BARTLE, District Judge.
The twelve plaintiffs
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials; or ... showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c).
A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The undisputed facts in the record describe the following.
Prior to May 9, 2004, plaintiffs worked in the claims department of Union Labor Life Insurance Company, Inc. ("ULLICO") at a facility known as the Pennsylvania Service Center ("PSC"). ULLICO offers insurance and other products to labor unions as well as their members and their members' families. While employed with ULLICO, plaintiffs were members of the Office and Professional Employees International Union ("OPEIU"), Local 153, and the terms and conditions of their employment with ULLICO were governed by a collective bargaining agreement. As a benefit of their employment with ULLICO, plaintiffs were participants in a defined benefit pension plan.
On March 9, 2004, ULLICO entered into Administrative Services Agreements with two Amalgamated affiliates, ALICARE, Inc. and Alicare Medical Management, Inc. Under these agreements, which had a term of three years, these Amalgamated affiliates assumed responsibility on May 10, 2004 for performing claims administration services on ULLICO insurance policies. Previously, ULLICO performed its own claims administration. As part of these agreements, ULLICO sold some assets to the affiliates, including a claims processing software system known as Eldorado.
In 2004, Amalgamated, which had offices in White Plains, New York and in New Hampshire, contemplated moving the ULLICO claims processing work from the PSC to its New York facility. Amalgamated ultimately decided against doing so because that would also require its New York staff to become proficient with the Eldorado software system within a period of time that was deemed unworkable.
Sometime in March 2004, ULLICO vice-president Kelly McKee, nee Ellston, met with ULLICO employees and explained that they would have the opportunity to work for Amalgamated when the Administrative Service Agreements took effect. According to plaintiff Jacqueline Mays, Ellston said that the benefits the ULLICO
On March 19, 2004 — after the Administrative Services Agreements were signed but before they became effective — Claire Levitt, an executive vice president of Amalgamated, Jeanne Jarvis-Meara, a vice president of human resources, and other Amalgamated personnel met with ULLICO employees, including plaintiffs. According to plaintiff Mays, the Amalgamated representatives stated in this meeting that the benefits offered at Amalgamated would "mirror" those offered at ULLICO and that ULLICO employees would be "grandfathered" into those benefits, that is, that time worked at ULLICO would be credited toward Amalgamated benefit programs.
At this meeting, the Amalgamated representatives distributed to the ULLICO employees a document entitled "Questions and Answers for ULLICARE Staff about Amalgamated Life March 19, 2004" (the "Q & A").
(bold in original.)
Either at the March 19, 2004 meeting or at a subsequent meeting in March, an Amalgamated representative distributed another document entitled "A General Overview of Coverage and Benefits as a UFA Union Employee." This document, which is dated "(03/2004)," refers to a
Amalgamated extended offers of employment to each of the plaintiffs in letters dated April 7, 2004 from Jarvis-Meara, Amalgamated's vice president of human resources. Although it was not expressly stated in the letters, it is apparent from the record that all parties understood that the ULLICO employees who accepted Amalgamated's offer of employment would become Amalgamated employees on May 10, 2004. The letters communicating the offer contained the position, salary, and vacation time the recipient would have at Amalgamated. Concerning benefits, the letters stated, "You received a General Overview of Coverage and Benefits during my recent visit. This Overview gives you a quick summary of our benefit programs." (italics in original) It contained no mention of the Q & A or of any pension benefits. The letters further noted that questions about benefits would be addressed at an orientation scheduled for April 20 and 21, 2004. None of the plaintiffs asked an Amalgamated representative about pension benefits when they received their offers of employment. All of the plaintiffs accepted Amalgamated's employment offer.
