the Supreme Court's analysis in Shaw carry equal weight in the context of the ADEA. Therefore, the only remaining task is to determine whether Combs' claim brought under section 2-102 (A) is prohibited by the ADEA. If it is, then section 514(d) of ERISA excepts it from preemption.
The answer to that question is yes. The ADEA clearly prohibits an employer from "discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623 (a) (1). Combs' claim before the HRC is that he was discriminated against based on his age when Barber-Colman refused to give him severance pay but gave it to other similarly situated discharged employees. Such conduct, if proven, would violate section 623 (a) (1). Consequently, applying Shaw, section 514 (d) excepts from preemption Combs' claim under section 2-102 (A) of the Act.
Barber-Colman contends the Act prohibits actions that are otherwise legal under the ADEA, pointing to section 623 (f) (2) (b), which provides that it is not unlawful for an employer to observe the terms of a "bona fide employee benefit plan." Barber-Colman argues that because the Act does not contain an exemption for employee benefit plans it could be unlawful under the Act to follow the terms of the severance plan even though it would be lawful to do so under the ADEA.
This argument fails, however, as the claim in the HRC does not allege that Barber-Colman discriminated against Combs by following the terms of its severance plan. Nor does Combs allege the terms of the plan are discriminatory in and of themselves. Rather, Combs' claim is that the terms of the severance plan would apply to him but for Barber-Colman's discriminatory decision not to provide him with severance pay under the plan. Therefore, the difference between the Act and the ADEA is of no consequence under the facts as alleged by Combs in the HRC.
Lastly, the court considers the principal cases relied on by Barber-Colman to be distinguishable. In Van Camp v. AT & T Info. Sys., 963 F.2d 119 (6th Cir. 1992); Barbagallo v. General Motors Corp., 818 F. Supp. 572 (S.D.N.Y. 1993); and Dean v. Jet Serv. West, Inc., 782 (S.D. Cal. 1991) the various courts, as to ERISA preemption, only addressed the question of whether the particular plaintiff's claims were sufficiently related to ERISA to impose preemption. While that inquiry is a necessary threshold step in deciding whether ERISA preemption ought to apply, see Shaw, 463 U.S. at 96, it is not at issue here. Defendants do not even challenge, nor does it seem they could reasonably, that Combs' claim of age discrimination sufficiently relates to an employee benefits plan. Accordingly, Van Camp, Barbagallo and Dean are not applicable to the issue presented here.
For the foregoing reasons, the court grants defendants' motion to dismiss Barber-Colman's amended complaint for declaratory judgment and dismisses this cause in its entirety.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: September 27, 1996