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BOSS v. ADVANSTAR COMMUNS.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 26, 1995

DONNA BOSS, Plaintiff, against ADVANSTAR COMMUNICATIONS, INC., Defendant.

The opinion of the court was delivered by: KAPLAN

MEMORANDUM OPINION

 LEWIS A. KAPLAN, District Judge.

 The plaintiff, Donna Boss, is the editor of Food Management magazine, which was sold by defendant to Penton Publishing, Inc. ("Penton"). Penton agreed to continue Boss as editor, at a salary increase of about ten percent. Boss nonetheless sues her former employer, Advanstar Communications, Inc. ("Advanstar"), under the Employee Retirement Income Security Act of 1984 ("ERISA"), 29 U.S.C. ยงยง 1001 et seq., for severance pay. She claims that she was entitled to that pay under the Advanstar benefit plan unless her employment by Penton was comparable to that by Advanstar; she alleges that her Penton employment was not comparable because it did not include a severance pay policy. The parties cross-moved for summary judgment and then stipulated that the Court would try the matter on the summary judgment record, making such findings and conclusions as it might make in the event it had tried the case in open court.

 Facts

 As noted, Boss was editor of Food Management when the magazine was owned by Advanstar. During the period relevant to this action, Advanstar's severance pay policy provided in relevant part:

 

"Employees released by the Company will receive, on the next regular pay cycle following termination, one weeks' severance pay for each full year of service up to five years service, and two weeks' severance pay for each full year beyond five years service. Severance pay is not paid when an employee elects retirement, whether early, normal or deferred, when a department, division or subsidiary is sold and the employee is offered continued employment by the buyer, or when an employee is discharged." (Emphasis added)

 Penton evidently entered into discussions and reached agreement with Advanstar in 1992 concerning the purchase of the Food Management group of magazines. On September 30, 1992, it offered plaintiff continued employment as editor of Food Management, conditioned upon her resigning as an employee of Advanstar. The sale closed on October 1, 1992. Plaintiff accepted Penton's offer, and resigned from Advanstar, *fn1" on October 2, 1992. If Advanstar's severance policy had covered plaintiff, she would have been entitled to $ 43,160 in light of her eighteen years of service with Advanstar. The terms of plaintiff's employment with Advanstar and Penton, respectively, may be summarized as follows: Advanstar Penton Salary $72,400 $79,640 Vacation 4 weeks 4 weeks 401(k) plan vesting vested 5 year vesting (3 yrs remaining) Medical $175 deductible, $350 deductible, 80% of bills 75% of bills Dental covered covered Disability insurance 60% of wages 66 2/3% of wages Life insurance $145,000 $84,000 Severance pay $43,160, increasing with none entitlement subsequent service Pension plan not indicated covered

19951226

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