Rоbert Conkwright appeals the district court’s grant of summary judgment to his
*233
former employer, Westinghouse Electric Corp. (Westinghouse),
I
Conkwright brought this action after being laid off, 1 at the age of 60, from his position as contracts administrator at Westinghouse’s Defense and Electronics Center. He had worked for Westinghouse for nearly twenty years at the time of his layoff, but had transferred to this division, at his option, only a few years before his termination. The average age of the three managers of this division at thе time of his layoff was 41; the average age of the staff was 32. Conkwright held the highest salary position in the unit (due to his length of service, though he was not a manager).
Shortly after Conkwright arrived at the division, he was given a job performance rating: on Westinghouse’s scale of 1 to 4, he was rated a 2, which means “produces acceptable results-requires improvement.” That rating also noted that Conkwright had only recently been assigned to the division. Conkwright’s lowlevel duties concerned him, and he complained to management about the lack of сhallenging work assignments. As a result, his work in international marketing programs was expanded somewhat, in an effort to accommodate his complaints. In January 1984, Conkwright was reviewed again, in an annual review, and was rated 1.9 and described as “floundering.” In December 1984, he was given a rating of 2.1. Consequently, Conk-wright’s rating after over two years in this division stayed essentially the same — a “2 performer” who “produces acceptable results but requires improvement.”
In 1985, Westinghouse learned that it had lost a major defense contract known as DIVADS. 2 The loss of the DIVADS contract ultimately resulted in a reduction-in-force (RIF) for Conkwright’s division. To implement the RIF, Westinghouse’s manager of human resources asked each manager to identify those employees who were “lowest rated” on the performance scale. An initial list submitted by the managers had a disproportionate number of older Westinghouse employees. As a result, Westinghouse’s senior management set guidelines for adjusting the lists so that no one close to vesting would be laid off. Once the exact number of positions to be cut had been identifiеd, Conkwright’s supervisor was told to lay off the three “lowest rated” employees. The supervisor identified Conkwright along with two other low rated persons, both of whom were under the age of 40. All three were terminated. Shortly thereafter, Conkwright filed this lawsuit based on the Age Discrimination in Employment Act (ADEA), the Employee Retirement Insurance Security Act (ERISA), and state law breach of contract. After discovery, defendant moved for summary judgment, which the district court granted. This timely appeal followed.
II
On summary judgment, the non-moving party is entitled to have his evidence as forecast assumed, his version of that in dispute accepted, and the benefit of all favorable inferences.
Charbonnages de France v. Smith,
In an age discrimination case, a plaintiff must prove that “but for” his employer’s discriminatory intent, he would not have been fired or laid off.
Lovelace v. Sherwin-Williams Co.,
Here, Conkwright relies principally upon the Title VII proof scheme, and we address it first.
A
Under that proof scheme, the prima facie case in an age discrimination reduction-in-force case requires proof that the claimant who is in the protected age group was discharged or demoted, was performing his job at the time of discharge at a level that met his employer’s expectations, and that either persons outside the protected class were retained in the same position, or that Westinghouse did not treat age neutrally in selecting the claimant for layoff.
EEOC v. Western Elec. Corp.,
The only element of the prima facie case which is contested here is whether Conk-wright met the legitimate expectations of his employer. As to this element, we hold there was a genuine issue of fact. The ratings that Conkwright received during this time period were all in the 2 range — he was a classic “2 performer.” That means that he “produces acceptable results — requires improvement.” Westinghouse urges on us the view that the standard means “requires improvement” (the emphasis is theirs) and that anyone “requiring improvement” necessarily fails to meet his employer’s expectations. It is equally plausible, however, that one could underscore “produces acceptable results” (the emphasis is ours) in support of the opposite conclusion. Under that alternative interpretation, Conkwright must have been meeting employer expectations, because he “produced acceptable results.” A reasonable trier of fact could accept defendant’s suggestion and interpret Westinghouse’s rating system so that the employer’s legitimate expectаtions were that everyone would produce acceptable results and improve. That reading would not be wrong, it is just different than the one plausibly advanced by plaintiff. Thus, using the objective evidence available, the rating system, we find that reasonable minds could differ as to whether Conkwright “needed improvement” or “produced acceptable results.” If plaintiff is entitled to the benefit of all inferences, then there is a genuine dispute as to whether he met the legitimate expectations of his employer. 3
B
When a plaintiff establishеs a prima facie case, then the employer must present a legitimate, non-discriminatory reason for the layoff. In this case, that is straightforward: the cancellation of the DIVADS contract forced Westinghouse to reduce its force, and the RIF was implemented by choosing the lowest rated persons. Conk-wright argues that the district court too readily credited Westinghouse’s asserted basis for the layoff, the use of the rating system; instead he contends that the rating system was somehow infected with bias toward Conkwright and older workers. This assertion is misplaced. Deciding to lay off someone based on a company-wide performance rating system, which has been in place for years and which has not been shown to be discriminatory, and choosing to lay off all those who were among the lowest rated, must count as “an articulation of a legitimate, non-discriminatory reason.” That is not to say that the legitimate, nondiscriminatory reason will not later be found pretextual. But for this stage in the proof scheme it suffices.
