Opinion
No. 00 Civ. 5962 (MBM).
October 5, 2001.
DANIEL ENGELSTEIN, ESQ. (Attorney for Plaintiff) Levy, Ratner Behroozi, P.C. 80 Eighth Avenue New York, N Y 10011, (212) 627-8100.
GARY SILVERMAN, ESQ. (Attorney for Defendants) O'Dwyer Bernstein, LLP 52 Duane Street New York, N Y 10007, (212) 571-7100.
OPINION AND ORDER
James S. Patterson sues the Retirement and Pension Plan for Officers and Employees of the New York District Council of Carpenters and Related Organizations (the "Officers Retirement Plan") and its current trustees (the "Trustees"), alleging wrongful denial of benefits, breach of fiduciary duties, failure to produce documents, and retaliation, in violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. (1994). Plaintiff alleges also witness intimidation in violation of 42 U.S.C. § 1985(2) (1994). Plaintiff moves for partial summary judgment on certain ERISA claims. Defendants move for summary judgment of dismissal on all claims. For the reasons set forth below, plaintiff's motion for summary judgment is granted; defendants' motion for summary judgment is granted in part and denied in part.
I.
The following material facts are undisputed. The Officers Retirement Plan is a multiple employer pension plan governed by ERISA. (Joint Stip. ¶¶ 62-63) Defendant trustees are fiduciaries of the plan. (Id. ¶¶ 65-70) The Officers Retirement Plan covers, among others, the employees of the New York City District Council of Carpenters Employee Benefit Funds ("the Jointly Trusteed Funds"). (Id. ¶ 64) Plaintiff was hired by the Jointly Trusteed Funds on August 16, 1982, and served as Deputy Director of Administration for the six years prior to his termination in September 1999; during his employment he was a participant in the Officers Retirement Plan. (Id. ¶¶ 1-2, 64)
In 1998, the trustees of the Jointly Trusteed Funds hired an outside administrator, Zenith Administrators, which resulted in the loss of several jobs, including plaintiff's. (Id. ¶¶ 55-57) Plaintiff's last day of work was September 17, 1999; he remained on the payroll through October 20, 1999. (Joint Stip. ¶ 1) Each employee, including plaintiff, fired as a result of the contracting of fund administration to Zenith was provided with a severance agreement that included a general release of any employment-related claims. (Id. ¶¶ 3, 28-29) Plaintiff, believing that his termination was in retaliation for his cooperation with investigations by the Departments of Justice and Labor into the Jointly Trusteed Funds, refused to sign the release. Plaintiff instead sued his employer on November 4, 1999, challenging his termination under § 510 of ERISA, 29 U.S.C. § 1140, and 42 U.S.C. § 1985 (2); that lawsuit, Patterson v. McCarron, 99 Civ. 11078 (AGS), is currently pending in this district before Judge Schwartz. (Pl.'s Mem. Supp. Summ. J. at 5; Joint Stip. ¶¶ 6, 30)
In connection with the reduction in force at the Jointly Trusteed Funds, the Trustees of the Officers Retirement Plan, at a meeting held August 12, 1998, adopted a resolution approving a pension enhancement program to increase the number of laid-off employees who would have the option of retiring. (Joint Stip. ¶ 58) The program was described in the minutes of that meeting. (See id. Ex.R)
Under the terms of the Officers Retirement Plan, a participant could elect to take early retirement at age 55 if he or she had at least 15 years of covered employment. (Id. ¶ 20) One provision of the pension enhancement program adopted at the August 12, 1998 meeting credits employees with an additional two years of age or service in order meet these requirements. (Id. ¶ 24) As of the date of his termination, plaintiff was 53 years old and had 17.333 years of covered employment. (Id. ¶¶ 18-19) Thus, the additional two years made plaintiff eligible for retirement immediately. (Id. ¶ 24)
In early November 1999, plaintiff submitted an application for retirement benefits to commence January 1, 2000. (Id. ¶ 9) Plaintiff's application was considered by the Trustees of the Officers Retirement Plan at their December 15, 1999 meeting. (Id. ¶ 10) Stuart GraBois, administrator of the Officer Retirement Plan, recommended that Patterson's pension application be granted. (Id. ¶ 11) The trustees disregarded this recommendation and denied plaintiff's application. (Id. ¶ 12) The meeting minutes and the letter informing plaintiff of the denial stated, as reason for the denial, that the Trustees' "intent was to grant either two (2) years of age or service for pension eligibility due to reduction in staff only to individuals who signed the severance agreement." (Id. Ex. H, I)
