Alex Pennington ; Harold Gene Cunningham v. Western Atlas, Inc.

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0044P (6th Cir.)
File Name: 00a0044p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ALEX P ENNINGTON ; HAROLD
GENE C UNNINGHAM,
Plaintiffs- Appellees/
Cross-Appellants,
v.
W ESTERN ATLAS, INC.,
Defendant-Appellant/
Cross-Appellee.
;>

1
Nos. 98-6398/6416
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 94-00146—William O. Bertelsman, District Judge.
Argued: November 3, 1999
Decided and Filed: February 7, 2000
Before: KEITH, NORRIS, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Gregory P. Rogers, TAFT, STETTINIUS &
HOLLISTER, Cincinnati, Ohio, for Appellant. Teresa L.
Cunningham, Florence, Kentucky, for Appellees.
ON BRIEF: Gregory P. Rogers, TAFT, STETTINIUS &

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2 Pennington, et al. v.
Western Atlas, Inc.
Nos. 98-6398/6416
HOLLISTER, Cincinnati, Ohio, Joseph E. Conley, Jr.,
BUECHEL, CONLEY & SCHUTZMAN, Crestview Hills,
Kentucky, for Appellant. Teresa L. Cunningham, Florence,
Kentucky, for Appellees.
_________________
OPINION
_________________
CLAY, Circuit Judge. In Case No. 98-6398, Defendant,
Western Atlas, Inc., appeals from the district court’s judgment
ordering Defendant to pay Plaintiff, Harold Gene
Cunningham, wages and benefits in the amount of $348,090,
including interest, while also ordering Defendant to pay
Plaintiff, Alex Pennington, wages and benefits in the amount
of $135,002, including interest, in relation to the jury verdict
finding that Defendant violated § 510 of the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1140. In Case No. 98-6416, Plaintiffs cross-appeal
from the jury verdict rendered on December 15, 1997, finding
no liability on the part of Defendant in relation to Plaintiffs’
claims brought under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq. For the reasons set
forth below, the district court’s judgment is AFFIRMED in
Case No. 98-6398 as well as in Case No. 98-6416.
STATEMENT OF FACTS
Procedural History
Plaintiffs, former employees of Defendant Western Atlas,
Inc., were laid off from their jobs and their employment
terminated effective September of 1993. Plaintiffs filed suit
against Defendant on August 24, 1994, alleging that their lay-
offs were in violation of the ADEA and ERISA § 510.
Plaintiff Cunningham also alleged that Defendant
misclassified him as an exempt employee under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and

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18 Pennington, et al. v.
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CONCLUSION
For the above stated reasons, the district court’s judgment
is AFFIRMED in Case No. 98-6398 as well as in Case No.
98-6416.
Nos. 98-6398/6416 Pennington, et al. v.
Western Atlas, Inc.
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that Defendant failed to pay him overtime in accordance with
his alleged non-exempt status.
A jury trial ensued on December 8-12, and December 15,
1997, where, at the close of the evidence, the court granted
judgment as a matter of law for Defendant and against
Plaintiff Cunningham on his FLSA claim, finding that
Cunningham was exempt from statutory overtime
requirements as a matter of law.
The jury returned its verdict on December 15, 1997, and
found for Defendant on Plaintiffs’ claims brought under the
ADEA. Acting as an advisory jury on Plaintiffs’ claims
brought under ERISA § 510, the jury found in favor of
Plaintiffs concluding that Defendant laid them off in order to
interfere with their pension rights. The district court adopted
the jury’s advisory verdict, stating that “[i]f there was no right
to a jury on the ERISA claim, the Court will consider the jury
to be an advisory jury . . . and hereby adopts its findings as
those of the Court.” (J.A. at 67.) By agreement of the parties,
the district court fixed damages on the ERISA verdicts in the
amount of $348,090 in favor of Cunningham, and in the
amount of $135,002 in favor of Pennington.
Defendant moved for post-trial relief on the ERISA claim
under Fed. R. Civ. P. 50(b) and/or 52(b), as well as for the
district court make specific findings of fact and conclusions
of law regarding its decision pursuant to Fed. R. Civ. P. 52(a).
On September 21, 1998, the court issued its findings of fact
and conclusions of law, and denied Defendant’s motion for
judgment as a matter of law. Defendant filed a timely notice
of appeal on October 8, 1998, and Plaintiffs filed a cross-
appeal regarding their ADEA claim on October 16, 1998.
Facts
At the time of Plaintiffs’ lay-offs, Defendant was a wholly-
owned subsidiary of Littton Industries, Inc. Defendant was
comprised of several divisions, including the division in
which Plaintiffs were employed -- the Material Handling

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Western Atlas, Inc.
Nos. 98-6398/6416
Division (“MHD”). MHD sold material handling systems,
such as conveyor lines, to move packages and/or parts within
warehouses for customers such as Federal Express and United
Air Lines. Litton sold the MHD in November of 1996.
Pennington began working for Defendant’s predecessor in
1956, and remained employed by Defendant until 1993, when
he was terminated as part of Defendant’s workforce
reduction. At the time of Pennington’s termination, he earned
an annual salary of $29,708 and received health, pension and
life insurance benefits as part of his employment benefits
package. Pennington was sixty years old at the time of his
termination, but he had planned to work until the age of sixty-
five. As a result of Pennington’s employment being
terminated at age sixty rather than age sixty-five, his pension
benefits were reduced by approximately one-half; therefore,
Pennington currently receives $7,692 per year in pension
benefits and no health insurance benefits. Had Pennington
remained employed by Defendant until age sixty-five, he
would have received twice the amount that he currently
receives in pension benefits for his life expectancy of 79
years.
Cunningham began working for Litton Industries in 1966,
and was eventually promoted to senior mechanical engineer.
Cunningham was also terminated as a result of a workforce
reduction. Cunningham was fifty-nine years old at the time
of his termination in 1993, and like Pennington, had planned
to work until the age of sixty-five. At the time of his
termination, Cunningham earned an annual salary of $47,164,
and received health, pension and life insurance benefits as
part of his employment benefits package. Cunningham
currently receives $12,276 per year in pension benefits and no
health insurance benefits. Had Cunningham remained
employed by Defendant until age sixty-five, he would have
received annual pension benefits in the amount of $23,548.75
for his average life expectancy of 78.8 years.
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Western Atlas, Inc.
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benefit payments, and that the pattern of terminations was that
more people over the age of fifty were terminated than would
be expected in a random process, so as to indicate that it was
more likely than not that Defendant was trying to cover-up its
true motivation in discharging Plaintiffs. See id.
As such, Defendant’s claim on this issue fails. See Manzer,
29 F.3d at 1084. We are further persuaded in our opinion by
the fact that an advisory jury rendered its decision in this case,
the credibility of witnesses is involved in ascertaining pretext,
and that this Court should give “due regard” to the jury’s
determination of credibility. See Ellis, 177 F.3d at 505; Fed.
R. Civ. P. 52(a).
Case No. 98-6416 -- Cross-Appeal
Plaintiffs cross appeal arguing that the jury’s verdict in
favor of Defendant on Plaintiffs’ ADEA claim was against the
great weight of the evidence. In order to preserve a challenge
to a jury verdict as being against the great weight of the
evidence, the appellant must have made a motion for a new
trial in district court. See Dixon v. Montgomery Ward, 783
F.2d 55 (6th Cir. 1986). Failure to do so precludes appellate
review. Id. (quoting 6A J. Moore, J. Lucas, & G. Grotheer,
Moore’s Federal Practice, ¶ 5915[3] at 59-326 to 327 (2d ed.
1985) noting that “the discretionary power of the district court
to give relief from an error of fact must first be invoked”).
Here, Plaintiff failed to make a motion for a new trial or
judgment notwithstanding the verdict in district court in
relation to their claim that the jury’s verdict was against the
great weight of the evidence. Therefore Plaintiffs’ claim is
not properly before us – as conceded by Plaintiffs at oral
argument. See Cone v. West Virginia Pulp & Paper, 330 U.S.
212, 216 (1947) (“Determination of whether a new trial
should be granted or a judgment entered under Rule 50(b)
calls for the judgment in the first instance of the judge who
saw and heard the witnesses and has the feel of the case which
no appellate transcript can impart.”).

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13. Coons, who worked with Cunningham from 1982
through 1992, testified that he had never witnessed
Cunningham disrupting the workplace.
Furthermore, Cunningham had performed contract
work for Acculift since his termination from
Western Atlas, and, while at Acculift, Cunningham
met all schedules.
14. Flaig, who also worked with Cunningham, testified
that Cunningham met schedules, worked on CAD,
always maintained a professional attitude, and did
not disrupt the workplace.
(J.A. at 78-79 (transcript cites omitted).) Accordingly, as
found by the district court, and as supported by the record,
Plaintiffs did not merely rely upon their prima facie evidence
that their discharge resulted in a decrease in pension benefits
and that Defendant had been looking for ways to decrease its
costs associated with employee benefits, to show that
Defendant’s proffered reasons for terminating Plaintiffs were
a mere pretext. Rather, Plaintiffs came forward with
additional evidence which specifically rebutted Defendant’s
alleged reasons for terminating each Plaintiff.
Plaintiffs’ evidence offered to rebut Defendant’s alleged
reasons consisted of the type one evidence as well as the type
two evidence described in Manzer. That is to say, evidence
that Defendant’s claims were factually false, as well as
evidence that circumstances were such that it was more likely
than not that Defendant had an improper motive in
discharging Plaintiffs. See Manzer, 29 F.3d at 1084. For
example, Plaintiffs offered evidence by way of performance
appraisals that their supervisors rated their work above quality
or excellent just one year to a few months before their
discharge, so as to indicate that Defendant’s claims that
Pennington received low evaluations and Cunningham did not
finish his work on time or use the state of the art equipment
were false. See id. Plaintiffs also introduced evidence to
show that Defendant was seeking to cut costs associated with
Nos. 98-6398/6416 Pennington, et al. v.
Western Atlas, Inc.
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Cunningham’s pension and medical costs to Defendant
would have been $7,110 per year for fiscal years 1994-1997.
Pennington’s pension and medical costs to Defendant would
have been $2,256 per year for fiscal years 1994-1997.
Defendant’s ten-year pension and medical costs savings on all
older employees offered early retirement during the
“downsizing” was $12,262,176.71.
In 1992, Keith Wheeler, President of the MHD, and
Barbara Carr, a Human Resources Department employee,
asked Steven Parsley, the manager of Systems Analysis
Engineering, to modify a Lotus spreadsheet that sorted
employee information by name, birth date, date of hire,
whether the employee smoked, and the employee’s benefit
program information. Wheeler and Carr informed Parsley
that they were interested in reducing salaries and medical
costs and that they were not concerned about lawsuits. In that
same year, Plaintiff Cunningham and three other senior
project engineers were left in the engineering department.
The head of the engineering department, Jim Gable, told
Cunningham and the other three engineers that they were
marked for lay-off, but that their names were removed from
the list on the advice of Litton’s lawyers. In 1993, all four of
the senior project engineers either took an early retirement or
were terminated as part of Defendant’s alleged reduction in
workforce plan. One of the senior project engineers, Mr.
Shirley, took an early retirement, but was then hired back by
Defendant as a contractor receiving no benefits associated
with his pay.
Also in 1992, Bill Hines was hired by Litton to “interface
with employees” and to recruit new employees; in 1993,
Hines actively recruited at Georgia Tech and other institutions
for openings in the engineering department. In February of
1993, Defendant hired twenty-four new employees.
Hines prepared a reduction in workforce memorandum
entitled “HIGH RISK” which flagged employees by salary,
age, disability, premature births of children, surgeries, and

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6 Pennington, et al. v.
Western Atlas, Inc.
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exemption status. Plaintiff Cunningham’s name was on the
“HIGH RISK” list and his age was highlighted. Hines
testified that Defendant’s Human Resources department made
the selections of which employees would be terminated in
connection with the reduction in workforce plan. Plaintiffs’
expert witness, Dr. Harvery Rosen, testified that Defendant’s
pattern of downsizing was not age neutral inasmuch as more
employees over the age of fifty were terminated than would
be expected in a random process.
Defendant’s stated reason for terminating Pennington was
that Pennington had the lowest evaluations in his department.
However, Pennington’s former supervisors did not criticize
his work performance, and Pennington’s former supervisor,
Mike Vogt, could not recall any problems with Pennington’s
work. Notably, Pennington’s supervisor from 1982 through
February of 1992, Robert Malone, thought that Pennington’s
work was meticulous, gave Pennington satisfactory
performance evaluations, and rated Pennington’s work as
“excellent.”
Defendant’s stated reasons for terminating Cunningham
was because he (1) did not meet schedules; (2) did not use
Computer Aided Design technology; and (3) disrupted the
workplace. However, David Gilkes, Cunningham’s
immediate supervisor, evaluated Cunningham’s performance
as “above-quality work” in Cunningham’s 1993 performance
evaluation. Cunningham’s co-worker, Randy Coons, worked
with Cunningham from 1982 through 1992, and stated that he
never witnessed Cunningham disrupting the workplace.
Another co-worker, Robert Flaig, testified that Cunningham
met schedules, worked on the Computer Aided Design
technology, always maintained a professional attitude, and did
not disrupt the workplace.
Defendant’s pension and savings program was a
combination of a 401K and standardized pension fund, where
Defendant contributed part of the funds and, during an
employee’s final years of employment, Defendant’s
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Western Atlas, Inc.
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2Kline also dealt with the requirements for showing pretext; however,
the plaintiff in Kline brought claims under the ADEA as well as under
Title VII. See 128 F.3d at 339, 349-51.
Accordingly, we hold that, in order to make this type of
rebuttal showing, the plaintiff may not rely simply upon
his prima facie evidence but must, instead, introduce
additional evidence of age discrimination.
Manzer, 29 F.3d at 10842.
Here, the district court found as follows regarding
Defendant’s proffered reasons for discharging Plaintiffs, and
Plaintiffs’ evidence to rebut those reasons:
8. The defendant’s stated reason for terminating
Pennington was that he had the lowest evaluations in
his department.
9. Individuals from Western Atlas’ Human Resources
Department provided Pennington’s supervisor with
the names of the individuals to be laid off.
10. Pennington’s former supervisors had no criticism of
Pennington’s work. Indeed, Malone, Pennington’s
supervisor from 1982 through 1992, rated
Pennington’s work satisfactory to above satisfactory
and stated that his work was excellent.
11. The defendant provided the following reasons for
selecting Cunningham for termination: (1) he did
not meet schedules; (2) he did not use Computer
Aided Design (CAD); and (3) he disrupted the
workplace.
12. Gilkes, Cunningham’s immediate supervisor,
evaluated Cunningham as performing “above quality
work” on his 1993 evaluation.

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Western Atlas, Inc.
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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
proffered reasons did not actually motivate his discharge,
or (3) that they were insufficient to motivate discharge.
The first type of showing is easily recognizable and
consists of evidence that the proffered bases for the
plaintiff’s discharge never happened, i.e., that they are
factually false. The third showing is also easily
recognizable and, ordinarily, consists of evidence that
other employees, particularly employees not in the
protected class, were not fired even though they engaged
in substantially identical conduct to that which the
employer contends motivated its discharge of the
plaintiff. These two types of rebuttals are direct attacks
on the credibility of the employer’s proffered motivation
for firing plaintiff and, if shown, provide an evidentiary
basis for what the Supreme Court has termed “a
suspicion of mendacity.”
The second showing, however, is of an entirely
different ilk. There, the plaintiff admits the factual basis
underlying the employer’s proffered explanation and
further admits that such conduct could motivate
dismissal. The plaintiff’s attack on the credibility of the
proffered explanation is, instead, an indirect one. In such
cases, the plaintiff attempts to indict the credibility of his
employer’s explanation by showing circumstances which
tend to prove that an illegal motivation was more likely
than that offered by the defendant. In other words, the
plaintiff argues that the sheer weight of the circumstantial
evidence of discrimination makes it “more likely than
not” that the employer’s explanation is a pretext, or a
coverup.
Nos. 98-6398/6416 Pennington, et al. v.
Western Atlas, Inc.
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1Defendant argues on appeal that the pension fund was over-funded;
however, as noted by Plaintiffs, Defendant does not support this argument
with statistical data for the year in question -- 1993; rather, Defendant
uses data reflecting the status of the fund in 1995, after Plaintiffs and
other employees were terminated or took early retirements. (J.A. at 172.)
contributions escalated.1 The record indicates that Defendant
contributed to Pennington and Cunningham’s pension funds.
ANALYSIS
Case No. 98-6398 – Appeal
Defendant argues that the district court erroneously
concluded that Defendant was motivated by its specific intent
to interfere with Plaintiffs’ pension benefits when it laid
Plaintiffs off from their jobs. We disagree.
This Court reviews a district court’s findings of fact for
clear error, and a district court’s conclusions of law de novo.
Tucker v. Calloway County Bd. of Educ., 136 F.3d 495, 503
(6th Cir. 1998). “‘In all actions tried upon the facts without
a jury or with an advisory jury, the court shall find the facts
specially and state separately its conclusions of law
thereon. . . . Findings of fact, whether based on oral or
documentary evidence, shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge of the credibility of the witnesses.’”
See Ellis v. Diffie, 177 F.3d 503, 505 (6th Cir. 1999) (quoting
Fed. R. Civ. P. 52(a)). “A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court
on the entire evidence is left with a firm and definite
conviction that a mistake has been committed.” United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
In Smith v. Ameritech, this Court announced the
requirements that a plaintiff must meet in order to state a
claim under ERISA § 510 as follows:

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8 Pennington, et al. v.
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To state a claim under § 510, the plaintiff must show
that an employer had a specific intent to violate ERISA.
In the absence of direct evidence of such discriminatory
intent, the plaintiff can state a prima facie case by
showing the existence of (1) prohibited employer
conduct (2) taken for the purpose of interfering (3) with
the attainment of any right to which the employee may
become entitled.
Although . . . not classif[ied] . . . as part of the
plaintiff’s prima facie case, . . . a plaintiff must show a
causal link between pension benefits and the adverse
employment decision. In order to survive [the]
defendants’ motion for summary judgment, [the] plaintiff
must come forward with evidence from which a
reasonable jury could find that the defendants’ desire to
avoid pension liability was a determining factor in [the]
plaintiff’s discharge. . . . [I]n an interference claim, the
alleged illegal activity will have a causal connection to
the plaintiff’s ability to receive an identifiable benefit.
129 F.2d 857, 865 (6th Cir. 1997) (internal quotation marks
and citations omitted).
Here, the district court concluded that “it is not really
disputed that the plaintiffs have established a prima facie case
[of interference under § 510]. By terminating the plaintiffs at
ages 59 and 60, the defendant avoided paying the additional
benefits to which the plaintiffs would have become entitled.
The issue, here, is whether the plaintiffs established the
necessary causal link between the pension benefits and the
adverse employment decision.” (J.A. at 81-82.) Having so
concluded, the district court then addressed whether
Defendant advanced a legitimate reason for terminating
Plaintiffs, and whether Plaintiffs sufficiently rebutted the
alleged legitimate reason for discharge. The court further
concluded as follows:
Nos. 98-6398/6416 Pennington, et al. v.
Western Atlas, Inc.
13
that the district court did not err in concluding that Plaintiffs
established a prima facie case under ERISA § 510, which
brings us to Defendant’s alternative argument; namely, even
if the district court was correct in finding that Plaintiffs
established a prima facie case, the district court erred in
concluding that Defendant’s alleged reasons for Plaintiffs’
discharge were pretextual.
B. Whether Plaintiffs Established that Defendant’s
Alleged Reasons for Their Terminations were a Mere
Pretext to Allow Defendant to Interfere with
Plaintiffs’ Retirement Benefits
Defendant argues in the alternative that the district court
erred in concluding that Defendant’s articulated reasons for
Plaintiffs’ layoffs were pretextual. Specifically, Defendant
contests the following conclusion of law made by the district
court:
3. The defendant proffered the following reasons for
selecting the plaintiffs for termination: poor
performance, disrupting the workplace, and failing
to use CAD. The plaintiffs offered substantial
evidence (stated above) that the plaintiffs were in
fact above average performers, did not disrupt the
workplace and did in fact use CAD. The court, with
the aid of an advisory jury, disbelieved the proffered
reason[s] for discharge.
(J.A. at 82.) Defendant claims that the district court erred in
so concluding “because the disbelief of the proffered
reason[s] by the Court (and the advisory jury) is simply a
disagreement with Western’s business judgment – Plaintiffs
did not show pretext under the test established by Manzer v.
Diamond Shamrock, 29 F.3d 1078, 1083-84 (6th Cir. 1994)
and Kline v. Tennessee Valley Authority, 128 F.3d 337 (6th
Cir. 1997)[.]” We disagree.
In Manzer, a case brought under the ADEA, this Court
explained what evidence a plaintiff must adduce in order to

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discharge was motivated by the defendant’s intent to interfere
with the plaintiff’s retirement benefits. Id. at 457-58.
Unlike in Rush, the evidence in the instant case established
that Defendant was aware that terminating Plaintiffs before
the age of sixty-five would interfere with an established
retirement benefit (the amount of annual pension funds
received) – i.e., the additional annual pension funds received
by Plaintiffs had they worked until sixty-five-years of age was
known to both Plaintiffs and Defendant alike. Evidence of
Defendant’s knowledge that they were interfering with
Plaintiffs’, as well as other employees’ benefits, was noted by
the district court in its findings of fact:
15. In 1992, Keith Wheeler, President of the Material
Handling Systems Group, and Barbara Carr, a
Human Resources Department employee, asked
Steven Parsley, the manager of Systems Analysis
Engineering, to modify a Lotus spreadsheet that
sorted employee information by name, birth date,
date of hire, whether the employee smoked, and
benefit program information.
16. Wheeler and Carr told Parsley that they wanted to
reduce salaries and medical costs and that they were
not concerned about lawsuits.
17. According to plaintiffs’ expert witness, Dr. Harvey
Rosen, the pattern of terminations during the
Western Atlas downsizing was not age neutral
because more people age 50 and over were
terminated than would be expected in a random
process.
(J.A. at 79.)
Therefore, Defendant’s reliance upon Rush is misplaced, as
is its reliance upon Humphreys, where Rush is distinguishable
and Humphreys supports the district court’s conclusions and
inures to the benefit of Plaintiffs. Having so opined, we hold
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Western Atlas, Inc.
9
3. The defendant proffered the following reasons for
selecting the plaintiffs for termination: poor
performance, disrupting the workplace, and failing
to use CAD. The plaintiffs offered substantial
evidence (stated above) that the plaintiffs were in
fact above average performers, did not disrupt the
workplace and did in fact use CAD. The court, with
the aid of an advisory jury, disbelieved the proffered
reason for discharge.
4. Once a plaintiff has disproved the defendant’s
proffered reason for termination, the fact finder is
entitled to infer a discriminatory reason for such
termination. Kline v. Tennessee Valley Authority,
128 F.2d [sic] 337 (6th Cir. 1997). In this case, the
plaintiff[s] offered evidence to disprove the
defendant’s stated reason[s] for termination. The
court, with the aid of an advisory jury, chooses to
infer that a desire to reduce pension liability was a
determining factor in the plaintiffs’ discharge.
(J.A. at 82.)
A. Whether Plaintiffs Established a Prima Facie Case
Under ERISA § 510
On appeal, Defendant claims that the district court’s
conclusion that Plaintiff established a prima facie case of
interference was erroneous. Relying upon Humphreys v.
Bellaire Corp., 966 F.2d 1037 (6th Cir. 1992) and Rush v.
United Technologies, Otis Elevator Division, 930 F.2d 453
(6th Cir. 1991), Defendant argues that “this Court repeatedly
has found that an employee’s incidental loss of the
opportunity to accrue additional benefits is not evidence of
unlawful ERISA interference with pension rights[,]” and thus,
the district court erroneously concluded that Plaintiffs
established a prima facie case simply because Defendant
avoided paying additional pension benefits to Plaintiffs by
laying them off. Defendant contends that Plaintiffs failed to

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10 Pennington, et al. v.
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present evidence of a specific intent by any of Defendant’s
employees to violate § 510; or, said differently, that Plaintiffs
failed to present any evidence to show that Defendant’s desire
to avoid pension liability was a determining factor in the
Plaintiffs’ discharge, and that the district court erroneously
concluded that Plaintiffs established a § 510 case in the
absence of such evidence.
In Humphreys v. Bellaire Corp., 996 F.2d at 1043-45, this
Court reviewed the district court’s grant of summary
judgment to a defendant corporation regarding the plaintiff’s
ERISA § 510 claim and, after setting forth the requirements
that the plaintiff had to meet in order to state a prima facie
case under § 510 as well as the burden shifting analysis which
a court must conduct after the plaintiff establishes a prima
facie case, the Court found as follows:
[The Plaintiff] met his burden of presenting evidence to
support each of the elements of a prima facie case. He
was discharged, and it was his testimony that his pension
would have vested in two months and that this would
have cost the company a substantial amount. Although
it is no more than the bare minimum that a plaintiff must
show to meet the prima facie case threshold, in this case
it satisfies that low threshold because, examining only
[the plaintiff’s] evidence, the proximity to vesting
provides at least some inference of intentional, prohibited
activity.
This holding, when juxtaposed against that the district court’s
conclusion in the instant case, indicates that the district court
did not err in concluding that Plaintiff established a prima
facie case under § 510. As stated, the district court found that
“it is not really disputed that the plaintiffs have established a
prima facie case [of interference under § 510]. By
terminating the plaintiffs at ages 59 and 60, the defendant
avoided paying the additional benefits to which the plaintiffs
would have become entitled. The issue, here, is whether the
plaintiffs established the necessary causal link between the
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11
pension benefits and the adverse employment decision.” (J.A.
at 81-82.) Accordingly, as in Humphreys, the district court
did not err in concluding that Plaintiffs established a prima
facie case based upon the proximity of Plaintiffs’ discharge to
their age of receiving full retirement benefits.
We are not persuaded otherwise by Defendant’s reliance
upon Rush v. United Technologies, Otis Elevator Division,
930 F.2d 453 (6th Cir. 1991). Defendant claims that Rush
supports his position that the district court erred in concluding
that Plaintiffs established a prima facie § 510 case. However,
upon close examination of Defendant’s argument, one
observes that Defendant is not quoting from the facts of Rush
in his brief on appeal to this Court, but from a case issued by
the United States Court of Appeals for the Fifth Circuit upon
which Rush relied. See Defendant’s Brief on Appeal at 14
(quoting Clark v. Reistoflex Co., 854 F.2d 762, 771 (5th Cir.
1988) without attribution to that case). Moreover,
Defendant’s quotation from the Clark case is inaccurate to the
extent that Defendant added language from the Rush opinion
to the Clark quote.
Defendant’s inaccurate and misleading argument aside, the
facts of Rush are distinguishable from those of the instant
case inasmuch as in Rush, the plaintiff was claiming that the
defendant discharged him in violation of § 510 in order to
keep the plaintiff from being eligible for the expanded early
retirement benefits which became effective after the
plaintiff’s discharge. Rush, 930 F.2d at 457. However,
because the plaintiff failed to produce any evidence that
anyone at the defendant company had knowledge that the
pension plan was going to be amended seven weeks after the
plaintiff’s discharge, and because the plaintiff failed to
produce any evidence that he had ever told anyone at the
company that he had planned to retire early if possible – in
fact, the plaintiff stated in his deposition that he may not have
retired early even if provided the opportunity, this Court
concluded that the plaintiff failed to establish that his

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