At the time of these events in early 2004, some Amalgamated personnel participated in a defined benefit pension plan known as the UNITE Staff Retirement Plan (the "Pension Plan"), which has since been renamed the Consolidated Retirement Plan. This plan provides pension benefits to the employees of multiple employers, including Amalgamated. It is governed by a board of trustees, two of whom are named by Amalgamated. At the meeting of the board of trustees held on April 14, 2004, it amended the plan to exclude those employees who would be at the PSC. The minutes state:
On May 7, 2004, two days before the Administrative Service Agreements would take effect, Amalgamated and the Industrial, Technical & Professional Employees Union ("ITPEU"), a union affiliated with OPEIU, signed a memorandum of understanding stipulating that ITPEU would be the exclusive collective bargaining representative for the purpose of negotiating a collective bargaining agreement ("CBA").
In December 2004, ITPEU and Amalgamated signed a CBA that would govern the terms of plaintiffs' employment with Amalgamated until December 31, 2006 and would apply retroactively to the beginning of plaintiffs' employment on May 10, 2004. The ITPEU representative participating in the negotiations raised the prospect of the new Amalgamated employees receiving pension benefits, but Amalgamated stated that they could not afford to pay pension benefits to the personnel hired from ULLICO. Accordingly, the CBA did not contain any provision entitling plaintiffs to participate in Amalgamated's defined benefit pension plan. It did provide, however, that plaintiffs could participate in a 401(k) defined contribution plan. Each plaintiff received a copy of the CBA.
According to the affidavit of plaintiff Mays, the plaintiffs later received a document entitled "A General Overview of Coverage and Benefits as a Union Employee @ King of Prussia," dated July 2005. This document listed as one of the benefits of working at Amalgamated:
Mays' affidavit does not say when this document was distributed to plaintiffs or who provided it to them. She says only that it "was given to myself and the other eleven Plaintiffs, by [Amalgamated] to let us know what we would receive in the King of Prussia Office of [Amalgamated]." There is nothing in the record from the other plaintiffs with respect to this document.
In March 2007, ITPEU and Amalgamated reached agreement on the terms of a second CBA that would govern the conditions of plaintiffs' employment between January 1, 2007 and December 31, 2009. ITPEU initially requested that its members receive defined benefit pensions, but it dropped this request during the negotiations. Like the CBA reached in 2004, the 2007 CBA did not provide that plaintiffs would receive pension benefits as a condition of their employment. Each plaintiff received a copy of the 2007 CBA.
In 2007, ULLICO decided not to renew the Administrative Service Agreements with the two Amalgamated affiliates, ALICARE, Inc. and Alicare Medical Management, Inc. ULLICO did agree, however, to a more limited arrangement with these affiliates that reduced the number of claims to be processed by the PSC staff. Amalgamated again considered closing the PSC and moving the remaining ULLICO claims processing work to its New York office. Amalgamated decided against this course of action and responded to the decreased work load at the PSC by shifting claims processing work from its other customers to the PSC.
In 2009, ITPEU and Amalgamated began negotiating a third CBA. In April 2010, after ITPEU members had already rejected one proposed CBA, Amalgamated proposed two alternative CBAs to ITPEU. Under both choices, plaintiffs' workweek would increase from 35 hours to 37.5 hours and plaintiffs would become participants in the Pension Plan.
The terms of the first proposal provided that Amalgamated would give plaintiffs annual raises but would not pay any money on a weekly basis to compensate for plaintiffs' additional 2.5 hours of work. Amalgamated would pay annual raises of 2.0%
Under the second proposed CBA, Amalgamated would increase plaintiffs' weekly pay to compensate for the additional 2.5 hours of work, but it would not pay annual raises. ITPEU members would also participate in the Pension Plan but those employees that had met the vesting requirement would not have accrued benefits until January 2011.
