Glenn A. Coomer v. BETHESDA HOSPITAL, INC. and BETHESDA HOSPITAL EMPLOYEE PENSION PLAN

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0159P (6th Cir.)
File Name: 04a0159p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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.
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No. 02-3700
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 99-00883—Sandra S. Beckwith, District Judge.
2 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
*The Honorable Robe rt Ho lmes B ell, Chief United States District
Judge for the Western District of Michigan, sitting by designation.
Argued: December 17, 2003
Decided and Filed: June 1, 2004
Before: BATCHELDER and SUTTON, Circuit Judges;
BELL, Chief District Judge.*
_________________
COUNSEL
ARGUED: Mark Joseph Byrne, JACOBS, KLEINMAN,
SEIBEL & McNALLY, Cincinnati, Ohio, for Appellants.
Daniel Jerome Buckley, VORYS, SATER, SEYMOUR &
PEASE, Cincinnati, Ohio, for Appellees. ON BRIEF: Mark
Joseph Byrne, JACOBS, KLEINMAN, SEIBEL &
McNALLY, Cincinnati, Ohio, for Appellants. Daniel Jerome
Buckley, Mary C. Henkel, Margaret A. Nero Fechtel,
VORYS, SATER, SEYMOUR & PEASE, Cincinnati, Ohio,
for Appellees.
_________________
OPINION
_________________
BELL, Chief District Judge. Participants in an employee
pension plan have appealed the entry of summary judgment
against them on their discrimination claims under the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1001-1461, and the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C.
§§ 621-634. For the reasons that follow, the district court’s
entry of summary judgment will be affirmed.

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No. 02-3700 Coomer, et al. v. Bethesda
Hospital, et al.
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1A Plan participant becomes a “former participant” upon separation
of employment with the Hospital. Form er participants have the right to
receive any benefits to which they became entitled under the Plan.
I. BACKGROUND
Plaintiffs are 16 former employees of Defendant Bethesda
Hospital, Inc. (the “Hospital”). The Hospital is the sponsor of
the Bethesda Hospital Employee Pension Plan (the “Plan”),
an employee pension plan governed by ERISA. Plaintiffs are
all former participants1 in the Plan who had a vested right to
pension benefits under the Plan when they separated from
their employment at the Hospital.
The Plan is designed to pay monthly pension benefits when
participants reach their normal retirement age of 65. The Plan
also allows an early retirement benefit to retired employees at
age 55 which may be taken as a monthly pension or in an
actuarially reduced alternative form as provided under § 4.7.
Section 4.7 allows for a lump sum distribution only if the
actuarial equivalent of the benefit under the Plan is less than
$5,000.
In 1992 Brian Rowan, an African-American Hospital
employee who was under the age of forty, sought a lump sum
distribution from his pension account so that he could attend
medical school. At the time of his request the actuarial
equivalent of his pension account was $6,645.22. In order to
accommodate Rowan's request, the Bethesda Hospital, Inc.
Board ("the Board") amended the Plan to allow the lump sum
distribution to Rowan. The amendment, adopted on
August 11, 1992, provided as follows:
Section 4.7(f)(i) of the Plan is amended by adding the
following to the end thereof:
4 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
In addition, Brian Rowan . . . may make the election
above during 1992 notwithstanding the fact that his
benefit under the Plan, determined as a lump sum
actuarial equivalent, is $5,000 or more.
The Rowan distribution did not affect the benefits available
to any other Plan participants.
On January 15, 1997, after learning about the distribution
to Rowan, plaintiff Coomer requested a lump sum distribution
of his pension benefits. At the time of his request Coomer's
pension benefits had an actuarial equivalent of approximately
$116,000. The Committee denied his request and advised
him that he would be eligible for monthly payments of his
benefit under the Plan beginning at any time after he attained
age 55. Coomer appealed the Committee's decision. By letter
dated April 17, 1997, James M. Connelly, Vice President and
Chief Financial Officer of the Hospital, denied Coomer's
second request for a lump sum settlement because the present
value of Coomer's accrued benefit under the Plan exceeded
$5,000. Connelly advised that “It is our underlying belief that
the Plan should provide monthly retirement income to its
participants and that lump sum payments should only be paid
for diminimus [sic] amounts.”
