                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-2002

Anderson v. Consolidated Rail
Precedential or Non-Precedential: Precedential

Docket No. 01-1518




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PRECEDENTIAL

       Filed July 23, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1518

WAYNE S. ANDERSON; WILLIAM R. BELLAMY; LINDA A.
BONNER; ROBERT R. CARTER; ROBERT J. DEANGELIS;
PATRICIA FOSTER; **CHARLES F. FOTE; ALVERTA T.
GILMORE; JAMES J. GOSLIN; WILLIAM J. GUITERAS;
*JANE L. HAMILTON; *DONALD A. HEPP; JOHN
JEFFERY; FRANK S. JOHNSON; WILLIAM A. KENNEDY;
THERESA R. KENNY; THOMAS H. KERWIN; *LEE A.
MANFRE; *IRENE W. MAYER; *EILEEN F. MCGOVERN;
JANET E. MCMULLAN; CARL F. MICHINI; THOMAS J.
QUINN; *PAUL C. RAHN; *FREDERICK G. SCHMIDT;
*GARY A. SMELCER; *BERNARD B. SOBJAK; *DAVID I.
SPRITZLER; VERA M. STEVENS; *GEORGE D. WOOD,
       Appellants

v.

CONSOLIDATED RAIL CORPORATION ("CONRAIL");
CONRAIL SUPPLEMENTAL PENSION PLAN; FRANK H.
NICHOLS; DEBBIE MELNYK; RICK HUFFMAN; MARIANNE
S. GREGORY; DALE SCHAUB; JOSEPH ARSENAULT;
PETER F. BARR; BRIAN DEAM; JAMES F. DIETZ; TOM
DWYER; M. KEVANS; JACK FARRELL; GERALD T.
GATES; MARY ANN GREGROY; TOM HIEBER; CHRIS
HILL; LIBBY HUDSON; DAVE KALAPOS; BILL LYNCH;
DON MATTSON; MICHAEL MCGILLOWAY; TOM
NEWHART; MICHELE NOWLAN; JOSEPH OSBORNE;
DENNIS PARANZINO; LES PASSA; AL POLINSKY; ROBERT
REID; MICKEY SAPPERSTONE; BOB SCHREYER; CARL
SIMCOX; JAMES SNEE; JERRY STANECK; JOHN TILLEY;
RALPH VON DEM HAGEN
*(Dismissed per Court’s Order dated 4/11/01)
**(Dismissed per Court’s Order dated 2/14/02)




Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 98-cv-06043
District Judge: Honorable Harvey Bartle, III

(Argued: March 4, 2002)

Before: SCIRICA, ROSENN, Circuit Judges, and
WARD,* District Judge.

(Filed: July 23, 2002)

       Alice W. Ballard, Esq. (Argued)
       Law Office of Alice W. Ballard, PC
       225 South 15th Street, Suite 1700
       Philadelphia, PA 19102
        Counsel for Appellants

       Laurence Z. Shiekman, Esq.
        (Argued)
       Brian T. Ortelere, Esq.
       Joann Hyle, Esq.
       Larry R. Wood, Jr., Esq.
       Hope A. Comisky, Esq.
       Pepper Hamilton LLP
       3000 Two Logan Square
       18th & Arch Streets
       Philadelphia, PA 19103
        Counsel for Appellees

OPINION OF THE COURT

ROSENN, Circuit Judge:

This age discrimination in employment case has its
genesis in the lengthy struggle of our nation’s railroads for
survival. Consolidated Railroad Corporation (Conrail), now
_________________________________________________________________

* Honorable Robert J. Ward, United States District Court for the
Southern District of New York, Sitting by Designation.