The ITPEU union representatives explained these options to the union members by email. Plaintiff Debra Kontra asked whether "Under opt # 2, wouldn't we be losing only 1 ½ years of pension? (June 2009 — Jan 2011)." Union representative Damon Oliver responded, "Yes, that's what is says. You would be foregoing an accrued pension benefit for a portion of the three years." The ITPEU members at Amalgamated voted in favor of the second option, which as noted, deferred the accrual of pension benefits until January 2011. In May 2010, ITPEU and Amalgamated signed a Memorandum of Understanding ("MOU"), not a CBA, that embodied the proposal for which the union members had voted. It states:
It is unclear why ITPEU and Amalgamated signed only an MOU in 2010 and did not sign a CBA
During the negotiations that led to the 2010 MOU, both the union and Amalgamated's management were aware that Amalgamated's lease on the PSC in King of Prussia was due to expire in February 2011. In April 2010, while negotiations were still proceeding, executive vice president Claire Levitt emailed another Amalgamated vice president, Nina Chakraborty, that the company should assess any changes required to the physical plant. Levitt also stated that she did not want to disclose to the landlord Amalgamated's intention to remain in the premises so as not to undermine the company's bargaining position in negotiations. Similarly, Levitt discussed the company's plans by email with an Amalgamated employee negotiating with the ITPEU. Levitt stated, "I don't think that we want to close [the PSC] and I suspect that we can get a very good deal on the lease renewal. But if the company is not doing well later this year, it's a possibility we couldn't rule out." During a meeting with the collective bargaining negotiating team, however, Levitt stated that Amalgamated was in negotiations with the landlord and that it planned to stay in the current PSC facility.
On July 7, 2010, Amalgamated announced that it had earned its 35th consecutive "`A' (Excellent)" rating from A.M. Best Company. In a press release, Amalgamated noted that it earned this ranking due to its "financially strong condition and excellent claims-paying ability" as well as its "financial prudence and strategic, controlled growth."
David Walsh, Amalgamated's chief executive officer, has submitted an affidavit in which he stated that Bruce Raynor, the chairman of the company's board of directors, requested in the "late summer of 2010" that Amalgamated become a "leaner organization and reduce its costs." Amalgamated's executives weighed the costs associated
According to Walsh's affidavit, in the fall of 2010, the New Hampshire operation could not be relocated to New York in a cost-effective manner, but the staff at the New York office and the PSC performed overlapping functions that could be consolidated into a single facility.
In September 2010, Levitt emailed Chakraborty, an Amalgamated vice-president, a "Proposal for the Pennsylvania Service Center Operations," which stated that the "claims production operation" would be closed by November 1, 2010, which would eliminate 14 union "claims positions." Although these claims positions would be eliminated, certain essential staff would be retained and, after the lease on the PSC expired, they would be relocated or given the option to work from home.
On October 8, 2010, Walsh informed plaintiffs that they would be laid off on October 29, 2010. It is undisputed that during this meeting Walsh stated that Amalgamated was closing the PSC due to a decreased workload at the facility and an ability to save money by condensing operations into the New York office. Plaintiffs learned during this meeting that they would not receive pension benefits for any portion of the time they worked at Amalgamated.
The minutes of Amalgamated's executive committee meeting on November 23, 2010 recorded that "Mr. Walsh reported that the Company had prepared for the closing of the Pennsylvania office as of February and that a resulting increase in call response time had been addressed and that response times were back down below one minute." Walsh declares in an affidavit that his statement during the November 2010 meeting referred to February 2011, when the lease on the PSC was to expire.
The record contains a letter dated November 24, 2010, from Hirsch, an Amalgamated vice-president and an administrator of the Pension Plan, to an unspecified recipient or recipients. He wrote that the non-union PSC employees had been made eligible for benefits in the Pension Plan effective May 10, 2007:
Following their termination, plaintiffs filed an eight-count complaint against ULLICO, Amalgamated, OPEIU, and ITPEU seeking to recover the pension benefits to which they believe they are entitled for the time they worked at Amalgamated. On September 7, 2011, the court granted the motion of Amalgamated to dismiss counts I, II, III, and VII of the amended complaint.
Following discovery, each of the four defendants moved for summary judgment as to the claims against it. In response, plaintiffs stipulated to the dismissal of all claims against defendants ULLICO, OPEIU, and ITPEU.
