Opinion
Civil No. 02-375 (JBS).
October 15, 2002.
Gregg L. Zeff, Esquire, Donna Marie Davis, Esquire, FROST ZEFF, Cherry Hill, NJ, Attorneys for Plaintiff.
Denise M. Keyser, Esquire, Melissa R. Lock, Esquire, ARCHER GREINER, P.C., Haddonfield, NJ, Attorneys for Defendant Tricomm Services, Inc.
OPINION
This matter comes before the Court upon motion by defendant Tricomm Service Inc. ("Tricomm") for summary judgment against plaintiff Michael Devoy. This case, filed on January 28, 2002, arises out of termination of plaintiff's employment with defendant Tricomm. Plaintiff Michael Devoy initially brought his complaint against defendants Tricomm, Local Union 164, I.B.E.W., and Thomas Misciagna, alleging that defendant Tricomm interfered with plaintiff's rights to his employee pension plan, maintained by Tricomm for the benefit of its employees, by terminating him in violation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140 et seq. (Count I), and that defendants Tricomm, Local Union 164, I.B.E.W., and Thomas Misciagna breached the implied covenant of good faith and fair dealing (Count II). On April 8, 2002, the parties filed a Stipulation of Dismissal between plaintiff Devoy and defendants Local Union 164, I.B.E.W., and Thomas Misciagna, dismissing the complaint as against those defendants without prejudice and without costs. (Stipulation of Dismissal, 4/8/02.)
The remaining defendant, Tricomm, filed this motion for summary judgment on August 29, 2002, contending that plaintiff cannot establish an ERISA Section 510 claim because his pension rights already vested at the time of his termination, and that the state law claim for breach of implied covenant of good faith and fair dealing is preempted by Section 301 of the Labor Management Relations Act ("LMRA"). For the reasons discussed herein, defendant Tricomm's motion for summary judgment will be granted, and plaintiff's complaint will be dismissed unless plaintiff files an amended complaint within 20 days from today's date.
BACKGROUND
This case invokes jurisdiction under ERISA Section 510, 29 U.S.C. § 1140, et seq. (Compl. ¶ 1.) Plaintiff Devoy's complaint arises out of defendant Tricomm's termination of Devoy's employment, which occurred on or around January 30, 2000. (Id. ¶ 17.) Plaintiff began working for Tricomm, a telecommunications installer, (Walsh Aff. ¶ 1), in 1985 in the aerial/ground construction unit. (Compl. ¶ 8.) In 1992, plaintiff became a member of the I.B.E.W. Local Union 1448. (Id.) In 1996, plaintiff alleges that he was fired because he had filed a grievance with the Occupational Safety and Health Administration ("OSHA") regarding safety hazards. (Id. ¶ 9.) Plaintiff was reinstated 4 weeks later. (Id.) Plaintiff alleges that he became a shop steward "in order to protect himself from further retaliation." (Id. ¶ 10.)
Defendant Tricomm asserts that plaintiff commenced employment with Tricomm on or about November 17, 1992. (Walsh Aff., ¶ 5.) This dispute of fact is immaterial to the resolution of this motion, however.
In 1998, plaintiff's union affiliation changed from I.B.E.W. Local Union 1448 to I.B.E.W. Local Union 380. (Id. ¶ 12.) In 1999, it changed again to comport with the location where members performed the majority of their work; as a result, I.B.E.W. Local Union 380 signed a transfer card for plaintiff into I.B.E.W. Local Union 164, based in Paramus, New Jersey. (Id. ¶¶ 13.) Local Union 164 is an unincorporated labor organization and is the collective bargaining representative for certain hourly employees at Tricomm's New Jersey facility. (Id. ¶ 6.) While a member of I.B.E.W., plaintiff was covered under a collective bargaining agreement containing seniority provisions and scheduled vacation benefits, all of which were transferred to his membership at Union 164. (Id. ¶ 15.)
Plaintiff was laid off on or around December 17, 1999, for which he filed a grievance with the Union. (Id. ¶ 16.) Defendant Tricomm allegedly had represented to plaintiff that by switching unions, plaintiff had lost his seniority. (Id.) Plaintiff regained his employment on January 26, 2000. (Id.) Four days after reinstatement, on or around January 30, 2000, plaintiff was terminated due to "absenteeism." (Id. ¶ 17.) On or around January 30, 2000, plaintiff filed a grievance of wrongful termination with his union through Thomas Misciagna. (Id. ¶ 18.)
