297 F.3d 242 | 3rd Cir. | 2002
Before: SCIRICA, ROSENN, Circuit Judges, and(cid:13) WARD,* District Judge.(cid:13) (Filed: July 23, 2002)(cid:13) Alice W. Ballard, Esq. (Argued)(cid:13) Law Office of Alice W. Ballard, PC(cid:13) 225 South 15th Street, Suite 1700(cid:13) Philadelphia, PA 19102(cid:13) Counsel for Appellants(cid:13) Laurence Z. Shiekman, Esq.(cid:13) (Argued)(cid:13) Brian T. Ortelere, Esq.(cid:13) Joann Hyle, Esq.(cid:13) Larry R. Wood, Jr., Esq.(cid:13) Hope A. Comisky, Esq.(cid:13) Pepper Hamilton LLP(cid:13) 3000 Two Logan Square(cid:13) 18th & Arch Streets(cid:13) Philadelphia, PA 19103(cid:13) Counsel for Appellees(cid:13) OPINION OF THE COURT(cid:13) ROSENN, Circuit Judge:(cid:13) This age discrimination in employment case has its(cid:13) genesis in the lengthy struggle of our nation’s railroads for(cid:13) survival. Consolidated Railroad Corporation (Conrail), now(cid:13) _________________________________________________________________(cid:13) * Honorable Robert J. Ward, United States District Court for the(cid:13) Southern District of New York, Sitting by Designation.(cid:13) 2(cid:13) defunct, engaged in a reduction-in-force (RIF) in July 1995(cid:13) when it involuntarily terminated thirty employees in its(cid:13) Central Office. In November 1998, these employees, all but(cid:13) one in the forty to fifty-five year age range, sued Conrail in(cid:13) the United States District Court for the Eastern District of(cid:13) Pennsylvania. They claimed that Conrail’s decision to(cid:13) terminate them violated the Age Discrimination in(cid:13) Employment Act, 29 U.S.C. SS 621-634 (ADEA). Examining(cid:13) each individual plaintiff ’s prima facie case, the District(cid:13) Court found that certain plaintiffs had not satisfied the(cid:13) fourth element of the framework established by the(cid:13) Supreme Court in McDonnell Douglas Corp. v. Green, 411(cid:13) U.S. 792 (1973) because they could not show that Conrail(cid:13) retained a sufficiently younger and similarly situated(cid:13) employee for each employee terminated. The plaintiffs also(cid:13) claim that the District Court erred in rejecting their claims(cid:13) for pension benefits under ERISA S 510, 29 U.S.C. S 1140,(cid:13) and their claims for benefits under the Company’s(cid:13) Voluntary Separation Program (VSP) of 1996. Seventeen of(cid:13) the plaintiffs timely appealed.1 We affirm.(cid:13) I.(cid:13) As part of its RIF decision, Conrail provided the(cid:13) terminated employees with severance pay amounting to(cid:13) approximately a year’s salary per employee. In February(cid:13) 1996, Conrail announced a voluntary separation program(cid:13) or a buy-out which provided separation incentives to(cid:13) qualified employees that were more generous than the(cid:13) severance package offered to the involuntarily terminated(cid:13) plaintiffs. The 1996 benefits included payment of two years(cid:13) salary and an additional $5,000 expense allowance. As(cid:13) initially announced, the VSP benefits were available to(cid:13) those individuals who were employees as of February 21,(cid:13) 1996. Later, Conrail expanded the program to individuals(cid:13) who were employees as of January 2, 1996. In addition to(cid:13) the eligibility cut-off date, an employee had to have fifteen(cid:13) or more years of continuous work service to be eligible. In(cid:13) December 1996, Conrail amended its Supplemental Pension(cid:13) _________________________________________________________________(cid:13) 1. Thirteen plaintiffs resolved their claims against Conrail and have not(cid:13) appealed.(cid:13) 3(cid:13) Plan to include the VSP. Conrail denied the involuntary(cid:13) terminated employees the VSP benefits at each level of the(cid:13) administrative claims procedure.(cid:13) In November 1998, the thirty plaintiffs who had been(cid:13) involuntarily terminated in July 1995 filed this action.2(cid:13) They claimed that the decision by Conrail to reduce its(cid:13) aging work force "was motivated by a desire to thin its(cid:13) middle-aged ranks" to make room for younger new hires in(cid:13) violation of the Age Discrimination in Employment Act.