Greerv.Pension Benefit Guaranty Corp.

United States District Court, S.D. New YorkFeb 13, 2001
No. 00 Civ. 1272 (SAS) (S.D.N.Y. Feb. 13, 2001)

No. 00 Civ. 1272 (SAS)

February 13, 2001

Francis F. Greer, for Plaintiff (Pro Se).

Rhea A. Lagano, Esq., Office of Gereral Counsel, Pension Benefit Guaranty Corporation, for Defendant.



Plaintiff Francis F. Greer brings this action pursuant to 29 U.S.C. § 621 et seq., alleging violations of the Age Discrimination in Employment Act ("ADEA"). In particular, plaintiff claims that his treatment under his employer's retirement plan is unlawful because older employees that worked with him at the same company but for fewer years were eligible for a higher percentage of calculated pension benefits. Defendant now moves, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss the complaint. For the reasons that follow, defendant's motion is granted.

Calculated benefits are equal to 1.667% of the average of the employee's annual rate of compensation for the five consecutive years preceding the date of retirement multiplied by the employee's years of service. See Retirement Plan of 1981, Ex. A to Plaintiff's Opposition to Defendant's Motion to Dismiss ("Pl. Opp."), at 8.

This case was initially dismissed on June 28, 2000 based on plaintiff's failure to serve PBGC, but was later restored on July 13, 2000, pursuant to plaintiff's Rule 60(b) motion.


Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., No. 00-7660, 2001 WL 46675, at *1 (2d Cir. Jan. 22, 2001) (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). "At the Rule 12(b) (6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (internal quotation marks omitted)). The task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Sims, 230 F.3d at 20 (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted)).

To properly rule on a 12(b)(6) motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor. See ICOM Holding, 2001 WL 46675, at *1. Nevertheless, "[t]o survive a motion to dismiss, [plaintiff's] claims must be `supported by specific and detailed factual allegations' not stated `in wholly conclusory terms.'" Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) ). Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Board of Elections, 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Thus, dismissal is "`appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Friedl, 210 F.3d at 83 (quoting Harris, 186 F.3d at 250 (internal quotation marks omitted)). "`This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se'" Cruz v. Gomez, 202 F.3d 593, 596 (2d Cir. 2000) (quoting Chance, 143 F.3d at 701).

In deciding a Rule 12(b)(6) motion, the court must limit itself to facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999).

Because plaintiff is proceeding pro se, the factual allegations raised in his opposition to defendant's motion to dismiss will be treated as part of his Complaint. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in reviewing district court's dismissal of claim); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint."); see also Marshall v. United States, No. 99 Civ. 3877, 2000 U.S. Dist. LEXIS 16728, at *2-*3 (S.D.N.Y. Nov. 15, 2000).


A. The Retirement Plan

Greer began his employment at Pan American World Airways, Inc. ("Pan Am") in January 1967, and became a member of the Pan American World Airways, Inc. Cooperative Retirement Income Benefits Plan ("Retirement Plan") as of December 1967. See Complaint at second unnumbered page. Normally, an employee covered by the Retirement Plan would be entitled to the full amount of calculated benefits upon reaching the age of sixty-five. See id. at 13. These benefits are commonly referred to as the Normal Retirement Benefits. See id.

Pan Am and its employees agreed to new retirement plan terms at least twice after plaintiff began employment, once in 1981 and again in 1986, but the relevant criteria for early retirement benefits have been the same since 1981. See Retirement Plan of 1981 at 13-15; Retirement Plan of 1986, Ex. B to Pl. Opp., at 9-11. For simplicity's sake, the Retirement Plan of 1981 will be used throughout this Opinion.

As part of its Retirement Plan, Pan Am offered two types of early retirement benefits: Subsidized Benefits and Vested Benefits. See id. at 13-15. The type of early retirement benefit an employee receives is dependent on his age at retirement and his years of service with Pan Am. See id. For example, if an employee had worked for Pan Am for at least ten years and was at least fifty-five years old at the time of his retirement, he would be eligible to receive a minimum of 79% of his calculated benefits (the "Subsidized Benefits"). See id.; see also Defendant's Reply Memorandum in Support of Motion to Dismiss at 2. The percentage of calculated benefits received would increase according to the employee's age at retirement. See Retirement Plan of 1981 at 14.

PBGC refers to Subsidized Benefits and Vested Benefits respectively as the "subsidized Early Retirement Benefit" and the "Vested Separation Benefit." See Enclosure 2, PBGC Appeals Board's Decision Letter to plaintiff ("Decision Letter"), Ex. C to Pl. Opp., at 4, 6.

The only difference between the two plans is the percentage of calculated benefits given under each. See Retirement Plan of 1981 at 14. The percentage of calculated benefits received under the Subsidized Benefits is always higher than the percentage received under the Vested Benefits for any given age group. See id.

