Opinion
Case No. 1:00 CV 2591.
June 19, 2006
MEMORANDUM OPINION AND ORDER
A bench trial was held in this matter on March 14, 2006 for the purpose of determining whether Defendant, ICI Paints, d/b/a the Glidden Paint Company ("Glidden"), is the proper defendant in this case. The procedural history of this case and the findings of this Court are as follows:
Procedural History Prior to Remand
On October 11, 2000, Plaintiff, Christina Murphy Minadeo ("Ms. Murphy"), filed this lawsuit against Glidden, alleging violations of the Employee Retirement Income Security Act, ERISA, 29 U.S.C. § 1001 et seq., and age discrimination in violation of Ohio Rev. Code § 4112.14. The case was originally assigned to Judge Lesley Wells. On October 12, 2001, Glidden filed its Motion for Summary Judgment. (Docket #19.) On December 28, 2001, Judge Wells referred the case to Magistrate Judge Nancy A. Vecchiarelli for a report and recommendation regarding Glidden's Motion for Summary Judgment. (Docket #27.) On March 1, 2002, Magistrate Judge Vecchiarelli issued a report and recommendation, recommending that Glidden's Motion for Summary Judgment as to Counts I and III of Ms. Murphy's Complaint, alleging an ERISA violation under 19 U.S.C. 1024 and Age Discrimination under Ohio Rev. Code § 4112.14 be granted, but denied as to Count II of Ms. Murphy's Complaint alleging an ERISA violation under 26 U.S.C. § 1563 and 29 U.S.C. § 1060. (Docket #39.)
Both Parties filed objections to the Magistrate Judge's Report and Recommendation. On April 18, 2003, the case was reassigned to Judge Paul R. Matia. (Docket #46.) On August 4, 2003, Judge Matia issued a Memorandum of Opinion and Order (Docket #47) granting summary judgment in favor of Glidden on all counts; adopting the findings of the Magistrate Judge as to Counts I and III, but sustaining Glidden's objection to the Magistrate Judge's recommended disposition of Count II. Ms. Murphy filed her Notice of Appeal to the Sixth Circuit Court of Appeals on September 2, 2003. (Docket #49.)
On February 22, 2005, the Sixth Circuit Court of Appeals affirmed summary judgment as to Ms. Murphy's claims under 29 U.S.C. § 1060 and 29 U.S.C. § 1024(b)(1) and (b)(2), but reversed the District Court's grant of summary judgement as to Ms. Murphy's claims under 29 U.S.C. § 1024(b)(4) and 1025(a). (Docket #52.) The Court of Appeals remanded the case to this Court for further factual development of the relationship between the plan administrator and defendant in this case, for a determination of whether Glidden is a proper defendant to this claim. The Court of Appeals instructed that if this Court finds Glidden to be a proper defendant with respect to Ms. Murphy's claim under 29 U.S.C. § 1024(b)(4) and 1025(a), then it is within this Court's discretion to impose fines pursuant to § 1132(c) of ERISA.
Factual Allegations
As set forth by the Sixth Circuit Court of Appeals, the substantive facts of this case are as follows:
Ms. Murphy worked for CIL, Inc., a Canadian company, and its successor-in-interest, ICI Paints Canada, Inc. ("ICI Canada"), from 1980 to 1995. In 1995, Murphy was one of several Canadians courted by Glidden, a related company, to join its paint business in Cleveland. Murphy joined Glidden in January 1995, as a Planning Manager in its Independent Dealer Division. Later that year, she became the Planning Analysis Manager for the same division, and served in that capacity until February 1998. She then held the position of Director of Operations and Administration for another division until it was eliminated in September 1998 as part of a corporate reorganization. At that time, she became the Controller for Glidden's Macco Division.
Corporate restructuring at Glidden had begun in January 1998, under the leadership of new Chairman Dennis Wright. Significant changes were made to Glidden's' internal structure, including the elimination of several Controller positions. In her position as the Macco Controller, which had been preserved, Murphy was directly supervised by Pete Appell ("Appell"), but also reported to Ashok Joshi ("Joshi"), Vice President of Finance for the Macco Division.
Murphy testified in her deposition that she received the impression during her interview with Appell that "it was the young crew that he was proud of. He was communicating the correlation between desirability and youth." Later, Appell entered Murphy's office and exclaimed, "I understand you're seven years old. It's unbelievable." Murphy testified that most people at the company believed she was thirty-five years old.
On May 12, 1999, approximately one month after Appell made this comment, Murphy was informed that Glidden had decided to eliminate the Macco Controller position due to restructuring and that she was being discharged. The parties do not dispute that the decision to terminate Murphy's employment was made by Appell and Joshi. As part of her termination package, Murphy received severance pay for forty-eight weeks, totaling $75,323.05 and based on her years of service from 1980 and a base salary of $81,600. The termination letter sent to her by Glidden informed her that "[i]f you are eligible to receive pension benefits, your pension information will be forwarded to you under separate cover." When no such information was forthcoming, Murphy repeatedly called Glidden to inquire about her pension benefits. In the fall of 1999, she had a conversation with Phil Brewer ("Brewer"), an Glidden Human Resources representative, in which she asked him for pension information. During that conversation, Brewer asked Murphy, "you were close to retirement, weren't you[?]" Murphy perceived this comment to be unusual and out of context.