On October 15, 1999, Coomer and 15 other participants in
the Plan filed this action in the United States District Court
for the Southern District of Ohio. The first count of the
amended complaint, brought on behalf of all of the plaintiffs,
alleges discrimination in violation of § 510 of ERISA. The
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
had failed to state a claim under the ADEA for age
discrimination. The district court granted the defendants'

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Hospital, et al.
5
motion for summary judgment. Plaintiffs timely filed this
appeal.
II. ANALYSIS
A. Standard of Review
We review a district court's grant of summary judgment de
novo. Rowan v. Lockheed Martin Energy Systems, Inc., 360
F.3d 544, 547 (6th Cir. 2004). Summary judgment is proper
where no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law. FED. R. CIV.
P. 56(c). In evaluating a motion for summary judgment, the
court must view the evidence and draw all reasonable
inferences in favor of the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The proper inquiry is "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986).
6 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
2Defendants 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.
B. The Non-Coomer Plaintiffs
Plaintiffs contend that the district court erred in dismissing
all of the plaintiffs other than Coomer ("the non-Coomer
plaintiffs") for failure to exhaust administrative remedies.2
Every employee benefit plan covered by ERISA is required
to "afford a reasonable opportunity to any participant whose
claim for benefits has been denied for a full and fair review by
the appropriate named fiduciary of the decision denying the
claim." 29 U.S.C. § 1133. 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
commencing suit in federal court." Miller v. Metropolitan
Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991). "This is the
law in most circuits despite the fact that ERISA does not
explicitly command exhaustion." Ravencraft v. UNUM Life
Ins. Co. of Am., 212 F.3d 341, 343 (6th Cir. 2000). See also
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

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Hospital, et al.
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court in reviewing the fiduciaries' actions." Ravencraft, 212
F.3d at 343 (quoting Makar v. Health Care Corp., 872 F.2d
80, 83 (4th Cir. 1989)).
It is undisputed that none of the non-Coomer plaintiffs
requested a lump sum disbursement in excess of $5,000 from
the Plan prior to filing this action. Plaintiffs contend this
failure should be excused because it would have been a vain
or futile act. Plaintiffs note that it is undisputed that their
pension funds exceeded the $5,000 lump sum distribution
limit under the Plan, and the defendants had made it clear that
the Plan prohibited them from making a distribution that
exceeded this amount.
Failure to exhaust administrative remedies is excused
"where resorting to the plan's administrative procedure would
simply be futile or the remedy inadequate." Fallick, 162 F.3d
at 419. "The standard for adjudging the futility of resorting
to the administrative remedies provided by a plan is whether
a clear and positive indication of futility can be made." Id.
A plaintiff must show that "it is certain that his claim will be
denied on appeal, not merely that he doubts that an appeal
will result in a different decision." Id. (quoting Lindemann v.
Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996)).
Plaintiffs in the case at bar contend that exhaustion of the
administrative process should be excused in this case just as
it was in Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir.
1994), because the Plan did not allow disbursements in excess
of $5,000 and it can be inferred from the denial of Coomer's
request for a lump sum distribution that the remaining
plaintiffs' claims would be denied as well. In Costantino we
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
amended plan rather than to a mere interpretation of it. Id. at
975. Moreover, we noted that requiring further administrative
8 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
3Plaintiffs' assertion that in granting Rowan's request "the Board
exceeded their authority and acted contra ry to the Plan provisions," is
simply incorrect. The B oard had authority to amend the Plan as long as
it did not affect the rights of other Plan p articipants.
remedies would not have served any of the purposes of
administrative exhaustion under the facts of that case. Id.
