12-3035; 12-3300
Abramson; Loucks v. Middle Co. Sch. Dist. No. 11
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of June, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judge,
11 JOHN F. KEENAN,
12 District Judge.*
13
14 - - - - - - - - - - - - - - - - - - - -X
15 PHYLLIS ABRAMSON, KAYE PINE,
16
17 Plaintiffs-Appellants,
18
19 -v.- 12-3035
20
21 BOARD OF EDUCATION OF MIDDLE COUNTRY
22 SCHOOL DISTRICT NO. 11,
23
24 Defendant-Appellee.
25
*
The Honorable John F. Keenan, United States District
Judge for the Southern District of New York, sitting by
designation.
1 - - - - - - - - - - - - - - - - - - - -X
2 MARGARET R. LOUCKS,
3
4 Plaintiff-Appellant,
5
6 -v.- 12-3300
7
8 MIDDLE COUNTRY SCHOOL DISTRICT NO.
9 11,
10
11 Defendant-Appellee.
12
13 - - - - - - - - - - - - - - - - - - - -X
14
15 FOR APPELLANTS: DAVID M. LIRA, Garden City, NY.
16
17 FOR APPELLEE: STEVEN C. STERN, Sokoloff Stern
18 LLP, Carle Place, NY.
19
20 Appeals from judgments of the United States District
21 Court for the Eastern District of New York (Bianco, J., and
22 Feuerstein, J.).
23
24 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
25 AND DECREED that the judgments are AFFIRMED.
26
27 Plaintiffs-appellants Phyllis Abramson and Kaye Pine
28 appeal from the judgment granting the School District’s
29 motion to dismiss. Plaintiff-appellant Margaret Loucks
30 appeals from the judgment granting the School District’s
31 motion for summary judgment. We assume the parties’
32 familiarity with the underlying facts, the procedural
33 history of the cases, and the issues on appeal.
34
35 “We review a district court’s grant of a motion to
36 dismiss or for summary judgment de novo, accepting the
37 plaintiff’s allegations as true when considering the motion
38 to dismiss, and drawing all factual inferences in favor of
39 the non-moving party for purposes of summary judgment.”
40 Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 283 (2d
41 Cir. 2005).
42
43
2
1 These cases are controlled by Auerbach v. Board of
2 Education of the Harborfields Central School District, 136
3 F.3d 104, 107 (2d Cir. 1998), which interpreted the Age
4 Discrimination in Employment Act’s (“ADEA’s”) safe harbor
5 provision for retirement incentives.1 The Court held that a
6 retirement incentive plan is consistent with the ADEA if it
7 “(1) is truly voluntary, (2) is made available for a
8 reasonable period of time, and (3) does not arbitrarily
9 discriminate on the basis of age.” Id. at 112-13.
10
11 The School District’s retirement incentive plan is
12 almost identical to the one at issue in Auerbach, and easily
13 passes its three-part test. The incentive was plainly
14 voluntary; all three of the employees here independently
15 chose not to accept. It was available for a reasonable
16 amount of time; the employees had until February 1 in their
17 final year of service to make their retirement election--a
18 full month more than the teachers had in Auerbach. See id.
19 at 113. Finally, the provision does not enable arbitrary
20 discrimination. Every employee who had worked the minimum
21 number of years required under the plan was given the
22 opportunity to accept the incentive, and employees who chose
23 to decline (like the plaintiffs) were able to “continue to
24 work as valued employees in the School District without any
25 corresponding loss of benefits or job status.” Id.
26
27 Although Abramson and Pine’s suit was dismissed for
28 separate reasons related to the exhaustion of the relevant
29 statute of limitations, we need not consider those issues
30 here. The Court is “free to affirm an appealed decision on
31 any ground which finds support in the record, regardless of
32 the ground upon which the trial court relied.” McCall v.
33 Pataki, 232 F.3d 321, 323 (2d Cir. 2000) (internal quotation
34 marks omitted). Abramson and Pine’s counsel conceded at
35 oral argument that a ruling that the School District’s
36 retirement incentive was valid under the ADEA would
37 foreclose their case. We agree.
1
The provision provides that “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-- . . . (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).
3
1 We have considered all of the employees’ remaining
2 arguments and find them to be without merit. Accordingly,
3 the judgments of the district courts are hereby AFFIRMED.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
4