                                 2


defunct, engaged in a reduction-in-force (RIF) in July 1995
when it involuntarily terminated thirty employees in its
Central Office. In November 1998, these employees, all but
one in the forty to fifty-five year age range, sued Conrail in
the United States District Court for the Eastern District of
Pennsylvania. They claimed that Conrail’s decision to
terminate them violated the Age Discrimination in
Employment Act, 29 U.S.C. SS 621-634 (ADEA). Examining
each individual plaintiff ’s prima facie case, the District
Court found that certain plaintiffs had not satisfied the
fourth element of the framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) because they could not show that Conrail
retained a sufficiently younger and similarly situated
employee for each employee terminated. The plaintiffs also
claim that the District Court erred in rejecting their claims
for pension benefits under ERISA S 510, 29 U.S.C. S 1140,
and their claims for benefits under the Company’s
Voluntary Separation Program (VSP) of 1996. Seventeen of
the plaintiffs timely appealed.1 We affirm.

I.

As part of its RIF decision, Conrail provided the
terminated employees with severance pay amounting to
approximately a year’s salary per employee. In February
1996, Conrail announced a voluntary separation program
or a buy-out which provided separation incentives to
qualified employees that were more generous than the
severance package offered to the involuntarily terminated
plaintiffs. The 1996 benefits included payment of two years
salary and an additional $5,000 expense allowance. As
initially announced, the VSP benefits were available to
those individuals who were employees as of February 21,
1996. Later, Conrail expanded the program to individuals
who were employees as of January 2, 1996. In addition to
the eligibility cut-off date, an employee had to have fifteen
or more years of continuous work service to be eligible. In
December 1996, Conrail amended its Supplemental Pension
_________________________________________________________________

1. Thirteen plaintiffs resolved their claims against Conrail and have not
appealed.

                                3


Plan to include the VSP. Conrail denied the involuntary
terminated employees the VSP benefits at each level of the
administrative claims procedure.

In November 1998, the thirty plaintiffs who had been
involuntarily terminated in July 1995 filed this action.2
They claimed that the decision by Conrail to reduce its
aging work force "was motivated by a desire to thin its
middle-aged ranks" to make room for younger new hires in
violation of the Age Discrimination in Employment Act.
They also claimed that Conrail terminated the plaintiffs in
violation of ERISA S 510, 29 U.S.C. S 1140, to preclude
them from participating in an anticipated voluntary buy-out
program that Conrail subsequently announced in 1996.

The District Court dismissed plaintiffs’ ERISA claims on
Conrail’s Rule 12(b)(6) motion. The Court applied
Pennsylvania’s two-year statute of limitations for tort cases
to the ERISA S 510 claim, concluding that the claims were
time barred. The District Court granted Conrail’s summary
judgment motion on the ADEA claims in part and denied
them in part. The District Court found that the plaintiffs’
reliance on Anjelino v. New York Times Co., 200 F.3d 73 (3d
Cir. 1999) was not relevant to their ADEA claim. The
District Court found that certain plaintiffs had not satisfied
the fourth element required to make out a prima facie case,
namely, proof that a similarly situated younger person was
retained or hired to fill the position of the employee
terminated. Of the fourteen plaintiffs that survived
summary judgment, eleven settled. Gilmore, Fote and
DeAngelis proceeded to trial separately pursuant to the
District Court’s order.3 The jury returned a verdict in favor
of Gilmore and against Fote and DeAngelis. The District
Court denied both parties’ post-trial motions in January
2001.4
_________________________________________________________________

2. The District Court exercised subject matter jurisdiction under 28
U.S.C. S 1331. This Court has appellate jurisdiction pursuant to 28
U.S.C. S 1291.
3. Although the District Court granted Conrail’s motion for separate
trials under Federal Rule of Civil Procedure 42(b), it denied the motion
to sever the cases under Rule 21.
4. Of the original thirty plaintiffs, thirteen plaintiffs have settled all their
claims, including Gilmore and Fote. Of the remaining seventeen, all of

                                4


II.

A.

