Loucks v. Middle Country School District No.11

Filing 41

ORDER granting 35 Motion for Summary Judgment; denying [] Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that plaintiff's motion for summary judgment is denied and defendant's motion for summary judgment is granted in its entirety. The Clerk of the Court shall enter judgment and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/17/2012. (O'Neil, Jacquelyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-4631(JFB) (AKT)
_____________________

MARGARET R. LOUCKS,
Plaintiff,
VERSUS

BOARD OF EDUCATION OF MIDDLE COUNTY SCHOOL DISTRICT NO. 11,
Defendant.
___________________
MEMORANDUM AND ORDER
July 17, 2012
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Margaret R. Loucks (“Loucks”
or “plaintiff”) commenced this action
against the Board of Education of Middle
County School District No. 11 (the “School
District”
or
“defendant”),
alleging
discrimination in violation of the Age
Discrimination in Employment Act, 29
U.S.C. § 621, et seq. (the “ADEA”).
Plaintiff, who was an employee of the
School District from 1970-1996, alleges that
the negotiated terms of the collective
bargaining agreement between the School
District and the Middle County Teachers
Association (“MCTA”) discriminate against
her based on her age. In particular, plaintiff
was eligible for an early retirement incentive
package in 1993 at 55 years’ old, but
declined the incentive and continued to work
until she retired in 1996. Plaintiff claims
that the retirement incentive discriminates

against her on account of her age because
the District pays only 50% of her health
insurance benefits, while it pays 100% for
those employees who opted to take the
incentive.
Currently before the Court are the
parties’
cross-motions
for
summary
judgment. For the reasons set forth below,
defendant’s motion for summary judgment
is granted and plaintiff’s motion for
summary judgment is denied. Specifically,
the undisputed terms of the collective
bargaining agreement’s early retirement plan
demonstrate that the plan offers an actual
financial incentive to retire early, and that
the incentive falls within the safe harbor
provision of the ADEA, 29 U.S.C.
§ 623(f)(2)(B)(ii). The Court, pursuant to
the safe harbor provision, holds that this
retirement incentive is consistent with the
relevant purpose of the ADEA and does not

arbitrarily discriminate on the basis of age.
In fact, in Auerbach v. Board of Education
of the Harborfields Central School District
of Greenlawn, 136 F.3d 104, 107 (2d Cir.
1998), the Second Circuit upheld an early
retirement incentive under the ADEA that is
similar in all material respects to the
retirement incentive at issue in this case.
Plaintiff’s counsel attempts to argue (in his
papers and at oral argument) that Auerbach
was based upon a factual misunderstanding
and is erroneous. As a threshold matter, the
Court does not agree that Auerbach was
based upon an erroneous factual assumption.
In any event, Auerbach is binding authority
on this Court. In short, as in Auerbach, the
retirement incentive at issue in this case
constitutes a permissible early retirement
incentive plan within the meaning of the
safe harbor provision of the ADEA, and thus
plaintiff’s claim fails as a matter of law.
Accordingly, summary judgment in
defendant’s favor on the only claim in this
case is warranted.
I.

On March 31, 1970, the School District
hired plaintiff to work as a librarian and
plaintiff’s first day of employment was
September 1, 1970. (Def.’s 56.1 ¶¶ 1, 2.)
Plaintiff retired on July 1, 1996. (Id. ¶ 3.)
Plaintiff was born on January 18, 1938, and
her 55th birthday occurred on January 18,
1993. (Id. ¶¶ 13, 14.)
1. The Retirement Incentive and Terminal
Allowance Provision
The School District entered into a
collective bargaining agreement with the
MCTA which covered the period of time
from July 1, 1992 through June 30, 1996
(the “CBA”). (Id. ¶ 4.) The CBA contained
a retirement inventive which provided, in
part, that:
133. A. Teachers are eligible for a
retirement incentive if they meet the
following conditions:
1. The teacher has been in employ
of the District for ten (10) years or
more; and