Murphy did not receive the pension information that she repeatedly requested by phone, and, after eleven months, she retained an attorney. In April 2000, Murphy's counsel made a written request for her pension information to Glidden's in-house counsel. That request stated that it was "being made on behalf of Ms. Murphy Minadeo and pursuant to the Employee Retirement Income Security Act." Despite this request, Murphy did not receive any pension information until August 2000, almost fifteen months after her termination. The information provided to her at that time made it clear that her years of service with ICI Canada had not been credited towards the accrual of her pension benefits. While Murphy was credited for years of service dating back to February 1980, when she first joined CIL, for purposes of her severance package, she was credited only with years worked in this country, beginning in 1995, for purposes of her pension benefits. Murphy contends that the failure to transfer her pension resulted in a devalued pension benefit.
Decision of the Sixth Circuit Court of Appeals, Appellate Case No. 03-4343, at pp. 2-3.
Decision of the Sixth Circuit
In reversing summary judgment as to Ms. Murphy's claims under 29 U.S.C. § 1024(b)(4) and 1025(a), the Court of Appeals distinguished the facts and circumstances of this case with the Sixth Circuit's prior decision in Bartling v. Fruehauf Corp., 29 F.3d 1062 (6th Cir. 1994). As stated by the Court of Appeals:
In Bartling, we held that a plan administrator could not be required under 1024(b) of ERISA to disclose pension benefit information to a non-participant (even the attorney of a participant) without first receiving written authorization from the participant. 29 F.3d at 1072. We note that the factual circumstances of Bartling are quite different from those presented by this case, principally because the actions of the defendant in Bartling can be described as forthright and non-evasive. In Bartling, after receiving an attorney request for pension benefits information on behalf of several participants, the defendants furnished much of the information requested, including the pension plan in question, the three most recent Annual Returns, and the latest version of the Summary Plan Description. At the same time, the defendants informed plaintiff's counsel that individual benefits computations would not be provided without authorizations from the plan participants. Once those authorizations were received, defendants provided the individual benefit computations. Bartling affirmed the right of the plan administrator to seek a written authorization whenever any non-participant, even a participant's attorney, requested benefits information.
In contrast to the behavior of the defendant in Bartling, Glidden's handling of the request by Murphy's attorney for benefits information to which she was entitled under ERISA and which was expressly made on her behalf and pursuant to ERISA, can only be described as entirely inappropriate. Glidden did not inform Murphy's attorney that the information would not be provided without a signed authorization; rather, it simply ignored the request for almost four months.
Pension plan administrators who treat our decision in Bartling as a license to simply disregard a written request for pension benefits information if it is made by a participant's attorney, rather than by a participant herself, both misconstrue the holding of that case and misunderstand their obligations under ERISA. Again, ERISA disclosure requirements exist to help ensure that participants have access to information about their pension plans. As the Third Circuit has cogently observed, "the objective of [the ERISA disclosure requirements] would be ill served . . . by permitting administrators to refuse to respond with no indication that authori[zation from the participant] is even an issue." Daniels v. Thomas Betts Corp., 263 F.3d 66, 77 (3rd Cir. 2001).
What Bartling says is that a plan administrator may require written authorization from a plan participant before satisfying a non-participant's request for benefits information. Not inconsistent with that rule, we hold that a plan administrator is not entitled to ignore a request for pension benefits information made by an attorney on behalf of a participant, as Glidden did in this case for almost four months. Instead, a plan administrator must either provide the requested information directly to the plan beneficiary (we note that this option would have made a great deal of sense in the present case, as Murphy herself had first repeatedly requested the information by telephone before enlisting the aid of an attorney), or must act as the defendant in Bartling did, and inform the attorney that the information will be released upon the receipt of an authorization signed by the plan participant. A plan administrator who fails to take either of these steps within the thirty day period imposed by 29 U.S.C. § 1132(c) is subject to the fines authorized by that same provision, at the discretion of the district court. Decision of the Sixth Circuit Court of Appeals, Appellate Case No. 03-4343, at pp. 4-5.
After distinguishing this case from Bartling, the Court of Appeals set forth the issue currently before this Court:
b. Has Plaintiff sued the correct defendant?
It remains for us to consider Glidden's argument that it is not a proper defendant to this claim. Glidden argues that Murphy has failed to state a claim upon which relief can be granted because Glidden is not the administrator of the pension plan. Rather, according to Defendant, Murphy's pension benefit plan designated the administrator as the "Pension Committee of ICI Paints."
The magistrate judge rejected this argument because it determined that Glidden had raised it for the first time in its reply brief to Plaintiff's brief in opposition to Defendant's motion for summary judgment, and therefore that it was not properly raised before the court. We must disagree with this determination. In its brief in support of its motion for summary judgment, Glidden provided the statutory definition of a pension plan administrator under 29 U.S.C. § 1002(16)(A)(i), noted that the pension plan administrator in this case was the "Pension Committee of ICI Paints," and then argued that Murphy could not establish that she made any written request for information to the plan administrator.
The magistrate judge was correct that it was not until its reply brief that Defendant specifically contended that its argument that Murphy had never requested information from the plan administrator (because Glidden was not the plan administrator) required the court to find that she had failed to state a claim upon which relief could be granted. However, because the issue of whether Murphy's request for information was directed to the wrong party was raised in Defendant's brief in support of its motion for summary judgment, we conclude that we must consider whether Murphy has sued the wrong party with respect to her claims under §§ 1024(b)(4) and 1025(a).
Unfortunately, the record does not suffice to allow us to resolve this question. While "[t]he law in this Circuit is clear that `[o]nly a plan administrator can be held liable under section 1132(c),'" Hiney Printing Co. v. Brantner, 243 F.3d 956, 961 (6th Cir. 2001) (quoting VanderKlok v. Provident Life Accident Insurance Co., 956 F.2d 610, 617 (6th Cir. 1992)), there is no information before this Court which adequately explains the relationship between Glidden and the "Pension Committee of ICI Paints" ("Pension Committee").
