Opinion
Civil Action No. 3: 04-CV-0770-B.
March 31, 2005
MEMORANDUM ORDER
Before the Court is the Motion of Defendants McCoco Pension Plan (the "Plan"), Bruce McCommons ("McCommons"), the Plan Administrator, and McCommons Oil Company ("McCommons Oil") (collectively, the "Plaintiffs") to Dismiss pursuant to Federal Rule of Civil 12(b)(6), filed May 10, 2004. After review of the pleadings and arguments on file, the Court DENIES the Plaintiffs' Motion to Dismiss.
Although the motion states that it is also brought pursuant to Fed.R.Civ.P. 12(b)(5) for insufficient service of process, the Defendants have not briefed that issue, and the Court therefore will not address it.
I. BACKGROUND
Plaintiff Bobby H. Carlisle filed this lawsuit on April 13, 2004 against his former employer, McCommons Oil, alleging violations of both the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA") and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (1997 Supp. 2004) ("ADEA"), including retaliation and wrongful termination. See generally (Complaint). McCommons Oil and/or its predecessors (collectively "the Company") employed Carlisle for "approximately 22 years." (Response at 2). Carlisle now seeks to recover "certain pension benefits" which he allegedly accrued via an offer of early retirement. (Response at 2; Complaint at 5). According to Carlisle, these benefits were "vested and nonforfeitable." ( Id.).
On January 24, 2004, the Company offered Carlisle a "subsidized" early retirement benefit in the form of an increased monthly benefit and gave him until January 31, 2003 to make accept the offer." (Complaint at 6, Exh. 2; Motion at 1). Defendants admit that the offer was made as an incentive for early retirement. (Motion at 1). Four days later, Carlisle hired attorney William A. Walsh ("Walsh") to advise him, and Walsh sent Carlisle's employer and the Plan Administrator a letter requesting both information regarding the Pension Plan and a thirty day extension of time to make his decision. (Complaint at 6; Id.). In the letter, Walsh also demanded to know the status of Carlisle's employment. ( Id.). The Company and the Administrator responded on January 29, 2003, giving Carlisle an extension and confirming that he was a "continuing employee." ( Id., Exh. 3; Motion at 1).
In response, Walsh sent a letter on February 7, 2003 complaining of "the lack of information that was to be furnished to Carlisle," ( Id., Exh. 5) and as an act of alleged retaliation, the Company and the Administrator responded on February 12, 2003 with an "attack" on Carlisle's work performance. ( Id., Exh. 6). Carlisle subsequently requested more information through his counsel regarding the "calculation of his pension benefit," but the Administrator allegedly "refused to furnish the information requested [and][sic] responded only by marking up Carlisle's request." ( Id., Exh. 7).
On March 5, 2003, [the] Administrator sent a letter to Walsh, stating the following:
My offer to substantially increase Bobby Carlisle's . . . retirement benefits will be withdrawn on Friday [March 7, 2003] at 2:00 PM. If all issues aren't resolved by that time the subsidized benefit offer will not be renewed. The current benefit of $386.88 owed to Mr. Carlisle . . . will be paid to [him] on [his] regular retirement dat[e].
I was prepared to enhance the offers a little but believe you either do not understand the issues or are deliberately stalling. You told me that you were going to go over the base calculation with the plan actuary, Bill Blount, but he tells me you have not contacted him.
I believe that I have been more than fair, if not excessively generous both with my offers and the time I have given all parties to complete the transaction.
(Complaint, Exh. 8).
Walsh responded on March 12, 2003, purporting to accept the Administrator's last offer. ( Id., Exh. 9). The next day, on March 13, 2003, the Administrator responded, informing Walsh that Carlisle had not accepted the offer of an 80% subsidy and continued health coverage in exchange for not electing the lump sum settlement, and that the offer had lapsed. ( Id., Exh. 10). Two weeks later, on March 13, 2003, Walsh sent the Company and the Administrator a letter "in an attempt to clarify Carlisle's acceptance of the Agreement regarding the Pension Plan," and informed them that, in Carlisle's view, he was still an employee. ( Id., Exh. 11). The Company and the Administrator responded by "marking up the letter," noting that the extra 10% was only available if the lump sum was not taken. ( Id., Exh. 12).
Carlisle claims that he "appealed the Administrator's position" on March 28, 2003, and that the Administrator and the Company "once again marked up Carlisle's appeal indicating he would be fired on March 31, 2003 if he did [not] [sic] accept forced retirement." ( Id., Exh. 14). On March 31, 2003, Carlisle responded via a letter which he refers to as a "complaint under any Administrative Process in the Plan." In the letter, he claimed that the employer had "violated ERISA," that he "did not accept forced retirement," and that "he was still an employee." ( Id., Exh. 15).
The Company then terminated Carlisle, he claims "in retaliation for not accepting forced retirement in a monthly annuity versus a lump sum in violation of Section 510 of ERISA 29, U.S.C. Section 1149." ( Id.). Carlisle alleges that the Company "had the specific intent to fire [him] for attempting to exercise his rights and interfering with his rights to benefits." ( Id.). Carlisle alleges that the Company and the Administrator are liable for retaliation and wrongful termination under ERISA, for wrongful termination under the ADEA, and for breach of the duty of disclosure and reporting under ERISA. See generally, (Complaint). Presently before the Court is the motion of the Defendants to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted.
II. ANALYSIS
A. Legal Standard.
Motions to dismiss under Rule 12(b)(6) are disfavored and rarely granted. Priester v. Lowndes County, 354 F.3d 414, 418 (5th Cir. 2004). In deciding a motion to dismiss, the Court must construe the First Amended Complaint in the light most favorable to Carlisle and draw all reasonable inferences in Carlisle's favor. Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004). The Court may not grant a motion to dismiss unless Carlisle would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in his Complaint. Priester, 354 F.3d at 418-19.
B. Count I — Retaliation and Wrongful Termination Under Section 510 of ERISA.
In order to state a claim for retaliatory wrongful termination under Section 510 of ERISA, Carlisle must demonstrate that the Defendants retaliated (i.e., through wrongful termination) against Carlisle for exercising his rights under the Plan or as a means of interfering with Carlisle's rights under the Plan. 29 U.S.C. § 1149. The Defendants argue that Carlisle "never accepted the offer nor did [he] exercise any right to which he was entitled under the Plan," that he "was not terminated until after the Subsidized Benefit offer expired," and that his "termination was not a retaliation for [his] failure to accept the Subsidized Benefit." (Motion at 3-4). Moreover, the Defendants claim that because they requested that he return his retirement forms so that payments could commence, that his termination "did not interfere with his ability to accept his pension benefits." (Motion at 3; Complaint, Exh. 17).
Legally, the Defendants argue that Carlisle has failed to demonstrate that (1) the Defendants had the requisite "specific intent" to violate ERISA (Motion at 4) (citing Unida v. Levi Strauss Co., 986 F.2d 970, 973 (5th Cir. 1993). Second, the Defendants argue that Carlisle cannot meet the Fifth Circuit's requirement of demonstrating that his employer engaged in "unscrupulous conduct or [an] intentional act (such as harassment)." (Motion at 4-5) (citing Bodine v. Employers Cas. Co., 2003 WL 22799615 (5th Cir. 2003). Finally, the Defendants argue that the Plaintiff's sought remedy is a legal remedy rather than an equitable one, which is the only kind allowed for claims under Section 510 of ERISA. (Motion at 5).
In Stephen Allen Lynn, P.C. Employee Profit Sharing Plan and Trust, et al. v. Stephen Allen Lynn, 25 F.3d 280, 284 (5th Cir. (Tex.) 1994), the Fifth Circuit reviewed a district court's decision to grant a motion for summary judgment against the plaintiff's claim under Section 510 of ERISA. The plaintiff in Stephen and her husband/employer were in the midst of divorce proceedings. She alleged that he had "executed various amendments to the Plan" pertaining to "pre-retirement disbursement of funds" which had the effect of prohibiting anyone from paying out any Plan funds as required by the state court to which she had petitioned." Id. at 280-81. The Appellate Court found that the plaintiff had offered "sufficient evidence to state a claim of discrimination [under Section 510 of ERISA] because she ha[d] introduced evidence from which it [could] be inferred that [her employer] specifically intended to discriminate her in realizing benefits under the plan." (citing Unida, 986 F.2d at 979-80).
