Coomer v. Bethesda Hospital, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Coomer, et al. v. Bethesda No. 02-3700

ELECTRONIC CITATION: 2004 FED App. 0159P (6th Cir.) Hospital, et al.

File Name: 04a0159p.06

Argued: December 17, 2003

UNITED STATES COURT OF APPEALS Decided and Filed: June 1, 2004

FOR THE SIXTH CIRCUIT

_________________ Before: BATCHELDER and SUTTON, Circuit Judges;

BELL, Chief District Judge.*

GLENN A. COOMER ; X _________________

CHRISTOPHER R. STIRES; -

LYNNETTE MARIE STIRES; - COUNSEL

- No. 02-3700

DIANA SPANG; PETE REEME; - ARGUED: Mark Joseph Byrne, JACOBS, KLEINMAN,

KATHLEEN REEME; GARY E. > SEIBEL & McNALLY, Cincinnati, Ohio, for Appellants.

,

BERGER; ROY K. GERBER; Daniel Jerome Buckley, VORYS, SATER, SEYMOUR &

-

JEFFREY J. CUSTIS; MICHAEL PEASE, Cincinnati, Ohio, for Appellees. ON BRIEF: Mark

- Joseph Byrne, JACOBS, KLEINMAN, SEIBEL &

HOWCROFT ; CONNIE BROWN - McNALLY, Cincinnati, Ohio, for Appellants. Daniel Jerome

DOHERTY ; WILLIAM D. - Buckley, Mary C. Henkel, Margaret A. Nero Fechtel,

HOZMANN; RICHARD R. - VORYS, SATER, SEYMOUR & PEASE, Cincinnati, Ohio,

-

BEITING ; JAMES R. FAZE ; LIN for Appellees.

-

A. HEINZELMAN; SCOTT -

KINZER, _________________

-

Plaintiffs-Appellants, - OPINION

- _________________

v. -

- BELL, Chief District Judge. Participants in an employee

- pension plan have appealed the entry of summary judgment

BETHESDA HOSPITAL, INC. - against them on their discrimination claims under the

and BETHESDA HOSPITAL - Employee Retirement Income Security Act of 1974

EMPLOYEE PENSION PLAN, - (“ERISA”), 29 U.S.C. §§ 1001-1461, and the Age

Defendants-Appellees. - Discrimination in Employment Act ("ADEA"), 29 U.S.C.

- §§ 621-634. For the reasons that follow, the district court’s

N entry of summary judgment will be affirmed.

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 99-00883—Sandra S. Beckwith, District Judge. *

The Ho norable R obe rt Ho lmes B ell, Chief United States District

Judge for the Western District of Michigan, sitting by designation.

1

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Hospital, et al. Hospital, et al.

I. BACKGROUND In addition, Brian Rowan . . . may make the election

above during 1992 notwithstanding the fact that his

Plaintiffs are 16 former employees of Defendant Bethesda benefit under the Plan, determined as a lump sum

Hospital, Inc. (the “Hospital”). The Hospital is the sponsor of actuarial equivalent, is $5,000 or more.

the Bethesda Hospital Employee Pension Plan (the “Plan”),

an employee pension plan governed by ERISA. Plaintiffs are The Rowan distribution did not affect the benefits available

all former participants1 in the Plan who had a vested right to to any other Plan participants.

pension benefits under the Plan when they separated from

their employment at the Hospital. On January 15, 1997, after learning about the distribution

to Rowan, plaintiff Coomer requested a lump sum distribution

The Plan is designed to pay monthly pension benefits when of his pension benefits. At the time of his request Coomer's

participants reach their normal retirement age of 65. The Plan pension benefits had an actuarial equivalent of approximately

also allows an early retirement benefit to retired employees at $116,000. The Committee denied his request and advised

age 55 which may be taken as a monthly pension or in an him that he would be eligible for monthly payments of his

actuarially reduced alternative form as provided under § 4.7. benefit under the Plan beginning at any time after he attained

Section 4.7 allows for a lump sum distribution only if the age 55. Coomer appealed the Committee's decision. By letter

actuarial equivalent of the benefit under the Plan is less than dated April 17, 1997, James M. Connelly, Vice President and

$5,000. Chief Financial Officer of the Hospital, denied Coomer's

second request for a lump sum settlement because the present

In 1992 Brian Rowan, an African-American Hospital value of Coomer's accrued benefit under the Plan exceeded

employee who was under the age of forty, sought a lump sum $5,000. Connelly advised that “It is our underlying belief that

distribution from his pension account so that he could attend the Plan should provide monthly retirement income to its

medical school. At the time of his request the actuarial participants and that lump sum payments should only be paid

equivalent of his pension account was $6,645.22. In order to for diminimus [sic] amounts.”

accommodate Rowan's request, the Bethesda Hospital, Inc.

Board ("the Board") amended the Plan to allow the lump sum On October 15, 1999, Coomer and 15 other participants in

distribution to Rowan. The amendment, adopted on the Plan filed this action in the United States District Court

August 11, 1992, provided as follows: for the Southern District of Ohio. The first count of the

amended complaint, brought on behalf of all of the plaintiffs,

Section 4.7(f)(i) of the Plan is amended by adding the alleges discrimination in violation of § 510 of ERISA. The

following to the end thereof: second count, brought on behalf of Coomer alone, alleges

age discrimination in violation of the ADEA. Defendants

filed a motion for summary judgment alleging that plaintiffs

had failed to state a claim under ERISA because defendants

had taken no adverse action against them and that Coomer

1 had failed to state a claim under the ADEA for age

A Plan participant becomes a “former participant” upon separation discrimination. The district court granted the defendants'

of employment with the Hospital. Form er participants have the right to

receive any benefits to which they became entitled under the Plan.

No. 02-3700 Coomer, et al. v. Bethesda 5 6 Coomer, et al. v. Bethesda No. 02-3700

Hospital, et al. Hospital, et al.

motion for summary judgment. Plaintiffs timely filed this B. The Non-Coomer Plaintiffs

appeal.

Plaintiffs contend that the district court erred in dismissing

II. ANALYSIS all of the plaintiffs other than Coomer ("the non-Coomer

plaintiffs") for failure to exhaust administrative remedies.2

A. Standard of Review

Every employee benefit plan covered by ERISA is required

We review a district court's grant of summary judgment de to "afford a reasonable opportunity to any participant whose

novo. Rowan v. Lockheed Martin Energy Systems, Inc., 360 claim for benefits has been denied for a full and fair review by

F.3d 544, 547 (6th Cir. 2004). Summary judgment is proper the appropriate named fiduciary of the decision denying the

where no genuine issue of material fact exists and the moving claim." 29 U.S.C. § 1133. Although ERISA is silent as to

party is entitled to judgment as a matter of law. FED . R. CIV . whether exhaustion of administrative remedies is a

P. 56(c). In evaluating a motion for summary judgment, the prerequisite to bringing a civil action, we have held that "[t]he

court must view the evidence and draw all reasonable administrative scheme of ERISA requires a participant to

inferences in favor of the nonmoving party. Matsushita Elec. exhaust his or her administrative remedies prior to

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). commencing suit in federal court." Miller v. Metropolitan

The proper inquiry is "whether the evidence presents a Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991). "This is the

sufficient disagreement to require submission to a jury or law in most circuits despite the fact that ERISA does not

whether it is so one-sided that one party must prevail as a explicitly command exhaustion." Ravencraft v. UNUM Life

matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. Ins. Co. of Am., 212 F.3d 341, 343 (6th Cir. 2000). See also

242, 251-52 (1986). Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 418 n.4

(6th Cir. 1998) (citing cases that have read an exhaustion of

administrative remedies requirement into the statute). The

exhaustion requirement "enables plan fiduciaries to efficiently

manage their funds; correct their errors; interpret plan

provisions; and assemble a factual record which will assist a

2

Defendants contend that contrary to plaintiffs' assertions, the district

co urt's decision to dismiss the non-Coomer plaintiffs was based on the

lack of any adverse action that could constitute § 510 discrimination

rather than on the failure to exhaust administrative remedies. It appears

that the district court first determined that the non-Coomer plaintiffs failed

to exhaust administrative remedies, and then proceeded to find that the

1992 Rowan Amendment to the Plan did not constitute an adverse action

that interfered with the Plaintiffs' rights in vio lation of § 510 . Although

we are satisfied that the non-Coomer plaintiffs were properly dismissed

for failure to exhaust their administrative remedies, we address the lack

of any adverse action associated with the Rowan Amend ment in Part II C

below.

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Hospital, et al. Hospital, et al.

court in reviewing the fiduciaries' actions." Ravencraft, 212 remedies would not have served any of the purposes of

F.3d at 343 (quoting Makar v. Health Care Corp., 872 F.2d administrative exhaustion under the facts of that case. Id.

80, 83 (4th Cir. 1989)).

We reject the non-Coomer plaintiffs' reliance on

It is undisputed that none of the non-Coomer plaintiffs Costantino. In contrast to Costantino, there is no clear and

requested a lump sum disbursement in excess of $5,000 from positive indication in this case that pursuing administrative

the Plan prior to filing this action. Plaintiffs contend this remedies would have been a futile act. What plaintiffs sought

failure should be excused because it would have been a vain in this action was to be treated in the same manner as Rowan.

or futile act. Plaintiffs note that it is undisputed that their In other words, they sought an amendment to the Plan that

pension funds exceeded the $5,000 lump sum distribution would allow an early lump sum distribution. Under the terms

limit under the Plan, and the defendants had made it clear that of the Plan, the Hospital Board has "the right to amend the

the Plan prohibited them from making a distribution that Plan at any time to any extent deemed advisable," as long as

exceeded this amount. the amendment does not have the effect of decreasing any

benefits accrued under the Plan before such amendment.

Failure to exhaust administrative remedies is excused Amendment of the Plan is a matter within the discretion of

"where resorting to the plan's administrative procedure would the Board.3 Plaintiffs have not alleged any factual basis for

simply be futile or the remedy inadequate." Fallick, 162 F.3d their claim of futility other than the denial of benefits to

at 419. "The standard for adjudging the futility of resorting Coomer. The plaintiffs' assertion that the Board would not

to the administrative remedies provided by a plan is whether have amended the Plan on behalf of any one of the 15 non-

a clear and positive indication of futility can be made." Id. Coomer plaintiffs was not a foregone conclusion. The

A plaintiff must show that "it is certain that his claim will be Hospital was never given an opportunity to determine

denied on appeal, not merely that he doubts that an appeal whether the non-Coomer plaintiffs' claims were de minimis

will result in a different decision." Id. (quoting Lindemann v. or whether they involved special circumstances that might

Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996)). convince the Board to amend the Plan. As the district court

properly noted, the very fact that the Board amended the Plan

Plaintiffs in the case at bar contend that exhaustion of the to accommodate Rowan's request demonstrates that, in certain

administrative process should be excused in this case just as circumstances, requests for lump sum disbursement in excess

it was in Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir. of $5,000 would be granted. Requiring the non-Coomer

1994), because the Plan did not allow disbursements in excess plaintiffs to pursue the administrative process would

of $5,000 and it can be inferred from the denial of Coomer's accordingly serve several important purposes of

request for a lump sum distribution that the remaining administrative exhaustion, including the development of a

plaintiffs' claims would be denied as well. In Costantino we factual record, enabling the Hospital to consider the claims

held that the district court did not abuse its discretion in

excusing exhaustion in light of the district court's

determination that the suit was directed to the legality of the 3

amended plan rather than to a mere interpretation of it. Id. at Plaintiffs' assertion that in granting Rowan's request "the Board

975. Moreover, we noted that requiring further administrative exceeded their authority and acted contra ry to the Plan provisions," is

simply incorrect. The B oard had authority to ame nd the Plan as long as

it did not affect the rights of other Plan p articipants.

