Anderson v. Consolidated Rail Corp.

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

7-23-2002

Anderson v. Consolidated Rail

Precedential or Non-Precedential: Precedential

Docket No. 01-1518

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PRECEDENTIAL

Filed July 23, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1518

WAYNE S. ANDERSON; WILLIAM R. BELLAMY; LINDA A.

BONNER; ROBERT R. CARTER; ROBERT J. DEANGELIS;

PATRICIA FOSTER; **CHARLES F. FOTE; ALVERTA T.

GILMORE; JAMES J. GOSLIN; WILLIAM J. GUITERAS;

*JANE L. HAMILTON; *DONALD A. HEPP; JOHN

JEFFERY; FRANK S. JOHNSON; WILLIAM A. KENNEDY;

THERESA R. KENNY; THOMAS H. KERWIN; *LEE A.

MANFRE; *IRENE W. MAYER; *EILEEN F. MCGOVERN;

JANET E. MCMULLAN; CARL F. MICHINI; THOMAS J.

QUINN; *PAUL C. RAHN; *FREDERICK G. SCHMIDT;

*GARY A. SMELCER; *BERNARD B. SOBJAK; *DAVID I.

SPRITZLER; VERA M. STEVENS; *GEORGE D. WOOD,

Appellants

v.

CONSOLIDATED RAIL CORPORATION ("CONRAIL");

CONRAIL SUPPLEMENTAL PENSION PLAN; FRANK H.

NICHOLS; DEBBIE MELNYK; RICK HUFFMAN; MARIANNE

S. GREGORY; DALE SCHAUB; JOSEPH ARSENAULT;

PETER F. BARR; BRIAN DEAM; JAMES F. DIETZ; TOM

DWYER; M. KEVANS; JACK FARRELL; GERALD T.

GATES; MARY ANN GREGROY; TOM HIEBER; CHRIS

HILL; LIBBY HUDSON; DAVE KALAPOS; BILL LYNCH;

DON MATTSON; MICHAEL MCGILLOWAY; TOM

NEWHART; MICHELE NOWLAN; JOSEPH OSBORNE;

DENNIS PARANZINO; LES PASSA; AL POLINSKY; ROBERT

REID; MICKEY SAPPERSTONE; BOB SCHREYER; CARL

SIMCOX; JAMES SNEE; JERRY STANECK; JOHN TILLEY;

RALPH VON DEM HAGEN

*(Dismissed per Court’s Order dated 4/11/01)

**(Dismissed per Court’s Order dated 2/14/02)

Appeal from the United States District Court

For the Eastern District of Pennsylvania

D.C. No.: 98-cv-06043

District Judge: Honorable Harvey Bartle, III

(Argued: March 4, 2002)

Before: SCIRICA, ROSENN, Circuit Judges, and

WARD,* District Judge.

(Filed: July 23, 2002)

Alice W. Ballard, Esq. (Argued)

Law Office of Alice W. Ballard, PC

225 South 15th Street, Suite 1700

Philadelphia, PA 19102

Counsel for Appellants

Laurence Z. Shiekman, Esq.

(Argued)

Brian T. Ortelere, Esq.

Joann Hyle, Esq.

Larry R. Wood, Jr., Esq.

Hope A. Comisky, Esq.

Pepper Hamilton LLP

3000 Two Logan Square

18th & Arch Streets

Philadelphia, PA 19103

Counsel for Appellees

OPINION OF THE COURT

ROSENN, Circuit Judge:

This age discrimination in employment case has its

genesis in the lengthy struggle of our nation’s railroads for

survival. Consolidated Railroad Corporation (Conrail), now

_________________________________________________________________

* Honorable Robert J. Ward, United States District Court for the

Southern District of New York, Sitting by Designation.

