June M. Betts v. Hamilton County Board of Mental Retardation and Developmental Disabilities and Public Employees Retirement System of Ohio , 897 F.2d 1380 ( 1990 )

MERRITT, Chief Judge.

This federal.age discrimination case has a complicated history and is now before this Court upon remand from the Supreme Court. Public Employees Retirement System of Ohio v. Betts, — U.S. -, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989), reversing, 848 F.2d 692 (6th Cir.1988), affirming, 631 F.Supp. 1198 (S.D. Ohio 1986). We conclude that the defendant subjected plaintiff to “involuntary retirement” in violation of §§ 4(a)(1) and 4(f)(2) of the Age Discrimination in Employment Act. 29 U.S.C. §§ 623(a)(1), 623(f)(2).

Section 4(a)(1) makes it unlawful for an employer “to discharge” an employee or “otherwise discriminate” on the basis of age in respect to the employee’s “compensation, terms, conditions or privileges of employment,” including any actions which “tend to deprive any individual of employment opportunities or otherwise adversely affect his status.” 29 U.S.C. § 623(a).

Congress created a partial exception to this general standard for bona fide employee benefit plans. Section 4(f)(2) allows age discrimination by an employer in order “to observe the terms of ... any bona fide employee benefit plan such as a retirement ... plan ... except that ... no such ... plan shall require or permit the involuntary retirement of any individual ... because of age....” 29 U.S.C. § 623(f)(2).¹ The Supreme Court has now held that the Ohio Retirement Plan is the type of “bona fide” plan subject to the § 4(f)(2) partial exemption, and we must now decide whether Betts was “involuntarily retired,” thereby making the exemption inapplicable.

Betts worked as a speech pathologist for the Hamilton County Board of Mental Retardation and Developmental Disabilities for five years. After Betts became ill, the Board determined that she could no longer perform her job. In 1985, when Betts was 61 years of age, her supervisor told her that under Ohio law she had only two possible alternatives: an unpaid medical leave, which would not entitle her to any benefits, or a length-of-service retirement, which would entitle her to $158.50 a month. Ohio Rev. Code §§ 145.32 and 145.301(C). Had she been under 60, the Ohio plan would have given Betts a third option: disability benefits with the possibility of being recalled if her condition sufficiently improved. Ohio Rev. Code § 145.39. Under this third option she would have been entitled to $355.02 a month. As a disability retiree, rather than a length-of-service retiree, Betts would have remained an employee of Hamilton County and would have been entitled to return to work had her condition improved. She was denied this alternative because of her age. Faced with the two choices put to her, she chose the length-of-service retirement.

The Supreme Court remanded to us the issue of “involuntary retirement” under § 4(f)(2) using the following language:

As a result of the 1978 amendments, § 4(f)(2) cannot be used to justify forced retirement on account of age. Appellee contends, and the District Court found, that appellee was forced to retire under the terms of PERS’ plan, and that as a result § 4(f)(2) is unavailable to PERS. The Court of Appeals did not address this question, and we express no opinion on it, leaving its resolution to that court on remand.

Betts, 109 S.Ct. at 2860 n. 2. More specifically, the question presented is: When an employer forces an employee to retire because of job performance or some other legitimate reason not based on age, and then forces the employee into a less desirable retirement plan because of age, does the employer’s conduct constitute “involuntary retirement ... because of age” in violation of § 4(f)(2)? Or, put another way, when an employer forces terms of retirement on an employee for mixed reasons, one of which is age, does the employer violate the “involuntary retirement” proviso of § 4(f)(2) and make the “bona fide” retirement plan exemption unavailable?

Our decision for the employee in this case is strongly influenced by a decision in the Supreme Court and a prior decision in this Court, both of which we regard as on point. The Supreme Court considered a similar issue of “involuntary retirement” in Trans World Airlines v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), in which the airline asserted the “bona fide” retirement plan defense. In Thurston, TWA had two related retirement policies for pilots:

(1) For safety reasons, pilots could no longer serve after age 60 but had to retire as pilots, a policy the pilots conceded to be valid as a bona fide occupational qualification under § 4(f)(1).

(2) Flight engineers could serve beyond age 60, and pilots who became unable to fly could become flight engineers by displacing or “bumping” less senior flight engineers. This “bumping” rule applied, however, only to pilots under age 60.