Our review of the District Court’s grant of summary
judgment is plenary, and we apply the same test as the
District Court should have applied initially. Olson v.
General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996).
Summary judgment is proper if after considering"the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavit, if any, . . .
there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c). An issue is genuine"if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In conducting that review,
the non-moving party is entitled to all reasonable inferences
and the record is construed in the light most favorable to
that party. Pollock v. American Tel. & Tel. Long Lines, 794
F.2d 860, 864 (3d Cir. 1986). However, in deciding a
summary judgment motion, we are obligated to "view the
evidence . . . through the prism of the substantive
evidentiary burden" and determine "whether a jury could
reasonably find either that the plaintiff proved his case by
the quality and quantity of the evidence required by the
governing law or that he did not." Anderson, 477 U.S. at
254.

Summary judgment against a party who bears the
burden of proof at trial, as do the plaintiffs here, is proper
if after adequate time for discovery and upon motion, a
party fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Under such circumstances, "there can be no genuine issue
_________________________________________________________________

them challenge the ERISA decision. Fourteen plaintiffs challenge the
Anjelino decision, while only ten challenge the District Court’s disposition
of their prima facie case. Because our decision does not turn on any
facts particular to any individual plaintiff, we need not detail which
specific plaintiffs challenge what aspect of the District Court’s decision.

                                5


as to any material fact, since a complete failure of proof
concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial." Id. at
323 (internal quotations omitted). Further, "[t]he moving
party is entitled to a judgment as a matter of law because
the nonmoving party has failed to make a sufficient
showing on an essential element of her case with respect to
which she has the burden of proof." Id.

B.

Under the Age Discrimination in Employment Act, an
employer is prohibited from discharging any individual or
otherwise discriminating against an individual with respect
to compensation, terms, conditions, or privileges of
employment, because of such individual’s age. 29 U.S.C.
S 623(a)(1). A plaintiff may establish an age discrimination
claim using direct or indirect evidence. The plaintiffs claim
that they established a prima facie case sufficient to defeat
a motion for summary judgment by asserting that Conrail’s
terminations were to make room for younger new
employees and by showing that its proffered reason of the
need for immediate cost savings was pretextual. They
argue that under their Anjelino theory they need to
produce evidence "only that they lost their jobs as a
result of age discrimination, regardless of their individual
circumstances," to bar summary judgment. The plaintiffs
argue that each of them need not individually establish a
prima facie case under the McDonnell Douglas framework.
Relying on Anjelino, 200 F.3d at 92, they claim entitlement
to relief because each of them suffered as a result of
Conrail’s impermissible decision to apply the 1995 RIF on
the basis of age.

In Anjelino, this Court addressed whether certain male
workers had standing under Article III to sue under the sex
discrimination laws, where the employer aimed the alleged
discrimination at female co-workers. We held:

       Because the male appellants here have pled specific
       facts to demonstrate a concrete injury as well as a
       nexus between the alleged injury and the sex-based
       discrimination, even though that discrimination was

                                6


       aimed in the first instance at others, we conclude that
       they have established standing. Their allegations that
       sex discrimination adversely affected their being hired
       as extras, as well as their seniority on the priority list,
       demonstrate actual injury. We hold that indirect
       victims of sex-based discrimination have standing to
       assert claims under Title VII if they allege colorable
       claims of injury-in-fact that are fairly traceable to acts
       or omissions by defendants that are unlawful under
       the statute. That the injury at issue is characterized as
       indirect is immaterial, as long as it is traceable to the
       defendant’s unlawful acts or omissions.

Anjelino, 200 F.3d at 92.