We reject the non-Coomer plaintiffs' reliance on
Costantino. In contrast to Costantino, there is no clear and
positive indication in this case that pursuing administrative
remedies would have been a futile act. What plaintiffs sought
in this action was to be treated in the same manner as Rowan.
In other words, they sought an amendment to the Plan that
would allow an early lump sum distribution. Under the terms
of the Plan, the Hospital Board has "the right to amend the
Plan at any time to any extent deemed advisable," as long as
the amendment does not have the effect of decreasing any
benefits accrued under the Plan before such amendment.
Amendment of the Plan is a matter within the discretion of
the Board.3 Plaintiffs have not alleged any factual basis for
their claim of futility other than the denial of benefits to
Coomer. The plaintiffs' assertion that the Board would not
have amended the Plan on behalf of any one of the 15 non-
Coomer plaintiffs was not a foregone conclusion. The
Hospital was never given an opportunity to determine
whether the non-Coomer plaintiffs' claims were de minimis
or whether they involved special circumstances that might
convince the Board to amend the Plan. As the district court
properly noted, the very fact that the Board amended the Plan
to accommodate Rowan's request demonstrates that, in certain
circumstances, requests for lump sum disbursement in excess
of $5,000 would be granted. Requiring the non-Coomer
plaintiffs to pursue the administrative process would
accordingly serve several important purposes of
administrative exhaustion, including the development of a
factual record, enabling the Hospital to consider the claims

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Hospital, et al.
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4Although we have affirmed the dismissal of the non-Coomer
plaintiffs, we refer to all of the plaintiffs in this section because we find
that even if the non-Coomer plaintiffs had not been dismissed on
procedural grounds, they nevertheless could not succeed on their § 510
ERISA discrimination claim.
5ERISA § 510 provides in pertinent part:
It shall be unlawful for any person to discharge, fine, suspend,
expel, discipline, or d iscrimina te against a participant or
beneficiary for exercising any right to which he is entitled under
the provisions o f an employee benefit plan, this title, section
3001 [29 USCS § 12 01], or the W elfare and P ension Plans
Disclosure Act, or for the purpose of interfering with the
attainment of any right to which such participant may become
entitled under the plan, this title, or the W elfare and P ension
Plans Disclosure Act.
29 U.S.C. § 1140.
before premature judicial intervention, and providing a
nonadversarial method of claims settlement.
Because we find that the non-Coomer plaintiffs did not
exhaust their administrative remedies and because they did
not demonstrate clear and positive evidence of the futility of
exhausting those remedies, we affirm the district court's
dismissal of the non-Coomer plaintiffs.
C. Discrimination under ERISA § 510
According to plaintiffs4, the district court erred when it
determined that defendants' failure to treat plaintiffs in the
same manner they treated Brian Rowan did not violate § 510
of ERISA, 29 U.S.C. § 1140.5
ERISA § 510 offers protection against two types of
conduct: adverse action taken because a participant availed
himself of an ERISA right (an "exercise" or "retaliation"
violation), and interference with the attainment of a right
10 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
under ERISA (an "interference" violation). Mattei v. Mattei,
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
this action Plaintiffs have not alleged that they suffered any
adverse action because they availed themselves of an ERISA
right. Plaintiffs have instead alleged an interference violation.
To avoid summary judgment on a § 510 interference claim,
"an employee must show that the employer engaged in
prohibited conduct for the purpose of interfering with the
employee's attainment of any right to which he may become
entitled under an ERISA-protected plan." Roush v. Weastec,
Inc., 96 F.3d 840, 845 (6th Cir. 1996).
The district court determined that denial of Coomer's
request for a distribution was not an "adverse action" or
"prohibited conduct" as contemplated by § 510 because it did
not interfere with a right to which plaintiffs were entitled.
