       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 PENNINGTON; HAROLD

          Plaintiffs- Appellees/ 
 GENE CUNNINGHAM,
                                   
             Cross-Appellants, 
                                       Nos. 98-6398/6416

                                   
                                    >
            v.                     
                                   
                                   
          Defendant-Appellant/ 
 WESTERN ATLAS, INC.,

               Cross-Appellee. 
                                   
                                  1
       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 &

                            1
2    Pennington, et al. v.                 Nos. 98-6398/6416
     Western Atlas, Inc.

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
18   Pennington, et al. v.                Nos. 98-6398/6416      Nos. 98-6398/6416                    Pennington, et al. v.      3
     Western Atlas, Inc.                                                                               Western Atlas, Inc.

                      CONCLUSION                                 that Defendant failed to pay him overtime in accordance with
                                                                 his alleged non-exempt status.
   For the above stated reasons, the district court’s judgment
is AFFIRMED in Case No. 98-6398 as well as in Case No.             A jury trial ensued on December 8-12, and December 15,
98-6416.                                                         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
4    Pennington, et al. v.                Nos. 98-6398/6416       Nos. 98-6398/6416                    Pennington, et al. v.     17
     Western Atlas, Inc.                                                                                Western Atlas, Inc.

Division (“MHD”). MHD sold material handling systems,             benefit payments, and that the pattern of terminations was that
such as conveyor lines, to move packages and/or parts within      more people over the age of fifty were terminated than would
warehouses for customers such as Federal Express and United       be expected in a random process, so as to indicate that it was
Air Lines. Litton sold the MHD in November of 1996.               more likely than not that Defendant was trying to cover-up its
                                                                  true motivation in discharging Plaintiffs. See id.
   Pennington began working for Defendant’s predecessor in
1956, and remained employed by Defendant until 1993, when           As such, Defendant’s claim on this issue fails. See Manzer,
he was terminated as part of Defendant’s workforce                29 F.3d at 1084. We are further persuaded in our opinion by
reduction. At the time of Pennington’s termination, he earned     the fact that an advisory jury rendered its decision in this case,
an annual salary of $29,708 and received health, pension and      the credibility of witnesses is involved in ascertaining pretext,
life insurance benefits as part of his employment benefits        and that this Court should give “due regard” to the jury’s
package. Pennington was sixty years old at the time of his        determination of credibility. See Ellis, 177 F.3d at 505; Fed.
termination, but he had planned to work until the age of sixty-   R. Civ. P. 52(a).
five. As a result of Pennington’s employment being
terminated at age sixty rather than age sixty-five, his pension               Case No. 98-6416 -- Cross-Appeal
benefits were reduced by approximately one-half; therefore,
Pennington currently receives $7,692 per year in pension             Plaintiffs cross appeal arguing that the jury’s verdict in
benefits and no health insurance benefits. Had Pennington         favor of Defendant on Plaintiffs’ ADEA claim was against the
remained employed by Defendant until age sixty-five, he           great weight of the evidence. In order to preserve a challenge
would have received twice the amount that he currently            to a jury verdict as being against the great weight of the
receives in pension benefits for his life expectancy of 79        evidence, the appellant must have made a motion for a new
years.                                                            trial in district court. See Dixon v. Montgomery Ward, 783
                                                                  F.2d 55 (6th Cir. 1986). Failure to do so precludes appellate
   Cunningham began working for Litton Industries in 1966,        review. Id. (quoting 6A J. Moore, J. Lucas, & G. Grotheer,
and was eventually promoted to senior mechanical engineer.        Moore’s Federal Practice, ¶ 5915[3] at 59-326 to 327 (2d ed.
Cunningham was also terminated as a result of a workforce         1985) noting that “the discretionary power of the district court
reduction. Cunningham was fifty-nine years old at the time        to give relief from an error of fact must first be invoked”).
of his termination in 1993, and like Pennington, had planned
to work until the age of sixty-five. At the time of his             Here, Plaintiff failed to make a motion for a new trial or
termination, Cunningham earned an annual salary of $47,164,       judgment notwithstanding the verdict in district court in
and received health, pension and life insurance benefits as       relation to their claim that the jury’s verdict was against the
part of his employment benefits package. Cunningham               great weight of the evidence. Therefore Plaintiffs’ claim is
currently receives $12,276 per year in pension benefits and no    not properly before us – as conceded by Plaintiffs at oral
health insurance benefits. Had Cunningham remained                argument. See Cone v. West Virginia Pulp & Paper, 330 U.S.
employed by Defendant until age sixty-five, he would have         212, 216 (1947) (“Determination of whether a new trial
received annual pension benefits in the amount of $23,548.75      should be granted or a judgment entered under Rule 50(b)
for his average life expectancy of 78.8 years.                    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.”).
16   Pennington, et al. v.                 Nos. 98-6398/6416       Nos. 98-6398/6416                   Pennington, et al. v.     5
     Western Atlas, Inc.                                                                                Western Atlas, Inc.

