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February 1, 1983

William B. URSIC, Plaintiff,
BETHLEHEM MINES, a Subsidiary of Bethlehem Steel Corporation, the Pension Plan of Bethlehem Steel Corporation and Subsidiary Companies, and D. W. Kempken, Plan Administrator, Defendants

The opinion of the court was delivered by: DUMBAULD

 Plaintiff, William B. Ursic, brings this action for violation of 29 U.S.C. 1140 [§ 510 of Act of September 2, 1974, 88 Stat. 895, commonly known as ERISA] for wrongful deprivation of pension rights by contrived pretextual discharge prior to the vesting of such rights.

 That section provides:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act, or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act. . . . The provisions of section 1132 of this title shall be applicable in the enforcement of this section.

 29 U.S.C. 1132 authorizes civil actions by participants in the plan to enforce their rights or redress violations. Jurisdiction is given to District Courts by § 1132(e)(1). The Court in its discretion is empowered by § 1132(g) to "allow a reasonable attorney's fee and costs of action to either party."

 The Court's order of March 5, 1982, denying defendants' motion for partial summary judgment, held that by reason of his discharge on June 18, 1980, before he completed the thirty years of service necessary to qualify for a thirty year pension, plaintiff did not qualify literally under the terms of the plan and could recover only if he could establish that his discharge was pretextual and contrived by defendants in order to prevent his receiving the thirty year pension to which he would be entitled if permitted to complete the thirty-year period of service. Non-jury trial on this issue was held January 4-6, 1983.

 When discharged, plaintiff had worked 29 years, 5 months, and 11 days. His work record was good and he was highly regarded by his superiors (as testified by David Sparks, the division manager, and as also shown by performance appraisals, PX 5-8). He excelled particularly with respect to production. He displayed less aptitude with regard to his paper work. As shift foreman, he was the highest ranking supervisor during night shift.

 In 1979 plaintiff was involved in domestic difficulties, leading to divorce in June 1980, and health problems with a bleeding ulcer. On occasion he had to leave the mine to attend court hearings or to get medicine. These absences were known to and acquiesced in by his superiors. They were not factors in the decision to discharge him. As tension increased he sought a leave of absence, but was urged to "hang in." He decided he would like to retire when his thirty year service was completed in January, 1981.

 In his discussions with the personnel office regarding his pension eligibility he indicated that he wished to show lower income for purposes of his divorce case. However, he talked freely around the mine about his intention to retire and did not observe any circumspection or secrecy about his plans and his superiors knew of his proposed retirement and endeavored to discourage him, saying he was too young to retire.

 Charles McGlothlin, superintendent of the mine, came to that position in July, 1979, when the mine was idle, and (being cost conscious) he had leisure to compare the figures of that mine with those of the mine of similar size from which he had come. He noted that small tool costs were $100,000 as compared with $20,000 in his former workplace. A principal project he promoted was reducing these costs. *fn1" To a posted sign forbidding unauthorized removal of tools from the mine he added a provision that random search of lunch-buckets would be conducted. This impressed some of the men, but many continued to carry tools into and out of the mine, particularly those carried on their belts and needed for work in the mine.

 As David Sparks (the division manager) testified, the posted notice does not relate to borrowed tools. It is discretionary with the superintendent what tools may be borrowed. He is expected to consider the best interests of the company, and not permit removal of tools needed for operation of the mine. Usually large items (such as jacks) were lent, which were expensive and not readily available elsewhere to employees, but which were needed for their temporary personal use. McGlothlin himself had borrowed jacks for use at his home to repair the porch, when he was engineer at the mine in 1969. He had obtained written permission on that occasion.

 McGlothlin asserted that no one but himself was permitted to authorize removal of items from the mine, and that he would never have authorized removal of hand tools; but there was no written procedure prescribing how or from whom permission was to be obtained. According to the testimony of Michael Error, General Mine Foreman since March 1, 1980, taking items with permission was a practice that grew up alongside of and independently of the posted sign about random bucket searches.

 McGlothlin after conversations at his home with an employee named William Zgorliski who did not get along with plaintiff obtained permission from Sparks to hire a private detective agency to "tail" plaintiff. Surveillance began on May 1, 1980.

 After much chaff, including a report about plaintiff helping one Jacobson transport some cracked plastic pipe of no value to the company which Jacobson had obtained permission to take, *fn2" McGlothlin at 5:45 or 6 a.m. *fn3" on June 18, 1980, heard from the investigators that at 2:20 A.M. plaintiff had placed two bundles behind the back seat of his truck. At 6:15 *fn4" McGlothlin called Sparks and they agreed to meet at the mine. After Ursic had completed his shift and his paper work and showered, at about 8:30 they told him they had information he had removed property from the mine and put it in his truck. He said he had taken some tools. They said they wanted to see what was there. He said, come out and see. He opened the truck, handed one bundle wrapped in newspapers and taped with black tape to McGlothlin and carried the other similar package in to ...

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