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., 

, 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
 

, 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, 

, 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




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