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defunct, engaged in a reduction-in-force (RIF) in July 1995

when it involuntarily terminated thirty employees in its

Central Office. In November 1998, these employees, all but

one in the forty to fifty-five year age range, sued Conrail in

the United States District Court for the Eastern District of

Pennsylvania. They claimed that Conrail’s decision to

terminate them violated the Age Discrimination in

Employment Act, 29 U.S.C. SS 621-634 (ADEA). Examining

each individual plaintiff ’s prima facie case, the District

Court found that certain plaintiffs had not satisfied the

fourth element of the framework established by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973) because they could not show that Conrail

retained a sufficiently younger and similarly situated

employee for each employee terminated. The plaintiffs also

claim that the District Court erred in rejecting their claims

for pension benefits under ERISA S 510, 29 U.S.C. S 1140,

and their claims for benefits under the Company’s

Voluntary Separation Program (VSP) of 1996. Seventeen of

the plaintiffs timely appealed.1 We affirm.

I.

As part of its RIF decision, Conrail provided the

terminated employees with severance pay amounting to

approximately a year’s salary per employee. In February

1996, Conrail announced a voluntary separation program

or a buy-out which provided separation incentives to

qualified employees that were more generous than the

severance package offered to the involuntarily terminated

plaintiffs. The 1996 benefits included payment of two years

salary and an additional $5,000 expense allowance. As

initially announced, the VSP benefits were available to

those individuals who were employees as of February 21,

1996. Later, Conrail expanded the program to individuals

who were employees as of January 2, 1996. In addition to

the eligibility cut-off date, an employee had to have fifteen

or more years of continuous work service to be eligible. In

December 1996, Conrail amended its Supplemental Pension

_________________________________________________________________

1. Thirteen plaintiffs resolved their claims against Conrail and have not

appealed.

3

Plan to include the VSP. Conrail denied the involuntary

terminated employees the VSP benefits at each level of the

administrative claims procedure.

In November 1998, the thirty plaintiffs who had been

involuntarily terminated in July 1995 filed this action.2

They claimed that the decision by Conrail to reduce its

aging work force "was motivated by a desire to thin its

middle-aged ranks" to make room for younger new hires in

violation of the Age Discrimination in Employment Act.

They also claimed that Conrail terminated the plaintiffs in

violation of ERISA S 510, 29 U.S.C. S 1140, to preclude

them from participating in an anticipated voluntary buy-out

program that Conrail subsequently announced in 1996.

The District Court dismissed plaintiffs’ ERISA claims on

Conrail’s Rule 12(b)(6) motion. The Court applied

Pennsylvania’s two-year statute of limitations for tort cases

to the ERISA S 510 claim, concluding that the claims were

time barred. The District Court granted Conrail’s summary

judgment motion on the ADEA claims in part and denied

them in part. The District Court found that the plaintiffs’

reliance on Anjelino v. New York Times Co., 200 F.3d 73 (3d

Cir. 1999) was not relevant to their ADEA claim. The

District Court found that certain plaintiffs had not satisfied

the fourth element required to make out a prima facie case,

namely, proof that a similarly situated younger person was

retained or hired to fill the position of the employee

terminated. Of the fourteen plaintiffs that survived

summary judgment, eleven settled. Gilmore, Fote and

DeAngelis proceeded to trial separately pursuant to the

District Court’s order.3 The jury returned a verdict in favor

of Gilmore and against Fote and DeAngelis. The District

Court denied both parties’ post-trial motions in January

2001.4

_________________________________________________________________

2. The District Court exercised subject matter jurisdiction under 28

U.S.C. S 1331. This Court has appellate jurisdiction pursuant to 28

U.S.C. S 1291.

3. Although the District Court granted Conrail’s motion for separate

trials under Federal Rule of Civil Procedure 42(b), it denied the motion

to sever the cases under Rule 21.

4. Of the original thirty plaintiffs, thirteen plaintiffs have settled all their

claims, including Gilmore and Fote. Of the remaining seventeen, all of

4

II.

A.

Our review of the District Court’s grant of summary

judgment is plenary, and we apply the same test as the

District Court should have applied initially. Olson v.