The district court also determined that amendment of the Plan
to accommodate Rowan's request for a lump sum
disbursement did not constitute an "adverse action" as
contemplated by § 510.
Plaintiffs concede that they had no right under the Plan to
a distribution because the actuarial equivalent of their benefits
exceeded the $5,000 limit. Plaintiffs also concede that the
Rowan amendment and the lump sum distribution to Rowan
did not adversely affect their pension rights in any way.
Plaintiffs contend, nevertheless, that the Rowan amendment
was an "adverse action" under § 510 because it violated their
right under the Plan to have the Plan administered in a non-
discriminatory manner.
Plaintiffs' contention discloses a fundamental failure to
distinguish between the separate functions of Plan
administration and Plan sponsorship. The Plan is sponsored
and funded by the Hospital. The Plan is administered by a
Committee appointed by the Hospital Board. The Plan gives
the Committee the full power to administer the Plan,

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Hospital, et al.
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6Even if the Committee had made a distribution to Rowan without a
Plan amendment and in violation of the Plan's lump sum distribution
provision, we question whether the Committee would be estopped from
following the lump sum distribution limitation p rovision in the future. A
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
discrimination in the administration of the Plan, that might not have
justified the equal treatment remed y Plaintiffs sought. See McGa th v.
Auto-Body North S hore, 7 F.3d 665, 670 (7th Cir. 1993) ("Because the
plan must be administered according to its terms, [a participant] cannot
com plain because he is held to those terms; this is true even if the rules
were bent for another individual.").
including the power "to interpret and construe the Plan in a
non-discriminatory manner consistent with its terms and
provisions." The Plan further provides that in making its
determinations "the Committee shall pursue uniform policies
and general rules applicable to all persons similarly situated,
and shall not discriminate in favor of any person or group of
persons." In creating the Plan, the Hospital Board reserved to
itself the right to amend the Plan "at any time to any extent
deemed advisable," as long as the amendment does not have
the effect of decreasing any benefits accrued under the Plan
before such amendment. The Plan's anti-discrimination
provision governs the Committee's administration of the Plan.
The anti-discrimination provision does not purport to govern
the Board, the body authorized to amend the Plan.
Although Plaintiffs have loosely asserted that the Plan
disregarded the lump sum limitation for Rowan, but denied a
similar request by Coomer, the evidence of record confirms
that the Committee uniformly interpreted and applied the
$5,000 limitation to all who requested a lump sum
distribution. The undisputed facts reveal that Rowan obtained
a distribution not because the Committee disregarded the
lump sum limitation when it administered the Plan, but
because the Board amended the Plan specifically to permit
Rowan to take a lump sum distribution in excess of $5,000.6
12 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
7In Mattei we held that the anti-discrimination provision of ERISA
§ 510 reaches further than the employment relationship and is broad
enough to support a claim against an estate for interfering with a plan
be neficiary's receipt of pension bene fits. 126 F.3d at 804-06 . Mattei did
not involve an employer's amendment of a plan so we were no t called
upon to address the issue presented in this case.
Amendment of the Plan was not an administrative act
undertaken by the Committee, but was instead a discretionary
act within the prerogative of the Hospital Board. As we noted
in Musto v. American General Corp., 861 F.2d 897 (6th Cir.
1988), "[t]here is a world of difference between administering
a welfare plan in accordance with its terms and deciding what
those terms are to be." Id. at 911. We agree with the district
court that the Hospital's amendment of the Plan on behalf of
Rowan, and its refusal to amend the Plan on behalf of
Coomer, did not violate the anti-discrimination provisions of
the Plan. The Rowan amendment accordingly does not
constitute an adverse action or an interference with a right to
which Plaintiffs were entitled under the Plan.
This brings us to the core issue presented on appeal, which
is whether an employer's amendment of a Plan to
accommodate one participant and its refusal to amend the
Plan to accommodate another participant constitutes
discrimination in violation of § 510 of ERISA, 29 U.S.C.
