ENHANCED RETIREMENT PLAN NOT UNDER SERIOUS CONSIDERATION

 Bradney v. E.I. Dupont De Nemours And Company, Pension And Retirement Plan, 2000 U.S. App. LEXIS 21514 (6^th Cir. Aug. 18, 2000) (unpublished) -In McAuley v. IBM, 165 F.3d 1038, 1043 (6^th Cir. 1999), the Sixth Circuit held that a company contemplating offering an early retirement plan with added incentives must disclose the possibility to employees once management "seriously considered" the new plan.  This allows employees who might otherwise retire without the new benefits to see whether they would be better off by waiting for the new plan to go into effect.  The question was whether DuPont was "seriously considering" such a plan and had to inform plaintiffs before they took regular retirement.  Such a "serious consideration" test required the trial court to assess the state of mind of company managers concerning the implementation of a potential new retirement plan.

Before retirement, both plaintiffs had asked whether Dupont would offer a retirement incentive plan in the near future.  When questioned, DuPont responded that the plant would not be utilizing a retirement incentive plan.  In June, 1993, Dupont informed the employees that it would use a retirement incentive plan whereby employees could retire early with added benefits.

The District Court found that DuPont did not "seriously consider" the plan until May 24, 1993.

Under the McAuley analysis, a court should first ask whether the employer was focusing on a particular plan for a particular purpose. See Muse v. International Business Machines Corp., 103 F.3d 490, 494 (6^th Cir. 1996).  Second, a court should examine whether senior management with the authority to implement a change was discussing a specific proposal for purposes of implementation.  See McAuley, 165 F.3d at 1043-44.  The Sixth Circuit distinguished proposals being "seriously considered" from those merely being analyzed, discussed or reflected upon in a preliminary manner.

The Sixth Circuit did not believe that the District Court was "clearly erroneous" in its finding that DuPont managers did not "seriously consider" implementation of the new plan before May 14, 1993. The testimony was clear that Milliken, who had the authority to implement the new plan, was against it because it did not contain a volunteer component and would therefore rid the plant of its younger employees.  As of a May 12-13, 1993 meeting, this remained Milliken's position.  Milliken’s May 19, 1993 summary indicated a reluctance to use the new plan. Only on May 24, 1993, when Milliken received word from headquarters that he could vary the plan so as to allow employees to volunteer to retire in exchange for increased benefits did he immediately begin the process of informing employees of that option.  Although the factual issue is not entirely free from doubt, the Court did not believe that the District Court was clearly erroneous in so finding.  Milliken's notes made after the May 12-13 meeting did not necessarily undermine Milliken's testimony to this effect. The Sixth Circuit does not ordinarily reverse -- and was not inclined to reverse in this case -- a District Court's credibility findings.