General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996).

Summary judgment is proper if after considering"the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavit, if any, . . .

there is no genuine issue as to any material fact and . . .

the moving party is entitled to judgment as a matter of

law." Fed. R. Civ. P. 56(c). An issue is genuine"if the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). In conducting that review,

the non-moving party is entitled to all reasonable inferences

and the record is construed in the light most favorable to

that party. Pollock v. American Tel. & Tel. Long Lines, 794

F.2d 860, 864 (3d Cir. 1986). However, in deciding a

summary judgment motion, we are obligated to "view the

evidence . . . through the prism of the substantive

evidentiary burden" and determine "whether a jury could

reasonably find either that the plaintiff proved his case by

the quality and quantity of the evidence required by the

governing law or that he did not." Anderson, 477 U.S. at

254.

Summary judgment against a party who bears the

burden of proof at trial, as do the plaintiffs here, is proper

if after adequate time for discovery and upon motion, a

party fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Under such circumstances, "there can be no genuine issue

_________________________________________________________________

them challenge the ERISA decision. Fourteen plaintiffs challenge the

Anjelino decision, while only ten challenge the District Court’s disposition

of their prima facie case. Because our decision does not turn on any

facts particular to any individual plaintiff, we need not detail which

specific plaintiffs challenge what aspect of the District Court’s decision.

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as to any material fact, since a complete failure of proof

concerning an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial." Id. at

323 (internal quotations omitted). Further, "[t]he moving

party is entitled to a judgment as a matter of law because

the nonmoving party has failed to make a sufficient

showing on an essential element of her case with respect to

which she has the burden of proof." Id.

B.

Under the Age Discrimination in Employment Act, an

employer is prohibited from discharging any individual or

otherwise discriminating against an individual with respect

to compensation, terms, conditions, or privileges of

employment, because of such individual’s age. 29 U.S.C.

S 623(a)(1). A plaintiff may establish an age discrimination

claim using direct or indirect evidence. The plaintiffs claim

that they established a prima facie case sufficient to defeat

a motion for summary judgment by asserting that Conrail’s

terminations were to make room for younger new

employees and by showing that its proffered reason of the

need for immediate cost savings was pretextual. They

argue that under their Anjelino theory they need to

produce evidence "only that they lost their jobs as a

result of age discrimination, regardless of their individual

circumstances," to bar summary judgment. The plaintiffs

argue that each of them need not individually establish a

prima facie case under the McDonnell Douglas framework.

Relying on Anjelino, 200 F.3d at 92, they claim entitlement

to relief because each of them suffered as a result of

Conrail’s impermissible decision to apply the 1995 RIF on

the basis of age.

In Anjelino, this Court addressed whether certain male

workers had standing under Article III to sue under the sex

discrimination laws, where the employer aimed the alleged

discrimination at female co-workers. We held:

Because the male appellants here have pled specific

facts to demonstrate a concrete injury as well as a

nexus between the alleged injury and the sex-based

discrimination, even though that discrimination was

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aimed in the first instance at others, we conclude that

they have established standing. Their allegations that

sex discrimination adversely affected their being hired

as extras, as well as their seniority on the priority list,

demonstrate actual injury. We hold that indirect

victims of sex-based discrimination have standing to

assert claims under Title VII if they allege colorable

claims of injury-in-fact that are fairly traceable to acts

or omissions by defendants that are unlawful under

the statute. That the injury at issue is characterized as

indirect is immaterial, as long as it is traceable to the

defendant’s unlawful acts or omissions.

Anjelino, 200 F.3d at 92.

