United States Court of Appeals,

Fifth Circuit.

No. 91–2882.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant,

v.

BOEING SERVICES INTERNATIONAL, a/k/a Boeing Aerospace Operations, Inc.,

Defendant–Appellee.

Aug. 19, 1992.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, DUHÉ, and BARKSDALE, Circuit Judges.

GOLDBERG, Circuit Judge:

The psalmist wrote: "Cast me not off in the time of old age." P salms 71:9. Congress

seemingly acknowledged this ancient supplication in 1967 when it enacted the Age Discrimination

in Employment Act. 29 U.S.C. §§ 621–634. Congress intended the Act to eradicate arbitrary age

discrimination in employment, 29 U.S.C. § 621(b), and thus prohibited discrimination against persons

forty years of age and older in the workplace based on their age. 29 U.S.C. §§ 623(a), 631(a); s ee

Thornbrough v. Columbus and Greenville R.R. Co., 760 F.2d 633, 637 (5th Cir.1985).

On cross-motions for summary judgment, the district court entere d judgment against the

appellant, the Equal Employment Opportunity Commission, who asserted, on behalf of retired

employees of The Boeing Company, that Boeing Services International discriminated against them

in violation of the Age Discrimination in Employment Act. The court confronted a legal question of

dispositive importance: Whether "equivalent pay," which compensated employees laid off from The

Boeing Company and hired by Boeing Services International for lost mat ching contributions to a

retirement plan and lost paid holidays, constituted a "bona fide employee benefit plan" under the Age

Discrimination in Employment Act, 29 U.S.C. § 623(f)(2). We agree with the district court that the

equivalent pay program indeed constituted a "bona fide employee benefit plan" and thus affirm the

entry of summary judgment.I.

The Boeing Company contracted with the National Aeronautics and Space Administration

("NASA") t o provide engineering support services to the space shuttle program. An operating

division of The Boeing Company located in Houston ("Boeing–Houston" or "B–H") performed the

contract work for NASA. To increase its competitiveness when NASA rebid this particular contract,

The Boeing Company reorganized it s Houston operating division, Boeing–Houston, into a

wholly-owned subsidiary of Boeing, Boeing Services International ("BSI"). B–H ceased to exist after

September 30, 1983. As planned, Boeing bid through BSI.

BSI was able to bid more competitively than B–H for several reasons. First, under the B–H

voluntary investment retirement plan employees contributed a percentage of their salary to the plan

and received a matching contribution up to four percent of their base pay from B–H. BSI did not

offer a voluntary investment retirement plan, choosing to replace it with a deferred compensation plan

that included no employer matching contributions. Second, B–H employees received t welve paid

holidays, while BSI employees received nine paid holidays. NASA awarded the contract to BSI, a

company unencumbered by the financial obligations of matching cont ribut ions to a voluntary

investment retirement plan o r paying for holidays in addition to those on the federal government

holiday calendar.

Effective September 30, 1983, all B–H employees were laid off from The Boeing Company.

BSI offered the laid-off B–H emp lo yees positions as new employees of BSI beginning October 1,

1983, with the same positions, assignments and salaries the employees enjoyed at B–H. For these

"incumbents," those "employees placed on layoff from The Boeing Company and accepting offers of

employment with BSI," BS I also o ffered something called "equivalent pay." This dispute has

developed out of the equivalent pay program. As BSI explained in a brochure distributed to potential

incumbents in "orientation briefings" during July and August of 1983, the incumbents would receive

equivalent pay "to provide for the loss of three paid holidays and The Boeing Company contribution1 The formula for calculating equivalent pay detailed in the brochure operated as follows. An

employee would divide her net equivalent pay (the sum of annualized holiday equivalent pay and

voluntary investment plan equivalent pay) by her base annual salary to arrive at a net equivalent

pay percentage. "[T]o offset some of the tax consequences," the employee would increase the net

equivalent pay percentage by 20% to compute the total equivalent pay percentage. The employee

would multiply the total equivalent pay percentage by her hourly base rate to produce an

equivalent pay hourly rate. BSI included this equivalent pay hourly rate as a "special allowance in

each paycheck."