By letter dated January 7, 2000, plaintiff appealed this decision, disputing that the pension enhancements were conditioned upon signing a severance agreement. (Id. ¶ 13) In that letter, plaintiff requested copies of "all documents (including minutes, resolutions, or correspondence) showing Trustees' `intention' to make the pension enhancement conditional." (Id. Ex. J) The Trustees considered and denied plaintiff's appeal at their January 28, 2000 meeting. (Id. ¶¶ 15-16) By letter dated February 7, 2000, plaintiff reiterated through his counsel his objection to the denial and his request for documents. (Id. ¶ 37) Counsel for defendants responded by letter dated February 15, 2000, stating that he would consider the points raised and bring them to the attention of the Trustees. He also stated that he had asked the Director of the Fund to provide plaintiff "a copy of the Fund documents." (Id. Ex. Q)
By letters dated February 25, 2000 and April 26, 2000, plaintiff advised defendants' counsel that the documents had not yet been provided. (Id. ¶ 39) Daniel Mazziotta, who as Fund Manager was responsible for responding to requests for documents, was never asked to collect the documents for plaintiff. (Id. ¶¶ 40-41) On or about November 6, 2000, as part of the production of documents in this action, defendants provided plaintiff with copies of the Trust Agreement, the amended and restated Officers Retirement Plan, and the First Amendment to the Plan. (Id. ¶ 42)
The meeting minutes of August 12, 1998, the only documentation establishing the pension enhancement program, do not contain any requirement that participants sign a severance agreement as a condition for receipt of a pension enhancement. (Id. Ex. R; Pl. 56.1 ¶¶ 24-25; Def.'s Resp. ¶ 2) The severance agreement offered to plaintiff is silent as to his pension rights, except to confirm that signing the agreement would not waive his right to receive one. (Joint Stip. ¶ 31) As of plaintiff's application for a pension on December 15, 1999, there was no written notice from the Officers Retirement Plan to plan participants that eligibility for the pension enhancements was conditioned upon signing a severance agreement. (Id. ¶ 36)
From the inception of the pension enhancement program, enhanced pensions were granted to 17 participants, all of whom had signed severance agreements. (Def. 56.1 ¶¶ 1, 3-7, 10; Zenkel Aff. of 4/11/01 ¶ 2) The practice at the Officers Retirement Plan was for the office of the administrator, Stuart GraBois, to tell Mazziotta, Fund Manager, at the end of each month which employees had been fired during that month and whether or not they had signed severance agreements. (Joint Stip. ¶ 26)
The minutes of the October 1, 1998 and March 23, 1999 Trustees meetings, the first two meetings at which applications for the enhanced pension were granted, do not refer to the severance agreement requirement. (Id. Ex. S, T) The first minute entry that mentions the severance agreement in relation to the pension enhancement program is an entry for the next Trustees meeting on June 8, 1999. Before the minutes list eligible participants, they state, "The Trustees reviewed the pension information for the applicants listed below who are eligible for pension from the Retirement Plan as per the severance agreement if they so choose." (Id. Ex. U) In later Trustees meetings on July 22, 1999, October 26, 1999, and January 28, 2000, the Trustees granted enhanced pensions, noting in the minutes as follows: "As per the Severance Agreement approved by the Board of Trustees, [the participant] was granted a Pension at age [x] with [y] years of service." (Id. Ex. V, W, K) Plaintiff was present at the Trustees meetings of August 12, 1998, October 1, 1998, March 23, 1999, June 8, 1999, and July 22, 1999. (Id. ¶ 61)
The Officers Retirement Plan provides for amendments as follows: "This Plan may be amended at any time by the Trustees, consistent with the provisions of the Trust Agreement." (Id. Ex. Y § 12.01, at 36) Section 10.04 of the plan further provides, "The Trustees shall have the sole and absolute authority to interpret and construe the provisions of this Plan. Decisions of the Trustees shall be final and binding on all parties. The Trustees shall exercise such power in a uniform and nondiscriminatory manner." (Id. at 22)
II.