  13. Coons, who worked with Cunningham from 1982                    Cunningham’s pension and medical costs to Defendant
      through 1992, testified that he had never witnessed          would have been $7,110 per year for fiscal years 1994-1997.
      Cunningham disrupting the workplace.                         Pennington’s pension and medical costs to Defendant would
      Furthermore, Cunningham had performed contract               have been $2,256 per year for fiscal years 1994-1997.
      work for Acculift since his termination from                 Defendant’s ten-year pension and medical costs savings on all
      Western Atlas, and, while at Acculift, Cunningham            older employees offered early retirement during the
      met all schedules.                                           “downsizing” was $12,262,176.71.
  14. Flaig, who also worked with Cunningham, testified              In 1992, Keith Wheeler, President of the MHD, and
      that Cunningham met schedules, worked on CAD,                Barbara Carr, a Human Resources Department employee,
      always maintained a professional attitude, and did           asked Steven Parsley, the manager of Systems Analysis
      not disrupt the workplace.                                   Engineering, to modify a Lotus spreadsheet that sorted
                                                                   employee information by name, birth date, date of hire,
(J.A. at 78-79 (transcript cites omitted).) Accordingly, as        whether the employee smoked, and the employee’s benefit
found by the district court, and as supported by the record,       program information. Wheeler and Carr informed Parsley
Plaintiffs did not merely rely upon their prima facie evidence     that they were interested in reducing salaries and medical
that their discharge resulted in a decrease in pension benefits    costs and that they were not concerned about lawsuits. In that
and that Defendant had been looking for ways to decrease its       same year, Plaintiff Cunningham and three other senior
costs associated with employee benefits, to show that              project engineers were left in the engineering department.
Defendant’s proffered reasons for terminating Plaintiffs were      The head of the engineering department, Jim Gable, told
a mere pretext. Rather, Plaintiffs came forward with               Cunningham and the other three engineers that they were
additional evidence which specifically rebutted Defendant’s        marked for lay-off, but that their names were removed from
alleged reasons for terminating each Plaintiff.                    the list on the advice of Litton’s lawyers. In 1993, all four of
                                                                   the senior project engineers either took an early retirement or
   Plaintiffs’ evidence offered to rebut Defendant’s alleged       were terminated as part of Defendant’s alleged reduction in
reasons consisted of the type one evidence as well as the type     workforce plan. One of the senior project engineers, Mr.
two evidence described in Manzer. That is to say, evidence         Shirley, took an early retirement, but was then hired back by
that Defendant’s claims were factually false, as well as           Defendant as a contractor receiving no benefits associated
evidence that circumstances were such that it was more likely      with his pay.
than not that Defendant had an improper motive in
discharging Plaintiffs. See Manzer, 29 F.3d at 1084. For             Also in 1992, Bill Hines was hired by Litton to “interface
example, Plaintiffs offered evidence by way of performance         with employees” and to recruit new employees; in 1993,
appraisals that their supervisors rated their work above quality   Hines actively recruited at Georgia Tech and other institutions
or excellent just one year to a few months before their            for openings in the engineering department. In February of
discharge, so as to indicate that Defendant’s claims that          1993, Defendant hired twenty-four new employees.
Pennington received low evaluations and Cunningham did not
finish his work on time or use the state of the art equipment        Hines prepared a reduction in workforce memorandum
were false. See id. Plaintiffs also introduced evidence to         entitled “HIGH RISK” which flagged employees by salary,
show that Defendant was seeking to cut costs associated with       age, disability, premature births of children, surgeries, and
6    Pennington, et al. v.                Nos. 98-6398/6416      Nos. 98-6398/6416                         Pennington, et al. v.       15
     Western Atlas, Inc.                                                                                    Western Atlas, Inc.