(cid:13) They also claimed that Conrail terminated the plaintiffs in(cid:13) violation of ERISA S 510, 29 U.S.C. S 1140, to preclude(cid:13) them from participating in an anticipated voluntary buy-out(cid:13) program that Conrail subsequently announced in 1996.(cid:13) The District Court dismissed plaintiffs’ ERISA claims on(cid:13) Conrail’s Rule 12(b)(6) motion. The Court applied(cid:13) Pennsylvania’s two-year statute of limitations for tort cases(cid:13) to the ERISA S 510 claim, concluding that the claims were(cid:13) time barred. The District Court granted Conrail’s summary(cid:13) judgment motion on the ADEA claims in part and denied(cid:13) them in part. The District Court found that the plaintiffs’(cid:13) reliance on Anjelino v. New York Times Co., 200 F.3d 73 (3d(cid:13) Cir. 1999) was not relevant to their ADEA claim. The(cid:13) District Court found that certain plaintiffs had not satisfied(cid:13) the fourth element required to make out a prima facie case,(cid:13) namely, proof that a similarly situated younger person was(cid:13) retained or hired to fill the position of the employee(cid:13) terminated. Of the fourteen plaintiffs that survived(cid:13) summary judgment, eleven settled. Gilmore, Fote and(cid:13) DeAngelis proceeded to trial separately pursuant to the(cid:13) District Court’s order.3 The jury returned a verdict in favor(cid:13) of Gilmore and against Fote and DeAngelis. The District(cid:13) Court denied both parties’ post-trial motions in January(cid:13) 2001.4(cid:13) _________________________________________________________________(cid:13) 2. The District Court exercised subject matter jurisdiction under 28(cid:13) U.S.C. S 1331. This Court has appellate jurisdiction pursuant to 28(cid:13) U.S.C. S 1291.(cid:13) 3. Although the District Court granted Conrail’s motion for separate(cid:13) trials under Federal Rule of Civil Procedure 42(b), it denied the motion(cid:13) to sever the cases under Rule 21.(cid:13) 4. Of the original thirty plaintiffs, thirteen plaintiffs have settled all their(cid:13) claims, including Gilmore and Fote. Of the remaining seventeen, all of(cid:13) 4(cid:13) II.(cid:13) A.(cid:13) Our review of the District Court’s grant of summary(cid:13) judgment is plenary, and we apply the same test as the(cid:13) District Court should have applied initially. Olson v.(cid:13) General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996).(cid:13) Summary judgment is proper if after considering"the(cid:13) pleadings, depositions, answers to interrogatories, and(cid:13) admissions on file, together with the affidavit, if any, . . .(cid:13) there is no genuine issue as to any material fact and . . .(cid:13) the moving party is entitled to judgment as a matter of(cid:13) law." Fed. R. Civ. P. 56(c). An issue is genuine"if the(cid:13) evidence is such that a reasonable jury could return a(cid:13) verdict for the nonmoving party." Anderson v. Liberty Lobby,(cid:13) Inc., 477 U.S. 242, 248 (1986). In conducting that review,(cid:13) the non-moving party is entitled to all reasonable inferences(cid:13) and the record is construed in the light most favorable to(cid:13) that party. Pollock v. American Tel. & Tel. Long Lines, 794(cid:13) F.2d 860, 864 (3d Cir. 1986). However, in deciding a(cid:13) summary judgment motion, we are obligated to "view the(cid:13) evidence . . . through the prism of the substantive(cid:13) evidentiary burden" and determine "whether a jury could(cid:13) reasonably find either that the plaintiff proved his case by(cid:13) the quality and quantity of the evidence required by the(cid:13) governing law or that he did not." Anderson, 477 U.S. at(cid:13) 254.