BACKGROUND
A. Facts

2. The teacher retires on July 1st
following his/her 55th birthday.
However, teachers who turn age 55
between July 1st and August 31st
may elect to retire the month they
reach age 55; and

The Court has taken the facts set forth
below from the parties’ depositions,
affidavits, and exhibits, and from the parties’
respective Rule 56.1 statements of facts.
Upon consideration of a motion for
summary judgment, the Court shall construe
the facts in the light most favorable to the
non-moving party. See Capobianco v. City
of New York, 422 F.3d 47, 50 (2d Cir. 2005).
Unless otherwise noted, where a party’s 56.1
statement is cited, that fact is undisputed or
the opposing party has pointed to no
evidence in the record to contradict it.1

3. An irrevocable letter of retirement
is given to the Superintendent no
later than February 1st of the year of
retirement.
(Id. ¶¶ 5, 6.2) There is a footnote to Section
133.A(1) that provides that:
Rule 56.1 statements, rather than the underlying
citation to the record, when utilizing the 56.1
statements for purposes of this summary of facts.
2
Plaintiff denies the statements in defendant’s 56.1
paragraphs 5-6, 8-12, 15, 17, 20-24 and 33 “to the

1

In addition, although the parties’ Rule 56.1
statements contain specific citations to the record to
support their statements, the Court has cited to the
2

Teachers hired prior to July 1, 1989
who reach age 55 but do not have ten
(10) years of service in the District
but have twenty (20) years or more
of service in the NYSTRS and meet
the requirements of (2) and (3)
below, shall be eligible for the
benefits provided in subsections (2)(5).

received a 40% contribution from the School
District upon retirement. (Id. ¶ 11.3)
Plaintiff had the option of retiring under
the terms of the retirement incentive in 1993
when she was 55 years old. (Def.’s 56.1
¶¶ 12.4) Pursuant to the terms of the CBA,
plaintiff qualified to retire under the
retirement incentive on July 1, 1993. (Def.’s
56.1 ¶ 15.)

(Id. ¶ 7.) There also is a footnote to Section
133.A(2) that provides:

Paragraph 134 of the CBA, the Terminal
Allowance Provision, provides that:

The provisions of this incentive shall
be available to teachers over age 55
who do not have at least twenty (20)
years of service in the year they
reach age 55 provided they retire on
the July 1st following the year in
which they first have twenty years of
service.

Terminal Allowance
Members of the unit shall be entitled
to terminal allowance upon their
leaving the District computed at the
rate of one (1) day’s pay (1/200th)
for each five (5) days of accumulated
unused sick/personal leave provided
they meet the following conditions:

(Id. ¶ 8.) The retirement incentive offered
the retiree a $15,000.00 lump sum payment
and one day’s pay for each five days of
accumulated unused sick/personal leave at
the time of retirement up to a maximum of
46 days minus $100 for each day of
sick/personal leave used above three days in
the teacher’s last year of employment. (Id.
¶ 9.) The retirement incentive provided that
teachers who retired pursuant to its terms
received a 100% contribution from the
School District towards health insurance
premiums. (Id. ¶ 10.) Teachers who did not
avail themselves of the retirement incentive

A. The teacher had not received or
will not receive a retirement
incentive;
B. The teacher has been in the
employ of the District for ten (10)
years or more;
C. Written notice is given to the
Superintendent by February 15th or
in the case of excessed teachers,
thirty (30) days following their
notice of intent to excess;

3

Plaintiff again, while not disputing the language of
the CBA, disputes its legal interpretation. (Pl.’s Opp.
56.1 ¶¶ 10-11.)
4
Plaintiff acknowledges that she had the option of
retiring under the retirement incentive, but contends
that she could not have retired pursuant to the age
restrictions contained in paragraph 133 of the CBA
without suffering other disadvantages. (Pl.’s Opp.
56.1 ¶ 12.)