During plaintiff's employment, defendant Tricomm had provided plaintiff with Tricomm's Company-sponsored and maintained 401(k) plan, known as the "Tricomm Services Corporation 401(k) Plan." (Walsh Aff. ¶ 10, Def.'s Statement of Material Facts, Attach. 1.) This plan was the only pension-type plan which Tricomm maintained for the workforce; Tricomm did not maintain a plan known as "Employees' Pension Plan" or the "Supplementeal Employees' Retirement Plan of Tricomm Incorporated." (Id. ¶ 11.) Under this plan, a participant became fully vested in his benefits after completion of six years of service. (Id. ¶ 12.) At the time of plaintiff's termination, he was fully vested in the plan. (Id.) Plaintiff states that he "agree[s] with Mr. Walsh's Affidavit of July 1, 2002 that [he] was vested in Tricomm pension plan." (Devoy Aff. ¶ 15, Pl.'s Br. Ex. B.)
Plaintiff filed his complaint on January 28, 2002. (Docket, Item 1-1.) In his complaint, plaintiff alleges in Count I that defendant Tricomm maintained an "employee benefit plan" for the benefit of its employees which "was known as `Employees' Pension Plan' and/or `Supplemental Employees' Retirement Plan of Tricomm Incorporated," and that defendant Tricomm violated ERISA, 29 U.S.C. § 1140 et seq., because, by terminating plaintiff from employment, it intended to interfere with plaintiff's attainment of rights to the pension plan "to which he would have become entitled under the aforementioned Employee Benefit Plan had he become fully vested in the plan and/or had he continued his employment until his normal retirement age." (Compl. ¶¶ 20-27.) In Count II, plaintiff alleges that all defendants breached the implied covenant of good faith and fair dealing "by refusing to follow their own procedures by terminating Plaintiff under the pretext of absenteeism and failure to follow through on established grievance procedures." (Id. ¶ 30.)
Plaintiff refers to this employee benefit plan as "`Employees' Pension Plan' and/or `Supplemental Employees' Retirement Plan of Tricomm Incorporated.'" (Compl. ¶ 21.) As indicated above, Joseph Walsh, president of Tricomm, avers that Tricomm provided only a company — sponsored and — maintained 401(k) plan known as the "Tricomm Services Corporation 401(k) Plan." (Walsh Aff. ¶¶ 10-11, Def.'s Statement of Material Facts, Attach. 1.) As this plan was the only pension-type plan which Tricomm maintained for its workforce, (id. ¶ 11), it is apparent that plaintiff's complaint refers to this Tricomm 401(k) plan.
Defendants Local Union 164, I.B.E.W., and Thomas Misciagna filed their Answer to the complaint on March 25, 2002. (Answer, 3/25/02.) Defendant Tricomm filed its Answer on April 5, 2002. (Tricomm Answer, 4/5/02.) On April 8, 2002, plaintiff filed a Stipulation of Dismissal without prejudice of plaintiff's complaint as to defendants Local Union 164, I.B.E.W. and Thomas Misciagna. (Stipulation of Dismissal, 4/8/02.) After a May 1, 2002 scheduling conference before Magistrate Judge Joel B. Rosen, Judge Rosen issued a Scheduling Order on May 2, 2002, setting the deadline for filing dispositive motions as August 1, 2002. (Order, 5/2/02.) Defendant Tricomm filed an intent to submit a dispositive motion on July 1, 2002, and this motion for summary judgment on August 29, 2002.
DISCUSSION
Defendant Tricomm argues in its motion for summary judgment that plaintiff cannot establish an ERISA Section 510 claim because his pension rights had already vested at the time of his termination from employment, and second, that the state law claim for breach of implied covenant of good faith and fair dealing is preempted by Section 301 of the Labor Management Relations Act ("LMRA") because plaintiff admittedly was subject to the terms of a Collective Bargaining Agreement at the time of his termination.See Def.'s Br. at 2.Plaintiff in his Opposition to the motion "concedes that Count II, Breach of Implied Covenant of Good Faith and Fair Dealing, must be dismissed." Pl.'s Opp. at 2. Because both parties have agreed to the dismissal of Count II, that claim will be dismissed, and defendant's argument regarding Section 510 of ERISA need only be addressed here.
I. Motion for Summary Judgment
A. Standard for Summary Judgment
A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party.See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, a "motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring) (citing Liberty Lobby, 477 U.S. 242, and Celotex, 477 U.S. 317).