As a result, only Counts IV, V, and VIII remain pending against Amalgamated. Each of these counts seeks relief under 29 U.S.C. § 1132(a)(3), a provision of ERISA, which permits "a participant, beneficiary, or fiduciary" to bring a civil action "(A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provision of this title or the terms of the plan." ERISA defines a "participant" as:
29 U.S.C. § 1002(7). The Supreme Court has explained that the term "participant" as used in ERISA refers to "either employees in, or reasonably expected to be in, currently covered employment, or former employees who have a reasonable expectation of returning to covered employment or who have a colorable claim to vested benefits." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (internal citations and alternations omitted). Plaintiffs argue that they are entitled to equitable relief under § 1132(a)(3), and Amalgamated has not contested that plaintiffs are participants within the meaning of that provision. See Leuthner v. Blue Cross & Blue Shield of Ne. Pa., 454 F.3d 120, 124 (3d Cir.2006); see also Becker v. Mack Trucks, Inc., 281 F.3d 372, 377 (3d Cir.2002).
In Count IV of the amended complaint, plaintiffs allege that Amalgamated violated 29 U.S.C. § 1140 by discriminating against them in order to prevent them from qualifying for benefits under the Pension Plan.
29 U.S.C. § 1140.
To prevail on a claim under § 1140, the employee must prove that "the employer made a conscious decision to interfere with the employee's attainment of pension eligibility or additional benefits." Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 523 (3d Cir.1997). We evaluate § 1140 claims under the same burden-shifting framework that we apply in other employment discrimination contexts. See Turner v. Schering-Plough Corp., 901 F.2d 335, 347 (3d Cir.1990). As our Court of Appeals stated in Eichorn v. AT & T Corp.:
Eichorn v. AT & T Corp. (Eichorn I), 248 F.3d 131, 149-50 (3d Cir.2001) (quoting DiFederico v. Rolm Co., 201 F.3d 200, 205 (3d Cir.2000)) (internal citations omitted). The employee may use circumstantial evidence to establish that "the discriminatory reason more likely motivated the employer" or "that the employer's proffered explanation is unworthy of credence." Di-Federico, 201 F.3d at 206 (quoting Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Because a plaintiff will rarely have a "`smoking gun'" demonstrating the employer's intent, the employee may use circumstantial evidence to prove that the employer's proffered reason for its conduct is pretext. Gavalik v. Cont'l Can Co., 812 F.2d 834, 852 (3d Cir.1987).
In this case, plaintiffs assert that Amalgamated took three actions that interfered with their attaining benefits under the Pension Plan in violation of § 1140. First, they contend that Amalgamated modified the terms of the Pension Plan in April 2004 in order to prevent plaintiffs from obtaining benefits. It is evident from the record that Amalgamated requested
The April 14, 2004 amendment to the Pension Plan did not violate § 1140. Our Court of Appeals has explained, "The language enacted by Congress" in § 1140 "simply does not extend to actions taken before an employer-employee relationship exists." Becker, 281 F.3d at 382. Moreover, a formal plan amendment of the sort that occurred here is not an action that can give rise to liability under § 1140. Our Court of Appeals has stated that § 1140 was intended as a remedy only "to actions affecting the employer-employee relationship." Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benefit Pension Plan, 24 F.3d 1491, 1503 (3d Cir.1994). It has specifically ruled that plan amendments, even plan amendments that target one employee for exclusion, do not violate § 1140. Id. at 1502-03. In Haberern, the Court of Appeals cited at length to McGath v. Auto-Body North Shore, Inc., 7 F.3d 665, 668 (7th Cir.1993), a case in which the employer repeatedly amended the terms of a pension plan with the avowed purpose of preventing the plaintiff employee from becoming eligible for benefits. McGath, 7 F.3d at 666-69. The Court of Appeals for the Seventh Circuit held that this action was insufficient to justify relief under § 1140. It explained that, "Simply put, § [1140] was designed to protect the employment relationship which gives rise to an individual's pension rights .... This means that a fundamental prerequisite to a § [1140] action is an allegation that the employer-employee relationship, and not merely the pension plan, was changed in some discriminatory or wrongful way. Id. at 668 (emphasis in original). The April 14, 2004 amendment simply amended the pension plan and did not affect the employer-employee relationship, even assuming that such a relationship existed at that time when the plaintiffs had not yet begun to work for Amalgamated.