We note, however, that the available related information suggests both that Glidden participated in the administration of benefits under the pension plan and that the Pension Committee may be so closely related to Glidden that a request to Glidden should have been construed as one to the Pension Committee. A May 12, 1999 letter to Murphy from Bruce Cahoon ("Cahoon"), Director of Compensation and Benefits at Glidden, discussed her severance package and informed her that her pension information would be forwarded to her under separate cover. The address on that letterhead, 925 Euclid Avenue, Cleveland, Ohio, is the same as the address listed in the pension plan for the Pension Committee and is the same address to which Murphy's attorney sent the request for pension benefits information. Murphy did eventually receive another letter from Cahoon, which provided some of the benefits information requested. Furthermore, despite Murphy's repeated phone calls requesting her pension benefits information and despite her attorney's written request on her behalf for that same information, which were all directed to Glidden, no one at Glidden ever informed Murphy that she was contacting the wrong party for that information.
We reverse the district court's grant of summary judgment with respect to Murphy's claim under 29 U.S.C. §§ 1024(b) and 1025(a), and remand this issue to the district court, for further factual development of the relationship between the plan administrator and Glidden in this case and determination of whether Glidden is a proper defendant to this claim. If the district court finds that Glidden is a proper defendant with respect to these claims, it will then have discretion to impose fines pursuant to § 1132(c) of ERISA.
Decision of the Sixth Circuit Court of Appeals, Appellate Case No. 03-4343, at p. 5.
Procedural History After Remand
This case was remanded to the District Court on February 22, 2005 and was subsequently reassigned from the docket of Judge Matia to the docket of Judge Donald Nugent. (Docket #s 55 and 56.) On July 15, 2005, Ms. Murphy filed a Motion for Summary Judgment, arguing that Glidden was in fact a proper defendant in this claim. (Docket #60.) On September 21, 2005, this Court denied Ms. Murphy's Motion for Summary Judgment, finding there were genuine issues of material fact as to whether Glidden is the administrator of the Pension Plan and whether Glidden may be liable for a failure to comply with 29 U.S.C. §§ 1024(b) and 1025(a). (Docket #64.)
A bench trial was held on March 14, 2006 before this Court. Ms. Murphy testified on her own behalf, and also presented the testimony of Mary Schoening, Assistant General Counsel for Glidden. Glidden called Ms, Schoening and also called Joseph Diemert, attorney for Ms. Murphy, as a witness. The Parties were required to submit final arguments subsequent to the trial. The Court noted that the Parties agreed that "only a plan administrator can be held liable under Section 1132(c)." Therefore, the questions to be decided were: (a) did Glidden participate in the administration of benefits under the Pension Plan; and, if so, (b) is the Pension Committee (Plan Administrator) so closely related to Glidden that a request to Glidden should be construed as one to the Pension Committee (Plan Administrator). Further, the Court asked specifically what pension benefits information was not timely given in violation of 29 U.S.C. §§ 1024(b) and 1025(a).
Stipulated and Disputed Facts
The parties stipulated to the fact that Mary Schoening, Glidden's in-house Counsel, is not, and never has been, a member of the Pension Committee. (Stipulations of Fact, Docket #67.)
The Parties dispute whether The Glidden Company d/b/a ICI Paints (incorrectly identified in the Complaint as "ICI Paints d/b/a The Glidden Company") is the "administrator" of the relevant pension plan in which Ms. Murphy was a participant. (Joint Statement of Disputed Facts, Docket #68.)
Testimony of Ms. Murphy at Trial
Ms. Murphy's employment with Glidden terminated in May 1999. At that time, Phil Brewer, part of the Human Resources Group at Glidden, handed Ms. Murphy a letter signed by Bruce Cahoon, Director of Compensation and Benefits for Glidden, that indicated that she would receive pension information at a later date. March 14, 2006 Trial Transcript ("Tr.") at pp. 20, 23; Plaintiff's Exhibit 1. Specifically, the letter stated, "If you are eligible to receive pension benefits, your pension information will be forwarded to you under separate cover." Tr. at 23. The letter also directed her to contact the Compensation and Benefits Department with any questions. Ms. Murphy asked Mr. Brewer about her pension at that time and he stated that Mr. Cahoon would send her some information. Tr. at 24. The return address on the letter was 925 Euclid Avenue. Tr. at 23. The telephone number for the Compensation and Benefits Department was located at 925 Euclid Avenue. Tr. at 24.
In 1999, Ms. Murphy attempted to contact Mr. Cahoon a couple of times because she had not yet received any information regarding her pension benefits. Tr. at 25. Ms. Murphy did not receive a response. Tr. at 25. Ms. Murphy then contacted Mr. Brewer, asking if she could get the pension information from Mr. Cahoon. Tr. at 25. Ms. Murphy believed that Mr. Cahoon and Mr. Brewer were the contact persons with access to the Plan Administrator. Tr. at 57-58.
