dissenting:
The Supreme Court reversed our prior decision in this difficult case and “remanded for further proceedings consistent” with its opinion. Public Employees Retirement System of Ohio v. Betts, — U.S. -, 109 S.Ct. 2854, 2869, 106 L.Ed.2d 134 (1989). The dissenters viewed the majority decision with alarm feeling that it “immunizes virtually all employee benefit programs from liability” under ADEA. 109 S.Ct. at 2869. A majority of our panel, however, does not “immunize,” under a § 4(f)(2) exemption, *1384the employee benefit program in controversy from liability to Betts.1
The majority of the panel of this court on remand, moreover, interprets § 4(f)(2) in such a manner as to find in violation of the act the terms of a “bona fide employee benefit plan” of PERS which was not a “subterfuge” to evade its purposes. It construes what appears to the writer to be the voluntary action of a person not physically capable of carrying out the duties of her job to be an “involuntary retirement” by the Ohio Board, thus holding the PERS plan not to be subject to the exemption of § 4(f)(2).
The first question in this case was settled by the Supreme Court in Betts: “PERS is entitled to the protection of the § 4(f)(2) exemption unless its plan is ‘a subterfuge to evade the purposes of the Act.” 109 S.Ct. at 2860 (footnote omitted). The Court found the plan in this case not to be a subterfuge. It is also true that the Court, at the same time, expressed no opinion on whether or not Betts “was forced to retire under the terms of the PERS plan,” and left its resolution to be determined on remand. Id. at 2868-69. It seems to me that this remand involves both a factual question and a legal question. To decide whether a person was forced to retire, a court must first determine the factual predicates for such a decision. Thus, based on the facts found, a court must then reach a legal conclusion on “involuntary retirement.” It may be that the district court is the appropriate tribunal to make that first determination in light of the principles expressed by the Supreme Court. In any event, on remand we must consider a mixed question of fact and of law: was there a forced retirement?
The majority, moreover, mistakenly poses a question which it already answers in the form of the question:
... the question presented is: when an employer forces terms of retirement on an employee for mixed reasons, one of which is age, does the employer violate the “involuntary retirement” proviso of § 4(f)(2) ...?
(Emphasis added). The assumption made in the question presented by the majority is that defendant employer forced Betts into retirement.2 But, the proper question is: did the defendant employer force Betts into retiring, or did she retire essentially because her health required her to quit? I submit that, if called upon to answer that • question, the facts would clearly indicate the latter: Betts was compelled to resign, not by reason of what the employer did or did not do, not by reason of her age, but by reason of her own health problems.
The only case law authority upon which the district court found that Betts “was forced into retirement because of her age” was Jacobs v. Martin Sweets Co., Inc., 550 F.2d 364 (6th Cir.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977), and EEOC v. Chrysler Corp., 733 F.2d 1183 (6th Cir.1984). The district court stated that: “[T]he amendment to ADEA ... in essence overruled the Supreme Court’s decision in United Air Lines, Inc. v. McMann, 434 U.S. 192 [98 S.Ct. 444, 54 L.Ed.2d 402] (1977).... ” The latter proposition is clearly in error in light of the Supreme Court decision in Betts (EEOC v. Chrysler, also relied upon by the district court, was effectually overruled by Betts). Jacobs involved a sex discrimination claim of constructive discharge of an unmarried plaintiff by reason of her pregnancy. Here, again, Jacobs was willing and anxious to continue working, a situation entirely different from Betts. The complaint in Jacobs, in contrast to Betts, was that plaintiff was discriminatorily, by reason of her sex, precluded from working — a world *1385apart from the factual situation in the present controversy.
Jacobs was cited by the district court because he found the “situation analogous to constructive discharge,” an issue in that case. The basis for constructive discharge, however, in Jacobs was the employer’s attitude and actions towards the plaintiff because she was unmarried. Ordinarily, where workers were pregnant, “the Company allowed such employees to work as long as they were able, consistent with their health.” 550 F.2d 364. The defendants in this case treated plaintiff no differently from others in her same classification who retired because of health.
There is simply no proper analogy between Jacobs and this case. Jacobs is not authority for the district court’s conclusion that there was a “forced retirement” of Betts. The Chrysler case, relied upon both by the district court and the majority, is also not a basis for holding that Betts was forced to retire and/or that the Ohio Board or PERS acted in derogation of ADEA with respect to Betts’ choice of options available to her by reason of failing health. The district court, therefore, was clearly erroneous in the basis for deciding that Betts was forced to retire.