The Supreme Court has had occasion to comment on amendments to employee benefit plans in the context of § 1140. It has made clear that, "An employer may, of course, retain the unfettered right to alter its promises, but to do so it must follow the formal procedures set forth in the plan." Inter-Modal Rail Emp. Ass'n v. Atchison, Topeka & Santa Fe Ry., 520 U.S. 510, 515-16, 117 S.Ct. 1513, 137 L.Ed.2d 763. (1997). At the same time, it cautioned, "The formal amendment process would be undermined if § [1140] did not apply because employers could `informally' amend their plans one participant at a time." Id. at 516, 117 S.Ct. 1513.
As plaintiffs read the Court's opinion in Inter-Modal, an "informal" plan amendment can give rise to § 1140 liability if done with the intent to "discriminate against a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140; Inter-Modal, 520 U.S. at 515-16, 117 S.Ct. 1513. Even if plaintiffs are correct, there is no evidence in the record that the April 14, 2004 amendment to the Pension Plan was "informal."
Plaintiffs next take issue with the three-year eligibility period, which as stated in the Q & A, would be counted toward the five-year vesting period for pension benefits. They assert that this is a violation of § 1140 because no other Amalgamated employees had such an eligibility period. They also point to testimony by Amalgamated vice-president Levitt in which she stated that at the time the Q & A was drafted, Amalgamated had decided not to offer pension benefits until after it knew whether the contracts with ULLICO for processing claims would be renewed. "ERISA does not mandate that employers provide any particular benefits, and does not itself proscribe discrimination in the provision of employee benefits." Shaw v. Delta Air Lines, 463 U.S. 85, 91, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Plaintiffs have not explained why this three-year eligibility period violates § 1140 in light of Amalgamated's freedom under ERISA to adopt an employee benefit plan and to choose which employees would be entitled to participate and when. Id. at 91, 103 S.Ct. 2890. Moreover, like the April 14, 2004 amendment to the Pension Plan, the three-year vesting requirement is not an action affecting the employer-employee relationship. See Haberern, 24 F.3d at 1502-03.
Plaintiffs further argue that Amalgamated interfered with their rights under the Pension Plan when, in 2010, it proposed alternative CBAs, one that would entitle plaintiffs to vested pension benefits as of June 2009 and a second that would entitle plaintiffs to vested pension benefits as of January 2011. The union membership, which included plaintiffs, voted for the latter vesting date in return for higher wages in the interim. The court is at a loss to see how the options offered by Amalgamated could possibly be a violation of § 1140. Amalgamated did not interfere with plaintiffs' benefits under the Pension Plan by making the alternative CBA proposals in 2010 since it gave the union members the choice of which one to accept. Plaintiffs were not eligible for Pension Plan benefits at any time earlier than 2011 because, as noted above, they were explicitly excluded on April 14, 2004 from receiving such benefits and had rejected the opportunity for inclusion in such benefits from June 2009. Plaintiffs' argument is without merit.
Plaintiffs' brief in opposition to the motion of Amalgamated for summary judgment implies — although it stops short of saying outright — that Amalgamated terminated plaintiffs to prevent them from accruing pension benefits.
We must now determine whether Amalgamated has come forward with a non-discriminatory reason for its conduct. Eichorn I, 248 F.3d at 149-50. Amalgamated asserts that it terminated plaintiffs in October 2010 because the company intended to consolidate the work performed at the PSC with the work being performed in its New York office to save money.
