was not a member of the Council, he was a member of the Washington Operations Management Group, the most senior management committee within Washington Operations. The Group included the heads of the eight major Washington Operations sectors and usually met every other week.
In Colby v. Graniteville Co., 635 F. Supp. 381 (S.D.N.Y. 1986), plaintiff was on many committees, but they were within a division of the defendant company.
Yet, the court refused to let plaintiff minimize his involvement. Colby, 635 F. Supp. at 385-386. Similarly, Dr. Passer cannot baldly minimize his status as a key executive on the Management Group. See id. at 385.
A number of other undisputed factors also tend to show that plaintiff was not a middle-level employee, but was indeed a bona fide executive. First, in 1986, and until his retirement in 1987, plaintiff earned $ 82,200 per year, making him the tenth highest paid ACS employee. Plaintiff was the sixth highest paid employee within Washington Operations. While a high salary is not determinative as to whether a position comes within the bona fide executive exemption, Whittlesey, 567 F. Supp. at 1326, it is one of a number of factors to consider. Colby, 635 F. Supp. 381, 385 (S.D.N.Y. 1986).
Second, under the ACS's constitution, the director of the Education Division was only one of six executive positions that required confirmation by the ACS board of directors. The directors of the Washington and Columbus Operations were among the six offices that required board approval as well.
Third, under the Hay point system used by the ACS to evaluate and rank positions on the 1,900-member ACS staff, plaintiff had the seventh highest score. This score was comprised of job knowledge required, problem-solving responsibility, and accountability.
Finally, plaintiff notes, by citing Breckenridge and Colby, that the payment of country club dues and other such perquisites are relevant in determining bona fide executive status. Plaintiff points out that the ACS provided cars and paid the club dues of only three ACS executives: the Executive Director, the Deputy, and the head of Washington Operations.
Plaintiff, however, has neglected to mention in his memorandum a number of interesting and undisputed facts. The ACS paid plaintiff's membership dues in seven organizations. Pltf's Adm. at 38. It is true that the ACS refused to pay for plaintiff's Cosmos Club membership. However, plaintiff made his request for that over 20 years ago, and at a time when he was not the Director of the Education Division. Id. at 40. Furthermore, plaintiff fails to mention that he was eligible to make business-related use of private clubs under memberships held in the names of other ACS employees. Id. at 42. Plaintiff also does not mention that since becoming Director of the Education Division in 1982, he never asked the ACS to provide him with the use of a car or to pay for his Cosmos Club membership. Id. at 40.
C. Plaintiff is entitled to a retirement benefit of $ 44,000 per year, as required by 29 U.S.C. § 631(c)(1).
In order to be a bona fide executive under the ADEA, the individual must be entitled to a nonforfeitable pension of at least $ 44,000 per year. Plaintiff does not dispute that he is actually receiving a monthly retirement benefit of $ 2,782.81, based upon his selection of an Optional Life Annuity with 180 guaranteed payments. Pltf's Adm. at 111. This annual pension benefit of $ 33,393.72 is actuarily equivalent to a $ 44,689.80 straight life annuity.
Rather, plaintiff disputes defendant's calculation of the retirement benefit. Plaintiff contends that he is only entitled to an actuarily equivalent annual retirement benefit of $ 43,683.60, an amount that is $ 316.40 below the statutory minimum.
The dispute between the parties arises over how to properly calculate the social security offset under the ACS's pension plan. Prior to plaintiff's retirement, his pension calculation was based upon an offset of $ 679 per month, thus resulting in the $ 43,683.60 pension. However, the final pension estimate used a social security offset of $ 476, thereby resulting in the actuarily equivalent pension of $ 44,600.
The Court is not presented here with a situation such as that in Tatarian v. Oneida Ltd., No. 83-3075-W (D. Mass. Nov. 23, 1985) (LEXIS, Genfed library, Dist. file), wherein the characterization of a $ 45,000 payment was in dispute. In that case, plaintiff argued that the payment could not be included in the calculation of the retirement pension because it was not immediate, nonforfeitable and from a "pension, profit-sharing, savings, or deferred compensation plan" as required by 29 U.S.C.A. § 631(c)(1). Plaintiff argued that the payment constituted salary, or alternatively, that it was consideration for a noncompetition agreement. Id.
In the case at bar, there is a disagreement over how to properly interpret the quite complicated offset provision in the ACS's pension plan. However, neither side disputes that plaintiff is actually receiving a pension actuarily worth more than $ 44,000, nor is there a dispute over the characterization of the pension payments. Congress required a $ 44,000 pension for an employee to qualify as a bona fide executive, and Congress' intent is not being thwarted when plaintiff is actually receiving more than $ 44,000.
An appropriate Order accompanies this Opinion.
For the reasons set forth in the accompanying Opinion, it hereby is
ORDERED, that defendant's motion for summary judgment is granted.