In addition to an effort to produce direct evidence of age
discrimination that the District Court rejected for many
reasons,5 the plaintiffs claim that each was indirectly
injured by Conrail’s age-based RIF decision, an alleged
unlawful act under ADEA. The District Court, however,
found Anjelino irrelevant because, as it explained, the
plaintiffs offered no proof that they were harmed indirectly
by an age based RIF decision "directed at others." (D.C. op.
at 12). We agree with the District Court that the plaintiffs’
reliance on Anjelino is irrelevant. We also conclude that
their dependence on Anjelino is misplaced because even if
Anjelino relieved each plaintiff from individually satisfying a
prima facie case under the McDonnell Douglas framework,
it would not relieve the plaintiffs from showing that the
terminations "are fairly traceable to acts or omissions by
defendants that are unlawful under the statute." Id. Stated
differently, Anjelino does not relieve the plaintiffs from
establishing that the RIF decision was unlawful under
ADEA.

The plaintiffs claim that as a result of Conrail’s prior
downsizing and two prior retirement buyouts, Conrail’s
workforce was predominately middle age. This, the plaintiffs
claim, "boded badly for Conrail’s future, because the flow
_________________________________________________________________

5. The District Court rejected the "purported direct evidence" because it
presented "myriad" problems. (D.C. op. at 6)."None of the evidence cited
by the plaintiffs bears directly upon Conrail’s reasons for implementing
the June 1995 RIF." Id.

                                7


through the pipeline of upcoming leaders was down to a
trickle." In addition, the plaintiffs rely on certain anecdotal
evidence from a Human Asset Planning Team reflecting
concern about Conrail’s aging workforce.

In Connors v. Chrysler Financial Corp., we recognized that
a plaintiff can prove discrimination by direct evidence, but
noted that a plaintiff confronts a "high hurdle." 160 F.3d
971, 976 (3d Cir. 1998). In quoting Justice O’Connor’s
controlling opinion in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), we held that the evidence must
demonstrate that the "decision makers placed substantial
negative reliance on an illegitimate criterion in reaching
their decision." Connors, 160 F.3d at 976. In other words,
the evidence must reveal a sufficient discriminatory animus
making it unnecessary to rely on any presumption from the
prima facie case to shift the burden of production. Id.

When reviewing a grant of summary judgment, we must
view the evidence in the light most favorable to the non-
movants, here the plaintiffs. We cannot say that a
reasonable fact-finder would find that plaintiffs’ generalized
evidence relating to Conrail’s aging workforce established
that its 1995 decision to institute a reduction in force was
illegitimately contrived on the basis of age. Even were we to
consider the evidence of the 1996 VSP, which the plaintiffs
claim the District Court erroneously rejected, as inferential
proof of Conrail’s concern with its aging workforce, it has
not much probative value from which to draw a sinister
motive behind the 1995 RIF decision. The plaintiffs failed to
produce sufficient evidence to reveal a discriminatory
animus in making the 1995 RIF decision.

Moreover, as the District Court carefully observed, none
of the evidence adduced by the plaintiffs addresses directly
the reasons for implementing the 1995 RIF, nor does any of
the evidence show that any decision maker relied on such
evidence. Having failed to show that the RIF decision was
age based, the District Court correctly found Anjelino
irrelevant here.

C.

We turn now to the plaintiffs’ indirect evidence of age
discrimination. In indirect evidence cases, we have

                                8


borrowed the three-step McDonnell Douglas burden shifting
analysis developed in the context of Title VII discrimination
cases and applied a "slightly modified version" to determine
whether the employer based its action on the individual’s
age. Connors, 160 F.3d at 973; 29 U.S.C.S 623(a)(1). Under
the first step of the three-step analysis, a plaintiff must
establish a prima facie case showing that he or she:

       (1) was a member of a protected class (i.e. he or she
       was forty years of age or older);

       (2) was qualified for the position at issue;

       (3) suffered an adverse employment action; and

       (4) was replaced by a sufficiently younger person,
       raising an inference of age discrimination.

Showalter v. University of Pittsburgh Med. Ctr. , 190 F.3d
231, 234 (3d Cir. 1999); Connors, 160 F.3d at 973-74.
Recognizing that the fourth element is inadequate in a
reduction in force context, as opposed to demotion or
discharge cases, we have held that the fourth element is
satisfied by showing that the employer retained a
"sufficiently younger" employee. Showalter , 190 F.3d at
235.