2 The twenty-eight individuals retired before February of 1984, when Boeing amended its

retirement plan to suspend the retirement benefits of an employee retired from Boeing who

worked for and received wages from The Boeing Company or one of its wholly-owned

subsidiaries. to participants in the Voluntary Investment Plan." The formula calculated equivalent pay as a percent

of the employee's base salary, but t h e equivalent pay did not comprise "a part of the base salary." 1

BSI established a new retirement plan and, as explained above, a deferred compensation plan for all

of its employees.

In a letter dated August 10, 1983, B–H employees were informed that "[t]hose employees

[accepting lateral offers of employment from BSI] who choose to retire from The Boeing Company

and who continue employment with BSI Houston will not receive equivalent pay...." At least

twenty-eight of the persons laid off from Boeing–Houston on September 30 were at least 55 years

of age and had a minimum o f ten years service with The Boeing Company, which entitled them to

retire and draw a pension from Boeing. After accepting employment with BSI on October 1, 1983,

working for BSI during the fall o f 1983 and receiving equivalent pay from BSI, these incumbents

elected to retire from The Boeing Company. These individuals continued working for BSI, yet they

did no t receive equivalent pay from BSI after their retirement from The Boeing Company. The

twenty-eight retired incumbents did receive both wages from BSI and retirement benefits under The

Boeing Company retirement plan. 2

The Equal Employment Opportunity Commission brought suit against BSI on behalf of these

twenty-eight individuals, claiming that BSI violated the Age Discrimination in Employment Act by

denying these persons equivalent pay after they retired from The Boeing Company. Both partiesmoved for summary judgment. The EEOC claimed that BSI discriminated on the basis of age in the

compensation, terms, conditions or privileges of employment by denying equivalent pay,

characterized by the EEOC as a wage or salary, to retired incumbents in violation of section (4)(a)

of the ADEA. Under section 4(f)(2) of the ADEA, however, an employer that observes the terms

of a bona fide employee benefit plan does not violate the Act—unless the pla n is a subterfuge to

evade the purposes o f t he ADEA. BSI argued that the denial of equivalent pay was age-neutral

because the receipt of the equivalent pay depended on continuity of employment, not age. Moreover,

BSI asserted that the equivalent pay program qualified for the section 4(f)(2) exemption because the

equivalent pay program represented a "bona fide employee benefit plan" that was not a scheme to

evade the purposes of the Age Discrimination in Employment Act. The district court granted BSI's

motion for summary judgment and denied the EEOC's motion for summary judgment. The court held

that the equivalent pay program constituted a "bona fide emplo yee benefit plan," not wages or

salaries. According to the district court, section 4(f)(2) of the ADEA sheltered the equivalent pay

program because no evidence showed that the equivalent pay program was a subterfuge to evade the

purposes of the ADEA. The EEOC appeals from that judgment.

II.

The Federal Rules of Civil Procedure set the standard for a district court deciding a motion

for summary judgment. Summary judgment is appropriate only if no genuine issue exists over any

material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

In reviewing a summary judgment decision, the court of appeals employs this same standard used by

the district court. S outh Cent. Bell Tel. Co. v. Canal Place Ltd. Partnership, 927 F.2d 867, 868 (5th

Cir.1991) (citation omitted). Our function in reviewing the district court's decision is thus two-fold.

