June M. Betts v. Hamilton County Board of Mental Retardation and Developmental Disabilities and Public Employees Retirement System of Ohio

897 F.2d 1380
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 12, 1990
Docket86-3676, 86-4034
StatusPublished
Cited by12 cases

This text of 897 F.2d 1380 (June M. Betts v. Hamilton County Board of Mental Retardation and Developmental Disabilities and Public Employees Retirement System of Ohio) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
June M. Betts v. Hamilton County Board of Mental Retardation and Developmental Disabilities and Public Employees Retirement System of Ohio, 897 F.2d 1380 (6th Cir. 1990).

Opinions

MERRITT, Chief Judge.

This federal.age discrimination case has a complicated history and is now before this Court upon remand from the Supreme Court. Public Employees Retirement System of Ohio v. Betts, — U.S. -, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989), reversing, 848 F.2d 692 (6th Cir.1988), affirming, 631 F.Supp. 1198 (S.D. Ohio 1986). We conclude that the defendant subjected plaintiff to “involuntary retirement” in violation of §§ 4(a)(1) and 4(f)(2) of the Age Discrimination in Employment Act. 29 U.S.C. §§ 623(a)(1), 623(f)(2).

Section 4(a)(1) makes it unlawful for an employer “to discharge” an employee or “otherwise discriminate” on the basis of age in respect to the employee’s “compensation, terms, conditions or privileges of employment,” including any actions which “tend to deprive any individual of employment opportunities or otherwise adversely affect his status.” 29 U.S.C. § 623(a).

Congress created a partial exception to this general standard for bona fide employee benefit plans. Section 4(f)(2) allows age discrimination by an employer in order “to observe the terms of ... any bona fide employee benefit plan such as a retirement ... plan ... except that ... no such ... plan shall require or permit the involuntary retirement of any individual ... because of age....” 29 U.S.C. § 623(f)(2).1 The Supreme Court has now held that the Ohio Retirement Plan is the type of “bona fide” plan subject to the § 4(f)(2) partial exemption, and we must now decide whether Betts was “involuntarily retired,” thereby making the exemption inapplicable.

Betts worked as a speech pathologist for the Hamilton County Board of Mental Retardation and Developmental Disabilities for five years. After Betts became ill, the Board determined that she could no longer perform her job. In 1985, when Betts was 61 years of age, her supervisor told her that under Ohio law she had only two possible alternatives: an unpaid medical leave, which would not entitle her to any benefits, or a length-of-service retirement, which would entitle her to $158.50 a month. Ohio Rev. Code §§ 145.32 and 145.301(C). Had she been under 60, the Ohio plan would have given Betts a third option: disability benefits with the possibility of being recalled if her condition sufficiently improved. Ohio Rev. Code § 145.39. Under this third option she would have been entitled to $355.02 a month. As a disability retiree, rather than a length-of-service retiree, Betts would have remained an employee of Hamilton County and would have been entitled to return to work had her condition improved. She was denied this alternative because of her age. Faced with the two choices put to her, she chose the length-of-service retirement.

[1382]*1382The Supreme Court remanded to us the issue of “involuntary retirement” under § 4(f)(2) using the following language:

As a result of the 1978 amendments, § 4(f)(2) cannot be used to justify forced retirement on account of age. Appellee contends, and the District Court found, that appellee was forced to retire under the terms of PERS’ plan, and that as a result § 4(f)(2) is unavailable to PERS. The Court of Appeals did not address this question, and we express no opinion on it, leaving its resolution to that court on remand.

Betts, 109 S.Ct. at 2860 n. 2. More specifically, the question presented is: When an employer forces an employee to retire because of job performance or some other legitimate reason not based on age, and then forces the employee into a less desirable retirement plan because of age, does the employer’s conduct constitute “involuntary retirement ... because of age” in violation of § 4(f)(2)? Or, put another way, when an employer forces terms of retirement on an employee for mixed reasons, one of which is age, does the employer violate the “involuntary retirement” proviso of § 4(f)(2) and make the “bona fide” retirement plan exemption unavailable?

Our decision for the employee in this case is strongly influenced by a decision in the Supreme Court and a prior decision in this Court, both of which we regard as on point. The Supreme Court considered a similar issue of “involuntary retirement” in Trans World Airlines v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), in which the airline asserted the “bona fide” retirement plan defense. In Thurston, TWA had two related retirement policies for pilots:

(1) For safety reasons, pilots could no longer serve after age 60 but had to retire as pilots, a policy the pilots conceded to be valid as a bona fide occupational qualification under § 4(f)(1).
(2) Flight engineers could serve beyond age 60, and pilots who became unable to fly could become flight engineers by displacing or “bumping” less senior flight engineers. This “bumping” rule applied, however, only to pilots under age 60.

The Supreme Court held that the § 4(f)(2) “bona fide” retirement plan defense was unavailable because the retired pilots were denied a “privilege of employment” — the right to “bump” into the job of flight engineer — on accout of age. Thurston, 469 U.S. at 124, 105 S.Ct. at 623. It concluded that “because captains disqualified for reasons other than age are allowed to ‘bump’ less senior flight engineers, the mandatory retirement was age-based. Therefore, the ‘bona fide seniority system’ defense is unavailable to the petitioners.” Id. As in the present case, the employer had two policies related to retirement, one valid and the other invalid. The initial retirement was valid, as in the present case, but the age-based refusal to allow the employee to participate in a further employment opportunity made the § 4(f)(2) defense unavailable.

Thurston therefore is on point. Because of their age, some TWA pilots were not entitled to “bumping” privileges. Because of her age, plaintiff was not entitled to disability benefits. Defendant argues that Betts’ situation is distinguishable because none of the three options available to her would have been another job as was the case in Thurston. The benefits she was denied, however, were at the very least a “privilege of employment” or an “employment opportunity” under § 4(a)(1), if not a job. Moreover, the third option of disability benefits which Betts was not offered is similar to a job since she would have been able to return to work had her condition improved.

This Court’s decision in EEOC v. Chrysler, 733 F.2d 1183, reh’g en banc denied, 738 F.2d 167 (1984), is also on point. In Chrysler the company instituted a retirement plan in an attempt to overcome potential insolvency.

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897 F.2d 1380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/june-m-betts-v-hamilton-county-board-of-mental-retardation-and-ca6-1990.