Plaintiffs have come forward with no evidence from which a factfinder could determine that the discriminatory reason is more worthy of belief or that Amalgamated's proffered reason for terminating plaintiffs is "unworthy of credence." DiFederico, 201 F.3d at 206. To show pretext, plaintiffs rely upon the July 7, 2010 press release in which Amalgamated's chief executive officer, David Walsh, said that the company enjoyed a "financially strong condition." Plaintiffs also point to certain oral statements Walsh made in the fall of 2010 concerning the company's financial health and strong sales performance. That the company was, according to Walsh, already financially sound does not in any way undermine evidence that Amalgamated was intent on effecting cost-savings by consolidating claims processing operations into its New York facility. Indeed, a company remains healthy and competitive only if it is ever mindful of obtaining greater efficiencies and cuttings costs. There is voluminous evidence in the record corroborating the position that Amalgamated closed the PSC as part of its business strategy. There is nothing to support the inference that Amalgamated did so to prevent plaintiffs from accruing benefits under the Pension Plan. Although we need not highlight all of this evidence, it is particularly significant that Amalgamated offered plaintiffs the opportunity to begin accruing pension benefits from June 2009 a few months before their termination in October 2010, but the union of which plaintiffs are members voted to reject that opportunity. Moreover, Bruce Raynor, the chairman of Amalgamated's board of directors, did not request that the company become "leaner" until after the 2010 MOU had been finalized.
In sum, there is nothing in the record from which a factfinder could return a verdict in plaintiffs' favor on Count IV of the amended complaint. Summary judgment
In Count V, plaintiffs allege that Amalgamated should be equitably estopped from taking a position regarding their eligibility for benefits under the Pension Plan that varies from the representations Amalgamated made when plaintiffs began employment. "[T]o state a cause of action for equitable estoppel under ... 29 U.S.C. § 1132(a)(3), an ERISA plaintiff must establish (1) a material representation, (2) reasonable and detrimental reliance upon the representation, and (3) extraordinary circumstances." Burstein v. Retirement Account Plan for Emp. of Allegheny Health Educ. & Research Found., 334 F.3d 365, 383 (3d Cir.2003); see Pell v. E.I. DuPont de Nemours & Co. Inc., 539 F.3d 292, 300 (3d Cir.2008).
Whether a misrepresentation was "material" is a mixed question of law and fact. Fischer v. Phila. Elec. Co., 994 F.2d 130, 135 (3d Cir.1993). Our Court of Appeals has explained that "a misrepresentation is material if there is a substantial likelihood that it would mislead a reasonable employee in making an adequately informed decision" about his or her benefits. Id. Summary judgment on the issue of materiality is permissible only if "reasonable minds cannot differ." Id. The Q & A document that Amalgamated distributed to plaintiffs and other ULLICO employees on March 19, 2004 misrepresented that plaintiffs would be eligible for pension benefits. Amalgamated reaffirmed this specific misrepresentation by explaining that, generally, benefits offered at Amalgamated would "mirror" those offered at ULLICO, which included a pension plan. Viewing the record in the light most favorable to plaintiffs, we cannot say as a matter of law that a reasonable employee would not be misled by the Q & A in making a decision about whether to accept employment with Amalgamated.
Plaintiffs' reliance on this misrepresentation must have been reasonable and must have caused injury. Pell, 539 F.3d at 301. Amalgamated argues that plaintiffs could not reasonably rely on the statement in the March 19, 2004 Q & A because the National Labor Relations Act required all terms and conditions of plaintiffs' employment to be memorialized in a CBA. Amalgamated has cited no cases, however, in which any court has found reliance on a misrepresentation regarding benefits unreasonable because it was not contained in a CBA.
Plaintiffs Raymond Gunther, Teresa Lattanze, and John F. Van Allen III testified during their depositions that they would have accepted employment with Amalgamated in 2004 even if they had known that they were not receiving pension benefits. Additionally, there is no evidence in the record that plaintiff Jacqueline Mays relied in any way upon the
The remaining seven plaintiffs testified that they relied, to some degree, on Amalgamated's misrepresentation. Plaintiffs Karen Jenkins and Linda Russel testified that they would not have accepted a job with Amalgamated in 2004 had they known they would not receive pension benefits.