§ 1140. In Mattei we observed in dicta that many courts had
concluded that § 510 offers no protection against an
employer's actions affecting the status or scope of an ERISA
plan itself and we assumed that "actions taken with respect to
the plan itself are not protected by § 510." 126 F.3d at 800-
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
actions affecting the status or scope of an ERISA plan.
We begin with an analysis of what ERISA is and is not
designed to do. "ERISA was enacted to promote the interests

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of employees and their beneficiaries in employee benefit
plans, and to protect contractually defined benefits." Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 830 (2003)
(quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 113 (1989)). With respect to pension plans, ERISA
imposes participation, funding, and vesting requirements and
establishes rules concerning reporting, disclosure, and
fiduciary responsibility. Shaw v. Delta Air Lines, 463 U.S.
85, 91 (1983) (citing 29 U.S.C. §§ 1021-1031,1051-1086,
1101-1114). ERISA does not, however, purport to govern
what benefits a Plan must provide.
"Nothing in ERISA requires employers to establish
employee benefits plans. Nor does ERISA mandate what
kind of benefits employers must provide if they choose to
have such a plan." Lockheed Corp. v. Spink, 517 U.S. 882,
887 (1996). "ERISA does not mandate that employers
provide any particular benefits, and does not itself proscribe
discrimination in the provision of employee benefits." Shaw,
463 U.S. at 91.
[N]either Congress nor the courts are involved in either
the decision to establish a plan or in the decision
concerning which benefits a plan should provide. In
particular, courts have no authority to decide which
benefits employers must confer upon their employees;
these are decisions which are more appropriately
influenced by forces in the marketplace and, when
appropriate, by federal legislation.
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
ERISA, for any reason at any time, to adopt, modify, or
terminate welfare plans." Curtiss-Wright Corp. v.
Schoonejongen, 514 U.S. 73, 78 (1995). This rule applies
equally to pension benefit plans. Lockheed Corp., 517 U.S.
at 890. The Supreme Court has recently reaffirmed that
14 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
8The protections of § 510 are no t limited to vested pension rights.
W e have clarified that § 510 "prohibits interference with rights to which
an employee 'may become entitled' under 'an employee benefit plan' and
does not limit its application to benefits that will become vested." Abbott
v. Pipefitters Local Union No. 522 Hosp., M edica l, & Life Benefit Plan,
94 F.3d 236, 242 (6th Cir. 1996) (quoting Shahid v. Ford Motor Co., 76
F.3d 140 4, 1411 (6th Cir. 1996 )).
"employers have large leeway to design disability and other
welfare plans as they see fit." Black & Decker, 538 U.S. at
833.
The "large leeway" granted to employers in the design of
pension plans applies equally to their modification or
amendment of those plans. When an employer adopts,
modifies or terminates a pension plan its actions are
analogous to that of settlor of a trust rather than that of trustee
or fiduciary. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,
443-44 (1999). Amending a plan is not an act of plan
"management" or "administration," and is accordingly not
subject to fiduciary review. Lockheed Corp., 517 U.S. at 890
(1996).
Against this backdrop we consider the purpose of § 510.
We have previously observed that the prohibitions of § 510
"were aimed primarily at preventing unscrupulous employers
from discharging or harassing their employees in order to
keep them from obtaining vested pension rights." Mattei, 126
F.3d at 798 (quoting West v. Butler, 621 F.2d 240, 245 (6th
Cir. 1980)).8 "By its terms § 510 protects plan participants
from termination motivated by an employer's desire to
prevent a pension from vesting. Congress viewed this section
as a crucial part of ERISA because, without it, employers
would be able to circumvent the provision of promised
benefits." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,
143 (1990). "We have no doubt that this claim is prototypical
of the kind Congress intended to cover under § 510." Id.

