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MELVIN v. UA LOCAL 13 PENSION PLAN

March 7, 2002

ALAN R. MELVIN, ET AL., PLAINTIFFS, -VS- UA LOCAL 13 PENSION PLAN, ET AL., DEFENDANTS.


The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge

DECISION and ORDER

INTRODUCTION

This is a pension benefit case in which plaintiff*fn1 sought to have his fourteen years of pre-break service treated the same as his eleven years of post-break service in calculating his pension benefit under the U.A. Local 13 Pension Plan ("Plan"). Five causes of action remain in plaintiff's Amended Complaint. They are as follows:

First cause of action — in which plaintiff seeks enforcement of the plain meaning of § 3.3 of the Plan, reinstating his prior years of service for the purpose of calculating the benefits due to him;

Second cause of action — plaintiff claims that defendants' interpretation of § 3.3 of the Plan violates the Employee Retirement Income Security Act of 1974 ("ERISA"), § 204(b)(3), 29 U.S. Code § 1054(b)(3) and regulations thereunder, specifically 29 C.F.R. § 2530.204-1, by including the pre-break years only for measurement of vesting and not for accrual of benefits;

Third cause of action — plaintiff claims that defendants' interpretation of the Plan provisions concerning break in service and reinstatement of prior years of service violates ERISA's anti-backloading of accruals rule under 29 U.S. Code § 1054;

Seventh cause of action — plaintiff claims defendants breached their fiduciary duties under ERISA § 404, 29 U.S. Code § 1104, by failing to award plaintiff pension benefits without regard to any break in service; and

Ninth cause of action — plaintiff claims that defendants' delay in disclosing the trust agreement (the Plan) and pages 12 and 13 of the Plan Trust Agreement within 30 days of plaintiff's request, are in violation of ERISA § 504(b)(4), 29 U.S. Code § 1104(b)(4).

The case is before the Court for decisions on both parties' separate motions for summary judgment and ancillary motions for relief. For the reasons stated below, the Court grants plaintiff's and defendants' motions in part and denies them in part.

BACKGROUND

Plaintiff, who is now deceased, was a member of UA Local 13 and employed within the plumbing and pipefitting industry from 1967 until his retirement in 1998. For most of this time plaintiff was employed under the terms of a collective bargaining agreement negotiated between UA Local 13 and plaintiff's employers. However, for thirty-nine months, from November 23, 1981 to March 1, 1985, plaintiff worked as a salesman for a plumbing contractor, a position not covered by the collective bargaining agreement. Prior to accepting that position, plaintiff was told by UA Local 13 that this position would not adversely affect his retirement benefits. Plaintiff further maintained that he was also told by defendant that his employment as a salesman would not adversely affect his retirement benefits, although defendants dispute this.

In January of 1998, when plaintiff was considering retirement, he was informed by the UA Local 13 Pension Plan ("Plan") that if he retired March 1, 1998, his pension benefits were not going to be as much as he had anticipated. The Plan took the position that the thirty-nine month period from November 23, 1981 to March 1, 1985, during which he was employed as a salesman for the plumbing contractor, constituted a break in service for the purpose of determining his accrued pension benefits. In calculating plaintiff's pension benefits, the Plan gave him credit for fourteen years service at the rate in effect in 1981, i.e., $20.00 per month per year of service, and for eleven years of service at the rate in effect in 1998, i.e., $116.00 per month per year of service. The total monthly benefit to which plaintiff was entitled, according to the Plan, was $1,571.30*fn2 per month. Plaintiff, however, contended that his entire monthly benefit should be calculated at the rate of $116.00 per month per year of service, entitling him to a total monthly benefit of $2,915.30.

Counsel agree that the Plan, as amended on January 1, 1989, is the Plan under consideration in this case. Amended Complaint*fn3 at Exhibit C; Defendants' Memorandum of Law (# 50) at 4. Plan § 3.3 discusses a break in service and defines it as any Plan year after July 31, 1976, in which an employee fails to accrue at least 81 hours of service. Exceptions are made for an employee on active duty in the armed forces of the United States, or for one serving as a union official. Section 3.3(c)*fn4 reads in pertinent part as follows:

If a Participant incurs a Break in Service on or after August 1, 1976 and, subsequently, becomes an Active Participant and eligible to participate in this Plan as set forth in Article II, his prior service shall be reinstated if (1) the Participant was Vested in his Accrued Benefit when he became a Nonactive Participant, or (2) the Break in Service is less than the Participant's prior service plus one. For Active Participants who have had an hour of service on or after January 1, 1988, and who have had a Break in Service after that date, and subsequently, become an Active Participant and eligible to participate in this Plan as set forth in Article II, his prior service shall be reinstated if he either meets the above conditions or if his Break in Service is (5) years or fewer.

In addition to the break in service provision, the Plan also contains Article IV, Accrued Benefit, section 4.4, which reads as follows:

If an Active Participant has incurred a Break in Service, the Accrued Benefit for any Credited Service earned prior to the Break in Service is equal to the Monthly Unit of Benefit in effect at the time the Break in Service occurred times the Credited Service at that date.

ANALYSIS

A. SUMMARY JUDGMENT STANDARD

The law on summary judgment is well settled. Summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3rd Cir. 1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the "evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Once the moving party has met its initial obligation, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat a motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. Duplantis v. Shell Off-Shore, Inc., 948 F.2d 187 (5th Cir. 1991); Fed.R.Civ.P. 56(f).

Once the moving party has met its burden, mere conclusions or unsubstantiated allegations or assertions on the part of the opposing party are insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). The court, of course, must examine the facts in the light most favorable to the party opposing summary judgment, according the non-moving party every inference which may be drawn from the facts presented. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).

B. PLAINTIFF'S CROSS-MOTIONS TO STRIKE AND DEFENDANTS' MOTION FOR JUDICIAL NOTICE

Before considering the parties' motions for summary judgment, the Court must address plaintiff's cross-motion to strike and defendants' cross-motion to take judicial notice. Plaintiff sought to strike the affidavit of defendants' witness, Charles McLaughlin, the Plan's actuary, on the basis that he will testify only about legal opinions concerning plaintiff's claims and lacks personal knowledge. Plaintiff also sought to strike the affidavit of defendants' witness, David Peck, the Plan Trust Manager, whom plaintiff claimed also has no personal knowledge of the case. In both instances, defendants argue that each is experienced in interpreting the Plan and, specifically, that McLaughlin can discuss the anti-back end loading rules of ERISA § 204(b)(1), whereas Peck can testify about how the break in service rules are communicated to "the ordinary Plan participant," and with regard to the calculation of pension benefits.

It is well settled in a summary judgement motion that only evidentiary proof in admissible form can be considered. Celotex Corp. v. Catrett, 477 U.S. at 327. Since the Court finds that the affidavits of Charles McLaughlin and David Peck do not constitute "evidentiary proof in admissible form," plaintiff's application to strike them is granted.

Additionally, plaintiff moved to strike a portion of the affidavit of defendants' counsel, Robert T. DiGiulio, Esq. Plaintiff claimed that ¶ 32 through ¶ 39 of DiGiulio's affidavit were nothing more than a reply to plaintiff's opposition to defendants' motion for summary judgment and, under Local Rules of Civil Procedure for the Western District of New York § 7.1(c), defendants did not reserve the right reply. The ...


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