extent that an admission might be interpreted as a
concession that paragraph 133 of the Collective
Bargaining Agreement is a ‘voluntary early
retirement incentive plan’ under 29 U.S.C.
§ 623(f)(2).” (Pl.’s Opp. 56.1 ¶¶ 5-6, 5-6, 8-12, 15,
17, 20-24, 33.) However, it is undisputed that the
above-referenced language of the CBA is accurate.
3

D. Payments shall be made no later
than the second payroll period in
July following their leaving the
District.

higher monthly pension than she would have
received if she retired at age 55. (Id. 56.1
¶ 27.) The value of a retiree’s pension is
calculated by averaging the three highest
years of that retiree’s salary, and plaintiff
earned her three highest annual salaries
when she was 56, 57, and 58 years old. (Id.
¶¶ 28, 29.)

(Id. ¶ 16.)
2. Plaintiff’s Retirement
Although plaintiff was eligible to retire
under the terms of the retirement incentive
on July 1, 1993, plaintiff retired three years
later on July 1, 1996 when she was 58 years
old. (Id. ¶¶ 15, 17, 18, 19.) Plaintiff was
aware: (1) of the terms of the retirement
incentive when she was 54 years old, and
possibly prior to that time; (2) that, under
the terms of the retirement incentive,
employees who retired at age 55 were
entitled to a lump sum payment; and (3)
that, under the terms of the retirement
incentive, employees who retired at age 55
were entitled to receive 100% of their health
benefits paid during the periods of their
retirement. (Id. ¶¶ 20, 21, 22.) Plaintiff was
aware of approximately ten (10) employees
who retired before she did pursuant to the
terms of the retirement incentive. (Id. 56.1
¶ 23.5)
Defendant asserts that plaintiff
expressly rejected the Retirement Incentive
when she was eligible for it, while plaintiff
asserts that Loucks did not expressly reject it
but admits that she continued her
employment with defendant when and after
she reached the age of 55. (Id. 56.1 ¶ 24;
Pl.’s Opp. 56.1 ¶ 24.)

Plaintiff retired pursuant to the Terminal
Allowance provision. (Id. ¶ 31.) According
to defendant, the Terminal Allowance
provides the retiree with a 50% contribution
towards health care premiums. (Id. 56.1
¶ 32.6) Plaintiff was aware of the benefits
afforded to her pursuant to the Terminal
Allowance provision when she elected not to
retire pursuant to the terms of the retirement
incentive. (Id. ¶ 33.)
B.

Procedural History

Defendant filed its motion for summary
judgment on December 8, 2011. Plaintiff
filed her opposition to defendant’s motion
for summary judgment and cross-motion for
summary judgment on January 9, 2012.
Defendant filed a reply to its motion for
summary judgment and opposition to
plaintiff’s cross-motion for summary
judgment on January 27, 2012. Plaintiff
filed a reply on her cross-motion on
February 9, 2012. Oral argument was held
on April 3, 2012. The Court has fully
considered the arguments of the parties.

Plaintiff continued working until she was
58 years old so that she could retire with a
higher pension than she would have received
if she had retired pursuant to the terms of the
retirement incentive because she “wanted to
build [up] her final salary.” (Def.’s 56.1 ¶¶
25, 26.) Accordingly, plaintiff received a

6

Plaintiff denies this statement “[b]ecause the
evidence cited does not say what the defendant
claims it says” but “admit[s] that, at the time that the
plaintiff retired from the employ of the defendant,
defendant maintained a policy under which it paid 50
percent of the costs of the health insurance benefits
for its retired employees if the employees retired
from the employ of the defendant after the time they
reached the age of 55 years, with certain limited
exceptions.” (Pl.’s Opp. 56.1 ¶ 32.)

5

Plaintiff does not dispute this fact, but objects to
this fact as irrelevant. (Pl.’s Opp. 56.1 ¶ 23.)
4

3.

facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986) (emphasis in original)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at
249-50, 106 S. Ct. 2505 (citations omitted).
Indeed, “the mere existence of some alleged
factual dispute between the parties” alone
will not defeat a properly supported motion
for summary judgment. Id. at 247-48, 106
S. Ct. 2505 (emphasis in original). Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Group, Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

STANDARD OF REVIEW

The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986) (summary
judgment is unwarranted if “the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party”).