(cid:13) Summary judgment against a party who bears the(cid:13) burden of proof at trial, as do the plaintiffs here, is proper(cid:13) if after adequate time for discovery and upon motion, a(cid:13) party fails to make a showing sufficient to establish the(cid:13) existence of an element essential to that party’s case, and(cid:13) on which that party will bear the burden of proof at trial.(cid:13) Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).(cid:13) Under such circumstances, "there can be no genuine issue(cid:13) _________________________________________________________________(cid:13) them challenge the ERISA decision. Fourteen plaintiffs challenge the(cid:13) Anjelino decision, while only ten challenge the District Court’s disposition(cid:13) of their prima facie case. Because our decision does not turn on any(cid:13) facts particular to any individual plaintiff, we need not detail which(cid:13) specific plaintiffs challenge what aspect of the District Court’s decision.(cid:13) 5(cid:13) as to any material fact, since a complete failure of proof(cid:13) concerning an essential element of the nonmoving party’s(cid:13) case necessarily renders all other facts immaterial." Id. at(cid:13) 323 (internal quotations omitted). Further, "[t]he moving(cid:13) party is entitled to a judgment as a matter of law because(cid:13) the nonmoving party has failed to make a sufficient(cid:13) showing on an essential element of her case with respect to(cid:13) which she has the burden of proof." Id.(cid:13) B.(cid:13) Under the Age Discrimination in Employment Act, an(cid:13) employer is prohibited from discharging any individual or(cid:13) otherwise discriminating against an individual with respect(cid:13) to compensation, terms, conditions, or privileges of(cid:13) employment, because of such individual’s age. 29 U.S.C.(cid:13) S 623(a)(1). A plaintiff may establish an age discrimination(cid:13) claim using direct or indirect evidence. The plaintiffs claim(cid:13) that they established a prima facie case sufficient to defeat(cid:13) a motion for summary judgment by asserting that Conrail’s(cid:13) terminations were to make room for younger new(cid:13) employees and by showing that its proffered reason of the(cid:13) need for immediate cost savings was pretextual. They(cid:13) argue that under their Anjelino theory they need to(cid:13) produce evidence "only that they lost their jobs as a(cid:13) result of age discrimination, regardless of their individual(cid:13) circumstances," to bar summary judgment. The plaintiffs(cid:13) argue that each of them need not individually establish a(cid:13) prima facie case under the McDonnell Douglas framework.(cid:13) Relying on Anjelino, 200 F.3d at 92, they claim entitlement(cid:13) to relief because each of them suffered as a result of(cid:13) Conrail’s impermissible decision to apply the 1995 RIF on(cid:13) the basis of age.(cid:13) In Anjelino, this Court addressed whether certain male(cid:13) workers had standing under Article III to sue under the sex(cid:13) discrimination laws, where the employer aimed the alleged(cid:13) discrimination at female co-workers. We held:(cid:13) Because the male appellants here have pled specific(cid:13) facts to demonstrate a concrete injury as well as a(cid:13) nexus between the alleged injury and the sex-based(cid:13) discrimination, even though that discrimination was(cid:13) 6(cid:13) aimed in the first instance at others, we conclude that(cid:13) they have established standing. Their allegations that(cid:13) sex discrimination adversely affected their being hired(cid:13) as extras, as well as their seniority on the priority list,(cid:13) demonstrate actual injury. We hold that indirect(cid:13) victims of sex-based discrimination have standing to(cid:13) assert claims under Title VII if they allege colorable(cid:13) claims of injury-in-fact that are fairly traceable to acts(cid:13) or omissions by defendants that are unlawful under(cid:13) the statute. That the injury at issue is characterized as(cid:13) indirect is immaterial, as long as it is traceable to the(cid:13) defendant’s unlawful acts or omissions.(cid:13) Anjelino, 200 F.3d at 92.