B. Analysis
As a preliminary matter, plaintiff contends that this motion must be dismissed as "premature" due to discovery not having been conducted, and because "[i]t was anticipated by Plaintiff that the motion would be a motion to dismiss pursuant to F.R.C.P. 12(b)(6)." Pl.'s Opp. at 6. Plaintiff argues that he has not had the opportunity to depose anyone regarding this matter "since the Court simply issued a motion practice scheduling order."Id.
Plaintiff's claim of unfair surprise and failure to conduct discovery cannot be attributed to any lack of knowledge regarding the time for filing dispositive motions in this case, which was set for August 1, 2002, in Judge Rosen's May 2, 2002 Order. In accordance with this Order, defendant Tricomm filed an Intent to submit a dispositive motion for summary judgment to the Court on July 1, 2002, of which plaintiff received a copy, and which rebuts plaintiff's assertion that the defendant's motion was anticipated to be a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P. Moreover, plaintiff's argument is further rebutted by Judge Rosen's Scheduling Order which indicated the filing deadline for all dispositive motions, not just motions to dismiss. Plaintiff's request for dismissal of the motion is denied on these grounds.
In support of its motion to dismiss, defendant Tricomm maintains that plaintiff cannot establish a claim under Section 510 of ERISA because his pension rights had already vested at the time his employment was terminated, and there is no cause of action under ERISA for future, unaccrued benefits.
1. ERISA
"ERISA was `designed to promote the interests of employees and their beneficiaries in employee benefit plans.'" Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 520 (3d Cir. 1997) (quoting Shaw v. Delta Air Lines, 463 U.S. 85, 90 (1983)). In enacting ERISA, Congress did not impose a duty on employers to provide health care or other benefits to their employees, but was concerned with the administration of an established plan and its elements. See Dewitt, 106 F.3d at 520 (citing Hlinka v. Bethlehem Steel Corp., 863 F.2d 279, 286 (3d Cir. 1988)). Section 510 of ERISA prohibits employer conduct taken against an employee "for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140.
Although defendant asserts that plaintiff fails to establish a prima facie case under § 510, plaintiff counters this argument by relying primarily on defendant's alleged history of prohibited employer conduct. To establish a prima facie case under § 510 of ERISA, a plaintiff must demonstrate (1) prohibited employer conduct (2) taken for any purpose of interfering (3) with the attainment of any right to which the employee may become entitled. See Becker v. Mack Trucks, Inc., 281 F.3d 372, 379 (3d Cir. 2002) (citing Gavalik v. Cont'l Can Co., 812 F.2d 834, 852 (3d Cir.), cert. denied, 484 U.S. 979 (1987)); see also Silvestre v. Bell Atl. Corp., 973 F. Supp. 475, 487 (D.N.J. 1997) (same), aff'd, 156 F.3d 1225 (3d Cir. 1998).
The Silvestre case is instructive on the issue of whether a prima facie case can be demonstrated when a plaintiff's pension rights have already vested, as in this case. Silvestre, 973 F. Supp. at 487. In Silvestre, the plaintiff claimed that his former employers violated § 510 and that his pension would have been larger had he not been terminated. The district court held that plaintiff failed to establish a cause of action for two reasons, the first being that plaintiff's pension and retirement benefits had already vested at the time of his termination and he had lost no pension or retirement benefits as a result of his termination. Second, the district court reasoned that plaintiff had no direct or circumstantial evidence that the defendant employers terminated him with the specific intent of interfering with his employment entitlement. Accordingly, the district court granted summary judgment in favor of defendants due to plaintiff's failure to establish a prima facie case under § 510 of ERISA.
In this case, plaintiff does not dispute that he was "vested in the Tricomm pension plan," Devoy Aff. ¶ 15, at the time defendant terminated him. Rather, plaintiff's position is that defendant Tricomm engaged in employer conduct prohibited under the ERISA statute, such as firing plaintiff in 1996 after he filed a grievance with OSHA regarding safety hazards, and trying to prevent plaintiff from transferring to a New Jersey local union in 1992. Plaintiff contends that Tricomm's other acts of terminating him in December 1999, and laying him off after he transferred to Local Union 164 were also acts of retaliation against plaintiff for exercising his benefit rights.
