James Teufel v. Northern Trust Company, et al

Filing

Filed opinion of the court by Judge Easterbrook. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6917028-1] [6917028] [17-1676, 17-1677]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________

Nos. 17-1676 & 17-1677
JAMES P. TEUFEL,

Plaintiff-Appellant,
v.

THE NORTHERN TRUST COMPANY, et al.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 14 C 7214 & 15 C 2822 — Rubén Castillo, Chief Judge.

____________________

ARGUED OCTOBER 30, 2017 — DECIDED APRIL 11, 2018
____________________
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
EASTERBROOK, Circuit Judge. In 2012 Northern Trust
changed its pension plan. Until then it had a defined-benefit
plan under which retirement income depended on years
worked, times an average of each employee’s five highestearning consecutive years, times a constant. Example: 30
years worked, times an average high-five salary of $50,000,
times 0.018, produces a pension of $27,000. (We ignore sev-

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eral wrinkles, including an offset for Social Security benefits,
a limit on the number of credited years, and a limit on the
maximum credited earnings.) The parties call this the Traditional formula. As amended, however, the plan multiplies
the years worked and the high average compensation not by
a constant but by a formula that depends on the number of
years worked after 2012. The parties call this arrangement
the new PEP formula, and they agree that it reduces the pension-accrual rate. (There is also an old PEP formula, in place
between 2002 and 2012, for employees hired after 2001; we
ignore that wrinkle too.) Recognizing that shifting everyone
to the new PEP formula would unsegle the expectations of
workers who had relied on the Traditional formula, Northern Trust provided people hired before 2002 a transitional
benefit, treating them as if they were still under the Traditional formula except that it would deem their salaries as increasing at 1.5% per year, without regard to the actual rate of
change in their compensation.
James Teufel contends in this suit that the 2012 amendment, even with the transitional benefit, violates the anticutback rule in ERISA, the Employee Retirement Income Security Act. 29 U.S.C. §§ 1001–1461. He also contends that the
change harms older workers relative to younger ones, violating the ADEA, the Age Discrimination in Employment Act.
29 U.S.C. §§ 621–34. The district court dismissed the suit on
the pleadings, 2017 U.S. Dist. LEXIS 31674 (N.D. Ill. Mar. 6,
2017), and Teufel appeals.
The anti-cutback rule provides:
The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan, other than an amendment
described in section 1082(d)(2) or 1441 of this title.

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29 U.S.C. §1054(g)(1). Neither §1082(d)(2) nor §1441 magers
to this case; the anti-cutback rule has other provisos too, but
none applies. So all that magers is the basic requirement: the
“accrued benefit” of any participant may not be decreased.
Teufel insists that the 2012 amendment reduced his “accrued
benefit” because he expected his salary to continue increasing at more than 5% a year, as it had done since he was hired
in 1998, while the 2012 amendment treats salaries as increasing at only 1.5% a year.
To analyze this contention we need to be precise about
how pension benefits are calculated for employees, such as
Teufel, hired before 2002 and still covered by the Traditional
formula until 2012. The plan first calculates an employee’s
accrued benefit as of March 31, 2012. That process starts with
the number of years of credited service, multiplies that by
the consecutive-high-five average salary, and multiplies by
0.018. The plan adjusts that result in following years by treating the high-five average (before 2012) as if that figure had
continued to increase by 1.5% a year for each year worked
after 2012. Finally, the plan adds benefits calculated under
the new PEP formula for service after March 31, 2012.
This statement of the new formula shows why Teufel
cannot succeed. If, instead of amending the plan in March
2012, Northern Trust had terminated the plan, calculated
Teufel’s accrued benefit, and deposited that sum in a new
plan with additions to come under the new PEP formula,
then Teufel would not have had any complaint. (He concedes that this is so.) What actually happened is more favorable to him: he gets the vested benefit as of March 2012 plus
an increase in the (imputed) average compensation of 1.5% a
year (for pre-2012 work) for as long as he continues working.

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Teufel wants us to treat the expectation of future salary
increases as an “accrued benefit,” but on March 31, 2012,
when the transition occurred, the only benefit that had “accrued” was the sum due for work already performed. What
a participant hopes will happen tomorrow has not accrued
in the past.
Suppose the Traditional formula had remained unchanged but that in March 2012, as part of an austerity plan,
Northern Trust had resolved that no employee’s salary could
increase at a rate of more than 1.5% a year. That would have
had the same effect on the pre-2012 component of Teufel’s
pension as the actual amendment, but a reduction in the rate
of salary increases could not violate ERISA, which does not
require employers to increase anyone’s salary. Curtailing the
rate at which salaries change would not affect anyone’s “accrued benefit.” Since that is so, the actual amendment also
must be valid.
Teufel relies on decisions such as Hickey v. Chicago Truck
Drivers Union, 980 F.2d 465 (7th Cir. 1992); Ruppert v. Alliant
Energy Cash Balance Pension Plan, 726 F.3d 936 (7th Cir. 2013);
and Shaw v. Machinists & Aerospace Workers Pension Plan, 750
F.2d 1458 (9th Cir. 1985). In these cases the language of the
pension plan itself promised an increase in pension benefits—in one, a cost-of-living adjustment, in another a rate of
interest added to the pension if the worker quit before retirement age, and in the third an adjustment in light of the
salary earned by the current holder of the retiree’s old job.
The decisions all hold that these adjustments are part of the
“accrued benefit” because they are among the pension plans’
terms. See also Central Laborers’ Pension Fund v. Heinz, 541
U.S. 739 (2004) (plan cannot agach new conditions to bene-

