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May 5, 2003

Mark EBENSTEIN, Plaintiff,
ERICSSON INTERNET APPLICATIONS, INC., f.k.a. Ericsson Messaging Systems, Inc., Defendant.

The opinion of the court was delivered by: LEONARD WEXLER, Senior District Judge.


This is an action commenced by Plaintiff Mark Ebenstein ("Plaintiff"), pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiff seeks to recover severance benefits allegedly due to him under an ERISA plan.*fn1 Defendant denies Plaintiff's entitlement to benefits and has asserted a counterclaim seeking repayment of a bonus and relocation expenses. Presently before the court is Defendant's motion for summary judgment dismissing the complaint and granting the relief sought on the counterclaim.


 I. The Parties and Their Business Relationship

  Plaintiff is an individual who resides in the Eastern District of New York. Defendant is Ericsson Internet Applications, Inc. ("Ericsson or the `Company' "). Ericsson describes itself as a company that is a leading supplier of mobile communication systems and a provider of core technology for mobile handsets.

  In January of 2001, Plaintiff received an offer of employment from Ericsson serve as a Product Marketing Manager. Plaintiff was to be employed in the Product Line Entertainment Department at Ericsson's Woodbury, New York office. In addition to a yearly salary of $85,000, Ericsson agreed to pay Plaintiff a one time signing bonus of $5,000. Ericsson also agreed to reimburse Plaintiff for expenses incurred in relocating to Long Island from Connecticut. The terms pursuant to which these latter two payments were made are contained in Ericsson's formal written offer of employment and the company's "Relocation Policy and Procedure for Newly-Hired U.S. Based Employees" (the "Relocation Policy").

  The formal offer of employment and the Relocation Policy are before the court and it is undisputed that they were in Plaintiff's possession when he agreed to accept Ericsson's offer of employment. The letter offering Plaintiff his employment advised him that the $5,000 signing bonus would have to be repaid to the company in the event that Plaintiff resigned from the company within the first twelve months of his employment. Similarly, the Relocation Policy states, inter alia, that if Plaintiff voluntarily terminated his employment

[263 F. Supp.2d 639]

      with Ericsson before expiration of a one year period, the relocation expenses would have to be repaid to the Company. Plaintiff accepted the position offered and began his employment with Ericsson on March 5, 2001.

 II. The Restructuring and the May 31 E-Mail

  Two months after Plaintiff began his employment with Ericsson, the company underwent a restructuring. Ericsson employees were advised of the impending changes via an e-mail dated May 31, 2001 (the "May 31 e-mail"). A print out of that e-mail is before the court. Neither Plaintiff's receipt, nor the language of the May 31 e-mail, are in dispute. As set forth in the May 31 e-mail, the company was about to restructure and would implement a reduction in force. Certain identified departments, including Plaintiff's, were to be discontinued. While the May 31 e-mail refers to impending reductions in Ericsson's labor force, it did not specify which employees were to be terminated. Instead, it was stated that "some employees will assume new positions . . . and others will be separated from the company." The notification date for the reductions in force was set, in the May 31, e-mail, at July 5, 2001.

 III. The Events of June-July 2001

  The parties dispute certain factual matters that have been alleged to occur during June of 2001. While Defendant alleges that Plaintiff approached Ericsson personnel to volunteer for the lay-off, without having to repay his relocation expenses, Plaintiff disputes the way in which Defendant characterizes these conversations. Because a decision as to the credibility of the parties on these conversations is not necessary to disposition of this motion, the court adopts neither parties' version of the discussions that allegedly took place between Plaintiff and Ericsson during June of 2001.

  What is not in dispute is the fact that Plaintiff left work early on July 2, 2001 and never returned to the company. What is also not in dispute are the contents of correspondence sent between Plaintiff and Kathy Raftery, Ericsson's Director of Human Resources, following July 2. On July 3, 2001, Plaintiff sent a letter to Ericsson demanding payment of severance benefits as a consequence of his recent lay-off. Raftery responded to Plaintiff's July 3 letter in a letter dated July 6, 2001. That letter referred to the fact that three weeks prior to the date of the letter, Plaintiff was given a position as a product marketing manager in a different division of Ericsson and stated that Plaintiff was expected to return to the company to assume his new responsibilities. Raftery's July 6 further stated that if Plaintiff did not return to the office by July 9, or inform the company as to why he could not return, Ericsson would treat such action as Plaintiff's voluntary resignation from the Company.

  Plaintiff's response to Raftery's July 6 Letter is contained in a letter of that same date. In his letter, Plaintiff states that upon his receipt of the May 31 e-mail, he "recognized that effective July 5, 2001[he] was officially laid-off by Ericsson." As to Raftery's statement regarding Plaintiff's return to work by July 9, Plaintiff responded that this statement was "rejected."

  In a letter dated July 11, 2001, sent by Raftery to Plaintiff, Raftery refers to the May 31 e-mail and notes that persons to be laid off were to be informed of that fact on July 5, 2001. Raftery's letter continues, "[f]or the last time, you were not laid off in the most recent reduction-in-force." The letter concludes, "[b]y your absolute refusal to return to work, you have abandoned

[263 F. Supp.2d 640]

      your job. This does not entitle you to severance benefits. In addition, it triggers certain repayment requirements you have to Ericsson." When Plaintiff failed to return to Ericsson, he was sent a letter by Ericsson's counsel, demanding that he reimburse the Company $34,949.05. This amount was stated to ...

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