First, we must decide whether the district court "overlooked or impermissibly resolved any disputed

m aterial facts." A bourezk v. New York Airlines, Inc., 895 F.2d 1456, 1458 (D.C.Cir.1990); see

Richardson v. Pennzoil Producing Co., 896 F.2d 919, 921 (5th Cir.1990). Our second job on appeal

involves deciding whether the district court correctly applied the relevant law to the undisputed facts.3 In full, section 623(f)(2) provides that

[i]t shall not be unlawful for an employer, employment agency, or labor

organization to observe the terms of a bona fide seniority system or any bona fide

employee benefit plan such as a retirement, pension, or insurance plan, which is not

a subterfuge to evade the purposes of this chapter, except that no such employee

benefit plan shall excuse the failure to hire any individual, and no such seniority

system or employee benefit plan shall require or permit the involuntary retirement

of any individual specified by section 631(a) of this title because of the age of such

individual.

29 U.S.C. § 623(f)(2) (1985).

Congress enacted the Older Workers Benefit Protection Act in 1990, which

amended, inter alia, section 623(f)(2). Pub.L. No. 101–433, § 103(1), 104 Stat. 978, 979

(Oct. 16, 1990) (codified at 29 U.S.C. § 623(f)(2) (Supp.1992)). Congress gave only

prospective effect to the legislation. Pub.L. No. 101–433, § 105(a), 104 Stat. at 981. Abourezk, 895 F.2d at 1458. In the cross-motions for summary judgment, the parties agreed that no

facts were in dispute. Our overriding task in this appeal, then, focuses on whether these undisputed

facts truly entitle BSI to judgment as a matter of law.

III.

Congress enacted the Age Discri mination in Employment Act to accomplish three plainly

stated goals: 1) to promote the employment of older persons based on their ability rather than their

age; 2) to prohibit arbitrary age discrimination in employment; and, 3) to provide help to employers

and workers in finding ways of meeting problems arising from the impact of age on employment. 29

U.S.C. § 621(b); s ee Jensen v. Gulf Oil Refining and Mktg. Co., 623 F.2d 406, 408 (5th Cir.1980).

Accordingly, section 4(a)(1) of the Age Discrimination in Employment Act makes it illegal "for an

employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any

individual with respect to [the individual's] compensation, terms, conditions, or privileges of

employment, because of such individual's age." 29 U.S.C. § 623(a)(1). In section 4(f)(2) of the Act,

however, Congress expressly permitted employers to discriminate based on age in "observ[ing] the

terms of

... any bona fide employee benefit plan such as a retirement, pension, or insurance plan

"—so long as the employer's compliance with the plan did not represent "a subterfuge to evade the

purposes" of the Act. I

d. at § 623(f)(2). 3 Section 4(f)(2) of the Act thus exempts certain "age-basedSince the EEOC filed their complaint in 1989, the amendment does not affect this appeal

and does not control our analysis. See Equal Employment Opportunity Comm'n v.

Westinghouse Elec. Corp., 925 F.2d 619, 622 n. 2 (3rd Cir.1991).

4 We note that, through the Older Workers Benefit Protection Act, "Congress has since

declared a contrary rule for the future." American Ass'n of Retired Persons v. Farmers Group,

Inc., 943 F.2d 996, 1001 n. 8 (9th Cir.1991), cert. denied, ––– U.S. ––––, 112 S.Ct. 937, 117 employment decisions

... from the prohibitions of the ADEA." P ublic Employees Retirement System

of Ohio v. Betts, 492 U.S. 158, 161, 109 S.Ct. 2854, 2858, 106 L.Ed.2d 134 (1989).

In Betts the Supreme Court clarified the meaning and defined the scope of the section 4(f)(2)

exemption. Section 4(f)(2) simply describes "the type of employer conduct that is prohibited in the

employee benefit plan context." I d. 492 U.S. at 181, 109 S.Ct. at 2868. When deciding whether a

plan or program merits the sanctuary of section 4(f)(2) under Betts, a court must engage in a two-fold

analysis.

