                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                   FOR THE FOURTH CIRCUIT


CHRISTOPHER GEORGE CHRISTOS;            
ROBERT L. BAILEY, JR.; JAMES M.
POPE; LORIN W. ROSS; GEORGE A.
KRIST; ALAN M. SCHWARTZMAN;
JAMES O. SLOAN; MICHAEL COHEN,
               Plaintiffs-Appellants,
                   v.                           No. 00-2007
WESTINGHOUSE SAVANNAH RIVER
COMPANY,
              Defendant-Appellee.
RICHARD E. SEIF,
                             Movant.
                                        
           Appeal from the United States District Court
           for the District of South Carolina, at Aiken.
            Cameron McGowan Currie, District Judge.
                        (CA-98-3454-1-22)

                        Argued: May 9, 2001

                        Decided: June 15, 2001

  Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
      and Arthur L. ALARCON, Senior Circuit Judge of the
       United States Court of Appeals for the Ninth Circuit,
                      sitting by designation.



Affirmed by unpublished per curiam opinion.
2          CHRISTOS v. WESTINGHOUSE SAVANNAH RIVER CO.
                             COUNSEL

ARGUED: Richard E. Miley, North Augusta, South Carolina, for
Appellants. Steven Mark Wynkoop, NELSON, MULLINS, RILEY &
SCARBOROUGH, L.L.P., Greenville, South Carolina, for Appellee.
ON BRIEF: William H. Foster, NELSON, MULLINS, RILEY &
SCARBOROUGH, L.L.P., Greenville, South Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   In connection with an economically driven decision by Westing-
house Savannah River Company ("Westinghouse") to lay off part of
its workforce — the details of which we discussed in our earlier,
related decision, Stokes v. Westinghouse Savannah River Co., 206
F.3d 420 (4th Cir. 2000) — Westinghouse offered those workers
selected for layoff who met certain pension eligibility requirements
the option either "to receive a lump-sum severance payment or a spe-
cial retirement option, but not both." Id. at 423. Specifically, upon
receiving notification that they would be laid off as of February 1997,
eligible workers could choose to be laid off earlier, in December
1996, in which case they would immediately receive full pension ben-
efits but would not receive a severance payment, or they could choose
not to be laid off until February, in which case they would receive a
severance payment but not full pension benefits until they attained the
age of 65. See id. at 423-24.

   In this case, certain laid-off workers challenge the choice offered
them on precisely the same grounds as did the plaintiff in Stokes. The
plaintiffs here allege only one additional fact not raised in Stokes —
that only those workers whose combined age and length of service
with Westinghouse made them eligible for the choice between an
            CHRISTOS v. WESTINGHOUSE SAVANNAH RIVER CO.                  3
accelerated pension benefit and a severance payment were selected
for layoff. While this selection criterion might provide the basis for
a viable claim under the Age Discrimination in Employment Act
("ADEA"), see Stokes, 206 F.3d at 429-31; cf. Hazen Paper Co. v.
Biggins, 507 U.S. 604, 613 (1993), the plaintiffs do not assert such
a claim nor did they present facts to support such a claim. Rather
these plaintiffs, unlike the plaintiff in Stokes, seek only to obtain a
severance payment in addition to the enhanced pension benefit they
selected when they opted to leave in December 1996 rather than in
February 1997. Yet, we have already held that offering workers the
choice of foregoing the severance payment in exchange for an
enhanced pension benefit is not illegal. See Stokes, 206 F.3d at 428.

   Moreover, even if the plaintiffs had asserted a claim under the
ADEA based on their selection by reason of age and were successful
in proving it, they would never be entitled to the relief they seek, i.e.,
a severance payment in addition to the enhanced pension benefit they
selected. Instead, the plaintiffs would have only been entitled to that
amount which would restore them to the positions they would have
had had they not been laid off, i.e., their "benefits [would] have to be
recomputed" to take into account both the amounts lost as a result of
the wrongful termination and those amounts gained from the pension
benefit received as a result of the termination. Id. Under no circum-
stances, however, would these plaintiffs be entitled to a severance
payment that would provide them with a windfall.

    Regardless of whether Westinghouse’s choice to terminate any par-
ticular worker was age-related, it remains true that "Westinghouse
Savannah did not discriminate against [the employees] because of
[their] age[s] when it provided [them], at the time of [their] layoff[s],
a choice between the special retirement option and a severance bene-
fit." Id. Thus, the offset itself was legal, and the plaintiffs would never
be entitled to severance pay as a remedy for any separate claim of age
discrimination that they might have brought based on the decision to
select for layoff only older workers who could be presented with a
pension benefit/severance payment option.

   Finally, the plaintiffs also challenge the district court’s decision
disposing of their South Carolina civil conspiracy claim in favor of
Westinghouse. To the extent that we have already concluded that
4          CHRISTOS v. WESTINGHOUSE SAVANNAH RIVER CO.
there was no illegal action on the part of Westinghouse in providing
the employees a choice of benefits, there can be no conspiracy. And
to the extent there may have been an illegal action that is not covered
by the plaintiffs’ other claims in this case — e.g., that the selection
decision was made in violation of the ADEA — the plaintiffs suffered
no "special damages," as required by South Carolina law. See First
Union Nat’l Bank v. Soden, 511 S.E.2d 372, 383 (S.C. Ct. App.
1998). The plaintiffs argue that the three-month pay that they opted
not to take in order to receive the enhanced pension benefit should be
considered damages. But obviously the plaintiffs chose to forego
these three months of pay precisely because they stood to gain far
more from the additional pension benefits than they stood to lose
from the loss of pay. Indeed, the record suggests that, far from suffer-
ing any damages, the plaintiffs actually benefited financially from
Westinghouse’s decision to offer pensions enhanced by their accelera-
tion in lieu of severance pay.

   For these reasons, we affirm the district court’s decision granting
summary judgment in favor of Westinghouse as to all of plaintiffs’
claims.

                                                           AFFIRMED