exemption status. Plaintiff Cunningham’s name was on the           Accordingly, we hold that, in order to make this type of
“HIGH RISK” list and his age was highlighted. Hines                rebuttal showing, the plaintiff may not rely simply upon
testified that Defendant’s Human Resources department made         his prima facie evidence but must, instead, introduce
the selections of which employees would be terminated in           additional evidence of age discrimination.
connection with the reduction in workforce plan. Plaintiffs’
expert witness, Dr. Harvery Rosen, testified that Defendant’s    Manzer, 29 F.3d at 10842.
pattern of downsizing was not age neutral inasmuch as more
employees over the age of fifty were terminated than would         Here, the district court found as follows regarding
be expected in a random process.                                 Defendant’s proffered reasons for discharging Plaintiffs, and
                                                                 Plaintiffs’ evidence to rebut those reasons:
  Defendant’s stated reason for terminating Pennington was
that Pennington had the lowest evaluations in his department.      8.    The defendant’s stated reason for terminating
However, Pennington’s former supervisors did not criticize               Pennington was that he had the lowest evaluations in
his work performance, and Pennington’s former supervisor,                his department.
Mike Vogt, could not recall any problems with Pennington’s
work. Notably, Pennington’s supervisor from 1982 through           9.    Individuals from Western Atlas’ Human Resources
February of 1992, Robert Malone, thought that Pennington’s               Department provided Pennington’s supervisor with
work was meticulous, gave Pennington satisfactory                        the names of the individuals to be laid off.
performance evaluations, and rated Pennington’s work as
“excellent.”                                                       10. Pennington’s former supervisors had no criticism of
                                                                       Pennington’s work. Indeed, Malone, Pennington’s
  Defendant’s stated reasons for terminating Cunningham                supervisor from 1982 through 1992, rated
was because he (1) did not meet schedules; (2) did not use             Pennington’s work satisfactory to above satisfactory
Computer Aided Design technology; and (3) disrupted the                and stated that his work was excellent.
workplace.      However, David Gilkes, Cunningham’s
immediate supervisor, evaluated Cunningham’s performance           11. The defendant provided the following reasons for
as “above-quality work” in Cunningham’s 1993 performance               selecting Cunningham for termination: (1) he did
evaluation. Cunningham’s co-worker, Randy Coons, worked                not meet schedules; (2) he did not use Computer
with Cunningham from 1982 through 1992, and stated that he             Aided Design (CAD); and (3) he disrupted the
never witnessed Cunningham disrupting the workplace.                   workplace.
Another co-worker, Robert Flaig, testified that Cunningham         12. Gilkes, Cunningham’s immediate supervisor,
met schedules, worked on the Computer Aided Design                     evaluated Cunningham as performing “above quality
technology, always maintained a professional attitude, and did         work” on his 1993 evaluation.
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               2
                                                                       Kline also dealt with the requirements for showing pretext; however,
employee’s final years of employment, Defendant’s                the plaintiff in Kline brought claims under the ADEA as well as under
                                                                 Title VII. See 128 F.3d at 339, 349-51.
14   Pennington, et al. v.                  Nos. 98-6398/6416      Nos. 98-6398/6416                        Pennington, et al. v.         7
     Western Atlas, Inc.                                                                                     Western Atlas, Inc.