It was Ms. Murphy's understanding that she was to contact the Pension and Benefits Committee for information about pension and benefits. Tr. at 26. Ms. Murphy was never asked to put her request for pension benefits information in writing, nor did anyone tell her to talk to a Pension Committee or Retirement Committee regarding her request. Tr. at 26. Ms. Murphy testified that at no time during her 19 years of employment, or in the time period immediately after her termination, did anyone ever mention a Pension Committee to her and received no indication that a Pension Committee existed. Tr. at 26. Ms. Murphy stated that she never received any information that the Glidden Company's Pension Plan was being administered by anyone other than The Glidden Company or ICI Paints of North America. Tr. at 42. Ms. Murphy testified that she received a benefits booklet, dated January 1, 1996, during her employment. Tr. at 20, 52. Page 23 of the benefits booklet states that the Plan Administrator is the Pension Committee of ICI Paints, 925 Euclid Avenue, Cleveland.
In the spring of 2000, Ms. Murphy requested that her attorneys assist with her efforts at obtaining pension benefit information. Tr. at 21-22, 28. On April 19, 2000, Counsel for Ms. Murphy, Joseph Diemert Associates, sent a letter to Mary Schoening, Senior Corporate Counsel for the Glidden Company, at 925 Euclid Avenue, requesting "information pertaining to Ms. Murphy's pension benefits, including but not limited to her total accrued benefits and percentage vested at the time of her termination, pension plans, latest updated summary plan description, and annual report." Tr. at 28; Plaintiff's Exhibit 3. The letter stated, "This written request is being made on behalf of Mrs. Murphy Minadeo pursuant to the Employee Retirement Income Security Act." Tr. at 29.
In August 2000, Ms. Murphy received a letter from the 925 Euclid Avenue address, where ICI Paints and Glidden are located, setting forth an explanation of the pension benefits to which she was entitled and stating that the pension amounts set forth were subject to final review of a Retirement Committee. Tr. at 21, 31, 56; Plaintiff's Exhibit 4. Ms. Murphy believed the calculation of pension benefits set forth to be inaccurate. Tr. at 31. In addition to the amount of benefits, the letter discussed the "Commencement of benefits before age 65." Tr. at 30. In the event that Ms. Murphy elected to commence her vested retirement benefit prior to age 65, Ms. Murphy was directed to submit a written request to "the Glidden Company, 925 Euclid Avenue, Cleveland, Ohio 44115." Tr. at 30-31. Further, the letter stated, "If you have any questions regarding the information contained in this letter, please contact our office." Tr. at 32. It was Ms. Murphy's understanding that she would contact the Retirement Committee through the Compensation and Benefits Group. Tr. at 56-57.
The letter did not appear to be in response to the April 19, 2000 letter sent by Ms. Murphy's Counsel. Tr. at 29.
After receiving the letter, Ms. Murphy called Mr. Cahoon, but claims she was "not getting any answers from him." Tr. at 33. At that time, Ms. Murphy contacted her attorneys. Ms. Murphy never personally made a written request for information regarding her U.S. pension or pension documents to the Glidden Retirement Committee. Tr. at 57. Ms. Murphy did not provide the Retirement Committee, or anyone else at Glidden or ICI, with authorization for release of information of documents to her attorneys. Tr. at 57.
During Trial, the Parties interchangeably referred to the "Pension Committee" and the "Retirement Committee." The Plan documents refer to a "Pension Committee," while correspondence from Glidden refers to a "Retirement Committee."
On or about July 30 or 31, 2001, in response to a request for production of documents from her attorneys, Ms. Murphy received some documents from Glidden including a copy of the Pension Plan, as well as a copy of the Summary Plan Description. Tr. at 61; Defendant's Exhibit D. On or around November 19, 2001, Ms. Murphy received some additional documentation through her attorney, including information regarding the Canadian portion of her pension. Tr. at 47. Ms. Murphy did not receive any additional information or documentation from Glidden, although it was requested, until November 2005 when she received a copy of the Annual Report. Tr. at 47-49.
In 2005, Ms. Murphy contacted Kevin May regarding her pension benefits. Tr. at 42. Mr. May worked for ICI Glidden and calculated pensions. In response, Ms. Murphy received a letter regarding the status of her pension. Because she had questions concerning the calculation, Ms. Murphy phoned ICI in Bridgewater, New Jersey and received a return phone call from Mr. May. Tr. at 43. Mr. May indicated that the letter she received was incorrect and that he would be doing a new calculation. Tr. at 44. Ms. Murphy subsequently received a letter with a new calculation. Tr. at 44. Ms. Murphy and Mr. May never discussed who administered the Pension Plan. Tr. at 44.
Ms. Murphy testified that at no time did anyone ever indicate to her that there was a Pension Administrator or Pension Committee representative other than those individuals with whom she had previously spoken. Tr. at 46. All of Ms. Murphy's letters, correspondence and telephone calls went to the 925 Euclid address. Tr. at 63. Ms. Murphy was never given the name, address, telephone number of someone who held the title "Pension Administrator"; was never told that her letters or telephone calls made in an effort to discern information regarding her pension were misdirected; and, was never told she was required to go to the Retirement Committee. Tr. at 63-63. Further, Ms. Murphy believed that the conduit to the Retirement Committee was the Compensation and Benefits Office and no one ever provided Ms. Murphy with information regarding the office, telephone number, or names of those on the Retirement Committee. Tr. at 64. Neither Ms. Murphy, nor her attorneys, were ever told that when they spoke to or directed letters to the individuals in the Compensation and Benefits Office regarding Ms. Murphy's pension and requests for information that they were speaking to the wrong person or entity. Tr. at 64-65.
