      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2        Coomer, et al. v. Bethesda                     No. 02-3700
   ELECTRONIC CITATION: 2004 FED App. 0159P (6th Cir.)            Hospital, et al.
               File Name: 04a0159p.06
                                                                           Argued: December 17, 2003
UNITED STATES COURT OF APPEALS                                           Decided and Filed: June 1, 2004
             FOR THE SIXTH CIRCUIT
               _________________                             Before: BATCHELDER and SUTTON, Circuit Judges;
                                                                        BELL, Chief District Judge.*
GLENN A. COOMER ;                 X                                             _________________
CHRISTOPHER R. STIRES;             -
LYNNETTE MARIE STIRES;             -                                                 COUNSEL
                                   -  No. 02-3700
DIANA SPANG; PETE REEME;           -                     ARGUED: Mark Joseph Byrne, JACOBS, KLEINMAN,
KATHLEEN REEME; GARY E.             >                    SEIBEL & McNALLY, Cincinnati, Ohio, for Appellants.
                                   ,
BERGER; ROY K. GERBER;                                   Daniel Jerome Buckley, VORYS, SATER, SEYMOUR &
                                   -
JEFFREY J. CUSTIS; MICHAEL                               PEASE, Cincinnati, Ohio, for Appellees. ON BRIEF: Mark
                                   -                     Joseph Byrne, JACOBS, KLEINMAN, SEIBEL &
HOWCROFT ; CONNIE BROWN            -                     McNALLY, Cincinnati, Ohio, for Appellants. Daniel Jerome
DOHERTY ; WILLIAM D.               -                     Buckley, Mary C. Henkel, Margaret A. Nero Fechtel,
HOZMANN; RICHARD R.                -                     VORYS, SATER, SEYMOUR & PEASE, Cincinnati, Ohio,
                                   -
BEITING ; JAMES R. FAZE ; LIN                            for Appellees.
                                   -
A. HEINZELMAN; SCOTT               -
KINZER,                                                                         _________________
                                   -
         Plaintiffs-Appellants, -                                                   OPINION
                                   -                                            _________________
            v.                     -
                                   -                       BELL, Chief District Judge. Participants in an employee
                                   -                     pension plan have appealed the entry of summary judgment
BETHESDA HOSPITAL, INC.            -                     against them on their discrimination claims under the
and BETHESDA HOSPITAL              -                     Employee Retirement Income Security Act of 1974
EMPLOYEE PENSION PLAN,             -                     (“ERISA”), 29 U.S.C. §§ 1001-1461, and the Age
        Defendants-Appellees. -                          Discrimination in Employment Act ("ADEA"), 29 U.S.C.
                                   -                     §§ 621-634. For the reasons that follow, the district court’s
                                  N                      entry of summary judgment will be affirmed.
      Appeal from the United States District Court
     for the Southern District of Ohio at Cincinnati.
   No. 99-00883—Sandra S. Beckwith, District Judge.           *
                                                              The Ho norable R obe rt Ho lmes B ell, Chief United States District
                                                         Judge for the Western District of Michigan, sitting by designation.

                           1
No. 02-3700                      Coomer, et al. v. Bethesda          3    4      Coomer, et al. v. Bethesda                No. 02-3700
                                            Hospital, et al.                     Hospital, et al.

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

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

                                                                       2
                                                                          Defendants 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.
No. 02-3700                  Coomer, et al. v. Bethesda       7    8       Coomer, et al. v. Bethesda                      No. 02-3700
                                        Hospital, et al.                   Hospital, et al.