show that an employer’s alleged legitimate reason for its          contributions escalated.1 The record indicates that Defendant
adverse action against the plaintiff was a mere pretext:           contributed to Pennington and Cunningham’s pension funds.
    To make a submissible case on the credibility of his                                       ANALYSIS
  employer’s explanation, the plaintiff is required to show
  by a preponderance of the evidence either (1) that the                             Case No. 98-6398 – Appeal
  proffered reasons had no basis in fact, (2) that the
  proffered reasons did not actually motivate his discharge,         Defendant argues that the district court erroneously
  or (3) that they were insufficient to motivate discharge.        concluded that Defendant was motivated by its specific intent
  The first type of showing is easily recognizable and             to interfere with Plaintiffs’ pension benefits when it laid
  consists of evidence that the proffered bases for the            Plaintiffs off from their jobs. We disagree.
  plaintiff’s discharge never happened, i.e., that they are
  factually false. The third showing is also easily                   This Court reviews a district court’s findings of fact for
  recognizable and, ordinarily, consists of evidence that          clear error, and a district court’s conclusions of law de novo.
  other employees, particularly employees not in the               Tucker v. Calloway County Bd. of Educ., 136 F.3d 495, 503
  protected class, were not fired even though they engaged         (6th Cir. 1998). “‘In all actions tried upon the facts without
  in substantially identical conduct to that which the             a jury or with an advisory jury, the court shall find the facts
  employer contends motivated its discharge of the                 specially and state separately its conclusions of law
  plaintiff. These two types of rebuttals are direct attacks       thereon. . . . Findings of fact, whether based on oral or
  on the credibility of the employer’s proffered motivation        documentary evidence, shall not be set aside unless clearly
  for firing plaintiff and, if shown, provide an evidentiary       erroneous, and due regard shall be given to the opportunity of
  basis for what the Supreme Court has termed “a                   the trial court to judge of the credibility of the witnesses.’”
  suspicion of mendacity.”                                         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
    The second showing, however, is of an entirely                 although there is evidence to support it, the reviewing court
  different ilk. There, the plaintiff admits the factual basis     on the entire evidence is left with a firm and definite
  underlying the employer’s proffered explanation and              conviction that a mistake has been committed.” United States
  further admits that such conduct could motivate                  v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
  dismissal. The plaintiff’s attack on the credibility of the
  proffered explanation is, instead, an indirect one. In such        In Smith v. Ameritech, this Court announced the
  cases, the plaintiff attempts to indict the credibility of his   requirements that a plaintiff must meet in order to state a
  employer’s explanation by showing circumstances which            claim under ERISA § 510 as follows:
  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                1
                                                                         Defendant argues on appeal that the pension fund was over-funded;
  not” that the employer’s explanation is a pretext, or a          however, as noted by Plaintiffs, Defendant does not support this argument
  coverup.                                                         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.)
8      Pennington, et al. v.                 Nos. 98-6398/6416     Nos. 98-6398/6416                    Pennington, et al. v.    13
       Western Atlas, Inc.                                                                               Western Atlas, Inc.

      To state a claim under § 510, the plaintiff must show        that the district court did not err in concluding that Plaintiffs
    that an employer had a specific intent to violate ERISA.       established a prima facie case under ERISA § 510, which
    In the absence of direct evidence of such discriminatory       brings us to Defendant’s alternative argument; namely, even
    intent, the plaintiff can state a prima facie case by          if the district court was correct in finding that Plaintiffs
    showing the existence of (1) prohibited employer               established a prima facie case, the district court erred in
    conduct (2) taken for the purpose of interfering (3) with      concluding that Defendant’s alleged reasons for Plaintiffs’
    the attainment of any right to which the employee may          discharge were pretextual.
    become entitled.
                                                                   B. Whether Plaintiffs Established that Defendant’s
       Although . . . not classif[ied] . . . as part of the           Alleged Reasons for Their Terminations were a Mere
    plaintiff’s prima facie case, . . . a plaintiff must show a       Pretext to Allow Defendant to Interfere with
    causal link between pension benefits and the adverse              Plaintiffs’ Retirement Benefits
    employment decision. In order to survive [the]
    defendants’ motion for summary judgment, [the] plaintiff         Defendant argues in the alternative that the district court
    must come forward with evidence from which a                   erred in concluding that Defendant’s articulated reasons for
    reasonable jury could find that the defendants’ desire to      Plaintiffs’ layoffs were pretextual. Specifically, Defendant
    avoid pension liability was a determining factor in [the]      contests the following conclusion of law made by the district
    plaintiff’s discharge. . . . [I]n an interference claim, the   court:
    alleged illegal activity will have a causal connection to
    the plaintiff’s ability to receive an identifiable benefit.    3.   The defendant proffered the following reasons for
                                                                        selecting the plaintiffs for termination: poor
129 F.2d 857, 865 (6th Cir. 1997) (internal quotation marks             performance, disrupting the workplace, and failing
and citations omitted).                                                 to use CAD. The plaintiffs offered substantial
                                                                        evidence (stated above) that the plaintiffs were in
   Here, the district court concluded that “it is not really            fact above average performers, did not disrupt the
disputed that the plaintiffs have established a prima facie case        workplace and did in fact use CAD. The court, with
[of interference under § 510]. By terminating the plaintiffs at         the aid of an advisory jury, disbelieved the proffered
ages 59 and 60, the defendant avoided paying the additional             reason[s] for discharge.
benefits to which the plaintiffs would have become entitled.
The issue, here, is whether the plaintiffs established the         (J.A. at 82.) Defendant claims that the district court erred in
necessary causal link between the pension benefits and the         so concluding “because the disbelief of the proffered
adverse employment decision.” (J.A. at 81-82.) Having so           reason[s] by the Court (and the advisory jury) is simply a
concluded, the district court then addressed whether               disagreement with Western’s business judgment – Plaintiffs
Defendant advanced a legitimate reason for terminating             did not show pretext under the test established by Manzer v.
Plaintiffs, and whether Plaintiffs sufficiently rebutted the       Diamond Shamrock, 29 F.3d 1078, 1083-84 (6th Cir. 1994)
alleged legitimate reason for discharge. The court further         and Kline v. Tennessee Valley Authority, 128 F.3d 337 (6th
concluded as follows:                                              Cir. 1997)[.]” We disagree.
                                                                     In Manzer, a case brought under the ADEA, this Court
                                                                   explained what evidence a plaintiff must adduce in order to
12    Pennington, et al. v.               Nos. 98-6398/6416       Nos. 98-6398/6416                   Pennington, et al. v.     9
      Western Atlas, Inc.                                                                              Western Atlas, Inc.