The Supreme Court held that the § 4(f)(2) “bona fide” retirement plan defense was unavailable because the retired pilots were denied a “privilege of employment” — the right to “bump” into the job of flight engineer — on accout of age. Thurston, 469 U.S. at 124, 105 S.Ct. at 623. It concluded that “because captains disqualified for reasons other than age are allowed to ‘bump’ less senior flight engineers, the mandatory retirement was age-based. Therefore, the ‘bona fide seniority system’ defense is unavailable to the petitioners.” Id. As in the present case, the employer had two policies related to retirement, one valid and the other invalid. The initial retirement was valid, as in the present case, but the age-based refusal to allow the employee to participate in a further employment opportunity made the § 4(f)(2) defense unavailable.

Thurston therefore is on point. Because of their age, some TWA pilots were not entitled to “bumping” privileges. Because of her age, plaintiff was not entitled to disability benefits. Defendant argues that Betts’ situation is distinguishable because none of the three options available to her would have been another job as was the case in Thurston. The benefits she was denied, however, were at the very least a “privilege of employment” or an “employment opportunity” under § 4(a)(1), if not a job. Moreover, the third option of disability benefits which Betts was not offered is similar to a job since she would have been able to return to work had her condition improved.

This Court’s decision in EEOC v. Chrysler, 733 F.2d 1183, reh’g en banc denied, 738 F.2d 167 (1984), is also on point. In Chrysler the company instituted a retirement plan in an attempt to overcome potential insolvency. As a matter of “business necessity,” fifty employees over the age of 55 were given retirement benefits under a special early retirement “program.” Although these employees were given the same retirement pay as those who had voluntarily accepted early retirement, they were not given the option of taking “layoff status,” thereby allowing return to work on a seniority basis, which had been provided to those under 55 who were laid off.

We held that the plan as instituted constituted “involuntary retirement” making the § 4(f)(2) defense unavailable. The Court rejected Chrysler’s argument that because both age and economics were factors in that decision the plan should receive the § 4(f)(2) exemption. Chrysler, 733 F.2d at 1185. Because age was an invalid “determining” factor on one term or condition of the retirement plan, specifically the failure to allow return to work on the basis of seniority, the plan violated the ADEA and was not subject to the exemption. Id. at 1186.

Like Thurston, Chrysler is analogous to this case. The Chrysler workers, both young and old, were laid off because of “business necessity.” But, purely because of their age, older workers were denied the option of layoff status. Betts’ situation is similar. She was denied the third option of disability benefits solely because of her age. Thus, similarly situated people under 60 would have been entitled to disability benefits. If Betts had been 59 and had retired because of an illness, she would have been entitled to that third option. This after-retirement discrimination based on age was condemned by the Chrysler court. It made the § 4(f)(2) exemption unavailable there, and for the same reason it should be unavailable here.

Defendant relies on two cases from the Seventh Circuit to bolster their argument that Betts was not involuntarily retired. Defendant quotes language from Weihaupt v. American Medical Ass’n, 874 F.2d 419 (7th Cir.1989): “A discharge based on health is not actionable under the ADEA.” Weihaupt, 874 F.2d at 425. We have no quarrel with that principle, but Betts’ situation is entirely different from the situation in Weihaupt. In that case plaintiff was not forced to retire or forced involuntarily into a less desirable retirement program on the basis of age. While it is true that retiring for health reasons is not actionable, Betts is claiming that she was denied one of the three options available to PERS employees because of her age. Even though she retired for health reasons, she was not given the choice of disability benefits solely because of her age. This denial, not her initial retirement, is what makes the § 4(f)(2) defense inapplicable.

Defendant’s reliance on language from Henn v. National Geographic Society, 819 F.2d 824 (7th Cir.1987), an early retirement case, is also misplaced. The Seventh Circuit held that an inference of age discrimination was not supported when two factors, one neutral, retirement, and one beneficial to the older employee, incentives, were present. Henn, 819 F.2d at 828. Betts, an older employee, was not given any choice of incentives. Quite the contrary: she was denied the choice of disability benefits which would have been available to her had she been one year younger.

This decision should not be read to undercut a company’s ability to institute early retirement plans or require retirement for reasons of health or job performance. However, we follow the principle established by Thurston and Chrysler that in administering retirement plans employers may not force older workers involuntarily into less desirable retirement programs on the basis of age. Such coercive conduct constitutes “involuntary retirement” under § 4(f)(2).

Accordingly, the judgment of the District Court is AFFIRMED.

1 . Section 623(f)(2) provides in full:

It shall not be unlawful for an employer, employment agency, or labor organization—

(2) to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual, no such seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of the age of such individual....

29 U.S.C. § 623(f)(2).