The District Court also held that to satisfy the fourth
element of the prima facie case, the plaintiffs must show
that the sufficiently younger person retained was"similarly
situated." None of the cases that the District Court cited,
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000), Showalter v. University of Pittsburgh Medical Center,
190 F.3d 231 (3d Cir. 1999), and Simpson v. Kay Jewelers,
Division of Sterling, Inc., 142 F.3d 639 (3d Cir. 1998),
explicitly holds that a plaintiff, in a RIF age discrimination
case, must demonstrate, as part of his or her prima facie
case, that "the defendant retained someone who was
similarly situated." Before proceeding to the plaintiffs’ claim
of error here, we must therefore determine whether the
District Court erred in imposing this requirement as part of
the prima facie case.

Relying on Earley v. Champion International Corp., 907
F.2d 1077 (11th Cir. 1990) and Skalka v. Fernald
Environmental Restoration Management, 178 F.3d 414 (6th

                                9


Cir. 1999), the District Court reasoned that because ADEA
is not a bumping statute, the plaintiffs must also show that
the employer retained a similarly situated individual. In
Earley, the United States Court of Appeals for the Eleventh
Circuit stated that ADEA does not require an employer to
discharge a younger employee so that an employee in the
ADEA protected class can be retained. 907 F.2d at 1083.
Likewise, the United States Court of Appeals for the Sixth
Circuit observed in Skalka that a "plaintiff cannot prevail
merely by pointing to other positions for which she was
qualified and claim[ ] that the employer should have allowed
her to ‘bump’ the occupant of that position." 178 F.3d at
421.

Because ADEA is not a bumping statute, as the plaintiffs
concede, the plaintiffs must show that the employer
retained a similarly situated employee. Were we to hold
otherwise, we would be construing ADEA as guaranteeing a
protected employee a job at the expense of a sufficiently
younger employee. Thus, to present a prima facie case
raising an inference of age discrimination in a reduction in
force situation, the plaintiff must show, as part of the
fourth element, that the employer retained someone
similarly situated to him who was sufficiently younger.

Of the seventeen plaintiffs on appeal here, the District
Court granted summary judgment against ten of them
because it concluded that they had failed to establish that
Conrail retained someone who was similarly situated, and
thus, raise an inference of age discrimination. The plaintiffs
attempt to demonstrate a similarly situated retained
individual by comparing themselves to other employees who
performed jobs for which they were also qualified. They
reason that because "shuffling employees is the norm,
plaintiffs should be able to challenge as discriminatory
Conrail’s failure to shuffle them to an assignment where
they could outperform a less experienced incumbent." If
Conrail engaged in routine shuffling, we agree with the
plaintiffs that such a practice should have been considered
in determining whether a younger person was similarly
situated to a discharged employee. However, that is not the
case here. The plaintiffs adduced minimal evidence showing
that inter-department assignments of employees was the

                                10


norm. On the contrary, at oral argument, the plaintiffs
retreated and acknowledged that they only attempted to
show a similarly situated retained employee by comparing
each plaintiff to someone within their own department or
sub-department.

Our review of the District Court’s well-reasoned analysis
of the ten plaintiffs’ cases who appeal this aspect of the
District Court decision (Anderson, Bellamy, Bonner, Foster,
Goslin, Guiteras, Jeffery, Kennedy, McMullan, and Quinn)
contradicts the plaintiffs’ submission. As to each of these
ten plaintiffs, they attempted to satisfy the fourth element
by comparing themselves to entry-level positions or other
low-level positions without providing any evidence of
shuffling. To the extent that a particular plaintiff referred to
someone in his department or sub-department, the District
Court rejected such evidence because the employees
retained were either not sufficiently younger or the evidence
failed to show that the duties were comparable or that they
were otherwise similarly situated. We therefore conclude
that the District Court did not err in finding the foregoing
ten plaintiffs failed to satisfy the fourth element of a prima
facie case.