Notwithstanding plaintiff's pointing to evidence suggesting that defendant's actions were prohibited employer actions as contemplated by ERISA, plaintiff nonetheless fails to establish that defendant Tricomm interfered with the attainment of a right to which plaintiff "may become entitled," as required underGavelik. 812 F.2d at 852. According to Mr. Walsh's affidavit, a participant under the plan became fully vested in his benefits after completion of 6 years of service. See Walsh Aff. ¶ 12. There being no dispute here that plaintiff has already vested in his benefit rights under the pension plan issued by defendant Tricomm, like Silvestre, plaintiff cannot establish a prima facie case under § 510 of ERISA. See also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 143 (1990) ("By its terms § 510 protects plan participants from termination motivated by an employer's desire to prevent a pension plan from vesting.") (emphasis added).
Plaintiff's rights to the Tricomm pension plan having already vested, plaintiff raises, in his opposition brief, see Pl.'s Opp. at 4, the new argument that defendant Tricomm interfered with his Local Union 164 pension plan entitlement which he alleges is funded by defendant Tricomm and for which plaintiff has not fully vested. See id.; Devoy Aff. ¶ 16. Plaintiff's § 510 claim against defendant Tricomm as pled in his complaint, however, is based on what plaintiff refers to as the "Employees' Pension Plan" and/or "Supplemental Employees' Retirement Plan of Tricomm Incorporated," Compl. ¶ 21, formally known as "Tricomm Services Corporation 401(k) Plan." Walsh Aff. ¶ 10. Because plaintiff's complaint against defendant Tricomm is based on the alleged interference with his rights to the Tricomm pension, his new argument that Tricomm is interfering with his rights as to the Local Union 164 pension is irrelevant to this motion and therefore fails.
Like Silvestre, because plaintiff's benefits under Tricomm's pension plan were already vested at the time of his termination, he fails to establish a prima facie case under § 510 of ERISA. Defendant's summary judgment motion will be granted on this ground. To the extent that plaintiff intends to pursue new claims based on defendant's alleged interference with his rights under a union pension plan, plaintiff will be allowed to file an amended complaint within 20 days of today's date to attempt to state such a cause of action. Absent plaintiff's filing of an amended complaint within 20 days, this case will be dismissed with prejudice upon defendant's submission of an appropriate Dismissal Order.
The Scheduling Order in this case did not set a deadline for filing of motions to amend pursuant to the scheduling requirements of Rule 16(b)(1), Fed.R.Civ.P. Accordingly, the heightened standard of good cause under Rule 16(b) does not apply to plaintiff's amendment request. Instead, leave to amend is to be freely granted when justice so requires under Rule 15(a), Fed.R.Civ.P. Because a dismissal of the complaint with prejudice would also extinguish related claims that plaintiff could have brought against the defendant, the Court hesitates to determine that the unpleaded claim for interference with plaintiff's union pension rights should also be dismissed absent one final opportunity to plead and prove such a claim, if plaintiff can do so consistent with law.
Any such Amended Complaint must be sufficiently well-grounded in fact and law to comply with counsel's obligations under Rule 11, Fed.R.Civ.P. Since diversity of citizenship is absent between these parties, plaintiff must also plead a suitable basis for subject matter jurisdiction over the new claim.
CONCLUSION
For the reasons discussed above, defendant's motion for summary judgment is granted, and plaintiff's ERISA claim will be dismissed. Because plaintiff concedes to dismissal of his claim for breach of implied covenant of good faith and fair dealing, that claim as asserted against defendant Tricomm will also be dismissed. Plaintiff will be allowed 20 days from today's date to file an amended complaint. In absence of plaintiff's filing an amended complaint within such time, the case will be dismissed with prejudice. The accompanying Order will be entered.
ORDER
THIS MATTER having come before the Court upon defendant Tricomm's motion for summary judgment against plaintiff Michael Devoy; and this Court having considered the parties' submissions; and for the reasons stated in the Opinion of today's date, and for good cause shown;IT IS on this day of October, 2002, hereby
ORDERED that defendant Tricomm's motion for summary judgment [Docket Items 11-1, 12-1] shall be, and hereby is, GRANTED ; and plaintiff's ERISA claim and claim of breach of implied covenant of good faith and fair dealing as asserted against defendant Tricomm are DISMISSED ; and
IT IS FURTHER ORDERED that plaintiff will be permitted to file an amended complaint within 20 days of today's date; and this Complaint shall be DISMISSED with prejudice if plaintiff has not filed an amended complaint within such time.