Welsch v. Empire Plastics, Inc., 2000 U.S. App. LEXIS 11792 (6^th Cir. May 19, 2000) (unpublished)-A group of former employees filed suit against Empire Plastics, alleging constructive discharge in violation of ERISA § 510.  This court affirmed the district court's summary judgment in favor of Empire, after finding that the plaintiffs failed to make a prima facie case under § 510.

            Under § 510, it is illegal for an employer to "discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan."

            Here, Empire Plastics acquired GenCorp, and gave its employees the option of either collecting GenCorp pension benefits and leaving work, or continuing employment with Empire without drawing their pension.  "Because Empire replaced GenCorp as the sole employer with the Union, Plaintiffs could not draw their pension and still collect a paycheck just as they were unable to draw a pension and collect a paycheck prior to the sale."

            The plaintiffs’ argument that this choice constituted a constructive discharge did not persuade the court.  "Where an employer gives an employee the realistic option of improving his situation, and the work environment is not otherwise unreasonably intolerable, the employee cannot claim that he was forced out."  Significantly, Empire's new pension plan credited employees with their accrued GenCorp service—so plaintiffs did not face losing their vested rights.