Testimony of Mary Schoening, Assistant General Counsel for Glidden
Both Ms. Murphy and Glidden called Mary Schoening, Assistant General Counsel for Glidden, to testify relative to her involvement with Ms. Murphy's requests for information. Ms. Schoening became involved in this matter when a letter directed to Dennis Wright, CEO of the Glidden Company at the time, from Ms. Murphy's attorneys, was given to her. Tr. at 66. In that letter, Ms. Murphy's attorneys raised claims of age discrimination and wrongful termination. Tr. at 66. Ms. Schoening investigated the claims raised in the letter and responded. Tr. at 66.
On April 19, 2000, Ms. Murphy's attorneys sent another letter to Ms. Schoening, reiterating her claims and requesting pension information. Tr. at 67; Plaintiff's Exhibit 3. Ms. Schoening faxed the April 19, 2000 letter to Phil Brewer in the Human Resources Department. The Human Resources Department includes the Compensation and Benefits group. Tr. at 67. Although she did not believe Mr. Brewer to be the administrator of the pension plan, Ms. Schoening believed that Mr. Brewer would know where to find the information requested by Ms. Murphy because he was part of the Human Resources Department. Tr. at 67, 133. Ms. Schoening believed that Human Resources would respond to the request and testified that she would send any request for benefit information to Human Resources. Tr. at 89, 133.
Ms. Schoening testified that she believed the focus of the letters to be the age discrimination and wrongful termination claims. She believed that the pension information was requested in conjunction with those claims, as that information would relate to any settlement demands made.
Ms. Schoening did not send a copy of the April 19, 2000 letter to the ERISA attorney used by the Glidden Company through ICI Group Services. Tr. at 87, 90. She did not refer the request to a Plan Administrator or a Pension Committee because she did not know to do so. Although she knows that there was a Pension/Retirement Committee, she did not know the membership of the Committee. Tr. at 97. Ms. Schoening discussed the fact that Kevin May reported to Bruce Cahoon in the Human Resources Department and that Mr. Cahoon's title was Director of Compensation and Benefits. Tr. at 82, 134. Mr. Cahoon reported to the Vice President of Human Resources, who in turn reported to the CEO. Tr. at 134. It was Ms. Schoening's understanding that Mr. May's responsibility was to perform benefit calculations as directed by Mr. Cahoon. Tr. at 83-84, 96, 134-35.
Ms. Schoening testified that she was aware that there was a Pension Committee at the Glidden Company, but that she could not identify any individuals on the Committee and did not know where the Committee was located. Tr. at 71. Ms. Schoening identified minutes of a meeting of the Glidden Company Board of Directors, dated May 20, 2002, which state, "Whereas, on May 19, 1988, the company established a Pension Committee and Retirement Savings Investment Plan Committee to assist in the supervision and management of the respective plans which committees the directors of the company desired to disband due to their inactive status." Tr. at 73; Plaintiff's Exhibit 16.
Ms. Schoening testified that she did not know where an individual calling Glidden, asking to speak to the Pension Committee, would be directed. Tr. at 75. Ms. Schoening stated that if someone were to call with a question regarding benefits, they would be referred to someone in the Human Resources Department, either at the Glidden Company or ICI Group Services in Bridgewater, New Jersey. Tr. Ms. Schoening identified the Summary Plan Description, dated January 1, 1996, which sets forth the address for the Pension Committee of ICI Paints at 925 Euclid Avenue, with a phone number. Tr. at 77; Defendant's Exhibit G, page 30. Ms. Schoening stated that she does not have the names, addresses or telephone numbers of a Pension Committee. Tr. at 86. Ms. Schoening is unaware of anyone taking the place of the Pension Committee and Retirement Savings Investment Plan Committee that was disbanded in 2002. Tr. at 87, 144; Plaintiff's Exhibit 16-17. Ms. Schoening does not know who the Plan Administrator is now or if one actually exists. Tr. at 146.
Ms. Schoening identified a letter, dated August 17, 2000, that she sent to Ms. Murphy's attorneys. Tr. at 78; Plaintiff's Exhibit 18. This letter was in response to the August 3, 2000 letter sent from Ms. Murphy's attorneys to Ms. Schoening, requesting pension information, "including that of ICI Paints and ICI Canada." Plaintiff's Exhibit 20. Ms. Murphy's attorneys also sent a letter, dated August 16, 2000, in which they made a "formal demand for all pension information." Tr. at 139. In her August 17, 2000 response, Ms. Schoening stated that Glidden would be unable to provide Ms. Murphy with pension information as it related to her employment with ICI Canada and had forwarded her request to Ornella Lynch with ICI Canada, in Ontario. Tr. at 79.
During direct examination by Defendant, Ms. Schoening stated that it was her understanding, based upon the August 3, 2000 letter, that Ms. Murphy and her attorneys were attempting to come up with a demand to resolve the age discrimination claim. Tr. at 131.
Ms. Schoening testified that she cannot explain why Ms. Murphy did not get the requested pension information when it was requested. Tr. at 92. Ms. Murphy was not told by Ms. Schoening that she needed to sign a release in order for Glidden to provide the requested information to her attorneys. Tr. at 98. Ms. Schoening forwarded Ms. Murphy's request for information to the same individuals that Ms. Murphy had attempted to contact herself. Tr. at 100. When dealing with this issue, Ms. Schoening, Mr. Cahoon, and Mr. May through Mr. Cahoon, responded to Ms. Murphy's request for information. Tr. at 101. Ms. Schoening never expressed to Ms. Murphy or her attorneys that she was requesting the Glidden pension information from the wrong person, nor was Ms. Murphy told that she had to go to the Plan Administrator for the information. Tr. at 92-93. Ms. Schoening stated that Ms. Murphy should have known who the Plan Administrator was from the benefits booklet. Tr. at 100-101.