Under the third prong to any § 1132(a)(3) equitable estoppel claim, plaintiffs must come forward with evidence of "extraordinary circumstances." In this context, the phrase "extraordinary circumstances" does not have a "rigid definition" but typically involves "acts of bad faith on the part of the employer, attempts to actively conceal a significant change in the plan, or commission of fraud." Jordan v. Fed. Express Corp., 116 F.3d 1005, 1011 (3d Cir.1997). Extraordinary circumstances also may involve repeated misrepresentations "over an extended course of dealing" or plaintiffs who "are especially vulnerable." Pell, 539 F.3d at 303-04. Our Court of Appeals has explained that "simple ERISA reporting errors or disclosure violations, such as a variation between a plan summary and the plan itself" do not give rise to extraordinary circumstances. Kurz, 96 F.3d at 1553; see also Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1142 (3d Cir.1993).
For present purposes, we will draw all inferences in plaintiffs' favor. Amalgamated misrepresented in the Q & A distributed on March 19, 2004 that plaintiffs would become eligible for pension benefits after three years and would vest in those benefits after five years. On the same day the Q & A was distributed, Amalgamated personnel told plaintiffs that benefits at Amalgamated would "mirror" those offered at
During the 2004 CBA negotiations between ITPEU and Amalgamated, the ITPEU union representative raised the possibility of plaintiffs receiving pension benefits and Amalgamated stated it could not afford such benefits. The 2004 CBA did not make any provisions for ITPEU members to receive pension benefits. All of the plaintiffs received a copy of the CBA and thus knew that there were no such benefits for them. None of the plaintiffs raised any alarm at that time.
Plaintiffs have produced a document entitled "A General Overview of Coverage and Benefits as a Union Employee @ King of Prussia," dated July 2005, which states that plaintiffs would be eligible for pension benefits after three years of employment and would vest in such benefits after five years of employment.
In 2007, ITPEU and Amalgamated negotiated a CBA that, like the 2004 CBA, did not provide for plaintiffs to receive a defined benefit pension. As in 2004, no plaintiff expressed concern that the 2007 CBA did not provide for a defined benefit pension. In 2009, Amalgamated offered the ITPEU members the opportunity to begin accruing benefits in the Pension Plan as of June 2009 or January 2011. Once again, no plaintiff raised the objection that Amalgamated was already providing them with defined pension benefits as set forth in the Q & A or the 2005 General Overview. Indeed, the union membership voted not to start accruing Pension Plan benefits until January 2011 in exchange for higher salaries during the three-year period governed by the 2010 MOU.
These facts, taken in the light most favorable to plaintiffs, are legally insufficient to prove the kind of "repeated misrepresentations" by the defendant that will give rise to a finding of extraordinary circumstances. Compare Pell, 539 F.3d at 297-99, 304; Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 237-38 (3d Cir.1994); Smith v. Hartford Ins. Grp., 6 F.3d 131, 134-35 (3d Cir.1993). In each of those cases, the Court of Appeals found extraordinary circumstances existed because of the "diligence" or "persistent questioning" by the participant or beneficiary in ascertaining his or her rights under an employee benefit plan. Smith, 6 F.3d at 142; see Pell, 539 F.3d at 304-05. Also, in each those cases, the defendant or its agent represented directly to the plan
Plaintiffs' claim is more analogous to those cases in which our Court of Appeals has held that extraordinary circumstances do not arise from inaccuracies or omissions in summary plan documents. See Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1318-19 (3d Cir.1991); see also Kurz, 96 F.3d at 1553. In Gridley, a beneficiary sought to recover supplemental life insurance offered through a plan her husband's employer began to sponsor several days after her husband became gravely ill and stopped reporting to work. Gridley, 924 F.2d at 1314. A brochure distributed to all employees describing the additional benefits did not explain that the plan participant must be "actively at work" to qualify for benefits. Id. When the beneficiary's husband died, the insurer refused to pay the supplemental life insurance benefits because the beneficiary's husband had not been "actively at work" when he enrolled in the plan. Id. at 1315. The Court of Appeals explained that the plan brochure's omission of the "actively at work" requirement did not amount to extraordinary circumstances. Id. at 1318-19. In the matter before us, the information circulated to the plaintiffs in 2004 and 2005 contained misstatements instead of omissions, but in our view, these errors are legally insufficient to constitute extraordinary circumstances.