The Subsidized Benefits are less than the Normal Retirement Benefits, but the difference between the two is less than the fully calculated actuarial reduction for early retirement. See Retirement Plan of 1981 at 13-15. The full actuarial reduction is reflected in the Vested Benefits. See id. For example, an employee retiring at the age of fifty-five under the Vested Benefits will have a full actuarial reduction of 54.8% (100% 45.2%) of his calculated benefits. However, a fifty-five year old employee meeting the requirements of the Subsidized Benefits would realize only a 21% actuarial reduction (100% 79%). Regardless of the age group, the reduction will always be greater for an employee who receives the Vested Benefits than one receiving Subsidized Benefits.

The second type of early retirement benefit, the Vested Benefits, was available to employees who had either worked for less than ten years or retired before the age of fifty-five. See id. If an employee retired before the age of fifty-five, he would not begin to receive benefits until reaching fifty-five. See id. at 18. Upon reaching age fifty-five, such employee would receive benefits equal to 45.2% of his calculated benefits throughout his retirement. See id. at 15. If, however, the employee was fifty-five or older, but did not have the requisite ten years of service, he would be entitled to a minimum of 45.2% of his calculated benefits under the Vested Benefits. As with the Subsidized Benefits, if the employee was at least fifty-five at retirement, the amount of benefits would increase according his age at retirement. See id.

In 1991, Pan Am filed for bankruptcy. See Pl. Opp. at 2. The Retirement Plan was officially terminated on July 31, 1991, although the airline provided service until December 4, 1991. See id. Soon after, the Pension Benefit Guaranty Corporation ("PBGC") was appointed the Retirement Plan's statutory trustee. See id.

Upon gaining trusteeship of the Retirement Plan, PBGC informed all employees that only those who had reached fifty-five as of July 31, 1991, and had the requisite ten years of service would receive the Subsidized Benefits. See id. Those employees who did not meet either the age or service requirement on July 31, 1991, were eligible to receive only the Vested Benefits.

For example, an employee who was sixty years old and did not have the requisite ten years of service would receive 64.7% of his calculated benefits under the Vested Benefits plan. See Retirement Plan of 1981 at 14. The same employee with the requisite ten years of service would receive 94% of his calculated benefits under the Subsidized Benefits plan. See id. However, an employee would be entitled to only 45.2% of his calculated benefits if he retired prior to reaching the age of fifty-five, regardless of the number of years of service. See id. at 15. On July 31, 1991, plaintiff was fifty-three years and four months old and was therefore eligible to receive only 45.2% of his calculated benefits. See Decision Letter at 2; see also Retirement Plan of 1981 at 14-15. Plaintiff has been receiving $261.12 per month in retirement pension benefits from PBGC since April 1, 1993. See Decision Letter at 1.

Even if plaintiff's final day of employment was December 4, 1991, he would still have been less than fifty-five years old.

Because plaintiff turned fifty-five on March 31, 1993, he became eligible to receive his pension benefits on April 1, 1993. See Decision Letter at 2. The $261.12 per month plaintiff receives represents 45.2% of his calculated benefits of $632.40 per month. See id. at 6-8.

B. Procedural History

Plaintiff contacted PBGC and questioned its determination of his benefits. On September 29, 1997, PBGC provided plaintiff with written confirmation that its calculation was correct. See id. On November 4, 1997, plaintiff appealed the PBGC determination to the PBGC Appeals Board, which also concluded that the amount was accurate. See id. The appeal was closed on April 28, 2000. See id.

While awaiting a determination from the Appeals Board, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"). See EEOC Charge attached to the Complaint ("Charge"). Although the Charge was filed on September 23, 1999, plaintiff has not produced a right-to-sue letter from the EEOC. See Complaint at 5. Plaintiff filed this Complaint on February 22, 2000, more than sixty days after filing the Charge.

A plaintiff must refrain from filing a court action until at least sixty days after filing a charge of discrimination with the EEOC. See 29 U.S.C. § 626 (d); see also Dezaio v. Port Auth., 205 F.3d 62, 65 (2d Cir. 2000) (requiring exhaustion of administrative remedies prior to court action).

Plaintiff appears to assert two claims in this action. Claim I alleges that plaintiff is being discriminated against on the basis of his age because individuals who had worked for Pan Am for at least ten years and were over the age of fifty-five at the date of their termination receive the Subsidized Benefits, while plaintiff only receives the Vested Benefits. See Charge. Claim II asserts that plaintiff was treated less favorably than another Pan Am employee, Tom Rocheck. See Pl. Opp. at 3. Rocheck, like plaintiff, had been employed at Pan Am for more than ten years and was terminated prior to reaching age fifty-five. However, unlike plaintiff, Rocheck allegedly receives the Subsidized Benefits, rather than the Vested Benefits. See id.