The majority is also in error in describing the “medical leave” option as providing plaintiff with no “benefits.” To the contrary, it would enable plaintiff to maintain her position, or a right to continue employment, if Betts’ health improved and permitted her to do so. Although an unlikely prospect, the majority thought that the entitlement “to return to work had her condition improved” an important alternative, an “employment opportunity” considered in the context of an option available to other employees. Thus, the majority is inconsistent in its consideration and treatment of the options made available to Betts, who herself realized that she could no longer work due to her health, and faced the prospect of termination.
The majority’s decision that Betts was forced to retire because of age is “strongly influenced” by Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). Thurston, however, involved an entirely different issue: whether a pilot over 60 years of age who was capable and desired to continue working could be discriminated against and denied that opportunity when other similarly capable and desiring pilots, disqualified for some physical reason from piloting (not age), were permitted to continue working. Thurston involved an age discrimination action by an employee which precluded a willing 60 year old (or older) pilot from continuing to work. The instant case, on the other hand, involves the situation in which the employer was, for a considerable period of time, willing to accommodate an employee handicapped by a disability and was willing to allow her to continue to work, taking into account her health, but she became incapable of continuing to work. Thurston, then, involves a fundamentally different situation from the one at hand. To compare the retirement in Thur-ston with the Betts retirement is to compare apples and oranges.
The majority discussed the options available to Betts and stated “the third option of disability benefits which Betts was not offered is similar to a job since she would have been able to return to work had her condition improved.” 3 The record is clear in this case that Betts could not continue working. Her doctor filed a report, as noted by the district court, that she was permanently disabled, and she has never denied this status since her decision to retire. The majority’s reference to a “third option” is irrelevant in my view to the extent it takes into account Betts’ potential of returning to work. She had an option of undergoing a medical examination, and if found disabled, to take medical leave with the option of returning to her job without the loss of benefits when she returned. I disagree with my colleagues that Betts was *1386denied any “employment opportunity” under the factual circumstances of this case.
Neither do I find EEOC v. Chrysler Corp., 733 F.2d 1183 (6th Cir.1984), relied upon by the majority, to be “analogous,” persuasive, or “on point” on the issue before us. Chrysler in that case placed a number of workers on involuntary retirement because of drastic cut-backs in its business. This was a true “forced early retirement” case; plaintiffs over 55 were willing and able to work, but Chrysler, by reason of claimed economic necessity, con-cededly required them to take early retirement without being offered “layoff” status (with opportunity for future reinstatement) as were other employees. Again, the facts and rationale of Chrysler are entirely distinguishable from those in the instant case. Betts was offered the equivalent of layoff — medical leave — with opportunity for reinstatement, but she herself opted for early retirement with pension and retirement benefits, although she had worked for the Ohio Board only five years. In Chrysler, this court affirmed the district court decision requiring the employers to place the retired workers on a layoff status because the “loss of future prospects for work ” was found to be antithetical to the ADEA. 733 F.2d at 1186 (emphasis added). Denial of a work opportunity for those who wanted to work in Chrysler is a far cry, in my opinion, from the offer made to Betts who knew she was unable to work and chose to take another option available to her under a plan, a valid plan according to the Supreme Court, not a “subterfuge,” when adopted. Chrysler forced its employees of a certain age to retire and denied them layoff status. No one forced Betts to stop working. See Betts, 109 S.Ct. at 2862, 2868 (reaffirming the rule in United Air Lines, Inc. v. McMann, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977)). Chrysler, moreover, was based on cost factors and “least-detrimental-alternative means” to accomplish cost reduction in respect to age discrimination allegations. 733 F.2d at 1186. This “cost justification requirement” for retirement plans such as PERS was expressly rejected by the Supreme Court in Betts. 109 S.Ct. at 2865.4 See also EEOC v. Bethlehem Steel Corp., 727 F.Supp. 952 (1990).
The majority concedes that Betts “retired for health reasons.” Her retirement, like Dr. Weihaupt’s resignation in Weihaupt v. American Medical Association, 874 F.2d 419 (7th Cir.1989), was due to “serious health problems.” Id. at 425. I agree with that court’s observation, which is consistent with the Supreme Court’s decision in Betts, that
a discharge based on his poor health is not actionable under the ADEA. “ ‘Congress made plain that the age statute was not meant to prohibit employment decisions based on factors that sometimes accompany advancing age, such as declining health or diminished vigor and competence.’ ” Holley v. Sanyo Manufacturing, Inc., 771 F.2d 1161, 1167 (8th Cir.1985) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir.1979)).