court in reviewing the fiduciaries' actions." Ravencraft, 212      remedies would not have served any of the purposes of
F.3d at 343 (quoting Makar v. Health Care Corp., 872 F.2d          administrative exhaustion under the facts of that case. Id.
80, 83 (4th Cir. 1989)).
                                                                      We reject the non-Coomer plaintiffs' reliance on
  It is undisputed that none of the non-Coomer plaintiffs          Costantino. In contrast to Costantino, there is no clear and
requested a lump sum disbursement in excess of $5,000 from         positive indication in this case that pursuing administrative
the Plan prior to filing this action. Plaintiffs contend this      remedies would have been a futile act. What plaintiffs sought
failure should be excused because it would have been a vain        in this action was to be treated in the same manner as Rowan.
or futile act. Plaintiffs note that it is undisputed that their    In other words, they sought an amendment to the Plan that
pension funds exceeded the $5,000 lump sum distribution            would allow an early lump sum distribution. Under the terms
limit under the Plan, and the defendants had made it clear that    of the Plan, the Hospital Board has "the right to amend the
the Plan prohibited them from making a distribution that           Plan at any time to any extent deemed advisable," as long as
exceeded this amount.                                              the amendment does not have the effect of decreasing any
                                                                   benefits accrued under the Plan before such amendment.
   Failure to exhaust administrative remedies is excused           Amendment of the Plan is a matter within the discretion of
"where resorting to the plan's administrative procedure would      the Board.3 Plaintiffs have not alleged any factual basis for
simply be futile or the remedy inadequate." Fallick, 162 F.3d      their claim of futility other than the denial of benefits to
at 419. "The standard for adjudging the futility of resorting      Coomer. The plaintiffs' assertion that the Board would not
to the administrative remedies provided by a plan is whether       have amended the Plan on behalf of any one of the 15 non-
a clear and positive indication of futility can be made." Id.      Coomer plaintiffs was not a foregone conclusion. The
A plaintiff must show that "it is certain that his claim will be   Hospital was never given an opportunity to determine
denied on appeal, not merely that he doubts that an appeal         whether the non-Coomer plaintiffs' claims were de minimis
will result in a different decision." Id. (quoting Lindemann v.    or whether they involved special circumstances that might
Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996)).                convince the Board to amend the Plan. As the district court
                                                                   properly noted, the very fact that the Board amended the Plan
   Plaintiffs in the case at bar contend that exhaustion of the    to accommodate Rowan's request demonstrates that, in certain
administrative process should be excused in this case just as      circumstances, requests for lump sum disbursement in excess
it was in Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir.           of $5,000 would be granted. Requiring the non-Coomer
1994), because the Plan did not allow disbursements in excess      plaintiffs to pursue the administrative process would
of $5,000 and it can be inferred from the denial of Coomer's       accordingly serve several important purposes of
request for a lump sum distribution that the remaining             administrative exhaustion, including the development of a
plaintiffs' claims would be denied as well. In Costantino we       factual record, enabling the Hospital to consider the claims
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        3
amended plan rather than to a mere interpretation of it. Id. at           Plaintiffs' assertion that in granting Rowan's request "the Board
975. Moreover, we noted that requiring further administrative      exceeded their authority and acted contra ry to the Plan provisions," is
                                                                   simply incorrect. The B oard had authority to ame nd the Plan as long as
                                                                   it did not affect the rights of other Plan p articipants.
No. 02-3700                        Coomer, et al. v. Bethesda              9    10    Coomer, et al. v. Bethesda                   No. 02-3700
                                              Hospital, et al.                        Hospital, et al.