(cid:13) In addition to an effort to produce direct evidence of age(cid:13) discrimination that the District Court rejected for many(cid:13) reasons,5 the plaintiffs claim that each was indirectly(cid:13) injured by Conrail’s age-based RIF decision, an alleged(cid:13) unlawful act under ADEA. The District Court, however,(cid:13) found Anjelino irrelevant because, as it explained, the(cid:13) plaintiffs offered no proof that they were harmed indirectly(cid:13) by an age based RIF decision "directed at others." (D.C. op.(cid:13) at 12). We agree with the District Court that the plaintiffs’(cid:13) reliance on Anjelino is irrelevant. We also conclude that(cid:13) their dependence on Anjelino is misplaced because even if(cid:13) Anjelino relieved each plaintiff from individually satisfying a(cid:13) prima facie case under the McDonnell Douglas framework,(cid:13) it would not relieve the plaintiffs from showing that the(cid:13) terminations "are fairly traceable to acts or omissions by(cid:13) defendants that are unlawful under the statute." Id. Stated(cid:13) differently, Anjelino does not relieve the plaintiffs from(cid:13) establishing that the RIF decision was unlawful under(cid:13) ADEA.(cid:13) The plaintiffs claim that as a result of Conrail’s prior(cid:13) downsizing and two prior retirement buyouts, Conrail’s(cid:13) workforce was predominately middle age. This, the plaintiffs(cid:13) claim, "boded badly for Conrail’s future, because the flow(cid:13) _________________________________________________________________(cid:13) 5. The District Court rejected the "purported direct evidence" because it(cid:13) presented "myriad" problems. (D.C. op. at 6)."None of the evidence cited(cid:13) by the plaintiffs bears directly upon Conrail’s reasons for implementing(cid:13) the June 1995 RIF." Id.(cid:13) 7(cid:13) through the pipeline of upcoming leaders was down to a(cid:13) trickle." In addition, the plaintiffs rely on certain anecdotal(cid:13) evidence from a Human Asset Planning Team reflecting(cid:13) concern about Conrail’s aging workforce.(cid:13) In Connors v. Chrysler Financial Corp., we recognized that(cid:13) a plaintiff can prove discrimination by direct evidence, but(cid:13) noted that a plaintiff confronts a "high hurdle." 160 F.3d(cid:13) 971, 976 (3d Cir. 1998). In quoting Justice O’Connor’s(cid:13) controlling opinion in Price Waterhouse v. Hopkins, 490(cid:13) U.S. 228 (1989), we held that the evidence must(cid:13) demonstrate that the "decision makers placed substantial(cid:13) negative reliance on an illegitimate criterion in reaching(cid:13) their decision." Connors, 160 F.3d at 976. In other words,(cid:13) the evidence must reveal a sufficient discriminatory animus(cid:13) making it unnecessary to rely on any presumption from the(cid:13) prima facie case to shift the burden of production. Id.(cid:13) When reviewing a grant of summary judgment, we must(cid:13) view the evidence in the light most favorable to the non-(cid:13) movants, here the plaintiffs. We cannot say that a(cid:13) reasonable fact-finder would find that plaintiffs’ generalized(cid:13) evidence relating to Conrail’s aging workforce established(cid:13) that its 1995 decision to institute a reduction in force was(cid:13) illegitimately contrived on the basis of age. Even were we to(cid:13) consider the evidence of the 1996 VSP, which the plaintiffs(cid:13) claim the District Court erroneously rejected, as inferential(cid:13) proof of Conrail’s concern with its aging workforce, it has(cid:13) not much probative value from which to draw a sinister(cid:13) motive behind the 1995 RIF decision. The plaintiffs failed to(cid:13) produce sufficient evidence to reveal a discriminatory(cid:13) animus in making the 1995 RIF decision.(cid:13) Moreover, as the District Court carefully observed, none(cid:13) of the evidence adduced by the plaintiffs addresses directly(cid:13) the reasons for implementing the 1995 RIF, nor does any of(cid:13) the evidence show that any decision maker relied on such(cid:13) evidence. Having failed to show that the RIF decision was(cid:13) age based, the District Court correctly found Anjelino(cid:13) irrelevant here.