(upholding dismissal of ADEA claim because plaintiff had not
shown that "change in benefits formula demonstrates an intent
to discriminate in any nonfringe-benefits area").
Nevertheless, Gabarczyk argues that the defendants cannot
benefit from the Section 4(f)(2) exception because defendants
were not (1) acting in observance of (2) a bona fide employee
benefit plan. See EEOC v. Home Ins. Co., 672 F.2d at 257
(listing elements of Section 4(f)(2) exception); EEOC v.
Chrysler Corp., 729 F. Supp. 1002, 1007 (S.D.N.Y. 1990) (same).
Neither of these arguments is persuasive.
First, Gabarczyk contends that defendants did not observe the
terms of the 1983-86 agreement because defendants assertedly
granted the retirement incentive benefit to several other
teachers who should have been ineligible. The fact that
defendants may have granted the incentive to one teacher
improperly, however, is not relevant or material here, because
defendants applied the terms of the 1983-86 agreement with
respect to Gabarczyk, who under no interpretation of the
agreement was eligible for the retirement incentive benefit.
The issue before us is whether the defendants observed the
terms of the retirement incentive plan with respect to
Gabarczyk, not to other teachers. The cases cited by Gabarczyk
are not to the contrary. See Sexton v. Beatrice Foods Co.,
630 F.2d 478 (7th Cir. 1980) (focussing on defendant's actions with
respect to plaintiff to determine whether defendant observed
terms of pension plan); Hannan v. Chrysler Motors Corp.,
443 F. Supp. 802 (E.D.Mich. 1978) (same).*fn1 Because the
defendants' action in denying Gabarczyk the retirement
incentive payment was obviously "taken in observance of [the
1983-86 agreement's] terms," EEOC v. Home Ins. Co., 672 F.2d at
257, as required by Section 4(f)(2), we find that defendants
were observing the terms of the 1983-86 agreement.
Even if defendants' actions with respect to other teachers
were relevant, the facts upon which Gabarczyk relies do not
raise an issue of fact precluding summary judgment. In her
papers, Gabarczyk identifies four teachers who she asserts were
given the benefit in circumstances similar to hers. She points
to one teacher who allegedly received the benefit although she
retired at age 62 with 31 years of service. Pltf.Mem. at 17. As
defendants explain, this teacher should not have been
identified as receiving the benefit, as she never received it.
See Affidavit of Joan Brandow, sworn to on November 14, 1988,
¶¶ 4-6. Gabarczyk also names two teachers who received the
retirement incentive at age 56, with 19 and 21 years of
service, respectively, and one teacher who received it at age
57 with 16 years of service. Pltf.Mem. at 17. According to
Gabarczyk, these teachers were only eligible for the retirement
incentive in the year before they retired, because, by the
express terms of the 1983-86 agreement, "[n]o teacher over the
age of fifty-five in any given school year shall be eligible
for the Retirement Incentive except for the school year during
which such teacher achieves the fifteenth year of credited
service." Id., PX 12 at 23, § 4.
The two 56 year-old teachers, however, were eligible for the
retirement incentive because they reached the age of 55,
having 15 or more years of credited service, "during the term
of [the] Agreement," Pltf.Mem., PX 12 at 22, § 1. Although it
appears that the third teacher received the benefit improperly,
in the year after she was apparently eligible for it, the
records before us suggest that this was an administrative
aberration. Indeed, of the teachers who received the retirement
incentive under the 1983-86 agreement, see Pltf. Mem., PX 23,
Gabarczyk is only able to point to one teacher who assertedly
received the benefit improperly. All other ineligible teachers,
including Gabarczyk, were denied the benefit. That defendants
may have improperly granted the benefit to one teacher, while
denying it to Gabarczyk and all others who were ineligible,
does not suggest that the defendants did not "observe" the
terms of the 1983-86 agreement, within the meaning of Section
4(f)(2). Nor does it preclude summary judgment, for no
reasonable jury could find, based on what was in all likelihood
a single administrative error, that defendants did not observe
the terms of the agreement. See Anderson v. Liberty Lobby,
477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Second, Gabarczyk argues that the retirement incentive
benefit is not a bona fide employee benefit plan, relying on
Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 107 S.Ct.
2211, 96 L.Ed.2d 1 (1987). In Fort Halifax, the Court,
interpreting the Employee Retirement Income Security Act
(ERISA), held that "ERISA's preemption provision [29 U.S.C. § 1144(a)]
does not refer to state laws relating to `employee
benefits,' but to `employee benefit plans.'" 107 S.Ct. at 2215
(emphasis in original). Gabarczyk urges us to adopt this
distinction between plans and benefits, so that the retirement
incentive payment does not qualify as a "plan."
The definition of "employee benefit plan" in Fort Halifax is
derived from the legislative intent behind ERISA:
Congress intended preemption to afford employers
the advantages of a uniform set of administrative
procedures governed by a single set of
regulations. This concern only arises, however,
with respect to benefits whose provision by nature
requires an ongoing administrative program to meet
the employer's obligation.
Id. at 2217. Accordingly, the Supreme Court held that a
one-time severance payment provision is not an "employee
benefit plan" for ERISA purposes. Id. at 2220. As one judge in
this district has observed, "Fort Halifax's holding that
Congress did not intend to have ERISA preempt local regulation
of severance payments, does not necessarily mean that Congress
did intend to have ADEA regulate severance payments." EEOC v.
Chrysler, 729 F. Supp. at 1008 (Patterson, J.). Similarly, the
definition of an employee benefit plan under ERISA is not
necessarily applicable to whether the ADEA applies to one-time
retirement incentive payments under a collective bargaining
agreement, such as the one in question here. "Whether a payment
scheme constitutes an ERISA plan is premised upon concerns for
administrative integrity and uniform administrative procedures.
Those concerns are irrelevant to ADEA, enacted seven years
before ERISA. See Betts, 109 S.Ct. at 2866 (Congress did not
address issues concerning regulation of employee benefits in
ADEA at all)." Id. Accordingly, the definition of "employee
benefit plan" applicable to ERISA is not binding here.