The Second Circuit has provided
additional guidance regarding summary
judgment motions in discrimination cases:
We have sometimes noted that an
extra measure of caution is merited
in affirming summary judgment in a
discrimination action because direct
evidence of discriminatory intent is
rare and such intent often must be
inferred
from
circumstantial
evidence found in affidavits and
depositions. See, e.g., Gallo v.

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
5

Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).
Nonetheless, “summary judgment
remains available for the dismissal of
discrimination claims in cases
lacking genuine issues of material
fact.” McLee v. Chrysler Corp., 109
F.3d 130, 135 (2d Cir. 1997); see
also Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001) (“It is now beyond cavil
that summary judgment may be
appropriate even in the fact-intensive
context of discrimination cases.”).

A.
1.

Applicable Law

The Burden Shifting Analysis

The ADEA states that it is “unlawful for
an employer . . . to discharge an individual
or otherwise discriminate against any
individual with respect to his compensation,
terms, conditions, or privileges of
employment, because of such individual’s
age.” 29 U.S.C. § 623(a)(1) (2006). When
a plaintiff presents no direct evidence of
discriminatory treatment based on his age,
the Court reviews his ADEA claim under
the three-step, burden-shifting framework
established by the Supreme Court in
McDonnell Douglas Corporation v. Green,
411 U.S. 792, 802-05, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). See D’Cunha v.
Genovese/Eckerd Corp., 479 F.3d 193, 19495 (2d Cir. 2007) (per curiam); Woodman v.
WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.
2005).

Schiano v. Quality Payroll Sys., 445 F.3d
597, 603 (2d Cir. 2006) (quoting Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d
Cir. 2001)).
III. DISCUSSION
Defendant
argues
that
summary
judgment should be granted because the
retirement incentive is valid and does not
violate the ADEA. For the reasons set forth
below, the Court finds that the retirement
incentive does not violate the ADEA.
Accordingly, defendant’s motion for
summary judgment is granted and plaintiff’s
cross-motion for summary judgment is
denied. 7

To establish a prima facie case of age
discrimination, a plaintiff must demonstrate
that: “(i) at the relevant time the plaintiff
was a member of the protected class; (ii) the
plaintiff was qualified for the job; (iii) the
plaintiff suffered an adverse employment
action; and (iv) the adverse employment
Employees Ret. Plan of Avon Prods., 561 F.3d 112,
118 (2d Cir. 2009)); see also Lamar Adver. of Penn,
LLC v. Town of Orchard Park, N.Y., 356 F.3d 365,
373 (2d Cir. 2004) (“To meet Article III’s
constitutional requirements for standing, a plaintiff
must allege an actual or threatened injury to himself
that is fairly traceable to the allegedly unlawful
conduct of the defendant.” (citations and quotation
marks omitted)). Here, the Court finds that plaintiff
has sufficiently alleged that she suffered an injury
that is fairly traceable to the CBA’s retirement
incentive. Thus, plaintiff has standing to bring this
action. However, as discussed infra, the Court finds
that the retirement incentive in this case does not
violate the ADEA as a matter of law because the
terms of the CBA constitute an early retirement
incentive that is permissible under the ADEA.

7

As a threshold matter, defendant argues that
plaintiff lacks standing to bring this action because
plaintiff was not denied any benefit on account of her
age. (Def.’s Br. at 16-17.) Plaintiff argues that she
has suffered an injury in that she has had to pay for
health insurance coverage because she retired after
the age of 55 while employees who retire at 55 under
the same policy do not pay for health insurance
benefits. (Pl.’s Opp. Br. at 15-16.) “It is axiomatic
that ‘[t]here are three Article III standing
requirements: (1) the plaintiff must have suffered an
injury-in-fact; (2) there must be a causal connection
between the injury and the conduct at issue; and (3)
the injury must be likely to be redressed by a
favorable decision.’” Cooper v. U.S. Postal Serv.,
577 F.3d 479, 489 (2d Cir. 2009) (quoting Kendall v.
6

does not automatically and necessarily
require the denial of summary judgment and
the submission of the case to the jury.
James, 233 F.3d at 157. Instead, the key is
whether there is sufficient evidence in the
record from which a reasonable trier of fact
could find in favor of plaintiff on the
ultimate issue, that is, whether the record
contains sufficient evidence to support an
inference of discrimination. See id.; Connell
v. Consol. Edison Co. of N.Y., Inc., 109 F.
Supp. 2d 202, 207-08 (S.D.N.Y. 2000).

action occurred under circumstances giving
rise to an inference of discrimination, such
as the fact that the plaintiff was replaced by
someone ‘substantially younger.’” Roge v.
NYP Holdings, Inc., 257 F.3d 164, 168 (2d
Cir. 2001) (quoting O’Connor v. Consol.
Coin Caterers Corp., 517 U.S. 308, 313,
116 S.Ct. 1307, 134 L.Ed.2d 433 (1996)).
The Second Circuit has characterized the
evidence necessary for the plaintiff to satisfy
this initial burden as “minimal” and “de
minimis.” See Zimmermann v. Assocs. First
Capital Corp., 251 F.3d 376, 381 (2d Cir.
2001).

As the Second Circuit observed in
James, “the way to tell whether a plaintiff’s
case is sufficient to sustain a verdict is to
analyze the particular evidence to determine
whether it reasonably supports an inference
of the facts plaintiff must prove-particularly
discrimination.” 233 F.3d at 157; see also
Norton v. Sam’s Club, 145 F.3d 114, 118
(2d Cir. 1998) (“The thick accretion of cases
interpreting this burden-shifting framework
should not obscure the simple principle that
lies at the core of anti-discrimination cases.
In these, as in most other cases, the plaintiff
has the ultimate burden of persuasion.”).

Once a plaintiff establishes a prima facie
case of discrimination, “the burden of
production [shifts] to the defendant, who
must
proffer
a
‘legitimate,
nondiscriminatory reason’ for the challenged
employment action.” Woodman, 411 F.3d at
76 (citing Slattery v. Swiss Reinsurance Am.
Corp., 248 F.3d 87, 91 (2d Cir. 2001)). If
the defendant articulates a legitimate, nondiscriminatory reason, plaintiff must then
prove that defendant’s articulated reasons
are pretextual. See id. at 76. “In short, the
ultimate burden rests with the plaintiff to
offer evidence ‘sufficient to support a
reasonable inference that prohibited [age]
discrimination occurred.’” Id. (citing James
v. N.Y. Racing Ass’n, 233 F.3d 149, 156 (2d
Cir. 2000)).

2.

The ADEA and Retirement Incentive
Plans

Section 4(f)(2) of the ADEA specifically
addresses the issue of employee benefit
plans, including retirement incentive plans.
29 U.S.C. § 623(f)(2).
That section
provides, in pertinent part, that:

To meet this burden, the plaintiff may
rely on evidence presented to establish his
prima facie case as well as additional
evidence. Such additional evidence may
include direct or circumstantial evidence of
discrimination. Desert Palace, Inc. v. Costa,
539 U.S. 90, 99-101, 123 S.Ct. 2148, 156
L.Ed.2d 84 (2003). However, meeting
“McDonnell
Douglas’s
minimal
requirements of a prima facie case plus
evidence from which a factfinder could find
that the employer’s explanation was false”

It shall not be unlawful for an
employer, employment agency, or
labor organization – . . .
(B) to observe the terms of a bona
fide employee benefit plan –
(i) where, for each benefit or benefit
package, the actual amount of
7

In Auerbach, the plan in question
included
the
following
eligibility
requirements:

payment made or cost incurred on
behalf of an older worker is no less
than that made or incurred on behalf
of a younger worker, . . . or

1. A teacher must retire at the
conclusion of the school year
(July 1-September 1), he/she first
reaches the age of fifty five years
and completes a total of at least
twenty (20) years of credited
service under the New York
State
Teachers’
Retirement
System [the TRS], or at the
conclusion of the school year in
which the teacher who is age
fifty-five (55) years or more, has
first completed twenty (20) years
of credited service under the
New York State Teachers’
Retirement Sys-tem.

(ii) that is a voluntary early
retirement incentive plan consistent
with the relevant purpose or
purposes of this chapter.
29 U.S.C. § 623(f)(2). “Whether such a plan
furthers the purposes of the Act is ultimately
an inquiry to be made on a case-by-case
basis, taking into account all of the relevant
facts and circumstances.” Auerbach v. Bd.
Of Educ. of the Harborfields Cent. Sch. Dist.
of Greenland, 136 F.3d 104, 112 (2d Cir.
1998) (internal citations omitted).
In
examining the validity of a plan, the Second
Circuit has instructed that the court
“[s]hould consider whether the plan (1) is
truly voluntary, (2) is made available for a
reasonable period of time, and (3) does not
arbitrarily discriminate on the basis of age.”
Id. at 112-13.
B.

2. A teacher must have completed
ten (10) consecutive full years of
service in Harborfields Central
School District.
3. A teacher must submit to the
District no later than January 1,
of the final full year of service, a
letter
of
resignation
for
retirement purposes. This notice
provision may be waived for
employees retiring for medical
reasons, or for any other
reason(s),
upon
the
recommendation
of
the
Superintendent of Schools and
approval by the Board of
Education.

Application

In the case at bar, plaintiff concedes that
the terms of the CBA’s retirement incentive
are voluntary and were made available for a
reasonable period of time. (Pl.’s Opp. Br. at
9.)
Plaintiff’s sole argument is that the
retirement incentive arbitrarily discriminates
based on age. (Id.) However, the Court
disagrees and concludes that, as a matter of
law, the retirement incentive complies with
the ADEA. In fact, as discussed below, the
terms of eligibility in this case are similar in
all material respects to the eligibility
requirements in Auerbach, which was found
to be permissible by the Second Circuit
under the ADEA. Accordingly, summary
judgment is granted in favor of defendant
and against plaintiff.

136 F.3d, 107-08. In Auerbach, the Court
stated that “[b]oth Houses [of Congress]
expressly endorsed plans containing a timerelated window during which employees,
upon attaining a specified age, are offered
for a limited period of time a special
8

“[b]y offering the same incentive (subject to
variations in accumulated sick days) to all
plan participants who reach the age of 55, it
treats those participants equally, regardless
of the actual age at which they retire.” Id.

incentive to retire.” Id. at 113 (citations
omitted). Further, the Second Circuit held
that the “retirement plan in the case at hand
is precisely the sort of early retirement
incentive plan that Congress aimed to
preserve as lawful . . . . The plan grants
every teacher the opportunity to receive a
$12,500 cash payment and an accumulated
sick leave payment once he or she reaches
the age of 55 and has served the requisite
number of years.” Id. at 113 (emphasis in
the original); see also Fagan v. New York
State Electric & Gas Corp., 186 F.3d 127,
133 (2d Cir. 1999) (“The existence of the
early retirement plan is not evidence of age
discrimination. The ADEA created a safe
harbor for voluntary early retirement plans
that are consistent with the relevant purpose
or purposes of the ADEA, and the
implementation of such a plan by an
employer cannot serve as evidence of
unlawful age discrimination.” (quotations
and citations omitted)).

The plan in this case is very similar to
the plan in Auerbach. As stated supra, the
CBA contained a retirement inventive which
provided, in part, that:
133. A. Teachers are eligible for a
retirement incentive if they meet the
following conditions:
1. The teacher has been in employ
of the District for ten (10) years or
more; and
2. The teacher retires on July 1st
following his/her 55th birthday.
However, teachers who turn age 55
between July 1st and August 31st
may elect to retire the month they
reach age 55; and

The Auerbach Court also distinguished
the case from a Seventh Circuit case, Karlen
v. City Colleges of Chicago, 837 F.2d 314
(7th Cir. 1988), in which the court found
that the retirement plan was discriminatory.
In Karlen, the retirement plan offered
retirees a lump sum payment based upon a
variable percentage of the employee’s
accumulated sick pay based on the age of
the employee at the time of retirement.
Auerbach, 136 F.3d, at 114. The Second
Circuit explained the difference between the
two plans and stated that “[a]n early
retirement incentive plan that withholds or
reduces benefits to older retiree plan
participants, while continuing to make them
available to younger retiree plan participants
so as to encourage premature departure from
employment by older works conflicts with
the ADEA’s stated purpose to prohibit
arbitrary
age
discrimination
in
employment.” Id. In contrast, the Second
Circuit stated that the plan in Auerbach

3. An irrevocable letter of retirement
is given to the Superintendent no
later than February 1st of the year of
retirement.
(Def.’s 56.1 ¶¶ 5, 6.)
Thus, like in
Auerbach, the retirement incentive in this
case provides that each participant who
reaches the age of 55, after completing the
requisite years of service, receives the same
benefits. Therefore, the plan in this case,
like the one in Auerbach, does not
discriminate based on age.8
8

Unlike the retirement incentive in Auerbach, the
plan in this case included two footnotes extending
eligibility to persons who: (1) were hired prior to July
1, 1989 who reached the age of 55 but did not have
ten years of service in the District but twenty years of
service in the NYSTRA, who also met other
eligibility requirements; and (2) were over the age of
55 who did not have at least twenty years of service
in the year they reached 55 provided they retire on
9

Plaintiff attempts to argue that, because
the plan expressly states that eligibility for
the benefits is based on an employee’s age,
and thus relies upon age as a trigger, the
provision is a prima facia violation of the
ADEA. (Pl.’s Opp. Br. at 5.) In support of
this argument, plaintiff avers that: (1)
paragraph 133 may not provide a retirement
incentive; (2) the plan provides some
participants greater incentive to retire; (3)
the plan imposes a penalty on employees
reaching the age of 55 years; and (4) the
plan is a long-term policy designed to
discourage the continued employment of
older teachers.
(Id. at 5-13.)
These
arguments are without merit.

eligibility, even though it was aware that
those teachers were part of NYSTRS. . . . In
Abrahamson [v. Board of Education,
Wappinger Falls, 374 F.3d 66 (2d Cir.
2004)], the court acknowledges that
eligibility for a pension under NYSTRS is
something other than a minimum age of 55
years and a minimum years and a minimum
period of New York State service of 20
years. . . . The Court just assumes that the
facts in Auerbach were different.” (Id. at 910.) This Court disagrees and does not
believe there is any mistaken factual
understanding in Auerbach. However, even
if there was a factual misunderstanding in
Auerbach, there is no indication that the
alleged factual misunderstanding would alter
the legal principles set forth in the binding
Second Circuit opinion as it applies to this
case. Accordingly, plaintiff’s argument is
without merit.

First, plaintiff’s arguments rest on the
fact that the plan in question bases eligibility
on attaining the age of 55. However, as
discussed supra, Auerbach has specifically
provided that plans, such as the one in this
case, that base eligibility on attaining the age
55 and provide the same benefit to
employees that opt to utilize the retirement
incentive, do not violate the ADEA. Thus,
the plan does not violate the ADEA.9

Additionally, to the extent that plaintiff
argues that the plan in question does not
provide a retirement incentive, that
argument is simply wrong. The Middle
County retirement incentive offered a clear
financial incentive to retire – namely,
retirees were offered a $15,000 lump sum
payment and 100% payment of their health
insurance benefits upon retirement. Thus,
the instant case is clearly distinguishable
from Abrahamson where the incentive
offered teachers $7,000 per year for three
years if they continued to work instead of
retiring, and thus was not a retirement
incentive.10 374 F.3d at 75-76.

Plaintiff also attempts to argue that there
was a factual misunderstanding in Auerbach.
(Id. at 9.) Plaintiff’s brief states that: “[i]n
Auerbach, the Court of Appeals believed
that the plan qualification was that a teacher
had to retire in the first year of retirement
the July 1st following the year in which they first
have twenty years of service. (Def.’s 56.1 ¶¶ 7, 8.)
However, the extension of eligibility to these
employees does not alter the Court’s analysis. The
plan still provides all employees with the same
benefits once they have become eligible to retire
pursuant to the terms of the retirement incentive.
9
To the extent that plaintiff is arguing that the plan
does not provide the same benefit to each employee
who opts to utilize the retirement incentive, that
argument is without merit. As discussed supra, the
same benefit is provided to each employee who opts
to take the retirement incentive. (See Def.’s 56.1
¶¶ 9-10.)

Plaintiff also argues that “[i]f the impact
of early retirement on the plaintiff’s pension
is taken into account, the plan at issue in this
matter is not an early retirement incentive
plan because it fails to make retirement the
10

At oral argument, plaintiff’s counsel conceded that
the plan at issue here provides “some incentive” to
retire, but then argued that it was “not enough.”

10

retirement incentive if an employee
could increase her pension benefits
by continuing to work.

more attractive option. The facts show that,
for plaintiff, in 1993, the plan failed to make
retirement the more attractive option.” (Id.
at 6.) However, there is no legal authority
for the position that a court, once it
determines under Abrahamson that the plan
provides a retirement incentive, needs to
also determine how much of an incentive an
employee is to receive in order for a plan to
qualify under the safe harbor provision of
the ADEA. As defendant correctly explains,

(Def.’s Reply Br. at 3.) In short, this
argument by plaintiff is also unavailing.11
Accordingly,
based
upon
the
uncontroverted facts regarding the plan in
this case, the Court concludes that the early
retirement plan falls within the safe harbor
provision of Section 623(f)(2)(B)(ii) and
does not violate the ADEA. Thus, summary
judgment is properly granted in favor of
defendant and against plaintiff.

Plaintiff’s argument that these
benefits should be weighed against
the potential increase in pension
benefits
through
continued
employment in order to determine
whether it is an “incentive” ignores
the reality of teacher employment.
Nearly every teacher could continue
working long enough to make the
increased benefits to their pension
outweigh the benefit of any
retirement incentive.
Plaintiff’s
logic would effectively eliminate the
safe harbor mandate for permissive
retirement incentives set forth in
§ 623(f)(2)(B)(ii), endorsed by both
Houses of Congress. Auerbach, 136
F.3d at 113.

IV. CONCLUSION
For the reasons set forth herein,
plaintiff’s motion for summary judgment is
denied and defendant’s motion for summary
judgment is granted in its entirety, and the
complaint is dismissed. The Clerk of the
Court shall enter judgment accordingly and
close this case.

SO ORDERED.

_________________
JOSEPH F. BIANCO
United States District Judge

Moreover, plaintiff ignores the fact
that teachers, such as the plaintiff,
who opt not to take the retirement
incentive, have to actually work for
the increased pension benefits. Her
attempted comparative analysis of
the “incentive” issue leaves out the
fact that the increased pension is a
product of the employee’s additional
labor and thus cannot be compared
dollar-for-dollar with the retirement
incentive. It is not surprising that
plaintiff cannot cite a single case to
support the proposition that a
retirement incentive is not a

Dated: July 17, 2012
Central Islip, NY
***
Plaintiff is represented by David M. Lira,
Esq., 595 Stewart Avenue, Suite 510,
11

Defendant also argues that plaintiff’s claim is
untimely and barred by the doctrine of laches.
However, because, as discussed surpa, the Court has
determined that the claim fails on the merits, the
Court need not address defendant’s additional
arguments.

11

Garden City, NY 11530. Defendant is
represented by Steven C. Stern, Esq., of the
Law Offices of Sokoloff Stern LLP, 355
Post Avenue, Suite 201, Westbury, New
York 11590.

12