before premature judicial intervention, and providing a                         under ERISA (an "interference" violation). Mattei v. Mattei,
nonadversarial method of claims settlement.                                     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
  Because we find that the non-Coomer plaintiffs did not                        this action Plaintiffs have not alleged that they suffered any
exhaust their administrative remedies and because they did                      adverse action because they availed themselves of an ERISA
not demonstrate clear and positive evidence of the futility of                  right. Plaintiffs have instead alleged an interference violation.
exhausting those remedies, we affirm the district court's                       To avoid summary judgment on a § 510 interference claim,
dismissal of the non-Coomer plaintiffs.                                         "an employee must show that the employer engaged in
                                                                                prohibited conduct for the purpose of interfering with the
C. Discrimination under ERISA § 510                                             employee's attainment of any right to which he may become
                                                                                entitled under an ERISA-protected plan." Roush v. Weastec,
  According to plaintiffs4, the district court erred when it                    Inc., 96 F.3d 840, 845 (6th Cir. 1996).
determined that defendants' failure to treat plaintiffs in the
same manner they treated Brian Rowan did not violate § 510                        The district court determined that denial of Coomer's
of ERISA, 29 U.S.C. § 1140.5                                                    request for a distribution was not an "adverse action" or
                                                                                "prohibited conduct" as contemplated by § 510 because it did
  ERISA § 510 offers protection against two types of                            not interfere with a right to which plaintiffs were entitled.
conduct: adverse action taken because a participant availed                     The district court also determined that amendment of the Plan
himself of an ERISA right (an "exercise" or "retaliation"                       to accommodate Rowan's request for a lump sum
violation), and interference with the attainment of a right                     disbursement did not constitute an "adverse action" as
                                                                                contemplated by § 510.
    4
      Although we have affirmed the dismissal of the non-Coomer                    Plaintiffs concede that they had no right under the Plan to
plaintiffs, we refer to all of the plaintiffs in this section because we find   a distribution because the actuarial equivalent of their benefits
that even if the non-Coomer plaintiffs had not been dismissed on
procedural grounds, they nevertheless could not succeed on their § 510
                                                                                exceeded the $5,000 limit. Plaintiffs also concede that the
ERISA discrimination claim.                                                     Rowan amendment and the lump sum distribution to Rowan
                                                                                did not adversely affect their pension rights in any way.
    5                                                                           Plaintiffs contend, nevertheless, that the Rowan amendment
        ERISA § 510 provides in pertinent part:
                                                                                was an "adverse action" under § 510 because it violated their
    It shall be unlawful for any person to discharge, fine, suspend,            right under the Plan to have the Plan administered in a non-
    expel, discipline, or d iscrimina te against a participant or               discriminatory manner.
    beneficiary for exercising any right to which he is entitled under
    the provisions o f an employee ben efit plan, this title, section
    3001 [29 USCS § 12 01], or the W elfare and P ension Plans                    Plaintiffs' contention discloses a fundamental failure to
    Disclosure Act, or for the purpose of interfering with the                  distinguish between the separate functions of Plan
    attainment of any right to which such participant may become                administration and Plan sponsorship. The Plan is sponsored
    entitled under the plan, this title, or the W elfare and P ension           and funded by the Hospital. The Plan is administered by a
    Plans Disclosure Act.                                                       Committee appointed by the Hospital Board. The Plan gives
29 U.S.C. § 1140.
                                                                                the Committee the full power to administer the Plan,
No. 02-3700                       Coomer, et al. v. Bethesda           11     12       Coomer, et al. v. Bethesda                         No. 02-3700
                                             Hospital, et al.                          Hospital, et al.

including the power "to interpret and construe the Plan in a                  Amendment of the Plan was not an administrative act
non-discriminatory manner consistent with its terms and                       undertaken by the Committee, but was instead a discretionary
provisions." The Plan further provides that in making its                     act within the prerogative of the Hospital Board. As we noted
determinations "the Committee shall pursue uniform policies                   in Musto v. American General Corp., 861 F.2d 897 (6th Cir.
and general rules applicable to all persons similarly situated,               1988), "[t]here is a world of difference between administering
and shall not discriminate in favor of any person or group of                 a welfare plan in accordance with its terms and deciding what
persons." In creating the Plan, the Hospital Board reserved to                those terms are to be." Id. at 911. We agree with the district
itself the right to amend the Plan "at any time to any extent                 court that the Hospital's amendment of the Plan on behalf of
deemed advisable," as long as the amendment does not have                     Rowan, and its refusal to amend the Plan on behalf of
the effect of decreasing any benefits accrued under the Plan                  Coomer, did not violate the anti-discrimination provisions of
before such amendment. The Plan's anti-discrimination                         the Plan. The Rowan amendment accordingly does not
provision governs the Committee's administration of the Plan.                 constitute an adverse action or an interference with a right to
The anti-discrimination provision does not purport to govern                  which Plaintiffs were entitled under the Plan.
the Board, the body authorized to amend the Plan.
                                                                                This brings us to the core issue presented on appeal, which
  Although Plaintiffs have loosely asserted that the Plan                     is whether an employer's amendment of a Plan to
disregarded the lump sum limitation for Rowan, but denied a                   accommodate one participant and its refusal to amend the
similar request by Coomer, the evidence of record confirms                    Plan to accommodate another participant constitutes
that the Committee uniformly interpreted and applied the                      discrimination in violation of § 510 of ERISA, 29 U.S.C.
$5,000 limitation to all who requested a lump sum                             § 1140. In Mattei we observed in dicta that many courts had
distribution. The undisputed facts reveal that Rowan obtained                 concluded that § 510 offers no protection against an
a distribution not because the Committee disregarded the                      employer's actions affecting the status or scope of an ERISA
lump sum limitation when it administered the Plan, but                        plan itself and we assumed that "actions taken with respect to
because the Board amended the Plan specifically to permit                     the plan itself are not protected by § 510." 126 F.3d at 800-
Rowan to take a lump sum distribution in excess of $5,000.6                   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
    6
       Even if the Committee had made a distribution to Rowan without a       actions affecting the status or scope of an ERISA plan.
Plan amendment and in violation of the Plan's lump sum distribution
provision, we question whether the Committee would be estopped from             We begin with an analysis of what ERISA is and is not
following the lump sum distribution limitation p rovisio n in the future. A   designed to do. "ERISA was enacted to promote the interests
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                 7
discrimination in the administration of the Plan, that might not have               In Mattei we held that the anti-discrimination provision of ERISA
justified the equal treatment re med y Plaintiffs sought. See McGa th v.      § 510 reaches further than the employment relationship and is broad
Auto-Body North S hore, 7 F.3d 665, 670 (7th Cir. 1993) ("Because the         enough to support a claim against an estate for interfering with a plan
plan must be administered according to its terms, [a participant] cannot      be neficiary's receipt of pension bene fits. 126 F.3d at 804-06 . Mattei did
com plain because he is held to those terms; this is true even if the rules   not involve an employer's amendment of a plan so we were no t called
were bent for another individual.").                                          upon to address the issue presented in this case.
No. 02-3700                 Coomer, et al. v. Bethesda     13    14       Coomer, et al. v. Bethesda                         No. 02-3700
                                       Hospital, et al.                   Hospital, et al.