The Court finds that, like the plaintiff in Stephen Allen Lynn, Carlisle has sufficiently pleaded facts to state a claim in his allegations that he was fired in retaliation for his decision to reject his employer's offer of early retirement. From these facts, the Court finds that "it can be inferred that [his employer] specifically intended to discriminate [him] in realizing benefits under the plan." Id. Thus, the Defendants' Motion to Dismiss Count I of Carlisle's Complaint, for retaliatory discharge under ERISA is DENIED.
C. Count II — Age Discrimination Under the ADEA.
The Defendants move to dismiss Carlisle's claims of age discrimination because the Company does not meet the definition of "employer" under the Act, in that an employer must have "twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 29 U.S.C. § 630(b). (Motion at 6; McCommons Aff., Exh. A; EEOC Charge Response, Exh. B). Carlisle responds that "[u]pon information and belief, [he] has knowledge that at times the employer has twenty employees or more and thus [the Employer's] motion to dismiss under 12(b)(6) would be premature until proper discovery has been completed." (Response at 4; Carlisle Aff.).
Carlisle is not required to make out a prima facie case of discrimination in order to survive a motion to dismiss. Swierkiewicz v. Sorema, 534 U.S. 506, 511-12 (2002). Instead, he must only plead sufficient facts to apprise the defendant of the claims plaintiff intends to pursue. Id. at 514. Reading Carlisle's Complaint liberally, the Court finds that this allegation is sufficient to notify the Defendants that Carlisle believes that his termination was discriminatory under the ADEA. Therefore, the Court will not dismiss Carlisle's claims and DENIES the Defendants' motion to dismiss Count II of the Complaint for age discrimination under the ADEA.
D. Count III — Failure to Supply Requested Information under ERISA.
The Defendants next move to dismiss Carlisle's claim in Counts III through IX for failure to state a claim against the Administrator for ERISA violations in failing supply requested information. (Motion at 6). First, the Defendants argues that Carlisle's claim in Count III, that the Defendants refused to provide a summary plan, conflicts with evidence submitted with the Complaint. ( Id. at 6; Complaint ¶ 39). In Count III, Carlisle alleges that the Administrator did not comply with his request for a summary plan, yet the letter attached as Exhibit 5 of the Complaint from Walsh to the Administrator references a "Summary Plan Description." (Motion at 6; Complaint, Exh. 5).
Regarding Counts IV through IX, Carlisle claims he was not provided with an annual report, an actuarial statement, and other information. (Complaint). The Defendants argue that Carlisle has not stated a claim because his requests for information did not satisfy the level of specificity required in the Fifth Circuit. (Motion at 8) (citing Matassarin v. Lynch, 174 F.3d 549, 570 (5th Cir. 1999) and Fisher v. Met. Life Ins. Co., 895 F.2d 1073, 1077 (5th Cir. 1990). In Matassarin, the Court held that a plaintiff seeking penalties for failure to provide requested information must identify what material he "specifically requested and the defendants failed to provide." Carlisle responds that he has sufficiently pleaded facts demonstrating that the Administrator violated ERISA's duty of disclosure and reporting by failing to supply information requested on February 7, 2003, February 19, 2003, February 28, 2003, and April 2, 2003. (Response at 5; Complaint, Exhs. 5, 7, 3 and 16, respectively). In his Complaint, Carlisle identifies the specific items he claims he requested which were not provided by the Administrator. At this time, the Court does not have sufficient evidence to determine whether the Administrator violated Carlisle's ERISA rights in failing to provide this information. The Court believes that such an issue would be better addressed in a summary judgment motion, after discovery has occurred. Therefore, the Court will not dismiss Carlisle's claims in Counts III through IX for violation of ERISA's duty of disclosure and reporting by failing to supply requested information at this time.
III. CONCLUSION
For the foregoing reasons, the Court DENIES the Defendants' Motion to Dismiss for Failure to State a Claim pursuant to Rule 12(b)(6) in its entirety.