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Ellicker v. Borough of Forest Hills

November 6, 2009

BRIAN A. ELLICKER, PLAINTIFF,
v.
BOROUGH OF FOREST HILLS DEFENDANT.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM ORDER

Pending now before the Court is BOROUGH OF FOREST HILLS' MOTION FOR JUDGMENT ON THE PLEADINGS (Document No. 7). Defendant ("Forest Hills") filed a brief in support (Document No. 8), Plaintiff ("Ellicker") filed a response and a brief in opposition to the motion (Document Nos. 11, 12), and Forest Hills filed a reply brief (Document No. 13). The motion is ripe for disposition.

Factual Background

In this case, Plaintiff alleges that the pension rules adopted by Forest Hills violate the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Brian Ellicker is a police officer who suffered a series of work-related injuries in the course of his employment by Forest Hills and became disabled. In accordance with Pennsylvania Act 600, Forest Hills has enacted ordinances that govern normal retirement pensions and disability pensions. A police officer qualifies for a normal retirement pension of 50% of his last 36 months' salary if he is both 50 years old and has 25 years of service. The date on which the officer satisfies both the age and years of service requirements is called the "superannuation" date. Pursuant to Forest Hills Ordinance 900, enacted on May 19, 2000, an officer retiring due to disability receives a monthly pension benefit calculated at 100% of his average monthly salary during the last 36 months of his employment. However, this disability pension will "terminate automatically upon the date that the member would have satisfied all the requirements for superannuation retirement benefits." Upon reaching the superannuation date, the disabled officer's monthly pension benefit is recalculated to be 50% of his average salary during his last 36 months of active duty.

Ellicker began full-time employment as a Forest Hills police officer on August 1, 1982. Beginning in May 2000, Ellicker began receiving a monthly disability benefit of $4,489.33. On August 1, 2007, at age 53, Ellicker reached his "superannuation" date because it would have marked the completion of 25 years of service. Forest Hills then cut his monthly pension benefit in half, to $2,244.67.*fn1

Standard of Review

Federal Rule of Civil Procedure 12(c) provides as follows: Motion for Judgment on the Pleadings. After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.

A Rule 12(c) motion is reviewed in the same manner as a motion to dismiss under Rule 12(b)(6). See, e.g., Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989). The Court will grant a motion for judgment on the pleadings only if the movant establishes that there are no material issues of fact and, therefore, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 12(c); see also Shelly v. Johns-Manville Corp., 798 F.2d 93, 97 n.4 (3d Cir.1986).

Legal Analysis

Plaintiff contends that the reduction of his pension at age 53 constitutes discrimination with regard to the compensation, terms, conditions or privileges of his employment because of age, in violation of ADEA § 623. Plaintiff recognizes that the reduction occurred at his superannuation date, but argues that this date is a "direct proxy" for age and therefore violates the ADEA. Defendant argues that Ellicker's claim must be dismissed because it is foreclosed by the United States Supreme Court's recent decision in Kentucky Retirement Systems v. E.E.O.C., 128 S.Ct. 2361 (2008). Plaintiff attempts to distinguish Kentucky Retirement. The parties agree that no material facts are in dispute and that this case is appropriately resolved by a motion for judgment on the pleadings.

Because the application of Kentucky Retirement to the facts of this case is dispositive, the Court will discuss it in some detail. As Plaintiff notes, the case was a 5-4 decision, with a somewhat unusual split among the Justices. The case involved an ADEA challenge to the Commonwealth of Kentucky rules for normal retirement and disability retirement pensions. Kentucky police officers qualify for "normal" retirement after either (1) working for 20 years; or (2) working for 5 years and attaining the age of 55. Disabled police officers who are not eligible for "normal" retirement receive "imputed years" such that they are entitled to retire immediately and receive disability retirement benefits. However, police officers who become disabled after they become eligible for normal retirement on the basis of age do not receive any imputed years.

The Court framed the issue as: "we must decide whether a plan that (1) lawfully makes age in part a condition of pension eligibility, and (2) treats workers differently in light of their pension status, (3) automatically discriminates because of age." Id. at 2367 (emphasis omitted). The Supreme Court adopted a clear rule "for dealing with this sort of case":

Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must adduce sufficient evidence to show that the ...


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