of employees and their beneficiaries in employee benefit         "employers have large leeway to design disability and other
plans, and to protect contractually defined benefits." Black &   welfare plans as they see fit." Black & Decker, 538 U.S. at
Decker Disability Plan v. Nord, 538 U.S. 822, 830 (2003)         833.
(quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 113 (1989)). With respect to pension plans, ERISA             The "large leeway" granted to employers in the design of
imposes participation, funding, and vesting requirements and     pension plans applies equally to their modification or
establishes rules concerning reporting, disclosure, and          amendment of those plans. When an employer adopts,
fiduciary responsibility. Shaw v. Delta Air Lines, 463 U.S.      modifies or terminates a pension plan its actions are
85, 91 (1983) (citing 29 U.S.C. §§ 1021-1031,1051-1086,          analogous to that of settlor of a trust rather than that of trustee
1101-1114). ERISA does not, however, purport to govern           or fiduciary. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,
what benefits a Plan must provide.                               443-44 (1999). Amending a plan is not an act of plan
                                                                 "management" or "administration," and is accordingly not
  "Nothing in ERISA requires employers to establish              subject to fiduciary review. Lockheed Corp., 517 U.S. at 890
employee benefits plans. Nor does ERISA mandate what             (1996).
kind of benefits employers must provide if they choose to
have such a plan." Lockheed Corp. v. Spink, 517 U.S. 882,          Against this backdrop we consider the purpose of § 510.
887 (1996). "ERISA does not mandate that employers               We have previously observed that the prohibitions of § 510
provide any particular benefits, and does not itself proscribe   "were aimed primarily at preventing unscrupulous employers
discrimination in the provision of employee benefits." Shaw,     from discharging or harassing their employees in order to
463 U.S. at 91.                                                  keep them from obtaining vested pension rights." Mattei, 126
                                                                 F.3d at 798 (quoting West v. Butler, 621 F.2d 240, 245 (6th
  [N]either Congress nor the courts are involved in either       Cir. 1980)).8 "By its terms § 510 protects plan participants
  the decision to establish a plan or in the decision            from termination motivated by an employer's desire to
  concerning which benefits a plan should provide. In            prevent a pension from vesting. Congress viewed this section
  particular, courts have no authority to decide which           as a crucial part of ERISA because, without it, employers
  benefits employers must confer upon their employees;           would be able to circumvent the provision of promised
  these are decisions which are more appropriately               benefits." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,
  influenced by forces in the marketplace and, when              143 (1990). "We have no doubt that this claim is prototypical
  appropriate, by federal legislation.                           of the kind Congress intended to cover under § 510." Id.
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           8
                                                                       The protections of § 510 are no t limited to vested pension rights.
ERISA, for any reason at any time, to adopt, modify, or          W e have clarified that § 510 "prohibits interference with rights to which
terminate welfare plans."         Curtiss-Wright Corp. v.        an employee 'may become entitled' under 'an employee benefit plan' and
Schoonejongen, 514 U.S. 73, 78 (1995). This rule applies         does not limit its application to benefits that will become vested ." Abbott
equally to pension benefit plans. Lockheed Corp., 517 U.S.       v. Pipefitters Local Union No. 522 Ho sp., M edica l, & Life Benefit Plan,
                                                                 94 F.3d 236, 242 (6th Cir. 1996) (quoting Shahid v. Ford Motor Co., 76
at 890. The Supreme Court has recently reaffirmed that           F.3d 140 4, 1411 (6th Cir. 1996 )).
No. 02-3700                   Coomer, et al. v. Bethesda       15    16   Coomer, et al. v. Bethesda                   No. 02-3700
                                         Hospital, et al.                 Hospital, et al.