In addition to an effort to produce direct evidence of age

discrimination that the District Court rejected for many

reasons,5 the plaintiffs claim that each was indirectly

injured by Conrail’s age-based RIF decision, an alleged

unlawful act under ADEA. The District Court, however,

found Anjelino irrelevant because, as it explained, the

plaintiffs offered no proof that they were harmed indirectly

by an age based RIF decision "directed at others." (D.C. op.

at 12). We agree with the District Court that the plaintiffs’

reliance on Anjelino is irrelevant. We also conclude that

their dependence on Anjelino is misplaced because even if

Anjelino relieved each plaintiff from individually satisfying a

prima facie case under the McDonnell Douglas framework,

it would not relieve the plaintiffs from showing that the

terminations "are fairly traceable to acts or omissions by

defendants that are unlawful under the statute." Id. Stated

differently, Anjelino does not relieve the plaintiffs from

establishing that the RIF decision was unlawful under

ADEA.

The plaintiffs claim that as a result of Conrail’s prior

downsizing and two prior retirement buyouts, Conrail’s

workforce was predominately middle age. This, the plaintiffs

claim, "boded badly for Conrail’s future, because the flow

_________________________________________________________________

5. The District Court rejected the "purported direct evidence" because it

presented "myriad" problems. (D.C. op. at 6)."None of the evidence cited

by the plaintiffs bears directly upon Conrail’s reasons for implementing

the June 1995 RIF." Id.

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through the pipeline of upcoming leaders was down to a

trickle." In addition, the plaintiffs rely on certain anecdotal

evidence from a Human Asset Planning Team reflecting

concern about Conrail’s aging workforce.

In Connors v. Chrysler Financial Corp., we recognized that

a plaintiff can prove discrimination by direct evidence, but

noted that a plaintiff confronts a "high hurdle." 160 F.3d

971, 976 (3d Cir. 1998). In quoting Justice O’Connor’s

controlling opinion in Price Waterhouse v. Hopkins, 490

U.S. 228 (1989), we held that the evidence must

demonstrate that the "decision makers placed substantial

negative reliance on an illegitimate criterion in reaching

their decision." Connors, 160 F.3d at 976. In other words,

the evidence must reveal a sufficient discriminatory animus

making it unnecessary to rely on any presumption from the

prima facie case to shift the burden of production. Id.

When reviewing a grant of summary judgment, we must

view the evidence in the light most favorable to the non-

movants, here the plaintiffs. We cannot say that a

reasonable fact-finder would find that plaintiffs’ generalized

evidence relating to Conrail’s aging workforce established

that its 1995 decision to institute a reduction in force was

illegitimately contrived on the basis of age. Even were we to

consider the evidence of the 1996 VSP, which the plaintiffs

claim the District Court erroneously rejected, as inferential

proof of Conrail’s concern with its aging workforce, it has

not much probative value from which to draw a sinister

motive behind the 1995 RIF decision. The plaintiffs failed to

produce sufficient evidence to reveal a discriminatory

animus in making the 1995 RIF decision.

Moreover, as the District Court carefully observed, none

of the evidence adduced by the plaintiffs addresses directly

the reasons for implementing the 1995 RIF, nor does any of

the evidence show that any decision maker relied on such

evidence. Having failed to show that the RIF decision was

age based, the District Court correctly found Anjelino

irrelevant here.

C.

We turn now to the plaintiffs’ indirect evidence of age

discrimination. In indirect evidence cases, we have

8

borrowed the three-step McDonnell Douglas burden shifting

analysis developed in the context of Title VII discrimination

cases and applied a "slightly modified version" to determine

whether the employer based its action on the individual’s

age. Connors, 160 F.3d at 973; 29 U.S.C.S 623(a)(1). Under

the first step of the three-step analysis, a plaintiff must

establish a prima facie case showing that he or she:

(1) was a member of a protected class (i.e. he or she

was forty years of age or older);

(2) was qualified for the position at issue;

(3) suffered an adverse employment action; and

(4) was replaced by a sufficiently younger person,

raising an inference of age discrimination.

Showalter v. University of Pittsburgh Med. Ctr. , 190 F.3d

231, 234 (3d Cir. 1999); Connors, 160 F.3d at 973-74.