Plaintiff argues first that he is entitled to summary judgment on his claim for an enhanced pension because the Officers Retirement Plan was never amended to condition this benefit on the signing of a severance agreement. Although plaintiff does not specify the applicable ERISA section, plaintiff is suing for benefits allegedly due, and that claim must be pursued under § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B).See Varity Corp. v. Howe, 516 U.s. 489, 512-15 (1996); Selby v. Principal Mut. Life Ins. Co., No. 98 CIV. 5283, 2000 WL 178191, at *4-5 (S.D.N.Y. Feb. 16, 2000). That section provides that a civil action may be brought by a plan participant "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of his plan, or to clarify his rights to future benefits under the terms of the plan." § 1132(a)(1)(B).
It is conceded that plaintiff is a plan participant. The crux of the dispute is the terms of the Officers Retirement Plan, and specifically, whether the plan was ever amended to condition enhanced pensions upon the signing of a severance agreement. ERISA states that "[e]very employee benefit plan shall be established and maintained pursuant to a written instrument." 29 U.S.C. § 1102(a)(1). The purpose of this provision is to ensure that "every employee may, on examining the plan documents, determine exactly what his rights and obligations are under the plan." H.R. Rep. No. 93-1280, at 297 (1974), reprinted in 1974 U.S.C.C.A.N. 4639, 5077-78, quoted in Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995). Plan amendments must also be in writing to be effective. See Algie v. RCA Global Communications, Inc., 60 F.3d 956, 960 (2d Cir. 1995) (collecting cases). The writing required, however, need not always take the form of a formal plan amendment. Rather, ERISA demands that the plan itself "provide a procedure for amending such plan, and for identifying the persons who have the authority to amend the plan." 29 U.S.C. § 1102(b)(3). Where such procedure is followed and recorded, even if only in the minutes of a Board meeting, the resulting amendment is effective. See Aramony v. United Way of Am., 28 F. Supp.2d 147, 169 (S.D.N Y 1998), aff'd in part and rev'd in part on other grounds, 191 F.3d 140 (2d Cir. 1999). As noted, the requisite provision of the Officers Retirement Plan states that Trustees may amend the plan at any time; there is no requirement that amendments be made pursuant to a formal plan amendment.
Plaintiff cites the absence of any written provision conditioning enhanced pensions on signing the severance agreement in support of his claim that the plan was never amended to include such condition. Defendants rely on the statements in the meeting minutes of June 8, July 22, and October 26, 1999, and January 28, 2000 that pensions were granted "as per the severance agreement" as evidence that the plan was in fact amended in writing to impose the condition. Plaintiff argues that these notations are insufficient to amend the plan as a matter of law and that defendants' later-stated "intent" to make pensions conditional at the time of plaintiff's application is unenforceable. I agree.
Although ERISA allows informal amendments, the statute's policy of clarifying pensioners' rights demands that there be some minimal standards for an effective amendment of an ERISA plan. In determining these standards, and in resolving issues under ERISA generally, courts have looked to the principles of trust law. See, e.g., Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110-11 (1989); Biggers v. Wittek Industries, Inc., 4 F.3d 291, 295 (4th Cir. 1993); Frank v. Colt Industries, Inc., 910 F.2d 90, 98 (3d Cir. 1990). Where, as here, the Officers Retirement Plan reserves to the Trustees the power to amend the plan, but fails to specify a method for effecting an amendment, the Trustees may exercise the power in any manner that "sufficiently manifests [their] intention to modify the [plan]." Restatement (Second) of Trusts § 331 cmt. c (1959); see also Biggers, 4 F.3d at 295-96 (applying the same logic). The Restatement teaches that a plan can be amended only when the Trustees act with the present intent to amend the plan. See Restatement (Second) of Trusts § 23. Thus, as the Third Circuit has noted, "[t]here is a fundamental difference between actions that are intended to create or amend a trust and actions that are merely intended to construe an existing trust; only the former are `terms of the trust.'" Frank, 910 F.2d at 98; see also Kascewicz v. Citibank, N.A., 837 F. Supp. 1312, 1319-20 (S.D.N.Y. 1993) (holding that after-the-fact determinations of plan coverage are not part of the plan design).
