receive any benefit under a plan. 29 U.S.C. § 1140. The core of
Plaintiff's complaint is that because of her disability defendant
discharged her and refused to pay her as required by Defendant's
"custom, practice or policy" on "disability leave" and that the
Defendant had a discriminatory and benefit — defeating motive or
purpose. In Plaintiff's view, such conduct creates liability
under the state laws as she alleges. However, in this court's
view, the conduct also falls squarely within the exclusive remedy
ERISA provides. 29 U.S.C. § 1144.
Similar conduct (by employers) has been held to fall within
ERISA's broad scope of protection creating a proper basis for
removal. Metropolitan Life Insurance Co. v. Taylor, supra,
(discharge for the purpose of denying disability benefits); The
Clorox Company v. United States Dist. Court for the Northern
Dist. of California, 779 F.2d 517 (9th Cir. 1985) (wrongful
denial of disability benefits); Cahall v. Westinghouse Electric
Corp., supra, (discharge for the purpose of denying pension and
lay-off protection benefits). Cf., Ingersoll-Rand v. McClendon,
supra, (discharge for the purpose of denying pension benefits);
Gilbert v. Burlington Industries, Inc., supra, (refusal to pay
severance benefits); King v. James River-Pepperell, Inc.,
593 F. Supp. 1344 (D.Ma. 1984), (discharge for the purpose of denying
retirement disability benefits).
Plaintiff advances several arguments in support of her motion
to remand. In particular, Plaintiff stresses that the Complaint
does not allege the existence of a disability "plan" but only a
"custom, practice or policy", and that the benefits sought are
therefore outside the scope of ERISA's definition of an employee
welfare benefit plan because they are "excluded payroll
practices" as defined in 29 C.F.R. § 2510. 3-1(b)(2). Neither
argument is valid.
The statute itself defines the concept of a welfare benefit
plan broadly to include "any plan, fund or program."
29 U.S.C. § 1002(1). The form that a complaint uses in attempting
to describe the source of the benefit at issue is not controlling.
A "plan, fund or program" exists for purpose of ERISA liability
". . . if from the surrounding circumstances a reasonable person can
ascertain the intended benefits, a class of beneficiaries, the
source of the financing, and the procedures for receiving
benefits." Donovan v. Dillingham, 688 F.2d 1367 (11th Cir. 1982).
That each of these indicia exist, or can be determined to exist,
as to the disability benefits alleged by Plaintiff to have been
denied by defendant, are readily perceivable on the face of the
Complaint. Further, the court in Gilbert, supra, found an ERISA
plan to exist based on an alleged "policy", the same term used by
Plaintiff to describe the source of her denied benefit. An
allegation that a defendant "promised" to pay a claimed benefit
has been held to bring the complaint within ERISA's definition of
a plan. Scott v. Gulf Oil Corp., 754 F.2d 1499, 1504 (9th Cir.
1985). Cf., Reichelt v. Emhart Corp., supra, (defendant's
"unvarying practice" of paying severance benefits may constitute
an ERISA employee benefit plan).
That the benefit at issue is not an excluded payroll practice
so as to take the Complaint out of ERISA's coverage is also clear
from the Complaint itself. The Complaint describes Plaintiff as
being "disabled" (Compl. ¶ 4.) and, in several instances, refers
to her status at the time of discharge as being on "disability
leave" (Compl. ¶¶ 8, 10). These descriptions, together with
Plaintiff's allegation that her disability resulted from a
serious medical problem requiring surgery, tend to demonstrate
that Plaintiff is suing for something other than traditional sick
leave wages, to which the regulation's exclusion would apply.
See, Shea v. Wells Fargo Armored Service Corp., 810 F.2d 372, 376
(2d Cir. 1987).
To further support her argument that the disability benefit
payments in question are not part of an ERISA plan, Plaintiff
provided to the court several advisory opinions of the United
States Department of Labor which concluded that, on the facts
provided by the requesting parties, the various benefits in
question were excluded payroll practices. Although such opinions
may be given some weight, they
are more properly directed to the merits of this litigation and
should not control this jurisdictional issue where the actual
facts surrounding the allegation cannot be adequately developed.
It may also be noted that to the extent those decisions rely upon
the fact that the benefit schemes they analyzed were based on
unfunded payments out of general assets, their vitality may be
affected by the decision in Gilbert, supra.
Finally, Plaintiff argued that the Defendant should be
precluded from removing the action because in its Answer,
Defendant denied the existence of the "custom, practice and
policy" to pay disability benefits as alleged by Plaintiff. It is
well established that upon a motion for remand the
appropriateness of the removal is to be considered on the basis
of the complaint and not the answer or other papers that have
been filed, particularly where the answer, as here, is filed
after the date of the removal petition. See, Gully v. First
National Bank in Meridian, supra; Great Northern Railway Co. v.
Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713 (1918).
Plaintiff relies on Davis v. American General Group Insurance
Co., 732 F. Supp. 1132 (N.D.Ala. 1990), but in Davis the
defendant's motion to dismiss for failure to state an ERISA claim
was filed simultaneously with the petition for removal,
distinguishing that case from the one at bar. The general rule
that only the complaint can provide the basis for the
jurisdictional determination is more consistent with the basic
purposes of the well-pleaded complaint rule. See, Stone v. Stone,
450 F. Supp. 919, 922 (N.D.Cal. 1978), aff'd, 632 F.2d 740 (9th
Cir. 1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3158, 69
L.Ed.2d 1004 (1981).
The Complaint alleges a denial of a benefit under an employee
disability plan, a cause of action which is pre-empted by ERISA
and thereby arises under federal law.
Since the court has determined that the case was properly
removed, there is no basis for Plaintiff's request for costs and
expenses including attorneys fees. See, Cahall v. Westinghouse
Electric Corp., supra.
The Plaintiff's motion to remand and for costs and expenses is,