First, is the plan or program of the type subject to the section 4(f)(2) exemption? The

presence of "any bona fide employee benefit plan such as a retirement, pension, or insurance plan"

forms the init

ial prerequisite for application of section 4(f)(2). The Act fails to define the phrase. The

Betts Court faced a lo wer court holding that limited the section 4(f)(2) exemption to plans that

justified age-based reductions in benefits by age-related cost considerations. Unlike the Sixth Circuit

below, the Supreme Court read the expression quite broadly. "The statute's use of the phrase " a ny

employee benefit plan' seem[ed] to imply a broad scope for the statutory exemption, and the "such

as' clause suggests enumeration by way of example, not an exclusive listing." B etts, 492 U.S. at 173,

109 S.Ct . at 2864 (emphasis in original). This court has similarly interpreted the "key" phrase,

"employee benefit plan." Fifteen years before B etts, we held that "the words retirement, pension or

insurance are added in a clearly descriptive sense, not excluding other kinds of employee benefit

plans...." B rennan v. Taft Broadcasting Co., 500 F.2d 212, 215 (5th Cir.1974). The B etts Court,

however, expressed "no opinion

... on the precise meaning of the phrase," holding "only that it d[id]

not support the cost-justification requirement." 4 I d. 492 U.S. at 174 n. 6, 109 S.Ct. at 2865 n. 6; s eeL.Ed.2d 108 (1992); see supra note 3. Congress restored the "original congressional intent in

passing and amending the [ADEA], which was to prohibit discrimination against older workers in

all employee benefits except when age-based reductions in employee benefit plans are justified by

significant cost considerations. " Pub.L. No. 101–433, § 101, 104 Stat. at 978. id. 492 U.S. at 166, 109 S.Ct. at 2860 ("whatever the precise meaning of the phrase

... it is apparent

that a disabilit

y retirement plan falls squarely within that category"); s ee Equal Employment

Opportunity Comm'

n v. Westinghouse Elec. Corp., 925 F.2d 619, 623 (3rd Cir.1991) (the Court

"declined to decide the precise meaning of the phrase ... found in § 4(f)(2)").

Two interrelated questions complete the first segment of the two-part section 4(f)(2) inquiry.

Is the plan a "bona fide" plan, that is, does the plan " "exist[ ] and pay[ ] benefits' "? B etts, 492 U.S.

at 165, 109 S.Ct. at 2860 (quoting United Air Lines, Inc. v. McMann, 434 U.S. 192, 194, 98 S.Ct.

444, 446, 54 L.Ed.2d 402 (1977)); see Alford v. City of Lubbock, 664 F.2d 1263, 1269 (5th Cir.)

(citin g Jensen, 623 F.2d at 413, for the proposition that " "[a] retirement plan is bona fide if it is

genuine and pays substantial benefits.' "), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 848

(1982); B rennan, 500 F.2d at 217 ("given its ordinary and commonly accepted meaning, the term

bona fide is synonymous with "genuine' or "authent ic' "). Neither party disputes that the BSI

equivalent pay program existed and that BSI paid amounts to qualifying incumbents. Also, did the

employer "observe the terms of" the plan? The parties concede that, in refusing to extend equivalent

pay to incumbents who re t ired fro m The Boeing Company, BSI "observe[d] the terms of" the

equivalent pay plan. See Betts, 492 U.S. at 165, 109 S.Ct. at 2860. Since the parties' concessions

pretermit consideration of these two aspects of our init ial investigation, we first focus on whether the

equivalent pay program constituted "any ... employee benefit plan."

If the employer did "observe the terms of

... any bona fide employee benefit plan," then the

statute re quires us t o ask whether the plan is "a subterfuge to evade the purposes of the" Age

Discrimination in Employment Act. A program that qualifies as an "employee benefit plan" under the

init ial requirement "is entitled to the protecti on of the § 4(f)(2) exemption"— unless the plan is such5 That day arrived in 1990. See supra note 3.

a subterfuge. Betts, 492 U.S. at 166, 109 S.Ct. at 2860. "The term "subterfuge' must be given its

ordinary meaning as "a scheme, plan, stratagem, or artifice of evasion,' " which, "in the context of §

