shall not apply to a series of benefit payments made to an individual or the individual's representative that began prior to the effective date and that continue after the effective date pursuant to an arrangement that was in effect on the effective date

. . . . .

§ 105(e) of OWBPA, Pub.L. 101-433, as amended Pub.L. 102-236, § 9, Dec. 12, 1991, 105 Stat. 1816.

In the instant action, defendants do not contest that Mass.Gen.L. § 7(2)(b½) is facially discriminatory and is thus contrary to the ADEA, as amended by the OWBPA. Defendants do assert, however, as a procedural matter, that the claims of Plaintiffs Riva and Pentland are untimely, and that Plaintiff Keenan's claim is not ripe for adjudication. Moreover, defendants contend, on the merits, that the OWBPA amendments to the ADEA do not apply to the claims of Riva and Pentland as a result of the operation of Section 105(e) of the OWBPA.⁴

The specific issue on the merits is, therefore, whether the ADEA, as amended by the OWBPA, applies to the benefit payments of plaintiffs in view of the provisions of Section 105(e) of the OWBPA.

III. Timeliness

A statutory prerequisite to a civil action alleging age...