Plaintiffs also argue that Amalgamated actively concealed a significant change to the Pension Plan and that it acted in bad faith. See Burstein, 334 F.3d at 383. There is no evidence before the court that can support a finding that Amalgamated concealed a change in the Pension Plan from plaintiffs or from anyone. To the contrary, the amendment is recorded in the minutes of the Pension Plan's board of trustees. At the time of the April 14, 2004 amendment to the Pension Plan, plaintiffs did not yet work for Amalgamated although some had accepted offers to join the company as an employee on May 10, 2004. The plaintiffs were union members and their terms and conditions of employment were governed by a CBA or MOU. Moreover, they had specific notice through the 2004 and 2007 CBAs, the 2010 MOU, and the union vote in 2009 that Amalgamated was not providing defined pension benefits before January 2011. Amalgamated's references in the 2004 Q & A and the July 2005 "General Overview" certainly reflect an unfortunate inattention to detail about the benefits available to employees at the PSC, but it cannot be said that these two references over a two-year period demonstrate bad faith in light of the other information of which plaintiffs were cognizant and the failure of plaintiffs to make any inquiries.
We reiterate that principles of ordinary equitable estoppel are not applicable here. Kurz, 96 F.3d at 1553. For estoppel to exist in the ERISA context, extraordinary circumstances amounting to fraud or bad faith must be present. No such extraordinary circumstances exist in this case. In addition, plaintiffs Raymond Gunther, Troy Johnson, Teresa Lattanze, Jacqueline Mays, and John F. Van Allen III have not come forward with any evidence that they detrimentally relied on any Amalgamated misrepresentation concerning defined benefit pensions. Accordingly, the motion of Amalgamated for summary judgment on
Finally, in Count VIII, which is pleaded in the alternative to Counts IV and V, plaintiffs allege that they should recover money from Amalgamated to prevent it from being unjustly enriched.
Along with their opposition to the motion of Amalgamated for summary judgment, plaintiffs filed a cross-motion for summary judgment. The First Scheduling Order, dated October 7, 2011, required the parties to file any dispositive motion on or before July 16, 2012. All defendants filed their motions for summary judgment by that date. At plaintiffs' request, the court twice extended the time within which to oppose the motion of Amalgamated for summary judgment. The cross-motion of plaintiffs for summary judgment was filed with that opposition on September 12, 2012, nearly two months after the deadline for the filing of dispositive motions. Because the motion of plaintiffs for summary judgment was filed untimely, it will be denied.
HARVEY BARTLE III, District Judge.
AND NOW, this 24th day of October, 2012, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) all claims of plaintiff John Doe are DISMISSED;
(2) the motion of defendant Amalgamated Life Insurance Company for summary judgment (Doc. #79) is GRANTED; and
(3) the motion of plaintiffs for summary judgment against defendant Amalgamated Life Insurance Company (Doc. #95) is DENIED.
Jenkins v. Union Labor Life Ins. Co., Inc., Case No. 10-7361, 2011 WL 3919501, at *7, 2011 U.S. Dist. LEXIS 100663, at *20 (E.D.Pa. Sept. 7, 2011). Because compensatory damages are not available in an action under § 1132(a)(3), the court dismissed Count IV of the amended complaint to the extent it states a claim for compensatory damages. Id.