D.

After surviving summary judgment, DeAngelis proceeded
to trial. The jury returned a verdict against him. He claims
error in the District Court’s jury instructions. DeAngelis
argues that the District Court erred in instructing the jury
to find for Conrail, if they were not persuaded that
DeAngelis had presented a prima facie case under the
McDonnell Douglas framework. DeAngelis does not explain
how, even if the instructions were erroneous, they were
prejudicial. In any case, we have stated that "it is clearly
proper to instruct the jury that it may consider whether the
factual predicates necessary to establish the prima facie
case have been shown." Watson v. Southeastern
Pennsylvania Transp. Auth., 207 F.3d 207, 221 (3d Cir.
2000). This is what the District Court did. As the Court
noted in rejecting DeAngelis’ argument in his post-trial
motion, "while the jury was instructed to consider the
‘factual predicates’ of the prima facie case, the term ‘prima

                                11


facie’ was not used, thus eliminating any unnecessary jury
confusion." In addition to failing to discover any prejudice,
we see no error in the jury instructions.

III.

Besides the ADEA claim, the plaintiffs pled a claim
against Conrail under ERISA S 510, 29 U.S.C.S 1140. They
alleged that they were discharged in July 1995 to prevent
attainment of the 1996 VSP benefits. On Conrail’s Rule
12(b)(6) motion, the District Court held that the ERISA
S 510 claim was time barred because the applicable statute
of limitations is two years. Our review is plenary over the
District Court’s dismissal for failure to state a claim
pursuant to Rule 12(b)(6). Brown v. Philip Morris, Inc., 250
F.3d 789, 796 (3d Cir. 2001).
The parties agree that the plaintiffs were involuntarily
terminated in July 1995. It also is undisputed that the
plaintiffs did not file their action until November 1998,
almost three and half years later. Therefore, whether the
two year statute of limitations or the six year advanced by
the plaintiffs applies is critical and dispositive of the S 510
claim. The plaintiffs also do not dispute on appeal that
their S 510 claim accrued in July 1995 when they were
terminated.

In Gavalik v. Continental Can Co., this Court held that
because S 510 does not provide a specific statute of
limitations for actions alleging violations of that section,
"the appropriate period is determined by reference to the
state statute of limitations governing cases most analogous
to the cause of actions asserted by the plaintiffs." 812 F.2d
834, 843 (3d Cir. 1987). We held that employment
discrimination and wrongful discharge claims brought
under federal law "are governed by Pennsylvania’s six-year
residuary clause." Id. at 844.

The District Court in this case concluded that the
plaintiffs S 510 claim here is most analogous to a wrongful
discharge cause of action because the plaintiffs’ allegations
are that they would have qualified if not for the wrongful
termination to preclude them from the 1996 VSP. The
District Court acknowledged that in Gavalik, this Court

                                12


stated that Pennsylvania’s six year statute of limitations
applied to employment discrimination or wrongful discharge
cause of action in S 510 claims. However, the District Court
held that since the decision in Raleigh v. Westinghouse
Electric Corp., 550 A.2d 1013, 1014 (Pa. Super. 1988),
appeal denied, 563 A.2d 499 (Pa. 1989), Pennsylvania has
applied a two year statute of limitations in wrongful
discharge causes of action. Therefore, it held that a S 510
claim analogous to a wrongful discharge cause of action is
governed by the two year statute of limitations set forth in
42 Pa. Cons. Stat. Ann. S 5524(7).

The plaintiffs do not dispute that the most analogous
cause of action asserted by them in their S 510 claim is a
wrongful discharge cause of action. They also do not
dispute that after Raleigh, a two year statute of limitations
applies in Pennsylvania in a wrongful discharge cause of
action. They contend, however, that because Gavalik
analogized a S 510 claim to an employment discrimination
cause of action, the six year statute of limitations
enunciated in Gavalik should apply. The applicable statute
of limitations for employment discrimination is irrelevant
here because the District Court determined, a
determination that is not challenged by the plaintiffs, that
their ERISA S 510 claim is most analogous to a wrongful
discharge.

Next, the plaintiffs submit that it was reasonable for
them to rely on the six-year statute of limitations
enunciated in Gavalik. However, the Gavalik court made
clear that the statute of limitations for an ERISAS 510
claim is governed by cases "most analogous to the cause of
action asserted by the plaintiffs." Because Raleigh held in
1988 that a two year statute of limitations applies to
wrongful discharges in Pennsylvania, and the District Court
found that the plaintiffs’ S 510 claim here is most
analogous to a wrongful discharge, the District Court did
not err in holding that the two year statute of limitations is
applicable to the plaintiffs’ S 510 claim. As the plaintiffs’
claims accrued in July 1995, and they did not file the
instant action until November 1998, their S 510 claims are
time barred.

                                13


The plaintiffs also alleged that they were entitled to
the VSP benefits under ERISA S 502(a)(1)(B), 29 U.S.C.
S 1132(a)(1)(B), and ERISA S 502(a)(3), 29 U.S.C.
S 1132(a)(3), although they did not satisfy the eligibility cut-
off date. The essence of their contention here is that Conrail
breached its fiduciary duty in extending the VSP benefits to
certain ex-employees terminated in January 1996, without
providing the same benefits to the employees terminated in
1995. The plaintiffs vehemently argue that Conrail’s
decision to expand the program to employees involuntarily
terminated as of January 2, 1996, but not to them, was a
breach of its fiduciary duty.

In Bennett v. Conrail Matched Savings Plan Administrative
Committee, we made clear that ERISA imposes a fiduciary
duty in the administration of a plan, but not when it acts
as a plan sponsor. 168 F.3d 671, 679 (3d Cir. 1999). In
amending a plan, an employer has broad authority and
acts as a settlor, not a fiduciary. Id. Therefore, we held that
"as long as an amendment does not violate a specific
provision of ERISA, ‘the act of amending a pension plan
does not trigger ERISA’s fiduciary provisions.’ " Id. (quoting
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444 (1999)).
Thus, Conrail’s amendment to the Plan in December 1996
to include those terminated in early January, and thereby
extend the VSP benefits to include more employees than
originally announced in February 1996, implicated no
ERISA fiduciary obligations because Conrail acted as a
settlor.

As to the plaintiffs’ cause of action to recover benefits due
under the terms of the plan under ERISA S 502(a)(1)(B), 29
U.S.C. S 1132(a)(1)(B), the plaintiffs acknowledge that they
do not satisfy the eligibility cut-off date, January 2, 1996.
Thus, the plaintiffs are entitled to no benefits under the
Plan. Hein v. FDIC, 88 F.3d 210, 215 (3d Cir. 1996) (stating
that only the Plan creates entitlement to benefits and thus,
"we are required to enforce the Plan as written unless we
can find a provision of ERISA that contains a contrary
directive") (quoting Dade v. North Am. Philips Corp., 68 F.3d
1558, 1562 (3d Cir. 1995)).
                                14


IV.

Summarizing, the plaintiffs have not shown that the
1995 RIF decision was age based, and therefore, Anjelino is
inapplicable. The District Court did not err in requiring the
plaintiffs to show, as part of their prima facie case, the
fourth element required in a reduction in force age
discrimination case. They failed to prove that retained
employees were similarly situated, as to create an inference
of age discrimination. The District Court also properly
dismissed all of the ERISA claims. As to DeAngelis’ claim of
error in the jury instructions in his trial, we perceive none.
Thus, the orders and summary judgment of the District
Court will be affirmed in their entirety. Each side to bear its
own costs.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                15