Plaintiff alleges that Rocheck was fifty-four-and-a-half years old when he was terminated. See Pl. Opp. at 3.


A. The Purpose of the ADEA

The intent of the ADEA is "to prohibit discrimination against older workers in all employee benefits except when age-based reductions in employee benefit plans are justified by significant cost considerations." H.R. Rep. No. 101-263, at § 101 (1990), reprinted in 1990 U.S.C.C.A.N. 978; see also 29 U.S.C. § 621 (b) (one of the purposes of the ADEA is to prohibit arbitrary age discrimination in employment). To sustain an ADEA claim, a plaintiff must first plead a prima facie case of age discrimination.

The ADEA protects those who are forty years and older. See 29 U.S.C. § 631 (a).

In general, to plead a prima facie case of age discrimination, a plaintiff "must show (1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination." Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). If any of these prongs are not established, the claim is said to have failed. See id.

B. The Age Discrimination Claim

Plaintiff claims that the Retirement Plan is unlawful because employees with fewer years of service than he had are receiving a higher percentage of their calculated pension benefits based on their more advanced age at retirement. See Fact Memorandum attached to the Complaint ("Memo"). This occurred because the Retirement Plan contained both a minimum age and service requirement in order to receive the Subsidized Benefits. See id.; see also Retirement Plan of 1981 at 13-15. Because plaintiff was not yet fifty-five on his last day of employment, he received only the Vested Benefits instead of the preferred Subsidized Benefits. See Memo. Other employees who were fifty-five years old as of July 31, 1991, and had ten years of service, but fewer years of service than plaintiff, received Subsidized Benefits.

In order to show that he was a victim of unlawful age discrimination, plaintiff must establish that he has an actionable claim for reverse age discrimination. While the Second Circuit has not ruled on this issue, a number of other courts have held that the ADEA provides no claim for reverse age discrimination. See Hamilton v. Caterpillar Inc., 966 F.2d 1226, 1227-28 (7th Cir. 1992); Karlen v. City Colls. of Chicago, 837 F.2d 314, 318 (7th Cir. 1988); Cline v. General Dynamics Land Sys., Inc., 98 F. Supp.2d 848 (N.D. Ohio 2000). Indeed, no court has held otherwise.

See Dittman v. General Motors Corp., 116 F.3d 465 (2d Cir. 1997) (Second Circuit did not "reach the question whether the ADEA provides a remedy for reverse discrimination").

In Dittman v. General Motors Corp., 941 F. Supp. 284, 286-87 (D. Conn. 1996), aff'd, 116 F.3d 465 (2d Cir. 1997), the plaintiffs, who were all between forty and fifty years old, maintained "that they may invoke the protection of ADEA because they are more than forty years of age and are in a protected class that may not be discriminated against based on age." Plaintiffs invoked the ADEA claiming discrimination based on their failure to qualify for early retirement benefits because they did not meet the minimum required age of fifty. See id. The district court held that the ADEA does not provide a remedy for reverse age discrimination even when all parties are within the protected age group. See id. at 287. "Congress was concerned that older people were being cast aside on the basis of inaccurate stereotypes about their abilities. The young, like the non-handicapped [analogizing age discrimination to disability discrimination], cannot argue that they are similarly victimized." Id. (quoting Hamilton, 966 F.2d at 1228).

Even if the ADEA does allow for reverse age discrimination claims, plaintiff's claim must still fail. The ADEA specifically authorizes early retirement plans that set a minimum age requirement. See 29 U.S.C. § 623 (1)(1)(A); see also Dittman, 941 F. Supp. at 286-87 (quoting § 623(l)(1)(A)) Accordingly, Pan Am's early retirement plan and PBGC's implementation of that plan are perfectly legal.

Section 623(1)(2)(A) provides: "It shall not be a violation . . . of this section solely because an employee pension benefit plan (as defined in section 1002(2) of this title) provides for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits."

C. The Disparate Treatment Claim

In addition to his claim that older employees were treated more favorably than plaintiff, plaintiff also alleges that Rocheck, a Pan Am employee who was terminated prior to reaching age fifty-five, receives Subsidized Benefits rather than Vested Benefits. See Pl. Opp. at 3. Because both plaintiff and Rocheck were under fifty-five at the time of their respective terminations, any alleged preferential treatment of Rocheck was not the result of unlawful age discrimination. While other factors may have been at play, such factors have not been identified by plaintiff. Accordingly, any claim of unlawful disparate treatment based on age must be dismissed.


For the foregoing reasons, defendant's motion to dismiss is granted. The Clerk of the Court is directed to close this case.