discharge was motivated by the defendant’s intent to interfere    3.   The defendant proffered the following reasons for
with the plaintiff’s retirement benefits. Id. at 457-58.               selecting the plaintiffs for termination: poor
                                                                       performance, disrupting the workplace, and failing
  Unlike in Rush, the evidence in the instant case established         to use CAD. The plaintiffs offered substantial
that Defendant was aware that terminating Plaintiffs before            evidence (stated above) that the plaintiffs were in
the age of sixty-five would interfere with an established              fact above average performers, did not disrupt the
retirement benefit (the amount of annual pension funds                 workplace and did in fact use CAD. The court, with
received) – i.e., the additional annual pension funds received         the aid of an advisory jury, disbelieved the proffered
by Plaintiffs had they worked until sixty-five-years of age was        reason for discharge.
known to both Plaintiffs and Defendant alike. Evidence of
Defendant’s knowledge that they were interfering with             4.   Once a plaintiff has disproved the defendant’s
Plaintiffs’, as well as other employees’ benefits, was noted by        proffered reason for termination, the fact finder is
the district court in its findings of fact:                            entitled to infer a discriminatory reason for such
                                                                       termination. Kline v. Tennessee Valley Authority,
  15. In 1992, Keith Wheeler, President of the Material                128 F.2d [sic] 337 (6th Cir. 1997). In this case, the
      Handling Systems Group, and Barbara Carr, a                      plaintiff[s] offered evidence to disprove the
      Human Resources Department employee, asked                       defendant’s stated reason[s] for termination. The
      Steven Parsley, the manager of Systems Analysis                  court, with the aid of an advisory jury, chooses to
      Engineering, to modify a Lotus spreadsheet that                  infer that a desire to reduce pension liability was a
      sorted employee information by name, birth date,                 determining factor in the plaintiffs’ discharge.
      date of hire, whether the employee smoked, and
      benefit program information.                                (J.A. at 82.)
  16. Wheeler and Carr told Parsley that they wanted to           A. Whether Plaintiffs Established a Prima Facie Case
      reduce salaries and medical costs and that they were           Under ERISA § 510
      not concerned about lawsuits.
                                                                    On appeal, Defendant claims that the district court’s
  17. According to plaintiffs’ expert witness, Dr. Harvey         conclusion that Plaintiff established a prima facie case of
      Rosen, the pattern of terminations during the               interference was erroneous. Relying upon Humphreys v.
      Western Atlas downsizing was not age neutral                Bellaire Corp., 966 F.2d 1037 (6th Cir. 1992) and Rush v.
      because more people age 50 and over were                    United Technologies, Otis Elevator Division, 930 F.2d 453
      terminated than would be expected in a random               (6th Cir. 1991), Defendant argues that “this Court repeatedly
      process.                                                    has found that an employee’s incidental loss of the
                                                                  opportunity to accrue additional benefits is not evidence of
(J.A. at 79.)                                                     unlawful ERISA interference with pension rights[,]” and thus,
                                                                  the district court erroneously concluded that Plaintiffs
   Therefore, Defendant’s reliance upon Rush is misplaced, as     established a prima facie case simply because Defendant
is its reliance upon Humphreys, where Rush is distinguishable     avoided paying additional pension benefits to Plaintiffs by
and Humphreys supports the district court’s conclusions and       laying them off. Defendant contends that Plaintiffs failed to
inures to the benefit of Plaintiffs. Having so opined, we hold
10    Pennington, et al. v.                 Nos. 98-6398/6416       Nos. 98-6398/6416                    Pennington, et al. v.    11
      Western Atlas, Inc.                                                                                 Western Atlas, Inc.

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