4(f)(2), connotes a specific "intent

... to evade a statutory requirement.' " I d. 492 U.S. at 168, 171,

109 S.Ct. at 286 1, 2863 (quoting M cMann, 434 U.S. at 197, 98 S.Ct. at 450). Section 4(a)(1)

prohibits workplace age discrimination with re spect t o an employee's "compensation, terms,

conditions, or privileges of employment." Importantly, the B etts Court held that "both § 4(a)(1) and

§ 4(f)(2) could be given effect only if § 4(f)(2) is viewed as exempting bona fide plans that are not

"a method of discriminating in other, non fringe- benefit aspects of the employment relationship.' "

Westinghouse, 925 F.2d at 623 (quoting Betts, 492 U.S. at 177, 109 S.Ct. at 2866) (emphasis added).

While the Court failed to define the term "nonfringe-benefit," the decision certainly means that "the

term[ ] "bona fide employee benefit plan' " used in section 4(f)(2) and the term " "nonfringe benefit'

[implicated in section 4(a)(1) ] are mutually exclusive." I d. As we read the decision, the term

"employee benefit plan" simply means the fringe benefit aspects of the employment relationship.

Congress exempted discrimination in the fringe benefit aspect of the employment relationship,

choosing to legislate "only as to hi ring and firing, wages and salaries, and other nonfringe-benefit

terms and conditions of employment" and leaving "the employee benefit battle for another day." 5

Betts, 492 U.S. at 177, 109 S.Ct. at 2866. An employer does no t vio late the ADEA by making

age-based distinctions in dispersing fringe benefits. I d. When an "employee benefit plan" varies

fringe benefits based on age, that plan is illegal if the employer adopted it with the intent to

discriminate against older employees regarding a nonfringe-benefit term and conditio n of

employment. E qual Employment Opportunity Comm'n v. City Colleges, 944 F.2d 339, 341 (7th

Cir.1991) (citing Betts, 492 U.S. at 169–184, 109 S.Ct. at 2862–68). "Any attempt t o avoid the

prohibitions of the Act by cloaking forbidden discrimination in the guise of age-based differentials in

benefits ... fall[s] outside the § 4(f)(2) exemption." Betts, 492 U.S. at 180, 109 S.Ct. at 2867.6 The Older Workers Benefit Protection Act rejected this holding by placing the burden to offer

cost justifications for age-based employment decisions on the employer. We repeat that this

legislation applied only prospectively. See supra note 3; see also Gray v. York New spapers, Inc.,

957 F.2d 1070, 1084 n. 8 (3rd Cir.1992). The illegalit

y of a ge-based distinctions in fringe benefits thus depends on whether the

employer intended to discriminate in a nonfringe benefit area of employment. S ee City Colleges, 944

F.2d at 342. B etts held that section 4(f)(2) requires that the plaint iff shoulder the burden of showing

subterfuge—an "actual intent" on the part of the employe r "to discriminate in those [ n on

fringe-benefit] aspects of the employment relationship protected by the provisions of the ADEA." 6

Betts, 492 U.S. at 181, 109 S.Ct. at 2868 (holding that "§ 4(f)(2) redefines the elements of a plaint iff's

prima facie case instead of establishing a defense," ruling that the Public Employees Retirement

System discriminated based on age in observing the terms of a "bona fide employee benefit plan" and

remanding to afford the plaintiff an opportunity to prove subterfuge).

We return to the threshold issue in the section 4(f)(2) analysis: Whether the equivalent pay

program constituted "any

... employee benefit plan." B etts teaches that this issue reduces to one

question: Did the equivalent pay involve a fringe benefit or nonfringe benefit aspect of the

employment relat io nship? Courts generally distinguish between "nonfringe benefits," typified by

wages and salaries, on the one hand, and "fringe benefits," enumerated by example in section 4(f)(2)

as retirement, pension and insurance plans. A no nfringe benefit immediately compensates an

employee for current services—job performance—while a fringe benefit ordinarily rewards the

employee fo r longevi ty

. F armers, 943 F.2d at 1003; W estinghouse, 925 F.2d at 626. A fringe

benefit lacks the compulsive thrust of the basic compensation, terms, conditions and privileges of

employment. The Third Circuit held that a severance plan constituted an "employee benefit plan."