Recognizing that the fourth element is inadequate in a

reduction in force context, as opposed to demotion or

discharge cases, we have held that the fourth element is

satisfied by showing that the employer retained a

"sufficiently younger" employee. Showalter , 190 F.3d at

235.

The District Court also held that to satisfy the fourth

element of the prima facie case, the plaintiffs must show

that the sufficiently younger person retained was"similarly

situated." None of the cases that the District Court cited,

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133

(2000), Showalter v. University of Pittsburgh Medical Center,

190 F.3d 231 (3d Cir. 1999), and Simpson v. Kay Jewelers,

Division of Sterling, Inc., 142 F.3d 639 (3d Cir. 1998),

explicitly holds that a plaintiff, in a RIF age discrimination

case, must demonstrate, as part of his or her prima facie

case, that "the defendant retained someone who was

similarly situated." Before proceeding to the plaintiffs’ claim

of error here, we must therefore determine whether the

District Court erred in imposing this requirement as part of

the prima facie case.

Relying on Earley v. Champion International Corp., 907

F.2d 1077 (11th Cir. 1990) and Skalka v. Fernald

Environmental Restoration Management, 178 F.3d 414 (6th

9

Cir. 1999), the District Court reasoned that because ADEA

is not a bumping statute, the plaintiffs must also show that

the employer retained a similarly situated individual. In

Earley, the United States Court of Appeals for the Eleventh

Circuit stated that ADEA does not require an employer to

discharge a younger employee so that an employee in the

ADEA protected class can be retained. 907 F.2d at 1083.

Likewise, the United States Court of Appeals for the Sixth

Circuit observed in Skalka that a "plaintiff cannot prevail

merely by pointing to other positions for which she was

qualified and claim[ ] that the employer should have allowed

her to ‘bump’ the occupant of that position." 178 F.3d at

421.

Because ADEA is not a bumping statute, as the plaintiffs

concede, the plaintiffs must show that the employer

retained a similarly situated employee. Were we to hold

otherwise, we would be construing ADEA as guaranteeing a

protected employee a job at the expense of a sufficiently

younger employee. Thus, to present a prima facie case

raising an inference of age discrimination in a reduction in

force situation, the plaintiff must show, as part of the

fourth element, that the employer retained someone

similarly situated to him who was sufficiently younger.

Of the seventeen plaintiffs on appeal here, the District

Court granted summary judgment against ten of them

because it concluded that they had failed to establish that

Conrail retained someone who was similarly situated, and

thus, raise an inference of age discrimination. The plaintiffs

attempt to demonstrate a similarly situated retained

individual by comparing themselves to other employees who

performed jobs for which they were also qualified. They

reason that because "shuffling employees is the norm,

plaintiffs should be able to challenge as discriminatory

Conrail’s failure to shuffle them to an assignment where

they could outperform a less experienced incumbent." If

Conrail engaged in routine shuffling, we agree with the

plaintiffs that such a practice should have been considered

in determining whether a younger person was similarly

situated to a discharged employee. However, that is not the

case here. The plaintiffs adduced minimal evidence showing

that inter-department assignments of employees was the

10

norm. On the contrary, at oral argument, the plaintiffs

retreated and acknowledged that they only attempted to

show a similarly situated retained employee by comparing

each plaintiff to someone within their own department or

sub-department.

Our review of the District Court’s well-reasoned analysis

of the ten plaintiffs’ cases who appeal this aspect of the

District Court decision (Anderson, Bellamy, Bonner, Foster,

Goslin, Guiteras, Jeffery, Kennedy, McMullan, and Quinn)

contradicts the plaintiffs’ submission. As to each of these

ten plaintiffs, they attempted to satisfy the fourth element

by comparing themselves to entry-level positions or other

low-level positions without providing any evidence of

shuffling. To the extent that a particular plaintiff referred to

someone in his department or sub-department, the District

Court rejected such evidence because the employees

retained were either not sufficiently younger or the evidence

failed to show that the duties were comparable or that they

were otherwise similarly situated. We therefore conclude

that the District Court did not err in finding the foregoing

ten plaintiffs failed to satisfy the fourth element of a prima

facie case.