(cid:13) C.(cid:13) We turn now to the plaintiffs’ indirect evidence of age(cid:13) discrimination. In indirect evidence cases, we have(cid:13) 8(cid:13) borrowed the three-step McDonnell Douglas burden shifting(cid:13) analysis developed in the context of Title VII discrimination(cid:13) cases and applied a "slightly modified version" to determine(cid:13) whether the employer based its action on the individual’s(cid:13) age. Connors, 160 F.3d at 973; 29 U.S.C.S 623(a)(1). Under(cid:13) the first step of the three-step analysis, a plaintiff must(cid:13) establish a prima facie case showing that he or she:(cid:13) (1) was a member of a protected class (i.e. he or she(cid:13) was forty years of age or older);(cid:13) (2) was qualified for the position at issue;(cid:13) (3) suffered an adverse employment action; and(cid:13) (4) was replaced by a sufficiently younger person,(cid:13) raising an inference of age discrimination.(cid:13) Showalter v. University of Pittsburgh Med. Ctr. , 190 F.3d(cid:13) 231, 234 (3d Cir. 1999); Connors, 160 F.3d at 973-74.(cid:13) Recognizing that the fourth element is inadequate in a(cid:13) reduction in force context, as opposed to demotion or(cid:13) discharge cases, we have held that the fourth element is(cid:13) satisfied by showing that the employer retained a(cid:13) "sufficiently younger" employee. Showalter , 190 F.3d at(cid:13) 235.(cid:13) The District Court also held that to satisfy the fourth(cid:13) element of the prima facie case, the plaintiffs must show(cid:13) that the sufficiently younger person retained was"similarly(cid:13) situated." None of the cases that the District Court cited,(cid:13) Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133(cid:13) (2000), Showalter v. University of Pittsburgh Medical Center,(cid:13) 190 F.3d 231 (3d Cir. 1999), and Simpson v. Kay Jewelers,(cid:13) Division of Sterling, Inc., 142 F.3d 639 (3d Cir. 1998),(cid:13) explicitly holds that a plaintiff, in a RIF age discrimination(cid:13) case, must demonstrate, as part of his or her prima facie(cid:13) case, that "the defendant retained someone who was(cid:13) similarly situated." Before proceeding to the plaintiffs’ claim(cid:13) of error here, we must therefore determine whether the(cid:13) District Court erred in imposing this requirement as part of(cid:13) the prima facie case.(cid:13) Relying on Earley v. Champion International Corp., 907(cid:13) F.2d 1077 (11th Cir. 1990) and Skalka v. Fernald(cid:13) Environmental Restoration Management, 178 F.3d 414 (6th(cid:13) 9(cid:13) Cir. 1999), the District Court reasoned that because ADEA(cid:13) is not a bumping statute, the plaintiffs must also show that(cid:13) the employer retained a similarly situated individual. In(cid:13) Earley, the United States Court of Appeals for the Eleventh(cid:13) Circuit stated that ADEA does not require an employer to(cid:13) discharge a younger employee so that an employee in the(cid:13) ADEA protected class can be retained. 907 F.2d at 1083.(cid:13) Likewise, the United States Court of Appeals for the Sixth(cid:13) Circuit observed in Skalka that a "plaintiff cannot prevail(cid:13) merely by pointing to other positions for which she was(cid:13) qualified and claim[ ] that the employer should have allowed(cid:13) her to ‘bump’ the occupant of that position." 178 F.3d at(cid:13) 421.(cid:13) Because ADEA is not a bumping statute, as the plaintiffs(cid:13) concede, the plaintiffs must show that the employer(cid:13) retained a similarly situated employee. Were we to hold(cid:13) otherwise, we would be construing ADEA as guaranteeing a(cid:13) protected employee a job at the expense of a sufficiently(cid:13) younger employee. Thus, to present a prima facie case(cid:13) raising an inference of age discrimination in a reduction in(cid:13) force situation, the plaintiff must show, as part of the(cid:13) fourth element, that the employer retained someone(cid:13) similarly situated to him who was sufficiently younger.