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COWLISHAW v. ARMSTRONG RUBBER CO.

April 26, 1978

Henry W. COWLISHAW, Plaintiff,
v.
ARMSTRONG RUBBER COMPANY, Defendant


Dooling, District Judge.


The opinion of the court was delivered by: DOOLING

MEMORANDUM and ORDER

DOOLING, District Judge.

 Certain of the procedural and background data are set forth in the Memorandum and Order of January 28, 1977, and will not be repeated.

 The question presented is whether defendant is entitled to summary judgment in this Age Discrimination in Employment Act of 1967 case.

 Plaintiff, then aged 62 and a district sales manager of defendant earning $12,896 a year, was laid off effective June 30, 1974, with 60 days severance pay and 11/12ths of three weeks vacation, and with a retirement allowance provided under the company's long established retirement plan. The plaintiff's retirement was made effective July 1, 1974; his entitlement, on the option that he exercised under the retirement plan, based on eleven years of continuous service with defendant, amounted to $86.79 a month guaranteed for a period of 20 years to himself or in the event of his death to a beneficiary named by plaintiff. Of the options available to plaintiff at his retirement date the largest monthly income would have been $109.17 payable for the life of plaintiff. Under defendant's retirement plan "Normal Retirement Date" is the first day of the month coincident with or next following a participant's sixty-fifth birthday. Under the plan (Section 5.01) each participant was "expected to retire on his normal retirement date", and

 
"may continue on in employment after said date only at the request of the Participant [ i.e., the employee] and with the consent of the Board of Directors of the Employer or the Committee."

 The retirement plan, established in 1943, has, at least since 1963, provided for the voluntary or involuntary retirement of employees commencing at age fifty-five. The provision presently in effect (Section 5.04) provides in part:

 
"A Participant who shall have attained his fifty-fifth (55th) birthday and has completed at least ten (10) full years of continuous employment may retire or may be retired on any date earlier than his normal retirement date. Such a Participant, upon retirement shall be entitled to receive a monthly retirement benefit, the amount of which shall, at the Participant's election, consist of either: (1) a deferred monthly pension . . . or (2) an immediate monthly pension . .."

 The provision particularly applicable to plaintiff (Section 5.04, par. 4) reads:

 
"A Participant who shall have attained his sixty-second (62nd) birthday and has completed at least ten (10) full years of continuous employment may retire or may be retired on any date earlier than his normal retirement date. Such a Participant, upon retirement, shall be entitled to receive a monthly retirement benefit . . . based upon his years of employment and compensation to the date of his early retirement . . .."

 Participation in the retirement plan was voluntary. The whole cost of the plan was borne by the defendant employer.

 The plaintiff has served interrogatories and supplementary interrogatories which have been fully and carefully answered by the defendant. There is no ground for questioning the verity of the answers to the interrogatories or their completeness, but, strictly, they are not "binding" on plaintiff; he has not admitted their verity, or taken this occasion to argue any inferences that might be drawn from a careful analysis of the voluminous data that the defendant has produced. It should be said at once, however, that the data are such as to indicate that, if there is an issue of fact on the point that must be determined, the data go far to indicate that defendant would be able to show that plaintiff's termination was not motivated or controlled by his age but by other business factors not weighted by a consideration of defendant's age. It is an inference that defendant's termination might have been deferred in order to assure that his inevitably modest pension at least reflected eleven full years of retirement benefit credits. For example the answers indicate that defendant terminated seven district sales managers involuntarily during the year of defendant's termination, and that of these men the oldest had been born in 1906 and was therefore sixty-eight and the youngest had been born in 1948 and had been in the job for almost two years. The median age of the seven laid off or discharged was forty-seven. One man was twenty-five, three were in their forties, one was fifty-four and two were in their sixties. The man other than plaintiff who was in his sixties was sixty-eight and had been continued in service at his own request and with company permission after he attained normal retirement age.

 Although the data indicate that on any view of the law defendant's prospects at a trial on the merits are very high, the question on the present motion is not that. It is whether, in the light of the statute and the controlling case law, the involuntary early retirement of an employee pursuant to the terms of a regularly established and longstanding pension plan on a pension that on no contingency of election among alternatives could much exceed one-tenth the employee's salary at retirement date can ever be found to be an unlawfully discriminatory discharge under ADEA.

 United Air Lines, Inc. v. McMann, 1977, 434 U.S. 192, 98 S. Ct. 444, 54 L. Ed. 2d 402, does not settle the point. Whatever the United plan was in terms, it had in fact been administered as, and was considered by the Court of Appeals and the Supreme Court as, a plan requiring retirement at the age of ...


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