D.

After surviving summary judgment, DeAngelis proceeded

to trial. The jury returned a verdict against him. He claims

error in the District Court’s jury instructions. DeAngelis

argues that the District Court erred in instructing the jury

to find for Conrail, if they were not persuaded that

DeAngelis had presented a prima facie case under the

McDonnell Douglas framework. DeAngelis does not explain

how, even if the instructions were erroneous, they were

prejudicial. In any case, we have stated that "it is clearly

proper to instruct the jury that it may consider whether the

factual predicates necessary to establish the prima facie

case have been shown." Watson v. Southeastern

Pennsylvania Transp. Auth., 207 F.3d 207, 221 (3d Cir.

2000). This is what the District Court did. As the Court

noted in rejecting DeAngelis’ argument in his post-trial

motion, "while the jury was instructed to consider the

‘factual predicates’ of the prima facie case, the term ‘prima

11

facie’ was not used, thus eliminating any unnecessary jury

confusion." In addition to failing to discover any prejudice,

we see no error in the jury instructions.

III.

Besides the ADEA claim, the plaintiffs pled a claim

against Conrail under ERISA S 510, 29 U.S.C.S 1140. They

alleged that they were discharged in July 1995 to prevent

attainment of the 1996 VSP benefits. On Conrail’s Rule

12(b)(6) motion, the District Court held that the ERISA

S 510 claim was time barred because the applicable statute

of limitations is two years. Our review is plenary over the

District Court’s dismissal for failure to state a claim

pursuant to Rule 12(b)(6). Brown v. Philip Morris, Inc., 250

F.3d 789, 796 (3d Cir. 2001).

The parties agree that the plaintiffs were involuntarily

terminated in July 1995. It also is undisputed that the

plaintiffs did not file their action until November 1998,

almost three and half years later. Therefore, whether the

two year statute of limitations or the six year advanced by

the plaintiffs applies is critical and dispositive of the S 510

claim. The plaintiffs also do not dispute on appeal that

their S 510 claim accrued in July 1995 when they were

terminated.

In Gavalik v. Continental Can Co., this Court held that

because S 510 does not provide a specific statute of

limitations for actions alleging violations of that section,

"the appropriate period is determined by reference to the

state statute of limitations governing cases most analogous

to the cause of actions asserted by the plaintiffs." 812 F.2d

834, 843 (3d Cir. 1987). We held that employment

discrimination and wrongful discharge claims brought

under federal law "are governed by Pennsylvania’s six-year

residuary clause." Id. at 844.

The District Court in this case concluded that the

plaintiffs S 510 claim here is most analogous to a wrongful

discharge cause of action because the plaintiffs’ allegations

are that they would have qualified if not for the wrongful

termination to preclude them from the 1996 VSP. The

District Court acknowledged that in Gavalik, this Court

12

stated that Pennsylvania’s six year statute of limitations

applied to employment discrimination or wrongful discharge

cause of action in S 510 claims. However, the District Court

held that since the decision in Raleigh v. Westinghouse

Electric Corp., 550 A.2d 1013, 1014 (Pa. Super. 1988),

appeal denied, 563 A.2d 499 (Pa. 1989), Pennsylvania has

applied a two year statute of limitations in wrongful

discharge causes of action. Therefore, it held that a S 510

claim analogous to a wrongful discharge cause of action is

governed by the two year statute of limitations set forth in

42 Pa. Cons. Stat. Ann. S 5524(7).

The plaintiffs do not dispute that the most analogous

cause of action asserted by them in their S 510 claim is a

wrongful discharge cause of action. They also do not

dispute that after Raleigh, a two year statute of limitations

applies in Pennsylvania in a wrongful discharge cause of

action. They contend, however, that because Gavalik

analogized a S 510 claim to an employment discrimination

cause of action, the six year statute of limitations

enunciated in Gavalik should apply. The applicable statute

of limitations for employment discrimination is irrelevant

here because the District Court determined, a

determination that is not challenged by the plaintiffs, that

their ERISA S 510 claim is most analogous to a wrongful

discharge.