The "as per" language defendants rely on does not manifest the requisite intent to amend the plan. These statements were not made contemporaneously with the pension enhancement program's creation; rather they were made after the fact, in the course of implementing an existing plan. By themselves, they impose no condition on pension eligibility. Read literally, they state that early pensions were granted "in accordance with" the severance agreement. This suggests reliance on the severance agreement itself to impose any necessary conditions for a pension, but by its own terms, the severance agreement is silent as to pension eligibility.
The fact that plan administrator Stuart GraBois, after attending all relevant meetings herein, recommended that plaintiff be granted a pension even though he knew that plaintiff had not signed a severance agreement (Joint Stip. ¶¶ 11, 35) lends additional support for the conclusion that the plan was never amended to impose the severance agreement condition.
It bears mentioning that the defendants' later-stated intent to make the pensions conditional at the time of plaintiff's application does not end this deficiency. As the Restatement suggests, it is the Trustees' contemporaneous intent at the time of amendment that determines the plan terms, not their subsequent intent. See Restatement (Second) of Trusts § 4 cmt. a. "When a settlor states `I intended to do Y' after the trust has been created, that statement does not alter the terms of the trust, although it may be relevant in construing the terms of the trust if they are ambiguous." Frank, 910 F.2d at 98. Here, the terms of the trust are not ambiguous; rather, there is no mention of the severance agreement condition in anything that could be considered a plan document. Thus, the unamended enhanced pension plan must govern plaintiff's claim for benefits.
With the threshold issue of the terms of the plan resolved, I now must determine whether plaintiff is entitled to benefits under that plan. When an employee benefits plan confers discretion on plan fiduciaries to construe the terms of a plan, a court must review a denial of benefits under the deferential arbitrary-and-capricious standard of review. See Firestone, 489 U.S. at 115; Miller v. United Welfare Fund, 72 F.3d 1066, 1070 (2d Cir. 1995).
Here, section 10.04 of the Officers Retirement Plan grants the Trustees "sole and absolute authority to interpret and construe the provisions of the Plan" and provides that decisions of the Trustees shall be "final and binding on all parties." (Joint Stip. Ex. Y at 22) This language, as the parties seem to concede, triggers the deferential standard of review.See, e.g., Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441-42 (2d Cir. 1995); Jordan v. Retirement Comm. of Rensselaer Polytechnic Inst., 46 F.3d 1264, 1271 (2d Cir. 1995). However, "that standard may well be met if the trustees have, for example, `impose[d] a standard not required by the plan's provisions, or interpret[ed] the plan in a manner inconsistent with its plain words.'" Shelden v. Barre Belt Granite Employer Union Pension Fund, 25 F.3d 74, 80 (2d Cir. 1994) (quoting Miles v. New York State Teamsters Conference Pension and Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 599 (2d Cir. 1983)).
In this case, the parties do not dispute that plaintiff met the age and service requirements to qualify for the pension enhancement program. By their own admission, the only reason for the denial of benefits was plaintiff's failure to execute a severance agreement with his employer. Because the Officers Retirement Plan was never amended to include this as a condition, the Trustees' imposition of this standard amounts to arbitrary and capricious conduct. See Blau v. Del Monte Corp., 748 F.2d 1348, 1354 (9th Cir. 1985)
Although a remand to the plan fiduciaries is often the proper course when a district court finds their decision to be arbitrary and capricious, the court may determine a claimant's eligibility for benefits itself where it is convinced that remand would be a "useless formality" because the fiduciaries "would necessarily have to grant the claim."Miller, 72 F.2d at 1072. With the only impediment to plaintiff's application here removed, I find that plaintiff is necessarily entitled to an early pension. Accordingly, plaintiff's motion for summary judgment on his claim for pension benefits is granted; defendants' cross-motion on this issue is denied.
In light of my conclusion that the Officers Retirement Plan was never amended to impose the severance agreement condition, I need not address plaintiff's alternative contention under 29 U.S.C. § 1132(a)(3) that it was a breach of the Trustees' fiduciary duties to so amend.
III.