Testimony of Plaintiff's Attorney, Joseph Diemert
Glidden called Plaintiff's attorney, Joseph Diemert, as a witness. Tr. at 122. Mr. Diemert testified that he directed his April 19, 2000 letter to Ms. Schoening because, as counsel for Glidden, she had authority to receive correspondence on behalf of the company. Tr. at 124. The CEO had forwarded Mr. Diemert's original letter to Ms. Schoening. Tr. at 124, 127. Therefore, although he did not know if Ms. Schoening was the Plan Administrator, Mr. Diemert believed he was responding to and writing with the person who represented the Plan Administrator and was the attorney for the Plan Administrator. Tr. at 124. Mr. Diemert testified that the previous general counsel was a Plan Administrator as part of the Pension Committee. Tr. at 124.
Deposition Testimony of Kevin May
Kevin May began his permanent employment with the Glidden Company in May 1998. Deposition of Kevin May at p. 9. At that time, he calculated pension benefits for employees of the Glidden Company. Id. Mr. May then served as Supervisor of Qualified Plans until his employment with Glidden terminated. Id. at 11. Since April 2001, Mr. May has been employed by ICI Americas as Manager of Qualified Plans. Id. at 10. His current supervisor is Bruce Cahoon. Id. Mr. Cahoon is employed by Glidden. Id. at 14. Mr. May testified that he was and is responsible for operating Glidden's pension and 401(k) plans, including preparing Department of Labor and IRS filings and responding to requests for individual pension estimates and retirement calculations for employees. Id. at 11-12, 15. Mr. May does not recall being asked by Mr. Cahoon to provide information to Ms. Murphy at the time of her termination and does not recall working with Ms. Murphy on her pension. Id. at 24. Mr. May testified that he was responsible for collecting and disseminating pension information to terminated employees. Id. at 25-26.
The Pension Plan
Ms. Murphy acknowledges receipt of certain Plan Documents, dated January 1, 1996, which set forth the responsibilities of the Plan Administrator. (Defendant's Exhibit F, pp. F24-F26). Those documents state in pertinent part:
GENERAL INFORMATION
Function of the Plan Administrator
Each Plan has a designated administrator. Generally, the Plan Administrator has the following responsibilities:
Interpret, construe and implement the provisions of the plan; Decide all questions concerning a plan and the amount of benefit to which an employee is entitled under that plan; Adopt such regulations, rules, procedures and forms consistent with a plan that are deemed necessary or desirable for the administration of that plan; and Employ individuals and firms to provide legal and actuarial advice and counsel, as necessary, to assure that the provisions of a plan are properly interpreted and administered.
* * *
SERVICE OF LEGAL PROCESS
Service of legal process on a plan may be made upon the Plan Administrator, the Plan Trustee or the insurance carrier; whichever is appropriate. The agent for service of legal process is the General Counsel, ICI Paints, 925 Euclid Avenue, Cleveland, Ohio 44115.
SUMMARY DATA
* * *
The Plan Administrator reserves the right to interpret and administer benefits in a consistent manner among all participants.
* * *
Retirement Plan
* * *
Plan Administrator Pension Committee of ICI Paints, 925 Euclid Avenue, Cleveland, Ohio 44115 Telephone: (216) 344-8000
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STATEMENT OF ERISA RIGHTS
Certain Insured Benefits
* * *
ERISA provides that all plan participants shall be entitled to:
Examine, without charge, at the plan administrator's office and at other specified locations, all plan documents, including insurance contracts, collective bargaining agreements and copies of all documents filed by the plan with the U.S. Department of Labor, such as detailed annual reports and plan descriptions.
Obtain copies of all plan documents and other plan information upon written request to the Plan Administrator. . . .
* * *
Under ERISA, there are steps you can take to enforce the above rights. For instance: If you request material from the plan and do not receive them within 30 days, you may file suit in federal court. In such a case, the court may require the Plan Administrator to provide the materials and pay you up to $100 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Plan Administrator.
* * *
If you have any questions about your plan, you should contact the Plan Administrator. . . .
ERISA
29 U.S.C. § 1024(b) explains the obligations of a plan administrator relative to the publication of a summary plan description and annual report. 29 U.S.C. § 1025(a) requires the plan administrator to furnish to any plan participant or beneficiary, upon written request, a statement indicating the total benefits accrued and nonforfeitable pension benefits, if any, which have accrued, or the earliest date on which benefits will become nonforfeitable. 29 U.S.C. § 1132(c) allows the Court to impose fines against a plan administrator for failure to comply with these requirements, and also allows a participant or beneficiary to recover reasonable attorneys' fees and costs.
Applicable Law
Only a plan administrator can be held liable under Section 1132(c). Hiney Printing Co. v. Brantner, 243 F.3d 956, 961 (6th Cir. 2001 (quoting Vanderklok v. Provident Life and Accident Insurance Co., 956 F.2d 610, 617 (6th Cir. 1988)). However, where an employer is shown to control administration of a plan; has held itself out as the plan administrator; or, the plaintiff would have difficulty ascertaining the identity of or contacting the designated administrator, it may be considered the plan administrator. Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir. 1988) (citing Boyer v. J.A. Majors Co. Employees' Profit Sharing Plan, 481 F. Supp. 454, 457-58 (N.D. Ga. 1979); Foulke v. Bethlehem 1980 Salaried Pension Plan, 565 F. Supp. 882 (E.D. Pa. 1983)); McDannold v. Electro-Jet Tool Mfg., 876 F. Supp. 162, 167 (Feb. 1995). Particularly instructive is the Court's decision in Osborn v. Knights of Columbus, 401 F. Supp. 2d 822 (N.D. Ohio 2005). In Osborn, the Court stated:
Defendants point to the fact that plaintiff sent his request for documents to KofC headquarters in Connecticut as evidence that plaintiff did not contact the plan administrator. The evidence shows, however, that defendants, in a letter to plaintiff dated September 10, 2003, indicated that the plan administrator was simply KofC at its headquarters in Connecticut. It is undisputed, moreover, that defendants' general counsel received the requests, which were forwarded to the proper department.