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fits already accrued). But nothing in the Northern Trust
plan’s Traditional formula guarantees that any worker’s salary will increase in future years. Teufel and others like him
have a hope that it will, maybe even an expectation that it will,
but not an entitlement that it will—and for the purpose of
identifying the “accrued benefit” that’s a vital difference.
ERISA protects all entitlements that make up the “accrued
benefit” but does not protect anyone’s hope that the future
will improve on the past. See CinoNo v. Delta Air Lines Inc.,
674 F.3d 1285, 1296–97 (11th Cir. 2012).
One additional ERISA contention calls for brief mention.
Teufel maintains that the plan’s administrator violated 29
U.S.C. §1054(h)(2) because it did not furnish all participants
with a writing that described the 2012 amendment “in a
manner calculated to be understood by the average plan participant”. To the extent Teufel faults the description for failing to tell participants that the amendment eliminated an accrued benefit, this contention fails for the reasons we have
already given. To the extent that Teufel finds the language
too complex—well, it seems clear to us, and it isn’t apparent
how it could have been made much simpler (all of these
pension formulas have complexities). True, what seems clear
to a federal judge may not be clear to “the average plan participant”, but Northern Trust provided its staff with an
online tool that showed each worker exactly what would
happen to that worker’s pension, under a number of different assumptions about future wages and retirement dates,
and under both the pre-2012 approach and the amended
plan. A precise participant-specific summation is hard to
beat for clarity and complies with §1054(h)(2). Teufel makes
a few other arguments based on ERISA, but they do not require discussion.

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Teufel’s argument under the ADEA fares no beger. He
acknowledges that the plan as a whole, and the 2012
amendment, is age-neutral, for pension eligibility is distinct
from age. See Kentucky Retirement Systems v. EEOC, 554 U.S.
135 (2008); Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993).
Still, he maintains, the correlation between pension eligibility and age—plus the fact that the high-five-average feature
of the Traditional formula was most valuable to older workers approaching their highest-earning years—means that the
2012 amendment produces a disparate impact that violates
the ADEA. (Smith v. Jackson, 544 U.S. 228 (2005), holds that a
form of disparate-impact analysis applies under the ADEA.)
The Traditional formula treats older workers beger than
younger ones (the high-five-average feature is more valuable
the older one gets); and from this it follows that the elimination of the formula (or its reduction to a 1.5% annual increase) harms older workers relative to younger ones. So the
argument goes.
We are skeptical about the proposition that curtailing a
benefit correlated with age, and so coming closer to eliminating the role of age in pension calculations, can be understood
as discrimination against the old. Kentucky Retirement Systems holds that a pension benefit for older workers does not
violate the ADEA, but not that any such benefit, once extended, must be continued for life. At all events, the Supreme Court has never held that the disparate impact of an
age-neutral pension plan can violate the statute. To the contrary, Kentucky Retirement Systems tells us that the relation
between the ADEA and pension plans should be understood
through the language of 29 U.S.C. §623(i), which directly addresses the topic.

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Section 623 as a whole is the basic rule against age discrimination. Section 623(i)(2) provides that “[n]othing in this
section” (that is, all of §623) prohibits an employer from “observing any provision of an employee pension benefit plan
to the extent that such provision imposes (without regard to
age) a limitation on the amount of benefits that the plan provides or a limitation on the number of years of service or
years of participation which are taken into account for purposes of determining benefit accrual under the plan.” Just to
avoid any doubt, §623(i)(4) adds: “Compliance with the requirements of this subsection with respect to an employee
pension benefit plan shall constitute compliance with the requirements of this section relating to benefit accrual under
such plan.” In other words, a pension plan that complies
with §623(i) does not violate the ADEA.
The Northern Trust pension plan, both before and after
the 2012 amendment, complies with §623(i). Benefits depend
on the number of years of credited service and the employee’s salary, not on age. Because salary generally rises with
age, and an extra year of credited service goes with an extra
year of age, the plan’s criteria are correlated with age—but
both Kentucky Retirement Systems and Hazen Paper hold that
these pension criteria differ from age discrimination. An
employer would fall outside the §623(i) safe harbor if, for example, the amount of pension credit per year were a function of age rather than the years of credited service, or if
pension accruals stopped or were reduced at a firm’s normal
retirement age. See 29 U.S.C. §623(i)(1). Stopping pension
accruals at age 65 used to be a common feature of definedbenefit plans. Under §623(i)(1)(A) that is no longer lawful.
The Northern Trust plan, however, allows accruals past the
normal retirement date, and accruals do not otherwise de-

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pend on age. Because the plan complies with §623(i), it satisfies the ADEA.
AFFIRMED