Severance pay is linked to an employee's length of service, for it becomes available as a benefit only

to those employed for a specified period, and the occurrence of a layo ff, fo r t he severance pay

provides short-term financial assistance during the post-layoff transition period. W estinghouse, 925

F.2d at 626 (holding that the EEOC conceded at trial that the fringe benefit severance plans did not7 We pause briefly to note that if the issue was before us, we would not hold that a cat was a

dog simply because a defendant called the cat a dog. Cf. William Shakespeare, Romeo and Juliet

act II, sc. ii ("What's in a name? That which we call a rose By any other name would smell as

sweet."). constitute a subterfuge under section 4(f)(2)). The Ninth Circuit characterized a profit sharing plan

as a "hybrid." F

armers, 943 F.2d at 1003. The plan in question exhibited qualities of a fringe benefit

because it functioned as a retirement plan. On the other hand, the plan also implicated the notion of

a nonfringe benefit becaus e t he employer designed the plan "to compensate for work actually

performed by the employee" and the employees treated the plan as one providing "immediate

compensation once an employee ha[d] been with the company for five years." I d. (holding that the

profit sharing plan violated the ADEA by denying wages to employees over age 65 solely on the basis

of age ); s ee id. at 1003–05 (holding that to the extent the profit sharing plan represented an

"employee benefit plan," the plan was a subterfuge to evade the purposes of the ADEA).

The district court held that the e quivalent pay program constituted a "bona fide employee

benefit plan" under section 4(f)(2). Because "equivalent pay ha[d] nothing to do with current

performance," since the employees' b ase pay did not include equivalent pay and because the

equivalent pay simply substituted for lost holiday pay and lost matching contributions to the voluntary

investment plan, the court characterized the equivalent pay as a fringe benefit.

The EEOC argues that the equivalent pay constituted a nonfringe benefit aspect of the

employment relat io n governed by the standard in section 4(a)(1) of the ADEA. First, the EEOC

quarrels with the district court's mode of analysis. According to the EEOC, this Court must apply

an objective test and dis regard the employer's motives in extending the challenged measure to

incumbent employees. If no t , any employer could gain the protection of section 4(f)(2) by

characterizing a nonfringe benefit as an "employee benefit plan." 7

The realities of the program govern our inquiry. See Betts, 492 U.S. at 178–80, 109 S.Ct.at 2867. The evidence demonstrates that BSI offered incumbent employees t he equivalent pay to

replace the lost paid holidays and lost contributions to the retirement plan, not, as the EEOC asserts,

to compensate the incumbents for current services based on their past work for B–H. The brochure

distributed to the incumbents stated that the incumbents would receive equivalent pay "to provide for

the loss of three paid holidays and The Boeing Company contribution to participants in the Voluntary

Invest ment Plan." The substituted items—the lost holiday pay and retirement

c o nt ributions—determined the composition and, indeed, the very existence of the equivalent pay.

The "pay" was equivalent to what the employees would have received in the form of paid holidays

and matching retirement contributions if they had not experienced the layoff and remained at B–H.

In the words of the Ninth Circuit, the way the equivalent pay program was "structured and treated

by [BSI] employees," it rewarded the employees for longevity and continuity of service by bridging

the fringe benefits gap between B–H and BSI.

BSI asserts that the lost it ems co nstituted fringe benefits and argues that the substitute,

equivalent pay, naturally deserves the same designation. We find this argument quite convincing.

Certainly matching contributions to a retirement plan constitute a fringe bene f it, for the statute

describes retirement plans as one of the enumerated examples of an "employee benefit plan." S ee 29

U.S.C. § 623(f)(2).