C
Having made out a prima facie case and being then confronted with an employ *235 er’s articulated non-discriminatory reason, a claimant then has the burden to show that the articulated reason was pretext. To survive a summary judgment motion, Conkwright must therefore demonstrate the existence of a genuine issue of fact as to whether age, rather than the performance ratings, was used by Westinghouse in selecting Conkwright for layoff. We affirm the granting of summary judgment because there is no significant evidence that shows the rating system was a pretext for Conkwright’s firing or that age played any role in the termination dеcision.
Westinghouse management had to cut employees due to the loss of the DIVADS contract. A large number of persons across the company were cut. In choosing whom to lay off, it relied on an ostensibly neutral, merit-based system, its internal rating system. That system generated a list of names of those who were the “lowest rated.” Management then adjusted this list to avoid hurting disproportionately minorities or those nearing vesting or retirement, an action that surely does not suggest a pretextual basis for Conk-wright’s termination.
See McDaniel v. Mead Corp.,
There is no evidence to which Conk-wright can point as suggesting pretext, except that he met the job expectations of his employers and he was ovеr age 40. Even if we accept that, the ratings system informed Westinghouse that other persons also met their expectations and did a better job. Alternatively, the rating system could have told Westinghouse that Conkwright only barely met their expectations — and if someone had to be terminated it should be him. In any event, Conkwright fails to raise a genuine issue that the rating system was used in a discriminatory manner and was pretextual.
D
Conkwright also contends that he has enough direct and circumstantial evidence to create a genuine issue using ordinary proof prinсiples. Proof that a plaintiff was treated unfavorably because of his age can come from direct evidence or “circumstantial evidence, including but not limited to proof of the claimant’s general qualifications, from which the inference of age discrimination may rationally be drawn independently of any age presumption.”
Cline v. Roadway Express, Inc.,
A plaintiff must prove that it is more probable than not that age discrimination is the reason for his layoff..
Cline,
Ill
A
Conkwright also seeks damages under § 510 of ERISA, 29 U.S.C. § 1140, on *236 the ground that Westinghouse intentionally sought to deprive him of rights in its pension plan. Section 510 states in pertinent part:
It shall be unlawful for any person to discharge ... a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosurе Act.... The provisions of section 1132 of this title [which provides for civil enforcement] shall be applicable in the enforcement of this section.
29 U.S.C. § 1140. Conkwright contends that § 510 gives fully vested employees a cause of action against an employer who acts to prevent accrual of additional benefits. We agree.
Those employees waiting to vest in a qualified pension plan have a cause of action against an employer who discharges them for the purpose of blocking their vesting in the company’s pension plan.
See, e.g., Ursic v. Bethlehem Mines,
In considering whether § 510 provides for such a claim, we look first to the statute itself and the intent of Congress. Congress adopted ERISA in order “to remedy certain defects in the private retirement system which limit the effectiveness of the system in providing retirement income security.” H.R.Rep. No. 533, 93d Cong., 1st Sess. (1973),
reprinted in
1974 U.S.Code Cong. & Admin.News 4639, 4639;
see also Kross v. Western Elec. Co.,
Both the bills passed by the House and Senate contained enforcement provisions that made it “unlawful to interfere with the attainment of any rights to which a participant or beneficiary may become entitled....” H.R.Conf.Rep. No. 1280, 93d Cong., 2d Sess. (1974) (emphasis added), reprinted in 1974 U.S.Code Cong. & Admin.News 5038, 5110. In incorporating provisions for private enforcement of pension rights, the committees in both Houses which adopted these provisions stated: “The enforcement provisions have been designed specifically to provide both the Secretary and participants and beneficiaries with broad remedies for redressing or preventing violations of the Act.” H.R.Rep. No. 533, 93d Cong., 1st Sess. (1973), reprinted in 1974 U.S.Code Cong. & Admin. News 4639, 4655; see also S.Rep. No. 127, 93d Cong., 1st Sess. (1973), reprinted in 1974 U.S.Code Cong. & Admin.News 4838, 4871 (also stating goal of enforcement provisions is to give beneficiaries “broad remedies for redressing” violatiоns of Act).