(cid:13) Of the seventeen plaintiffs on appeal here, the District(cid:13) Court granted summary judgment against ten of them(cid:13) because it concluded that they had failed to establish that(cid:13) Conrail retained someone who was similarly situated, and(cid:13) thus, raise an inference of age discrimination. The plaintiffs(cid:13) attempt to demonstrate a similarly situated retained(cid:13) individual by comparing themselves to other employees who(cid:13) performed jobs for which they were also qualified. They(cid:13) reason that because "shuffling employees is the norm,(cid:13) plaintiffs should be able to challenge as discriminatory(cid:13) Conrail’s failure to shuffle them to an assignment where(cid:13) they could outperform a less experienced incumbent." If(cid:13) Conrail engaged in routine shuffling, we agree with the(cid:13) plaintiffs that such a practice should have been considered(cid:13) in determining whether a younger person was similarly(cid:13) situated to a discharged employee. However, that is not the(cid:13) case here. The plaintiffs adduced minimal evidence showing(cid:13) that inter-department assignments of employees was the(cid:13) 10(cid:13) norm. On the contrary, at oral argument, the plaintiffs(cid:13) retreated and acknowledged that they only attempted to(cid:13) show a similarly situated retained employee by comparing(cid:13) each plaintiff to someone within their own department or(cid:13) sub-department.(cid:13) Our review of the District Court’s well-reasoned analysis(cid:13) of the ten plaintiffs’ cases who appeal this aspect of the(cid:13) District Court decision (Anderson, Bellamy, Bonner, Foster,(cid:13) Goslin, Guiteras, Jeffery, Kennedy, McMullan, and Quinn)(cid:13) contradicts the plaintiffs’ submission. As to each of these(cid:13) ten plaintiffs, they attempted to satisfy the fourth element(cid:13) by comparing themselves to entry-level positions or other(cid:13) low-level positions without providing any evidence of(cid:13) shuffling. To the extent that a particular plaintiff referred to(cid:13) someone in his department or sub-department, the District(cid:13) Court rejected such evidence because the employees(cid:13) retained were either not sufficiently younger or the evidence(cid:13) failed to show that the duties were comparable or that they(cid:13) were otherwise similarly situated. We therefore conclude(cid:13) that the District Court did not err in finding the foregoing(cid:13) ten plaintiffs failed to satisfy the fourth element of a prima(cid:13) facie case.(cid:13) D.(cid:13) After surviving summary judgment, DeAngelis proceeded(cid:13) to trial. The jury returned a verdict against him. He claims(cid:13) error in the District Court’s jury instructions. DeAngelis(cid:13) argues that the District Court erred in instructing the jury(cid:13) to find for Conrail, if they were not persuaded that(cid:13) DeAngelis had presented a prima facie case under the(cid:13) McDonnell Douglas framework. DeAngelis does not explain(cid:13) how, even if the instructions were erroneous, they were(cid:13) prejudicial. In any case, we have stated that "it is clearly(cid:13) proper to instruct the jury that it may consider whether the(cid:13) factual predicates necessary to establish the prima facie(cid:13) case have been shown." Watson v. Southeastern(cid:13) Pennsylvania Transp. Auth., 207 F.3d 207, 221 (3d Cir.(cid:13) 2000). This is what the District Court did. As the Court(cid:13) noted in rejecting DeAngelis’ argument in his post-trial(cid:13) motion, "while the jury was instructed to consider the(cid:13) ‘factual predicates’ of the prima facie case, the term ‘prima(cid:13) 11(cid:13) facie’ was not used, thus eliminating any unnecessary jury(cid:13) confusion." In addition to failing to discover any prejudice,(cid:13) we see no error in the jury instructions.(cid:13) III.