Plaintiff also seeks statutory penalties against the Officers Retirement Plan for allegedly violating the disclosure requirements of ERISA. Under § 104(b)(4) of ERISA, upon written request by a plan participant, a plan administrator must provide copies of any trust agreement, plan documents, or "other instruments under which the plan is established or operated." 29 U.S.C. § 1024(b)(4). Section 502(c) of ERISA provides that the court may, in its discretion, award statutory penalties of up to $100 a day for the failure to provide these documents within 30 days of the request. 29 U.S.C. § 1132(c).It is undisputed that plaintiff requested plan documents in his January 7, 2000 and February 7, 2000 letters to the Trustees, and informed counsel for defendants on February 25, 2000 and April 26, 2000 that the documents still had not been received. It is also undisputed that counsel for defendants told plaintiff on February 15, 2000 that he had asked the administrator to provide plaintiff with the documents. Further, the parties concede that Mazziotta, the person responsible for responding to document requests, was never asked to collect documents for plaintiff. Finally, the parties have stipulated that no documents were received until November 6, 2000 when defendants provided plaintiff with plan documents as part of discovery in this case.
Defendants nonetheless argue that there was no disclosure violation because there was nothing to provide plaintiff that plaintiff did not already know or have access to by virtue of his position as Deputy Director of the Jointly Trusteed Funds. As Deputy Director, plaintiff assisted in the administration of the Officers Retirement Plan, and was present at the Officers Retirement Plan's Trustees meetings from the inception of the enhancement program through July, 1999, during which time numerous enhanced pensions were granted. Defendants cite plaintiff's advice to co-workers about the pension enhancement program, and his own application for a pension thereunder, in further support of their argument that plaintiff knew, or had constructive knowledge, of the program's documentation. However, plaintiff maintains, and defendants do not refute, that plaintiff did not have a copy of the Officers Retirement Plan, the Trust Agreement, the August 12, 1998 Trustees meeting minutes, and all other meeting minutes, with the single exception of the December 15, 1999 meeting. According to plaintiff, it was not until receiving these documents that he knew for certain that denial of his pension benefits was wrongful. Because plaintiff needed these documents to determine his rights under the plan, and because this articulated need went unanswered, plaintiff is entitled to summary judgment on his claim of disclosure violation; defendants' cross-motion on this issue is denied.
ERISA gives the court discretion as to the amount of the penalty, if any, to be imposed on a derelict administrator. In determining whether to assess a penalty, courts have considered such factors as the administrator's bad faith or intentional conduct, the number of requests made, the length of the delay, and the existence of any prejudice to the participant resulting from the delay. See Pagovich v. Moskowitz, 865 F. Supp. 130, 137 (S.D.N.Y. 1994).
The first factor — bad faith — is arguably the most important factor, considering that "the statutory penalty provision `is in the nature of punitive damages designed more to punish the intransigent administrator and to teach ERISA fiduciaries a needed lesson than to compensate the [plan participant] for actual loss.'" Kascewicz, 837 F. Supp. at 1322 (quoting Sandlin v. Iron Workers Dist. Council Pension Plan, 716 F. Supp. 571, 574 (N.D. Ala. 1988), aff'd without opinion, 884 F.2d 585 (11th Cir. 1989)); see also id. ("[T]he primary focus of a court in assessing damages under [§ 1132(c)] should be the conduct of the administrator . . . ." (quoting Porcellini v. Strassheim Printing Co., 578 F. Supp. 605, 614 (E.D. Pa. 1983)) (internal quotation marks omitted)). Defendants do not appear to have acted in bad faith when they failed to comply with plaintiff's requests. Defendants had good reason to believe that plaintiff knew his rights and had access to relevant plan documents. Further, defendants were not trying to conceal anything from plaintiff; they had told plaintiff about his eligibility under the plan when they supplied him with the reasons for their denial of his pension application. The absence of bad faith should mitigate any penalty, if not decrease it to zero. See, e.g., Protocare of Metro N.Y., Inc. v. Mutual Ass'n Adm'rs Inc., 866 F. Supp. 757 (S.D.N.Y. 1994) (denying statutory penalties where there was no showing of bad faith).
Prejudice to the plaintiff is also a significant factor for the court to consider. Kascewicz, 837 F. Supp. at 1322. Plaintiff claims that he was harmed in that he was forced to bring this lawsuit. Where a party is compelled to retain counsel and initiate a lawsuit because of a disclosure violation, that party has indeed suffered an injury. See id. at 1323. However, under the facts of this case, plaintiff would have had to bring suit for his pension whether or not the plan documents had been provided, as the parties disagreed on the interpretation of those documents. A more accurate description of plaintiff's injury is that he had to bring this lawsuit without being as certain of the merits of his litigating position as he would have been had he obtained the documents in advance. Although this constitutes some degree of harm, it is not as great as plaintiff suggests.