The conference committee on ERISA adopted § 510 without much discussion, except to make clear that “the participant or beneficiary may bring a civil action against any person who interferes with his rights which are protected under the Act.” H.R. Conf.Rep. No. 1280, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 5038, 5110. Upon introducing the conference report in the Senate, Senator Harrison Williams, chairman of the Senate Committee on Labor and Public Welfare, noted: “A further protection for employees is the prohibition against discharge, or оther discriminatory conduct toward participants and beneficiaries which is designed to interfere with attainment of vested benefits or other rights under the-bill, or to discourage the exercise of any rights afforded by the legislation. Either the employee or the Secretary of Labor may bring suit to redress such violations.” 120 Cong.Rec. S 15,737 (Aug. 22, 1974) *237 (statement of Sen. Williams) (emphasis added), reprinted in 1974 U.S.Code Cong. & Admin.News 5177, 5188.
Viewed against this background, it has been recognized that the primary focus of § 510 is to “prevent[] unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.”
West v. Butler,
Extending § 510 to encompass claims brought by vested employees for denial of additional benefits comports with both the legislative language and the intent of Congress to give employees “broad remedies” for violations of рension rights. Section 510 prohibits an employer from discharging an employee “for the purpose of interfering with the attainment of any right to which such participant may become entitled” under a benefit plan. 29 U.S.C. § 1140 (emphasis added). Surely, Congress was not limiting § 510 only to those rights which a participant acquires upon vesting, or it easily could have referred to “vested rights.” Similarly, the statute refers to rights to which a participant “may become entitled,” which is to say that § 510 permits suits for interfering with rights not yet earned. We have no reason to constrict this “broad remedial” provision to only vestеd rights when the Act clearly contemplates suits to protect any rights implicated by employer action.
We also must take note that § 510 is a companion enforcement provision to § 502, 29 U.S.C. § 1132.
See
29 U.S.C. § 1140 (“The provisions of section 1132 of this title shall be applicable in the enforcement of this section.”). Section 502 authorizes a participant to bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.... ”
Id.
§ 1132(a)(1)(B). In this way, §§ 502 and 510 together protect the panoply of rights at risk in thе pension context: rights about to be earned but frustrated due to unlawful employer action, benefits earned but not paid, other rights due a participant but not fulfilled, and future benefits earned but not yet due. Not to give § 510 the reading we think it is due would result in giving vested employees, the most senior workers,
less
protection than that afforded junior workers. That is because an unvested worker discharged for the purpose of interfering with his not-yet-vested rights clearly can sue under § 510,
see, e.g., Ursic, supra; Folz, supra; Titsch, supra,
but a worker who already has vested would be without legal recourse to protеct his (additional) pension rights. As the Seventh Circuit noted, “There is no evidence that Congress intended ERISA to afford less protection to senior employees than that enjoyed by probationary or junior employees who have not qualified for coverage under particular employee benefit plans.”
Kross,
This holding is consistent with the other circuits that have considered the question. An early case addressing the vitality of a § 510 claim by a vested employee is
Kross, supra.
In
Kross,
the Seventh Circuit rejected the view “that § 510 of ERISA does not protect an employee who has already qualified for coverage under a company-provided insurance plan.... Congress did not enact ERISA with the intent to negate the long established practice of affording greater benefits and protections to those employees who have more seniority in time of service with the company than to junior employees.”
*238
Another important case recognizing a § 510 claim by a fully vested employee is
Dister v. Continental Group, Inc.,
For these reasons, we think that § 510 should not be given a narrow reading and instead hold that § 510 extends to claims by vested employees for intentional interference with their ability to accrue additional benefits.
Accord Kross,
B
That such a claim under § 510 by a vested worker may lie does not, however, resolve whether Conkwright’s particular claim should survive a motion for summary judgment.
