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