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Nothing in § 510 or in the case law suggests that § 510 was
designed to limit the discretion afforded employers in the
creation or amendment of ERISA plans. As the Eleventh
Circuit noted in Owens v. Storehouse, Inc., 984 F.2d 394
(11th Cir. 1993), "section 510 targets discriminatory conduct
designed to interfere with the exercise or attainment of vested
or other rights under the plan or ERISA. 29 U.S.C. § 1140.
It does not broadly forbid all forms of discrimination." Id. at
398. "Thus, to prevail under section 510, a plaintiff must
show that the alleged discrimination was designed either to
retaliate for the exercise of a right or to interfere with the
attainment of an entitled right. It is insufficient merely to
allege discrimination in the apportionment of benefits under
the terms of the plan." Id. (citing Shaw, 463 U.S. at 91). In
fact, a number of courts have held, under facts more
compelling than those presented here, that unequal treatment
in the design of the plan does not give right to an action under
ERISA § 510.
In McGath v. Auto-Body North Shore, 7 F.3d 665 (7th Cir.
1993), the plaintiff alleged that his employer intended to
interfere with his pension rights by amending the plan to
exclude him and by bending the plan's eligibility
requirements to permit other employees entry, while he was
held to the exacting letter of the plan's terms. Id. at 669.
Although McGath had not been fired, suspended, or
disciplined by his employer, he contended that he was
nevertheless the victim of a subtle form of discrimination in
violation of § 510. The Seventh Circuit held that even if it
assumed the truth of these allegations, § 510 did not provide
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,
Mr. McGath cannot claim that the alleged discriminatory
injury flows from the plan amendments." Id. at 670. Neither
could he state a claim under § 510 by showing that others
were treated more favorably:
16 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
Because the plan must be administered according to its
terms, he cannot complain because he is held to those
terms; this is true even if the rules were bent for another
individual. ERISA § 510 affords protection from
discrimination that interferes "with the attainment of any
right to which such participant may become entitled
under the plan." Mr. McGath does not have a right to
treatment that is contrary to the terms of the plan, even if
those terms are breached for others.
Id. (footnote omitted).
Similarly, in Haberern v. Kaupp Vascular Surgeons Ltd.
Defined Benefit Pension Plan, 24 F.3d 1491 (3rd Cir. 1994),
Haberern alleged that the employer's amendment to the plan
that eliminated life insurance benefits for individuals over age
56, a change which affected only him, and the simultaneous
tripling of the face amount of the life insurance policies for
two other employees, violated § 510 of ERISA. Id. at 1502.
The Third Circuit disagreed, instead agreeing with the
employer that this action did not violate § 510 of ERISA
because although § 510 "prohibits discrimination against a
plan participant for the purpose of interfering with the
attainment of plan rights, it does not prohibit plan
amendments which affect only one person." 24 F.3d at 1502.
But see Aronson v. Servus Rubber, Division of Chromalloy,
730 F.2d 12, 16 (1st Cir. 1984) (noting in dicta the possibility
that a plan could be discriminatorily modified, intentionally
benefitting, or injuring, certain identified employees or a
certain group of employees).
We hold that § 510's prohibition against discrimination
does not limit a plan sponsor's ability to design or amend a
plan in any way it sees fit, so long as the sponsor does not
reduce the participants' vested benefits. A plan sponsor's
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

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right under the Plan to have the Plan amended on their behalf.
Because the Hospital did not interfere with plaintiffs'
attainment of any of their rights under the Plan, we are
satisfied that the Hospital's amendment of the Plan did not
violate § 510 of ERISA.
Accordingly, we affirm the district court's entry of
summary judgment in favor of the Plan and the Hospital on
Plaintiffs' ERISA § 510 discrimination claim.
D. Age Discrimination under the ADEA
According to Coomer, the district court erred in entering
summary judgment on his ADEA claim because, contrary to
the district court's determinations, there were issues of fact as
to whether he made out a prima facie case of age
discrimination and whether the articulated reason for not
making the requested lump sum to Coomer was pretextual.