   Nothing in § 510 or in the case law suggests that § 510 was         Because the plan must be administered according to its
designed to limit the discretion afforded employers in the             terms, he cannot complain because he is held to those
creation or amendment of ERISA plans. As the Eleventh                  terms; this is true even if the rules were bent for another
Circuit noted in Owens v. Storehouse, Inc., 984 F.2d 394               individual. ERISA § 510 affords protection from
(11th Cir. 1993), "section 510 targets discriminatory conduct          discrimination that interferes "with the attainment of any
designed to interfere with the exercise or attainment of vested        right to which such participant may become entitled
or other rights under the plan or ERISA. 29 U.S.C. § 1140.             under the plan." Mr. McGath does not have a right to
It does not broadly forbid all forms of discrimination." Id. at        treatment that is contrary to the terms of the plan, even if
398. "Thus, to prevail under section 510, a plaintiff must             those terms are breached for others.
show that the alleged discrimination was designed either to
retaliate for the exercise of a right or to interfere with the       Id. (footnote omitted).
attainment of an entitled right. It is insufficient merely to
allege discrimination in the apportionment of benefits under            Similarly, in Haberern v. Kaupp Vascular Surgeons Ltd.
the terms of the plan." Id. (citing Shaw, 463 U.S. at 91). In        Defined Benefit Pension Plan, 24 F.3d 1491 (3rd Cir. 1994),
fact, a number of courts have held, under facts more                 Haberern alleged that the employer's amendment to the plan
compelling than those presented here, that unequal treatment         that eliminated life insurance benefits for individuals over age
in the design of the plan does not give right to an action under     56, a change which affected only him, and the simultaneous
ERISA § 510.                                                         tripling of the face amount of the life insurance policies for
                                                                     two other employees, violated § 510 of ERISA. Id. at 1502.
  In McGath v. Auto-Body North Shore, 7 F.3d 665 (7th Cir.           The Third Circuit disagreed, instead agreeing with the
1993), the plaintiff alleged that his employer intended to           employer that this action did not violate § 510 of ERISA
interfere with his pension rights by amending the plan to            because although § 510 "prohibits discrimination against a
exclude him and by bending the plan's eligibility                    plan participant for the purpose of interfering with the
requirements to permit other employees entry, while he was           attainment of plan rights, it does not prohibit plan
held to the exacting letter of the plan's terms. Id. at 669.         amendments which affect only one person." 24 F.3d at 1502.
Although McGath had not been fired, suspended, or                    But see Aronson v. Servus Rubber, Division of Chromalloy,
disciplined by his employer, he contended that he was                730 F.2d 12, 16 (1st Cir. 1984) (noting in dicta the possibility
nevertheless the victim of a subtle form of discrimination in        that a plan could be discriminatorily modified, intentionally
violation of § 510. The Seventh Circuit held that even if it         benefitting, or injuring, certain identified employees or a
assumed the truth of these allegations, § 510 did not provide        certain group of employees).
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,     We hold that § 510's prohibition against discrimination
Mr. McGath cannot claim that the alleged discriminatory              does not limit a plan sponsor's ability to design or amend a
injury flows from the plan amendments." Id. at 670. Neither          plan in any way it sees fit, so long as the sponsor does not
could he state a claim under § 510 by showing that others            reduce the participants' vested benefits. A plan sponsor's
were treated more favorably:                                         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
No. 02-3700                   Coomer, et al. v. Bethesda      17    18   Coomer, et al. v. Bethesda                   No. 02-3700
                                         Hospital, et al.                Hospital, et al.