BSI maintains that lost holiday pay also represents a fringe benefit because it does not "relate

to" current performance—all employees receive paid holidays. The EEOC, however, labels the

holiday pay as a nonfringe benefit. The EEOC likens the lost paid holidays to routine vacation pay,

pointing to the Supreme Court decision in Massachusetts v. Morash, 490 U.S. 107, 109 S.Ct. 1668,

104 L.Ed.2d 98 (1989). The M orash Court decided whether a policy of paying employees for unused

routine vacation time constituted an "employee welfare benefit plan" within the meaning of ERISA

or an exempted payroll practice. Stressing the purpose of ERISA, to eliminate the "mismanagement

of funds accumulated to finance employee benefits" through "extensiv e reporting, disclosure, andfiduciary duty requirements," the Court held that ordinary vacation payments "present[ed] none of

the risks that ERISA [wa]s intended to address." Id. 490 U.S. at 115, 109 S.Ct. at 1673. Rather,

the routine vacation payments at issue were "fixed, due at known times, and d[id] not depend on

outside contingencies." Id. The Court thus refused to characterize the routine vacation pay policy

as an "employee welfare benefit plan" within the meaning of ERISA. Id. 490 U.S. at 120–21, 109

S.Ct. at 1676.

The EEOC argues that holiday pay, like the routine vacation pay policy in Morash, constitutes

a nonfringe benefit because it does not depend on any contingency outside the control of the

employee. Although the Supreme Court used this criterion to characterize a "payro ll practice" as

falling outside the statutory bounds of ERISA, Morash, 490 U.S. at 114–16, 109 S.Ct. at 1673, this

is not an ERISA case. The purposes of the controlling statute in Morash counsel against affording

this factor determinative importance in resolving a similar issue under the ADEA. The M orash Court

refused to categorize the vacation pay policy as an "employee welfare benefit plan" in part because

the Court feared the consequences of imposing the detailed reporting and disclosing requirements of

ERISA o n t he millions of employers that compensate employees for unused vacation time and

expanding the jurisdiction of the federal courts. I d. 490 U.S. 116–20, 109 S.Ct. at 1674–75. In light

of these concerns, the Morash Court narrowly construed the phrase "employee welfare benefit plan"

for the purposes of ERISA. The B etts Court believed that Congress intended to give a "broad scope"

t o t he st atutory exemption of section 4(f)(2) by using the phrase " a ny employee benefit plan

. "

Because of this purposive juxtaposition, we hesitate to analogize between the character of an item

for the purposes of ERISA and its nature within the meaning of the ADEA. This is an ADEA case,

not an ERISA case. Moreover, even if we were to apply the M orash test here, t he evidence

demonstrates that the eq uivalent pay did depend on a contingency outside the control of the

employee—the layoff from B–H. Finally, we deem holiday pay more akin to health insurance—a

fringe benefit ordinarily available on an immediate and equal basis to all employees—than vacation

pay—compensation dependent on current job performan c e. BSI did not offer equivalent pay to8 Similarly, the EEOC argues that the equivalent pay secured the current services of B–H

incumbents at BSI and thus represent a nonfringe benefit. All benefits extended to employees,

both fringe and nonfringe, secure their current services. The issue is whether the benefit provides

immediate compensation for the performance of their job. compensate the incumbent employees for work actually performed by the employee for BSI, but to

replace fringe benefits lost when the employee experienced a layoff at B–H and accepted employment

at BSI. For that reason, we characterize the equivalent pay as a fringe benefit and hold that the

equivalent pay constituted a "bona fide employee benefit plan" within the meaning of the ADEA. As

interpreted by the Betts Court, the phrase "employee benefit plan" is "broad enough to encompass

a variety of fringe benefits," including the equivalent pay program. W estinghouse, 925 F.2d at 626.