I find that there is no genuine dispute of material fact about plaintiff's requests. I conclude, as a matter of law, that plaintiff, by sending his requests to KofC headquarters, which KofC had specified as the plan administrator, properly contacted the plan administrator for the documents to which the statute entitled him.
To the extent there may have been some confusion about how or where to contact the plan administrator, the fault lies with the defendants, not the plaintiff. If KofC headquarters is actually not the proper plan administrator, plaintiff should not be prejudiced to following defendants' directions; defendants are in a better position that plaintiff to know who, actually, is the plan administrator.Id. at 825 (emphasis added).
Discussion
Ms. Murphy acknowledges that the retirement plan information she received stated that the Plan Administrator was the Pension Committee of ICI Paints. The troubling thing for this Court is the fact that Glidden has not, and does not seem to be able to, provide any concrete information as to the identity of the party or individual to which they claim Ms. Murphy should have directed her requests for information and should have been named in this lawsuit. Glidden simply refers to the amorphous "Retirement/Pension Committee." If said Committee actually participated in the administration of the pension plans at issue prior to the time it was "disbanded" in 2002 due to its "inactive status," this Court has seen no evidence. Therefore, Glidden's position must be that even if it cannot provide any concrete information as to the status, location, operation and/or function of the "Retirement/Pension Committee," the so-called Committee is the only entity obligated to provide information to employees regarding their retirement and pension benefits. Thus, for Glidden to prevail, this Court would have to find that although there is no identifiable or operational Committee of Glidden to which requests for information should be directed, Glidden is shielded from liability under ERISA simply because an employee did not use the name "Retirement Committee" or "Pension Committee" in its requests, or in this case did not use the name "Retirement Committee" or "Pension Committee" in instituting litigation arising under ERISA. This the Court will not do.
The following exhibits, offered at Trial by Ms. Murphy, support the finding that, regardless of the Plan documents referring to the Plan Administrator as the "Pension Committee," Glidden held itself out as the entity controlling the Plan:
• Plaintiff's Exhibit 4: Letter on ICI Paints North America letterhead, with the address 925 Euclid Avenue, Cleveland, Ohio 44115, telephone number 216-344-8000, dated August 1, 2000, from Bruce Cahoon, Director of Compensation and Benefits, to Ms. Murphy. The letter states, in pertinent part:
The following information concerns the vested retirement benefits you will be entitled to receive as a result of the termination of your employment from The Glidden Company on May 15, 1999. . . . For commencement of your vested retirement benefit prior to age 65, you must submit a written request at least 90 days before the desired commencement date to The Glidden Company, 925 Euclid Avenue, Cleveland, Ohio 44115, Attention: Employee Benefits . . . If you should have any questions concerning the information contained in this letter, please contact our office. Also, please keep us informed of any changes in your address so that any future notices will reach you.
• Page 5 of Plaintiff's Exhibit 16. Interrogatory No. 5, posed to Glidden, reads as follows:
Please state whether or not the above information identified in Interrogatory No. 2 or No. 3 has ever been provided to the salaried employees of ICI Paints and, if so, what information was distributed/provided, how the information was distributed/provided, and when the same was distributed/provided.
Answer: It is unknown whether the names of the persons who were on the Committee and who, thus served, collectively as the Administrator were published to salaried employees, but such employees were notified that the Plan Administrator was the Pension Committee of ICI Paints, 925 Euclid Avenue, Cleveland, Ohio 44115. Telephone No. 216-344-8000, in the Summary Plan Description provided to them in their Employee Benefits Binder.
Page 16 of Plaintiff's Exhibit 16 included "An Action of the Executive Committee Without Meeting," dated May 19, 1988, designating a Pension Committee and Retirement Savings Investment Plan Committee of Ronald M. McKinley, William J. Thornton, and Stanley A. Lockitski.
Page 17 of Plaintiff's Exhibit 16, "Minutes of a Meeting of the Board of Directors," held May 20, 2002, acknowledging that the Pension Committee and Retirement Savings Investment Committee are disbanded due to their inactive status.
Ms. Schoening testified that Stanley A. Lockitski was General Counsel for Glidden in 1995 and left the Company no later than 2000. Ms. Schoening identified Mr. Thornton as Glidden's CFO in 1995 and stated she was not sure when he left the Company. Ms. Schoening is not aware of anyone taking the place of those listed as members of the Retirement Committee.
• Plaintiff's Exhibit 17-5, provided to Ms. Murphy's Counsel on or about August 22, 2005, identifies the duties of the Supervisor of Qualified Plans, which include day-to-day administration of the Company's Defined Benefit Pension Plans and Post-Retirement Medical Plans.
Kevin May testified in his deposition, Plaintiff's Exhibit 14-11, that he became the Supervisor of Qualified Plans and that was the position he held when he left the Glidden Company.