right under the Plan to have the Plan amended on their behalf.      employment action; (3) he was otherwise qualified for the
Because the Hospital did not interfere with plaintiffs'             position; and (4) after he was rejected, a substantially younger
attainment of any of their rights under the Plan, we are            applicant was selected. Burzynski v. Cohen, 264 F.3d 611,
satisfied that the Hospital's amendment of the Plan did not         622 (6th Cir. 2001) (citing Barnett v. Dep't of Veterans
violate § 510 of ERISA.                                             Affairs, 153 F.3d 338, 341 (6th Cir. 1998)). The fourth
                                                                    element may be satisfied "by showing that similarly situated
  Accordingly, we affirm the district court's entry of              non-protected employees were treated more favorably."
summary judgment in favor of the Plan and the Hospital on           Talley v. Bravo Pitino Rest., 61 F.3d 1241, 1246 (6th Cir.
Plaintiffs' ERISA § 510 discrimination claim.                       1995). If the plaintiff successfully establishes a prima facie
                                                                    case, the burden of production shifts to the defendant to
D. Age Discrimination under the ADEA                                articulate a non-discriminatory reason for its adverse
                                                                    employment action. Burzynski, 264 F.3d at 622. "If the
  According to Coomer, the district court erred in entering         defendant comes up with such a reason, the plaintiff must
summary judgment on his ADEA claim because, contrary to             then demonstrate by a preponderance of the evidence that the
the district court's determinations, there were issues of fact as   defendant's proffered reason was a pretext for age
to whether he made out a prima facie case of age                    discrimination." Id.
discrimination and whether the articulated reason for not
making the requested lump sum to Coomer was pretextual.                The district court held that defendants were entitled to
                                                                    summary judgment on Coomer's ADEA claim because
  It is unlawful under the ADEA for an employer "to fail or         Coomer was not similarly situated to Rowan and because
refuse to hire or to discharge any individual or otherwise          Coomer could not show that the Hospital's proffered reason
discriminate against any individual with respect to his             for treating Coomer differently was pretextual. Because we
compensation, terms, conditions, or privileges of                   find that Coomer failed to produce any evidence that would
employment, because of such individual's age." 29 U.S.C.            suggest that the reason for the disparate treatment was
§ 623(a)(1). To establish a claim under the ADEA a plaintiff        pretextual, we will not address the issue of whether Coomer
may either produce direct evidence of age discrimination, or        made out a prima facie case of age discrimination.
rely upon circumstantial evidence that would permit an
inference of discrimination under the burden-shifting method          In Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792          (6th Cir. 1994), we explained what evidence a plaintiff must
(1973), and Texas Dep't of Cmty Affairs v. Burdine, 450 U.S.        adduce in order to show that an employer's alleged legitimate
248 (1981). Hedrick v. Western Reserve Care Sys., 355 F.3d          reason for its adverse action against the plaintiff was a mere
444, 459 (6th Cir. 2004); Kline v. Tennessee Valley Auth., 128      pretext:
F.3d 337, 348-49 (6th Cir. 1997).
                                                                      To make a submissible case on the credibility of his
  To establish a prima facie case of age discrimination under         employer's explanation, the plaintiff is required to show
the ADEA, a plaintiff must come forward with evidence that:           by a preponderance of the evidence either (1) that the
(1) he was at least 40 years old at the time of the alleged           proffered reasons had no basis in fact, (2) that the
discrimination; (2) he was subjected to an adverse
No. 02-3700                  Coomer, et al. v. Bethesda     19    20   Coomer, et al. v. Bethesda                   No. 02-3700
                                        Hospital, et al.               Hospital, et al.

  proffered reasons did not actually motivate his discharge,      motivate the Hospital to treat Rowan and Coomer differently.
  or (3) that they were insufficient to motivate discharge.       There is insufficient evidence on this record to enable a
                                                                  reasonable jury to infer that the different treatment was due to
Id. at 1084. See also Hedrick, 355 F.3d at 460. Summary           Coomer's age rather than to the size of his pension or his
judgment is appropriate when the plaintiff fails to produce       failure to articulate a special need for the distribution. The
evidence from which a jury could reasonably conclude that         district court did not err in granting summary judgment in
the employer's reasons were pretextual. Wixson v. Dowagiac        favor of the defendants on Coomer's ADEA claim.
Nursing Home, 87 F.3d 164, 171 (6th Cir. 1996).
                                                                                      III. CONCLUSION
   The Hospital produced evidence that it amended the Plan to
allow a lump sum distribution to Rowan because the amount           For all of the reasons set forth above, we AFFIRM the
above the allowable lump sum was de minimis, and because          district court's grant of summary judgment in favor of
they supported Rowan's use of the funds. The Hospital             Bethesda Hospital, Inc. and the Bethesda Hospital Employee
explained that it placed a cap on the lump sum settlement         Pension Plan.
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