(cid:13) Besides the ADEA claim, the plaintiffs pled a claim(cid:13) against Conrail under ERISA S 510, 29 U.S.C.S 1140. They(cid:13) alleged that they were discharged in July 1995 to prevent(cid:13) attainment of the 1996 VSP benefits. On Conrail’s Rule(cid:13) 12(b)(6) motion, the District Court held that the ERISA(cid:13) S 510 claim was time barred because the applicable statute(cid:13) of limitations is two years. Our review is plenary over the(cid:13) District Court’s dismissal for failure to state a claim(cid:13) pursuant to Rule 12(b)(6). Brown v. Philip Morris, Inc., 250(cid:13) F.3d 789, 796 (3d Cir. 2001).(cid:13) The parties agree that the plaintiffs were involuntarily(cid:13) terminated in July 1995. It also is undisputed that the(cid:13) plaintiffs did not file their action until November 1998,(cid:13) almost three and half years later. Therefore, whether the(cid:13) two year statute of limitations or the six year advanced by(cid:13) the plaintiffs applies is critical and dispositive of the S 510(cid:13) claim. The plaintiffs also do not dispute on appeal that(cid:13) their S 510 claim accrued in July 1995 when they were(cid:13) terminated.(cid:13) In Gavalik v. Continental Can Co., this Court held that(cid:13) because S 510 does not provide a specific statute of(cid:13) limitations for actions alleging violations of that section,(cid:13) "the appropriate period is determined by reference to the(cid:13) state statute of limitations governing cases most analogous(cid:13) to the cause of actions asserted by the plaintiffs." 812 F.2d(cid:13) 834, 843 (3d Cir. 1987). We held that employment(cid:13) discrimination and wrongful discharge claims brought(cid:13) under federal law "are governed by Pennsylvania’s six-year(cid:13) residuary clause." Id. at 844.(cid:13) The District Court in this case concluded that the(cid:13) plaintiffs S 510 claim here is most analogous to a wrongful(cid:13) discharge cause of action because the plaintiffs’ allegations(cid:13) are that they would have qualified if not for the wrongful(cid:13) termination to preclude them from the 1996 VSP. The(cid:13) District Court acknowledged that in Gavalik, this Court(cid:13) 12(cid:13) stated that Pennsylvania’s six year statute of limitations(cid:13) applied to employment discrimination or wrongful discharge(cid:13) cause of action in S 510 claims. However, the District Court(cid:13) held that since the decision in Raleigh v. Westinghouse(cid:13) Electric Corp., 550 A.2d 1013, 1014 (Pa. Super. 1988),(cid:13) appeal denied, 563 A.2d 499 (Pa. 1989), Pennsylvania has(cid:13) applied a two year statute of limitations in wrongful(cid:13) discharge causes of action. Therefore, it held that a S 510(cid:13) claim analogous to a wrongful discharge cause of action is(cid:13) governed by the two year statute of limitations set forth in(cid:13) 42 Pa. Cons. Stat. Ann. S 5524(7).(cid:13) The plaintiffs do not dispute that the most analogous(cid:13) cause of action asserted by them in their S 510 claim is a(cid:13) wrongful discharge cause of action. They also do not(cid:13) dispute that after Raleigh, a two year statute of limitations(cid:13) applies in Pennsylvania in a wrongful discharge cause of(cid:13) action. They contend, however, that because Gavalik(cid:13) analogized a S 510 claim to an employment discrimination(cid:13) cause of action, the six year statute of limitations(cid:13) enunciated in Gavalik should apply. The applicable statute(cid:13) of limitations for employment discrimination is irrelevant(cid:13) here because the District Court determined, a(cid:13) determination that is not challenged by the plaintiffs, that(cid:13) their ERISA S 510 claim is most analogous to a wrongful(cid:13) discharge.