Next, the plaintiffs submit that it was reasonable for

them to rely on the six-year statute of limitations

enunciated in Gavalik. However, the Gavalik court made

clear that the statute of limitations for an ERISAS 510

claim is governed by cases "most analogous to the cause of

action asserted by the plaintiffs." Because Raleigh held in

1988 that a two year statute of limitations applies to

wrongful discharges in Pennsylvania, and the District Court

found that the plaintiffs’ S 510 claim here is most

analogous to a wrongful discharge, the District Court did

not err in holding that the two year statute of limitations is

applicable to the plaintiffs’ S 510 claim. As the plaintiffs’

claims accrued in July 1995, and they did not file the

instant action until November 1998, their S 510 claims are

time barred.

13

The plaintiffs also alleged that they were entitled to

the VSP benefits under ERISA S 502(a)(1)(B), 29 U.S.C.

S 1132(a)(1)(B), and ERISA S 502(a)(3), 29 U.S.C.

S 1132(a)(3), although they did not satisfy the eligibility cut-

off date. The essence of their contention here is that Conrail

breached its fiduciary duty in extending the VSP benefits to

certain ex-employees terminated in January 1996, without

providing the same benefits to the employees terminated in

1995. The plaintiffs vehemently argue that Conrail’s

decision to expand the program to employees involuntarily

terminated as of January 2, 1996, but not to them, was a

breach of its fiduciary duty.

In Bennett v. Conrail Matched Savings Plan Administrative

Committee, we made clear that ERISA imposes a fiduciary

duty in the administration of a plan, but not when it acts

as a plan sponsor. 168 F.3d 671, 679 (3d Cir. 1999). In

amending a plan, an employer has broad authority and

acts as a settlor, not a fiduciary. Id. Therefore, we held that

"as long as an amendment does not violate a specific

provision of ERISA, ‘the act of amending a pension plan

does not trigger ERISA’s fiduciary provisions.’ " Id. (quoting

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444 (1999)).

Thus, Conrail’s amendment to the Plan in December 1996

to include those terminated in early January, and thereby

extend the VSP benefits to include more employees than

originally announced in February 1996, implicated no

ERISA fiduciary obligations because Conrail acted as a

settlor.

As to the plaintiffs’ cause of action to recover benefits due

under the terms of the plan under ERISA S 502(a)(1)(B), 29

U.S.C. S 1132(a)(1)(B), the plaintiffs acknowledge that they

do not satisfy the eligibility cut-off date, January 2, 1996.

Thus, the plaintiffs are entitled to no benefits under the

Plan. Hein v. FDIC, 88 F.3d 210, 215 (3d Cir. 1996) (stating

that only the Plan creates entitlement to benefits and thus,

"we are required to enforce the Plan as written unless we

can find a provision of ERISA that contains a contrary

directive") (quoting Dade v. North Am. Philips Corp., 68 F.3d

1558, 1562 (3d Cir. 1995)).

14

IV.

Summarizing, the plaintiffs have not shown that the

1995 RIF decision was age based, and therefore, Anjelino is

inapplicable. The District Court did not err in requiring the

plaintiffs to show, as part of their prima facie case, the

fourth element required in a reduction in force age

discrimination case. They failed to prove that retained

employees were similarly situated, as to create an inference

of age discrimination. The District Court also properly

dismissed all of the ERISA claims. As to DeAngelis’ claim of

error in the jury instructions in his trial, we perceive none.

Thus, the orders and summary judgment of the District

Court will be affirmed in their entirety. Each side to bear its

own costs.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

15