The remaining factors more strongly support an award of penalties: Plaintiff made four separate requests for the documents, and defendants did not comply until ten months after the initial request, during discovery in this action.
In these circumstances, there being no bad faith and no significant prejudice, only a token sanction is warranted. Token sanctions can be sufficiently severe to deter violations because the mere fact of being sanctioned is itself a sanction. Cf. Weiss v. Weiss, 984 F. Supp. 682, 686 (S.D.N.Y. 1997) (applying the same logic in imposing Rule 11 sanctions). I therefore impose a token penalty of $.10 per day, running 30 days from January 7, 2000, the date of plaintiff's first request.
IV.
Defendants move for summary judgment on plaintiff's breach of fiduciary duty claim under ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2). Plaintiff brought this claim on behalf of the Officers Retirement Plan against defendant Trustees for reimbursement of benefits paid under the pension enhancement program. The claim was premised on this court finding that the Officers Retirement Plan was never amended co include the pension enhancement program. As plaintiff and defendants have since stipulated that the Officers Retirement Plan was in fact amended to include the pension enhancement program, this claim is dismissed as moot.
V.
Finally, defendants move for summary judgment dismissing plaintiff's unlawful interference claims under ERISA § 510, 29 U.S.C. § 1140, and 42 U.S.C. § 1985(2). These claims are based on plaintiff's allegation that the Trustees' decision to impose the severance agreement condition on plaintiff's pension application was designed to impede, and was in retaliation for, plaintiff's suit against his employer and his cooperation with the government's investigation into the Jointly Trusteed Funds.
Unlawful interference or retaliation claims under ERISA § 510 are enforced under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3).Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 145 (1990). That section authorizes injunctions or "other appropriate equitable relief" for ERISA violations. § 1132(a)(3). Because plaintiff has already been awarded the pension he seeks here under his § 1132(a)(1)(B) claim, there is no further relief to provide. Although plaintiff includes a request for consequential and punitive damages in his general prayer for relief, these extra-contractual damages are not available under ERISA § 502(a)(3). See Mertens v. Hewitt Assoc., 508 U.S. 248 (1993); Lee v. Burkhart, 991 F.2d 1004, 1010 (2d Cir. 1993); see also Resner v. Arc Mills, Inc., No. 95 CIV. 2924, 1996 WL 554571 (S.D.N.Y. Sept. 30, 1996) (denying such damages to § 510 plaintiffs and collecting cases holding same). Thus, I need only consider plaintiff's claim under 42 U.S.C. § 1985 (2)
A witness intimidation claim may be maintained pursuant to 42 U.S.C. § 1985(2) if the plaintiff alleges "(1) a conspiracy between two or more persons, (2) to deter a witness "by force, intimidation, or threat' from attending any court of the United States or testifying freely in a matter pending therein, which (3) causes injury to the claimant." Herrera v. Scully, 815 F. Supp. 713, 726 (S.D.N.Y. 1993) (quoting 42 U.S.C. § 1985 (2)); see Chahal v. Paine Webber, Inc., 725 F.2d 20, 23 (2d Cir. 1984).
Defendants first argue that this claim fails as a matter of law because plaintiff is not a witness within the meaning of the statute. Plaintiff has not testified or been asked to testify in a federal court proceeding and is not under subpoena; rather, plaintiff has cooperated in the government's investigation of the Jointly Trusteed Funds, and merely alleges that defendants were acting to prevent "future cooperation." Defendants rely on Arroyo-Torres v. Ponce Federal Bank, FBS, Inc., 918 F.2d 276 (1st Cir. 1990), for the proposition that a party must allege that he was prevented from attending or testifying in federal court to state a claim under § 1985(2).
The Second Circuit has held that the statute's protective purpose would best be achieved by "interpreting the word `witness' liberally to mean not only a person who has taken the stand or is under subpoena but also one whom a party intends to call as a witness." Chahal, 725 F.2d at 24. But whether the nature of plaintiff's participation in the government investigation fits under this umbrella of protection for "potential witnesses" is far from clear. Chahal itself involved a case where the federal litigants had already hired and filed an affidavit of a potential expert witness, who was allegedly later deterred from testifying. And though the Tenth Circuit, following Chahal, held that potential grand jury witnesses could be protected even before a grand jury was empaneled, that case involved a sustained and overt campaign of intimidation immediately preceding, during, and following, a grand jury proceeding in which the whistleblowers did in fact testify. Brever v. Rockwell Int'l Corp., 40 F.3d 1119 (10th Cir. 1994). The undisputed facts here do not make the same showing that the government intends to call plaintiff as a witness.