(cid:13) Next, the plaintiffs submit that it was reasonable for(cid:13) them to rely on the six-year statute of limitations(cid:13) enunciated in Gavalik. However, the Gavalik court made(cid:13) clear that the statute of limitations for an ERISAS 510(cid:13) claim is governed by cases "most analogous to the cause of(cid:13) action asserted by the plaintiffs." Because Raleigh held in(cid:13) 1988 that a two year statute of limitations applies to(cid:13) wrongful discharges in Pennsylvania, and the District Court(cid:13) found that the plaintiffs’ S 510 claim here is most(cid:13) analogous to a wrongful discharge, the District Court did(cid:13) not err in holding that the two year statute of limitations is(cid:13) applicable to the plaintiffs’ S 510 claim. As the plaintiffs’(cid:13) claims accrued in July 1995, and they did not file the(cid:13) instant action until November 1998, their S 510 claims are(cid:13) time barred.(cid:13) 13(cid:13) The plaintiffs also alleged that they were entitled to(cid:13) the VSP benefits under ERISA S 502(a)(1)(B), 29 U.S.C.(cid:13) S 1132(a)(1)(B), and ERISA S 502(a)(3), 29 U.S.C.(cid:13) S 1132(a)(3), although they did not satisfy the eligibility cut-(cid:13) off date. The essence of their contention here is that Conrail(cid:13) breached its fiduciary duty in extending the VSP benefits to(cid:13) certain ex-employees terminated in January 1996, without(cid:13) providing the same benefits to the employees terminated in(cid:13) 1995. The plaintiffs vehemently argue that Conrail’s(cid:13) decision to expand the program to employees involuntarily(cid:13) terminated as of January 2, 1996, but not to them, was a(cid:13) breach of its fiduciary duty.(cid:13) In Bennett v. Conrail Matched Savings Plan Administrative(cid:13) Committee, we made clear that ERISA imposes a fiduciary(cid:13) duty in the administration of a plan, but not when it acts(cid:13) as a plan sponsor. 168 F.3d 671, 679 (3d Cir. 1999). In(cid:13) amending a plan, an employer has broad authority and(cid:13) acts as a settlor, not a fiduciary. Id. Therefore, we held that(cid:13) "as long as an amendment does not violate a specific(cid:13) provision of ERISA, ‘the act of amending a pension plan(cid:13) does not trigger ERISA’s fiduciary provisions.’ " Id. (quoting(cid:13) Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444 (1999)).(cid:13) Thus, Conrail’s amendment to the Plan in December 1996(cid:13) to include those terminated in early January, and thereby(cid:13) extend the VSP benefits to include more employees than(cid:13) originally announced in February 1996, implicated no(cid:13) ERISA fiduciary obligations because Conrail acted as a(cid:13) settlor.(cid:13) As to the plaintiffs’ cause of action to recover benefits due(cid:13) under the terms of the plan under ERISA S 502(a)(1)(B), 29(cid:13) U.S.C. S 1132(a)(1)(B), the plaintiffs acknowledge that they(cid:13) do not satisfy the eligibility cut-off date, January 2, 1996.(cid:13) Thus, the plaintiffs are entitled to no benefits under the(cid:13) Plan. Hein v. FDIC, 88 F.3d 210, 215 (3d Cir. 1996) (stating(cid:13) that only the Plan creates entitlement to benefits and thus,(cid:13) "we are required to enforce the Plan as written unless we(cid:13) can find a provision of ERISA that contains a contrary(cid:13) directive") (quoting Dade v. North Am. Philips Corp., 68 F.3d(cid:13) 1558, 1562 (3d Cir. 1995)).(cid:13) 14(cid:13) IV.(cid:13) Summarizing, the plaintiffs have not shown that the(cid:13) 1995 RIF decision was age based, and therefore, Anjelino is(cid:13) inapplicable. The District Court did not err in requiring the(cid:13) plaintiffs to show, as part of their prima facie case, the(cid:13) fourth element required in a reduction in force age(cid:13) discrimination case. They failed to prove that retained(cid:13) employees were similarly situated, as to create an inference(cid:13) of age discrimination. The District Court also properly(cid:13) dismissed all of the ERISA claims. As to DeAngelis’ claim of(cid:13) error in the jury instructions in his trial, we perceive none.(cid:13) Thus, the orders and summary judgment of the District(cid:13) Court will be affirmed in their entirety. Each side to bear its(cid:13) own costs.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 15