It is unlawful under the ADEA for an employer "to fail or
refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C.
§ 623(a)(1). To establish a claim under the ADEA a plaintiff
may either produce direct evidence of age discrimination, or
rely upon circumstantial evidence that would permit an
inference of discrimination under the burden-shifting method
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and Texas Dep't of Cmty Affairs v. Burdine, 450 U.S.
248 (1981). Hedrick v. Western Reserve Care Sys., 355 F.3d
444, 459 (6th Cir. 2004); Kline v. Tennessee Valley Auth., 128
F.3d 337, 348-49 (6th Cir. 1997).
To establish a prima facie case of age discrimination under
the ADEA, a plaintiff must come forward with evidence that:
(1) he was at least 40 years old at the time of the alleged
discrimination; (2) he was subjected to an adverse
18 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
employment action; (3) he was otherwise qualified for the
position; and (4) after he was rejected, a substantially younger
applicant was selected. Burzynski v. Cohen, 264 F.3d 611,
622 (6th Cir. 2001) (citing Barnett v. Dep't of Veterans
Affairs, 153 F.3d 338, 341 (6th Cir. 1998)). The fourth
element may be satisfied "by showing that similarly situated
non-protected employees were treated more favorably."
Talley v. Bravo Pitino Rest., 61 F.3d 1241, 1246 (6th Cir.
1995). If the plaintiff successfully establishes a prima facie
case, the burden of production shifts to the defendant to
articulate a non-discriminatory reason for its adverse
employment action. Burzynski, 264 F.3d at 622. "If the
defendant comes up with such a reason, the plaintiff must
then demonstrate by a preponderance of the evidence that the
defendant's proffered reason was a pretext for age
discrimination." Id.
The district court held that defendants were entitled to
summary judgment on Coomer's ADEA claim because
Coomer was not similarly situated to Rowan and because
Coomer could not show that the Hospital's proffered reason
for treating Coomer differently was pretextual. Because we
find that Coomer failed to produce any evidence that would
suggest that the reason for the disparate treatment was
pretextual, we will not address the issue of whether Coomer
made out a prima facie case of age discrimination.
In Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078
(6th Cir. 1994), we explained what evidence a plaintiff must
adduce in order to show that an employer's alleged legitimate
reason for its adverse action against the plaintiff was a mere
pretext:
To make a submissible case on the credibility of his
employer's explanation, the plaintiff is required to show
by a preponderance of the evidence either (1) that the
proffered reasons had no basis in fact, (2) that the

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No. 02-3700 Coomer, et al. v. Bethesda
Hospital, et al.
19
proffered reasons did not actually motivate his discharge,
or (3) that they were insufficient to motivate discharge.
Id. at 1084. See also Hedrick, 355 F.3d at 460. Summary
judgment is appropriate when the plaintiff fails to produce
evidence from which a jury could reasonably conclude that
the employer's reasons were pretextual. Wixson v. Dowagiac
Nursing Home, 87 F.3d 164, 171 (6th Cir. 1996).
The Hospital produced evidence that it amended the Plan to
allow a lump sum distribution to Rowan because the amount
above the allowable lump sum was de minimis, and because
they supported Rowan's use of the funds. The Hospital
explained that it placed a cap on the lump sum settlement
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
20 Coomer, et al. v. Bethesda
Hospital, et al.
No. 02-3700
motivate the Hospital to treat Rowan and Coomer differently.
There is insufficient evidence on this record to enable a
reasonable jury to infer that the different treatment was due to
Coomer's age rather than to the size of his pension or his
failure to articulate a special need for the distribution. The
district court did not err in granting summary judgment in
favor of the defendants on Coomer's ADEA claim.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
district court's grant of summary judgment in favor of
Bethesda Hospital, Inc. and the Bethesda Hospital Employee
Pension Plan.

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