In considering that question, we have first to decide whether a § 510 plaintiff must prove specific intent by defendants to interfere with his pеnsion rights. There is a division of authority on this,
compare, e.g., Dister,
Thus, to take advantage of § 510, one must prove a specific intent of the employer to interfere with an employee’s pension rights. In seeking to prove specific intent, a claimant in the ERISA context confronts proof problems similar to those encountered by Title VII plaintiffs: employers rarely, if ever, memorialize their specific intent to act unlawfully. For that reason, other courts considering § 510 claims have borrowed the Title VII,
McDonnell Douglas
scheme of proof for the purpose of proof.
See Dister,
Under the
McDonnell Douglas
scheme of proof, Conkwright’s § 510 claim ultimately fails because he does not demonstrate a genuine issue on the matter of pretext. In fact, there is no evidence supporting Conkwright’s claim of pretext other than the fact that his termination saved Westinghouse money. While plaintiff’s termination probably did save Westinghouse money, this is not enough to carry the day. As a number of courts have recognized, it is not sufficient for an employee to allege lost opportunity to accrue additional benefits as evidеnce of the employer’s specific intent to violate ERISA; rather, a plaintiff must adduce facts, which if taken as true, could enable a jury to identify unlawful intent from the other various reasons why an employer might have terminated plaintiff, and to conclude that the employer harbored the requisite unlawful intent.
See Dister,
Conkwright tries to save his claim by citing statements that Westinghouse sought to meet its “financial need” by terminating him, and that financial need necessarily includes pension costs. Conk-wright’s suggestion that Westinghouse acted illegally because it actеd to save money proves too much. Under that reasoning, any actions by an employer that result in savings would be suspect. It is obvious that benefit costs make up a large amount of the costs of an employee to a company, and that pension rights are a substantial component of benefit costs, but these undeniable propositions are not sufficient standing alone to prove the requisite intent by the path of pretext. Here, Conkwright had no other proof, and summary judgment was therefore appropriate.
IV
Conkwright also assigns error to the district court’s granting of summary judgment to Westinghouse on his pendent state law claim for breach of an at-will contract. This claim turns on an interpretation of the employee manual that was issued and revised while Conkwright worked at Westinghouse. The manual was revised after Conkwright was hired to state expressly that no terms shall be construed by employees to constitute any terms of a contract. The language is rather clear, and the question before us is whether Westinghouse’s post-hire amendment to the contract was effective under Maryland law.
Maryland recognizes implied contracts based on employee manuals,
see, e.g., Dahl v. Brunswick Corp.,
Conkwright tries to escape the disclaimer’s force by contending that since that provision was added to the manual after he joined, it should not apply to him. Thе essential contract question is thus whether additional consideration is required for enforcement of a manual issued after-hire. The Maryland courts have implicitly held that additional consideration is required, but have found the additional consideration in the employee’s continuous work. The Castiglione court held:
It may well be that the employee manual in effect at the time appellant’s employment was terminated is not the same manual which was disseminated to her when she was first hired.... [But] the later manual would have superseded any earlier editions. By сontinuing to work for appellee after the new manual’s issuance, appellant, by her conduct, impliedly would have assented to a modification of her employment agreement.
This view comports with the expectations of employees and employers. All employees expect to be covered by the personnel policies of the company in existence at the time of their current work, not when they were hired twenty years ago, unless special benefits are expressly provided for. Morеover, an employer expects to treat all its employees according to the same basic benefit rules, and not apply a hodgepodge of rules based on the starting date of the employee.
We therefore hold that Maryland would find the disclaimer effective, and consequently Conkwright has no claim based on breach of an implied employment at-will contract. 6
V
For the foregoing reasons, we hold that the district court properly granted summary judgment against the claimant on each of his claims.
AFFIRMED.
Notes
. Conkwright, having bеen told that his termination was imminent, decided to take early retirement January 1, 1986.
. DIVADS stands for Division Air Defense System program.
. This conclusion also finds support in the testimony from some of plaintiff’s co-workers and infrequent managers. This evidence, though not as probative as the performance rating, lends credence to the interpretation of the rating system posited by Conkwright. Moreover, we note that Conkwright was given a job with added and enhanced responsibility shortly before his termination. A plausible reading of this job action is that Conkwright was meeting his employer's expectations.
. It is оnly close to irrelevant because if the ratings were wildly out of line with other indi-cia of an employee’s performance then one may question whether the rating system had a bias in its implementation. But that is not the case here.
. In reaching that conclusion, the Second Circuit cited
Corum v. Farm Credit Servs.,
. Plaintiff also makes a claim of abusive discharge. However,
Parlato v. Abbott Labs.,