Moreover, even assuming the definition of witness is expansive enough to cover plaintiff, there is no evidence that defendants were involved in a conspiracy to deter a witness, or that they used force, intimidation, or threats in furtherance thereof. Although a conspiracy claim can be supported by circumstantial evidence, Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 240 (2d Cir. 1999), and all inferences arising therefrom must be resolved in favor of the non-moving party,Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993), there is nothing in the record here that remotely gives rise to an inference of a conspiracy.
Plaintiff suggests a § 1985(2) conspiracy between the Jointly Trusteed Funds and the Officers Retirement Plan, evidenced first by the severance agreement presented to plaintiff, and second by the Officer Retirement Plan's sudden imposition of the severance agreement requirement at the time of plaintiff's pension application. This severance agreement contained a release that would have prevented plaintiff's suit and allegedly would have precluded further cooperation with the government. However, the severance agreement was drafted and offered to plaintiff by the Jointly Trusteed Funds alone; it inured to their benefit and was entirely independent of the Officers Retirement Plan. That the Boards of Trustees of the Officers Retirement Plan and the Jointly Trusteed Funds overlap does not itself prove that the Officers Retirement Plan did anything unlawful to protect the Jointly Trusteed Funds, or its personnel, from plaintiff's actions. Defendants did not enter the picture until after plaintiff had been terminated and the severance agreement had been given to him for his signature. Whether the proffer of this severance agreement, or any other action by the Jointly Trusteed Funds, was unlawful is the subject of the case pending before Judge Schwartz, and is not for me to decide.
Plaintiff points out that all of the trustees present at the December 15, 1999 Officers Retirement Plan meeting, where plaintiff's pension application was first considered, were defendants in plaintiff's prior employment action. (Pl.'s Mem. Opp. Summ. J. at 16) Around the time of plaintiff's appeal, the composition of the Board of Trustees changed such that only one of the defendant Trustees in this case is a defendant in plaintiff's employment action. (Joint Stip. ¶¶ 65-72) Plaintiff asserts that defendants are trying to protect that party, Denis Shiel, and the administrator of both the Officers Retirement Plan and the Jointly Trusteed Funds, Stuart GraBois, from liability.
As to defendants' part in this alleged conspiracy, the sequence of events shows that the Trustees had been making consistent reference to the severance agreement in connection with pension applications beginning in June 1999, well before plaintiff was even fired from the Jointly Trusteed Funds. Although I have found these references to be insufficient to amend the plan to impose a blanket severance agreement condition on all pension enhancements, they do show that the Trustees were not unlawfully motivated by plaintiff's lawsuit or his cooperation with governmental authorities in trying to impose this condition on plaintiff's individual pension application.
In short, plaintiff makes no showing that there was any agreement by defendants at all, let alone one with the objective to deter plaintiff by threat, intimidation, or force from attending court or testifying. The record is devoid of proof of any such activity. On an issue where the non-moving party will bear the burden of proof at trial, "Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). Defendants have successfully done so here, and plaintiff has failed in his response to set forth specific facts raising a genuine issue of material fact for trial. Therefore, defendants are entitled to summary judgment on plaintiff's § 1985(2) claim as a matter of law.
* * *
For the reasons set forth above, plaintiff's motion for partial summary judgment is granted; defendant's motion for summary judgment is granted in part and denied in part. Because there are no triable issues, there remains only the computation of appropriate relief. Counsel for the parties herein will attend a conference on October 26, 2001 at the United States Courthouse, 500 Pearl Street, New York, in Room 21B at 9:15 A.M. to discuss the amount of plaintiff's award. Plaintiff is entitled to retroactive pension benefits together with interest, and to the determined statutory penalties. Because this is simply an arithmetic computation, the parties are directed to confer and are encouraged to agree on the correct number. They are urged to refrain from imposing an unnecessary burden on the court. Plaintiff also seeks attorney's fees and costs incurred in this action. Because neither side has briefed this issue, the court will postpone decision on the amount of fees, if any, to award until the conference.
SO ORDERED: