# Coomer v. Bethesda Hospital, Inc.

> Court of Appeals for the Sixth Circuit · June 1, 2004 · 370 F.3d 499

URL: https://www.frixlaw.com/law-library/cases/2971194

## Case

- **Full name:** Glenn A. COOMER; Christopher R. Stires; Lynnette Marie Stires; Diana Spang; Pete Reeme; Kathleen Reeme; Gary E. Berger; Roy K. Gerber; Jeffrey J. Custis; Michael Howcroft; Connie Brown Doherty; William D. Hozmann; Richard R. Beiting; James R. Faze; Lin A. Heinzelman; Scott Kinzer, Plaintiffs-Appellants, v. BETHESDA HOSPITAL, INC. and Bethesda Hospital Employee Pension Plan, Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 1, 2004
- **Citations:** 370 F.3d 499
- **Precedential status:** Published
- **Opinion:** Opinion by Bell
- **Judges:** Batchelder, Bell, Sutton
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2971194

## How later opinions describe it (automated extraction)

- stating that “[although ERISA is silent as to whether exhaustion of administrative remedies is a prerequisite to bringing a civil action, we have held that ‘[t]he administrative scheme of ERISA requires a participant to exhaust his or her administrative remedies prior to comme…

## Opinion text

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
No. 02-3700 Coomer, et al. v. Bethesda 3 4 Coomer, et al. v. Bethesda No. 02-3700
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.
No. 02-3700 Coomer, et al. v. Bethesda 7 8 Coomer, et al. v. Bethesda No. 02-3700
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 )).
No. 02-3700 Coomer, et al. v. Bethesda 15 16 Coomer, et al. v. Bethesda No. 02-3700
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2971194. Public record. Not legal advice.