• Plaintiff's Exhibit 18. Letter dated August 17, 2000, from Ms. Schoening to Counsel for Ms. Murphy, indicating that "Glidden is unable to provide Ms. Murphy with this information as it relates to her employment with a separate legal entity and a separate Pension Plan which Glidden does not administer." Glidden was referring to the portion of her request for information relative to her employment with ICI Canada. Glidden does not state that it is unable to provide Ms. Murphy with information relative to her employment with Glidden, nor does it state she needed to address her request to a "plan administrator."
• Plaintiff's Exhibit 1. Internal Memorandum on ICI Paints North America letterhead, with the address 925 Euclid Avenue, dated May 12, 1999, from Bruce Cahoon to Ms. Murphy, stating, "If you are eligible to receive Pension benefits, your Pension information will be forwarded to you under separate cover" and "if you have any questions of the above information, please contact the Compensation and Benefits Department at 216-344-8961.
The provisions of ERISA applicable in this case were enacted to ensure that employees have access to pension information. ERISA was not intended to force employees into a cat and mouse game in which the ability to obtain information, information to which the employee is entitled, is dependant on an employee's ability to decipher who the correct "plan administrator" actually might be. Ms. Murphy was told when she was terminated that pension information would be forwarded to her under separate cover. Phil Brewer, part of the Human Resources Department, gave Ms. Murphy her termination letter and Bruce Cahoon, Director of Compensation and Benefits, was the individual identified who was to provide the pension information.
When Ms. Murphy did not receive the information after over a year, she unsuccessfully attempted to contact Mr. Cahoon, and also contacted Mr. Brewer. Ms. Murphy then hired counsel and directed a letter to the CEO, Dennis Wright, which was forwarded to Ms. Schoening, Glidden Corporate Counsel. Ms. Murphy's Counsel sent subsequent correspondence directly to Ms. Schoening. Ms. Schoening forwarded the requests for information to Mr. May in the Human Resources Department. Therefore, even when those at Glidden sought information regarding Ms. Murphy's pension benefits, those individuals directed their requests, like Ms. Murphy had, to individuals in the Human Resources Department. The address and telephone number for the Plan Administrator, as listed in the plan documents, are the same address of Glidden. Ms. Murphy was never informed that she was contacting the wrong entity, and was never directed to contact a different entity. When Ms. Murphy received a letter from Glidden regarding her Pension, the letter referred to a final review by the "Retirement Committee" but at the end stated that she should contact "our office" (referring to Glidden) if she had questions. The address was always 925 Euclid Avenue.
Although the August 2000 letter setting forth pension amounts stated that the amounts set forth were subject to final review of a Retirement Committee, the letter discussed that in the event that she elected to commence her vested retirement benefit prior to age 65, Ms. Murphy should submit a written request to "the Glidden Company, 925 Euclid Avenue, Cleveland, Ohio 44115." Further, the letter stated, "If you have any questions regarding the information contained in this letter, please contact our office." Therefore, regardless of whether she wrote the words "plan administrator" or "pension committee" or "retirement committee" in her correspondence, or named them in this lawsuit, it is clear to this Court that Ms. Murphy complied with the information provided to her by letter and her requests were, in fact, being directed to those individuals that dealt with the administration of the pension plan on a day to day basis. There is no evidence before this Court that had Ms. Murphy added the words "retirement committee" or "plan administrator" to her requests that the individuals responding would be any other than those who have been previously identified as receiving Ms. Murphy's requests for information. This Court finds the decision in Osborn to be instructive. Like the plaintiff in Osborn, in addition to requesting information from those individuals who had previously been identified to her, Ms. Murphy, through her Counsel, requested information from Senior Corporate Counsel for Glidden, Ms. Schoening. Ms. Murphy's initial letter, through her attorney, was directed to the CEO of Glidden, who forwarded the letter to Ms. Schoening. Ms. Schoening then forwarded Ms. Murphy's requests for pension information to Mr. May in the Human Resources Department. Those at Glidden were in a better position than Ms. Murphy to know where the requests should be directed. However, Ms. Murphy was never informed that she was requesting information from the wrong source.
Ms. Murphy merely wanted to find out exactly what pension benefits she was to receive. In this case, Glidden is unable to concretely identify where Ms. Murphy's requests for information should have been directed, only arguing that she should have directed her requests to the "Retirement Committee," even though Glidden itself doesn't know how she would have gone about doing so. The documents provided to Ms. Murphy regarding the Plan state that it is the Plan Administrator's responsibility to "interpret, construe and implement the provisions of the plan" and "decide all questions concerning a plan and the amount of benefit to which an employee is entitled under that plan." It appears from the evidence set forth in this case that Mr. Cahoon and Mr. May, both part of the Human Resources Department, fulfilled those duties. In reality, this was a very confusing situation. However, these are the only individuals this Court can identify as functioning as the Plan Administrator, regardless of whether they were named as such.
Conclusion
For the reasons stated above, this Court finds that the Retirement Committee (Plan Administrator) was so closely related to Glidden that a request to Glidden for pension benefit information was a request to the Plan Administrator. As such, Glidden is the proper Defendant in this case.
In her Post-Trial Brief, Ms. Murphy requests that civil penalties in the amount of at least $323,620.00 be imposed and for reasonable attorneys' fees. The information provided to the Court with regard to the penalties that should be imposed and Defendant's response thereto was minimal. Further, Ms. Murphy did not submit supporting documentation relative to her request for attorneys' fees. Therefore, Ms. Murphy is hereby ordered to submit a detailed explanation and basis for the penalties sought, as well as an affidavit and itemization detailing attorneys' fees and costs incurred, within ten (10) days of the entry of this order. Glidden shall have ten (10) days thereafter to respond.
IT IS SO ORDERED.