No. 02-3700 Coomer, et al. v. Bethesda 9 10 Coomer, et al. v. Bethesda No. 02-3700

Hospital, et al. Hospital, et al.

before premature judicial intervention, and providing a under ERISA (an "interference" violation). Mattei v. Mattei,

nonadversarial method of claims settlement. 126 F.3d 794, 797 n.4 (6th Cir. 1997) (citing Furcini v.

Equibank, NA, 660 F. Supp. 1436, 1439 (W.D. Pa. 1987)). In

Because we find that the non-Coomer plaintiffs did not this action Plaintiffs have not alleged that they suffered any

exhaust their administrative remedies and because they did adverse action because they availed themselves of an ERISA

not demonstrate clear and positive evidence of the futility of right. Plaintiffs have instead alleged an interference violation.

exhausting those remedies, we affirm the district court's To avoid summary judgment on a § 510 interference claim,

dismissal of the non-Coomer plaintiffs. "an employee must show that the employer engaged in

prohibited conduct for the purpose of interfering with the

C. Discrimination under ERISA § 510 employee's attainment of any right to which he may become

entitled under an ERISA-protected plan." Roush v. Weastec,

According to plaintiffs4, the district court erred when it Inc., 96 F.3d 840, 845 (6th Cir. 1996).

determined that defendants' failure to treat plaintiffs in the

same manner they treated Brian Rowan did not violate § 510 The district court determined that denial of Coomer's

of ERISA, 29 U.S.C. § 1140.5 request for a distribution was not an "adverse action" or

"prohibited conduct" as contemplated by § 510 because it did

ERISA § 510 offers protection against two types of not interfere with a right to which plaintiffs were entitled.

conduct: adverse action taken because a participant availed The district court also determined that amendment of the Plan

himself of an ERISA right (an "exercise" or "retaliation" to accommodate Rowan's request for a lump sum

violation), and interference with the attainment of a right disbursement did not constitute an "adverse action" as

contemplated by § 510.

4

Although we have affirmed the dismissal of the non-Coomer Plaintiffs concede that they had no right under the Plan to

plaintiffs, we refer to all of the plaintiffs in this section because we find a distribution because the actuarial equivalent of their benefits

that even if the non-Coomer plaintiffs had not been dismissed on

procedural grounds, they nevertheless could not succeed on their § 510

exceeded the $5,000 limit. Plaintiffs also concede that the

ERISA discrimination claim. Rowan amendment and the lump sum distribution to Rowan

did not adversely affect their pension rights in any way.

5 Plaintiffs contend, nevertheless, that the Rowan amendment

ERISA § 510 provides in pertinent part:

was an "adverse action" under § 510 because it violated their

It shall be unlawful for any person to discharge, fine, suspend, right under the Plan to have the Plan administered in a non-

expel, discipline, or d iscrimina te against a participant or discriminatory manner.

beneficiary for exercising any right to which he is entitled under

the provisions o f an employee ben efit plan, this title, section

3001 [29 USCS § 12 01], or the W elfare and P ension Plans Plaintiffs' contention discloses a fundamental failure to

Disclosure Act, or for the purpose of interfering with the distinguish between the separate functions of Plan

attainment of any right to which such participant may become administration and Plan sponsorship. The Plan is sponsored

entitled under the plan, this title, or the W elfare and P ension and funded by the Hospital. The Plan is administered by a

Plans Disclosure Act. Committee appointed by the Hospital Board. The Plan gives

29 U.S.C. § 1140.

the Committee the full power to administer the Plan,

No. 02-3700 Coomer, et al. v. Bethesda 11 12 Coomer, et al. v. Bethesda No. 02-3700

Hospital, et al. Hospital, et al.

including the power "to interpret and construe the Plan in a Amendment of the Plan was not an administrative act

non-discriminatory manner consistent with its terms and undertaken by the Committee, but was instead a discretionary

provisions." The Plan further provides that in making its act within the prerogative of the Hospital Board. As we noted

determinations "the Committee shall pursue uniform policies in Musto v. American General Corp., 861 F.2d 897 (6th Cir.

and general rules applicable to all persons similarly situated, 1988), "[t]here is a world of difference between administering

and shall not discriminate in favor of any person or group of a welfare plan in accordance with its terms and deciding what

persons." In creating the Plan, the Hospital Board reserved to those terms are to be." Id. at 911. We agree with the district

itself the right to amend the Plan "at any time to any extent court that the Hospital's amendment of the Plan on behalf of

deemed advisable," as long as the amendment does not have Rowan, and its refusal to amend the Plan on behalf of

the effect of decreasing any benefits accrued under the Plan Coomer, did not violate the anti-discrimination provisions of

before such amendment. The Plan's anti-discrimination the Plan. The Rowan amendment accordingly does not

provision governs the Committee's administration of the Plan. constitute an adverse action or an interference with a right to

The anti-discrimination provision does not purport to govern which Plaintiffs were entitled under the Plan.

the Board, the body authorized to amend the Plan.

This brings us to the core issue presented on appeal, which

Although Plaintiffs have loosely asserted that the Plan is whether an employer's amendment of a Plan to

disregarded the lump sum limitation for Rowan, but denied a accommodate one participant and its refusal to amend the

similar request by Coomer, the evidence of record confirms Plan to accommodate another participant constitutes

that the Committee uniformly interpreted and applied the discrimination in violation of § 510 of ERISA, 29 U.S.C.

$5,000 limitation to all who requested a lump sum § 1140. In Mattei we observed in dicta that many courts had

distribution. The undisputed facts reveal that Rowan obtained concluded that § 510 offers no protection against an

a distribution not because the Committee disregarded the employer's actions affecting the status or scope of an ERISA

lump sum limitation when it administered the Plan, but plan itself and we assumed that "actions taken with respect to

because the Board amended the Plan specifically to permit the plan itself are not protected by § 510." 126 F.3d at 800-

Rowan to take a lump sum distribution in excess of $5,000.6 01.7 This appeal challenges that assumption. Accordingly,

today we decide and make explicit that which we assumed in

Mattei: § 510 offers no protection against an employer's

6

Even if the Committee had made a distribution to Rowan without a actions affecting the status or scope of an ERISA plan.

Plan amendment and in violation of the Plan's lump sum distribution

provision, we question whether the Committee would be estopped from We begin with an analysis of what ERISA is and is not

following the lump sum distribution limitation p rovisio n in the future. A designed to do. "ERISA was enacted to promote the interests

fiduciary is required to discharge his duties "in accordance with the

doc uments and instruments governing the plan." ERISA § 404(a)(1)(D),

29 U.S.C. § 1104(a)(1)(D ). In other words, even if there had been 7

discrimination in the administration of the Plan, that might not have In Mattei we held that the anti-discrimination provision of ERISA

justified the equal treatment re med y Plaintiffs sought. See McGa th v. § 510 reaches further than the employment relationship and is broad

Auto-Body North S hore, 7 F.3d 665, 670 (7th Cir. 1993) ("Because the enough to support a claim against an estate for interfering with a plan

plan must be administered according to its terms, [a participant] cannot be neficiary's receipt of pension bene fits. 126 F.3d at 804-06 . Mattei did

com plain because he is held to those terms; this is true even if the rules not involve an employer's amendment of a plan so we were no t called

were bent for another individual."). upon to address the issue presented in this case.

No. 02-3700 Coomer, et al. v. Bethesda 13 14 Coomer, et al. v. Bethesda No. 02-3700

Hospital, et al. Hospital, et al.

of employees and their beneficiaries in employee benefit "employers have large leeway to design disability and other

plans, and to protect contractually defined benefits." Black & welfare plans as they see fit." Black & Decker, 538 U.S. at

Decker Disability Plan v. Nord, 538 U.S. 822, 830 (2003) 833.

(quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 113 (1989)). With respect to pension plans, ERISA The "large leeway" granted to employers in the design of

imposes participation, funding, and vesting requirements and pension plans applies equally to their modification or

establishes rules concerning reporting, disclosure, and amendment of those plans. When an employer adopts,

fiduciary responsibility. Shaw v. Delta Air Lines, 463 U.S. modifies or terminates a pension plan its actions are

85, 91 (1983) (citing 29 U.S.C. §§ 1021-1031,1051-1086, analogous to that of settlor of a trust rather than that of trustee

1101-1114). ERISA does not, however, purport to govern or fiduciary. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,

what benefits a Plan must provide. 443-44 (1999). Amending a plan is not an act of plan

"management" or "administration," and is accordingly not

"Nothing in ERISA requires employers to establish subject to fiduciary review. Lockheed Corp., 517 U.S. at 890

employee benefits plans. Nor does ERISA mandate what (1996).

kind of benefits employers must provide if they choose to

have such a plan." Lockheed Corp. v. Spink, 517 U.S. 882, Against this backdrop we consider the purpose of § 510.

887 (1996). "ERISA does not mandate that employers We have previously observed that the prohibitions of § 510

provide any particular benefits, and does not itself proscribe "were aimed primarily at preventing unscrupulous employers

discrimination in the provision of employee benefits." Shaw, from discharging or harassing their employees in order to

463 U.S. at 91. keep them from obtaining vested pension rights." Mattei, 126

F.3d at 798 (quoting West v. Butler, 621 F.2d 240, 245 (6th

[N]either Congress nor the courts are involved in either Cir. 1980)).8 "By its terms § 510 protects plan participants

the decision to establish a plan or in the decision from termination motivated by an employer's desire to

concerning which benefits a plan should provide. In prevent a pension from vesting. Congress viewed this section

particular, courts have no authority to decide which as a crucial part of ERISA because, without it, employers

benefits employers must confer upon their employees; would be able to circumvent the provision of promised

these are decisions which are more appropriately benefits." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,

influenced by forces in the marketplace and, when 143 (1990). "We have no doubt that this claim is prototypical

appropriate, by federal legislation. of the kind Congress intended to cover under § 510." Id.

Musto, 861 F.2d at 911 (quoting Moore v. Reynolds Metals

Co. Retirement Program, 740 F.2d 454, 456 (6th Cir. 1984)).

"Employers or other plan sponsors are generally free under 8

The protections of § 510 are no t limited to vested pension rights.

ERISA, for any reason at any time, to adopt, modify, or W e have clarified that § 510 "prohibits interference with rights to which

terminate welfare plans." Curtiss-Wright Corp. v. an employee 'may become entitled' under 'an employee benefit plan' and

Schoonejongen, 514 U.S. 73, 78 (1995). This rule applies does not limit its application to benefits that will become vested ." Abbott

equally to pension benefit plans. Lockheed Corp., 517 U.S. v. Pipefitters Local Union No. 522 Ho sp., M edica l, & Life Benefit Plan,

94 F.3d 236, 242 (6th Cir. 1996) (quoting Shahid v. Ford Motor Co., 76

at 890. The Supreme Court has recently reaffirmed that F.3d 140 4, 1411 (6th Cir. 1996 )).

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Hospital, et al. Hospital, et al.

Nothing in § 510 or in the case law suggests that § 510 was Because the plan must be administered according to its

designed to limit the discretion afforded employers in the terms, he cannot complain because he is held to those

creation or amendment of ERISA plans. As the Eleventh terms; this is true even if the rules were bent for another

Circuit noted in Owens v. Storehouse, Inc., 984 F.2d 394 individual. ERISA § 510 affords protection from

(11th Cir. 1993), "section 510 targets discriminatory conduct discrimination that interferes "with the attainment of any

designed to interfere with the exercise or attainment of vested right to which such participant may become entitled

or other rights under the plan or ERISA. 29 U.S.C. § 1140. under the plan." Mr. McGath does not have a right to

It does not broadly forbid all forms of discrimination." Id. at treatment that is contrary to the terms of the plan, even if

398. "Thus, to prevail under section 510, a plaintiff must those terms are breached for others.

show that the alleged discrimination was designed either to

retaliate for the exercise of a right or to interfere with the Id. (footnote omitted).

attainment of an entitled right. It is insufficient merely to

allege discrimination in the apportionment of benefits under Similarly, in Haberern v. Kaupp Vascular Surgeons Ltd.

the terms of the plan." Id. (citing Shaw, 463 U.S. at 91). In Defined Benefit Pension Plan, 24 F.3d 1491 (3rd Cir. 1994),

fact, a number of courts have held, under facts more Haberern alleged that the employer's amendment to the plan

compelling than those presented here, that unequal treatment that eliminated life insurance benefits for individuals over age

in the design of the plan does not give right to an action under 56, a change which affected only him, and the simultaneous

ERISA § 510. tripling of the face amount of the life insurance policies for

two other employees, violated § 510 of ERISA. Id. at 1502.

In McGath v. Auto-Body North Shore, 7 F.3d 665 (7th Cir. The Third Circuit disagreed, instead agreeing with the

1993), the plaintiff alleged that his employer intended to employer that this action did not violate § 510 of ERISA

interfere with his pension rights by amending the plan to because although § 510 "prohibits discrimination against a

exclude him and by bending the plan's eligibility plan participant for the purpose of interfering with the

requirements to permit other employees entry, while he was attainment of plan rights, it does not prohibit plan

held to the exacting letter of the plan's terms. Id. at 669. amendments which affect only one person." 24 F.3d at 1502.

Although McGath had not been fired, suspended, or But see Aronson v. Servus Rubber, Division of Chromalloy,

disciplined by his employer, he contended that he was 730 F.2d 12, 16 (1st Cir. 1984) (noting in dicta the possibility

nevertheless the victim of a subtle form of discrimination in that a plan could be discriminatorily modified, intentionally

violation of § 510. The Seventh Circuit held that even if it benefitting, or injuring, certain identified employees or a

assumed the truth of these allegations, § 510 did not provide certain group of employees).

McGath any relief. Id. at 668-70. "Because the employer, as

the settlor of the plan, had the right to change the plan's terms, We hold that § 510's prohibition against discrimination

Mr. McGath cannot claim that the alleged discriminatory does not limit a plan sponsor's ability to design or amend a

injury flows from the plan amendments." Id. at 670. Neither plan in any way it sees fit, so long as the sponsor does not

could he state a claim under § 510 by showing that others reduce the participants' vested benefits. A plan sponsor's

were treated more favorably: amendment of a plan to benefit one individual and its refusal

to amend the plan to benefit another individual are not the

kinds of discrimination prohibited by § 510. Plaintiffs had no

No. 02-3700 Coomer, et al. v. Bethesda 17 18 Coomer, et al. v. Bethesda No. 02-3700

Hospital, et al. Hospital, et al.

right under the Plan to have the Plan amended on their behalf. employment action; (3) he was otherwise qualified for the

Because the Hospital did not interfere with plaintiffs' position; and (4) after he was rejected, a substantially younger

attainment of any of their rights under the Plan, we are applicant was selected. Burzynski v. Cohen, 264 F.3d 611,

satisfied that the Hospital's amendment of the Plan did not 622 (6th Cir. 2001) (citing Barnett v. Dep't of Veterans

violate § 510 of ERISA. Affairs, 153 F.3d 338, 341 (6th Cir. 1998)). The fourth

element may be satisfied "by showing that similarly situated

Accordingly, we affirm the district court's entry of non-protected employees were treated more favorably."

summary judgment in favor of the Plan and the Hospital on Talley v. Bravo Pitino Rest., 61 F.3d 1241, 1246 (6th Cir.

Plaintiffs' ERISA § 510 discrimination claim. 1995). If the plaintiff successfully establishes a prima facie

case, the burden of production shifts to the defendant to

D. Age Discrimination under the ADEA articulate a non-discriminatory reason for its adverse

employment action. Burzynski, 264 F.3d at 622. "If the

According to Coomer, the district court erred in entering defendant comes up with such a reason, the plaintiff must

summary judgment on his ADEA claim because, contrary to then demonstrate by a preponderance of the evidence that the

the district court's determinations, there were issues of fact as defendant's proffered reason was a pretext for age

to whether he made out a prima facie case of age discrimination." Id.

discrimination and whether the articulated reason for not

making the requested lump sum to Coomer was pretextual. The district court held that defendants were entitled to

summary judgment on Coomer's ADEA claim because

It is unlawful under the ADEA for an employer "to fail or Coomer was not similarly situated to Rowan and because

refuse to hire or to discharge any individual or otherwise Coomer could not show that the Hospital's proffered reason

discriminate against any individual with respect to his for treating Coomer differently was pretextual. Because we

compensation, terms, conditions, or privileges of find that Coomer failed to produce any evidence that would

employment, because of such individual's age." 29 U.S.C. suggest that the reason for the disparate treatment was

§ 623(a)(1). To establish a claim under the ADEA a plaintiff pretextual, we will not address the issue of whether Coomer

may either produce direct evidence of age discrimination, or made out a prima facie case of age discrimination.

rely upon circumstantial evidence that would permit an

inference of discrimination under the burden-shifting method In Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (6th Cir. 1994), we explained what evidence a plaintiff must

(1973), and Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. adduce in order to show that an employer's alleged legitimate

248 (1981). Hedrick v. Western Reserve Care Sys., 355 F.3d reason for its adverse action against the plaintiff was a mere

444, 459 (6th Cir. 2004); Kline v. Tennessee Valley Auth., 128 pretext:

F.3d 337, 348-49 (6th Cir. 1997).

To make a submissible case on the credibility of his

To establish a prima facie case of age discrimination under employer's explanation, the plaintiff is required to show

the ADEA, a plaintiff must come forward with evidence that: by a preponderance of the evidence either (1) that the

(1) he was at least 40 years old at the time of the alleged proffered reasons had no basis in fact, (2) that the

discrimination; (2) he was subjected to an adverse

No. 02-3700 Coomer, et al. v. Bethesda 19 20 Coomer, et al. v. Bethesda No. 02-3700

Hospital, et al. Hospital, et al.

proffered reasons did not actually motivate his discharge, motivate the Hospital to treat Rowan and Coomer differently.

or (3) that they were insufficient to motivate discharge. There is insufficient evidence on this record to enable a

reasonable jury to infer that the different treatment was due to

Id. at 1084. See also Hedrick, 355 F.3d at 460. Summary Coomer's age rather than to the size of his pension or his

judgment is appropriate when the plaintiff fails to produce failure to articulate a special need for the distribution. The

evidence from which a jury could reasonably conclude that district court did not err in granting summary judgment in

the employer's reasons were pretextual. Wixson v. Dowagiac favor of the defendants on Coomer's ADEA claim.

Nursing Home, 87 F.3d 164, 171 (6th Cir. 1996).

III. CONCLUSION

The Hospital produced evidence that it amended the Plan to

allow a lump sum distribution to Rowan because the amount For all of the reasons set forth above, we AFFIRM the

above the allowable lump sum was de minimis, and because district court's grant of summary judgment in favor of

they supported Rowan's use of the funds. The Hospital Bethesda Hospital, Inc. and the Bethesda Hospital Employee

explained that it placed a cap on the lump sum settlement Pension Plan.

under the Plan because it was concerned that if an employee

took a large lump sum distribution, that employee might

spend the monies and still look to the Hospital for long-term

retirement benefits. Rowan's lump sum settlement was not

for a large amount and did not raise those concerns. In

addition, the Hospital explained that its decision to amend the

Plan in favor of Rowan was influenced by the fact that Rowan

was an African-American and he planned to use the lump sum

distribution to complete his medical education to become an

orthopedic surgeon. The Hospital noted that there was a

shortage of African-American orthopedic surgeons, and the

Hospital hoped that Rowan would eventually return to the

Hospital to practice medicine. By contrast, Coomer's pension

had an actuarial equivalent of approximately $116,000, a far

larger amount than Rowan's, and Coomer did not advise the

Hospital of any special circumstances to support his request.

The factors cited by the Hospital were reasonable factors

for differentiating between Rowan and Coomer in the

amendment of the plan. Coomer failed to come forward with

any evidence to suggest that the reasons given by the Hospital

for failing to treat Coomer and Rowan in the same manner

were false, that they did not actually motivate the Hospital to

treat them differently, or that they were insufficient to