Weihaupt, 874 F.2d at 425. Weihaupt, moreover, supports PERS’ position in the instant case concerning Betts’ claim of “forced” retirement. Weihaupt held that proof of forced retirement had to be akin to proof of constructive discharge. Id. at 425-26. Henn v. National Geographic Society, 819 F.2d 824 (7th Cir.) cert. denied, 484 U.S. 964, 108 S.Ct. 454, 98 L.Ed.2d 394 (1987), also supports PERS’ position in holding that in a case of early retirement, one claiming that it was forced retirement had to establish the equivalent of a constructive discharge. 819 F.2d at 826. As in Henn, the employer in this case has shown a “sound business purpose” and the *1387absence of “subterfuge” in the adoption of the retirement plan at issue, and, accordingly, the employer and the plan challenged should prevail. There was no equivalent of constructive discharge in the facts of this case even from Betts’ perspective. Betts was not forced to retire because of her age; rather, she elected to retire, for health reasons, to receive retirement benefits.
Other courts that have considered similar issues have found for the employer and/or pension plan. See EEOC v. State of Maine & Retirement System, 644 F.Supp. 223 (D.Me.1986), aff'd mem., 823 F.2d 542 (1st Cir.1987); EEOC v. Cargill, Inc., 855 F.2d 682 (10th Cir.1988); and EEOC v. USX Corp., No. 87-6044, 1989 WL 43651 (E.D.Pa. Mar. 23, 1989). The majority cites not a single case to support the result reached involving an employee who could not work and who then chose retirement benefits. There was no compulsory retirement forced upon an employee who desired to, or was capable of, continuing work. This was in no way comparable to a constructive discharge situation.
I believe the majority opinion overlooks the admonition in Betts, that “Congress recognized that not all age discrimination in employment is ‘arbitrary’.” 109 S.Ct. at 2865. Not all such discrimination, if it is shown, is the “type of age discrimination that Congress sought to eliminate.” Id. Thus, even if Betts did establish some pri-ma facie indicia of age discrimination, she did not demonstrate illegal, “arbitrary” age discrimination in this “bona fide benefit plan.” The Committee Reports of the ADEA, as pointed out by the Supreme Court, indicate the primary purpose of ADEA was to encourage “ ‘hiring of older workers by permitting employment without necessarily including such workers in employee benefit plans’.” Id. at 2867. Betts was hired at age 55; this would be strong evidence, in and of itself, that defendant employer was not disposed to discriminate against older workers. She was, in addition, retained up through age 60 despite growing health problems and disability — a further such indication of absence of discrimination against an older employee. A broader reading of the language of exemption § 4(f)(2) “is the correct one” mandated by the Supreme Court rather than the narrow view taken by the majority. Id.
In light of the principles herein set out and the guidance of the Supreme Court in Betts, I would accordingly reverse the judgment of the district court.
. Mr. Justice Marshall, in dissent, stated, moreover, “Henceforth, liability will not attach under the ADEA even if an employer is unable to put forth any justification for denying older workers the benefits younger ones receive....” 109 S.Ct. at 2869.
. This is, as the Supreme Court clearly put it: "Appellee [Betts] contends, and the District Court found, that appellee was forced to retire. ...” 109 S.Ct. at 2860 n. 2. (emphasis added). We did not previously address this question, and, of course, we should not assume that the district court was correct.
. Presumably, the other options offered Betts were a medical leave, which would make her eligible to return when able to do so, but without pay during the interim, or "voluntary retirement,” the option chosen by Betts.
. Chrysler was described in EEOC v. Cargill, Inc., 855 F.2d 682, 685 (10th Cir.1988), as holding that the 1978 amendment to § 4(f)(2) completely overruled United Airlines, Inc. v. McMann, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977). In Betts, the Supreme Court made it clear that McMann was not overruled. To that extent, Chrysler was in error in light of Betts as to retirement-plans which were not a "subterfuge.” 109 S.Ct. at 2862. Cargill held that in a comparable situation Cargill was not required to justify the different treatment, for group life insurance purposes, of employees under 60 years of age and those over 60 years of age. Cargill, 855 F.2d at 686.