The EEOC next contends that the employees "earn equivalent pay only as they work,"

therefore, the argument continues, the equivalent pay benefit compensates the employee for current

services perform

ed fo r the employer. If the employee stops working for BSI, the employee stops

receiving equivalent pay. According to t he EEOC, t his means that equivalent pay constitutes a

nonfringe benefit aspect of the employment relation. As BSI correctly points out, an employee who

stops working for an employer would lose both wages and certain fring e benefits. An employer

ordinarily discontinues most fringe benefits when an employee stops working for the employer. This

does not mean that those fringe benefits compensate the employ ee fo r current services and thus

constitute nonfringe benefits, just as the fact of working does not determine the character of all items

included in the employee's total compensation package. 8

Finally, the EEOC argues that the equivalent pay constitutes a nonfringe benefit because BSI

calculated the equivalent pay as a percentage of the employee's base salary. BSI responds that i t

offered equivalent pay to replace lost fringe benefits, which t ransformed t he equivalent pay into a

fringe benefit. See supra page 16. We agree wit h the district court and BSI that expressing

equivalent pay as a percentage of wages merely enabled BSI to accurately replace the value of the

lost fringe benefits. As employers often do when computing fringe benefits, B–H originally calculatedboth the matching contributions and paid holidays as a percentage of wages. Equivalent pay does not

become a nonfringe benefit simply because BSI calculates equivalent pay as a percentage of a

nonfringe benefit.

Because we have held that BSI "observ[ed] the terms of

... a bona f ide emplo yee benefit

plan," we continue to the second query in the section 4(f)(2) analysis: Whether the equivalent pay

program was a subterfuge to evade the purposes of the ADEA. As in B etts, the equivalent pay plan

logica lly co uld be a subterfuge to evade just one of the goals of the ADEA: The elimination of

arbitrary age discrimination in employment. B etts, 492 U.S. at 175–76, 109 S.Ct. at 2865; s ee supra

slip opinion page 6562. Specifically, then, did the EEOC meet its burden of showing that the retired

incumbents' lack of a ccess to the equivalent pay fringe benefit "was the result of an intent to

discriminate in some nonfringe-benefit aspect of the employment relation?" I d. 492 U.S. at 182, 109

S.Ct. at 2868. The employee bears the burden of showing not only that "a discriminatory benefit plan

implicates nonbenefit aspects of employment, but also that it was intended to discriminate." Betts,

492 U.S. at 186, 109 S.Ct. at 2871 (Marshall, J., dissenting); s ee id. 492 U.S. at 180–82, 109 S.Ct.

at 2868.

The district court held that the EEOC failed to present evidence that the equivalent pay

program was a subterfuge to evade the purposes of the ADEA. The EEOC did not brief the

subterfuge issue in this court, choosing to develop its theory that the plan fell under section 4(a)(1)

o f the Act. The EEOC neither argued nor produced proof that BSI did specifically intend t o

discriminate in a nonfringe benefit aspect of the employment relationship pr o tected by the ADEA

through the "employee benefit plan," the equivalent pay program. Our review of the record reveals

no evidence showing that the equivalent pay program impl icat ed a nonfringe benefit aspect of the

employment relationship or that BSI intended to discriminate in that aspect. S ee Dist.Ct.Op. at 7,

8 (concluding that the evidence showed that "these individuals incurred [no] loss or changes in their

terms or conditions of employment" and that "the decision to deny equivalent pay to the individualson whose behalf the EEOC has brought this litigation was not based on age"). The EEOC has not

carried its burden of proof to remove the equivalent pay program from the section 4(f)(2) exemption.

IV.

Remembering the admonition of the psalmist, we scrutinized this case with exacting care. No

genuine issue exists over any material fact in this case challenging the provisions of an equivalent pay

program under the Age Discrimination in Employment Act. The district court correctly applied the

relevant law, section 4(f)(2) of the ADEA, to the undisputed facts in entering summary judgment for

defendant BSI. For these reasons, we AFFIRM the judgment of the district court.