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Diamond v. Treasurers and Ticket Sellers Union Local 751 Pension Fund

August 22, 2006


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Plaintiff Stuart Diamond filed this lawsuit under the Employee Retirement Income and Security Act of 1974 ("ERISA"), 29 U.S.C. §1001 et seq., alleging improper denial of pension benefits and breach of fiduciary duty. Plaintiff names as defendants the Treasurers and Ticket Sellers Union Local 751 Pension Fund,*fn1 (the "Plan" or "Fund"), the Fund's Trustees, and Robert Cleary, the former union president and fund manager. Now that discovery is complete, Defendants move for summary judgment on all seven claims alleged in Diamond's Complaint. Diamond opposes Defendants' motion and cross-moves for summary judgment in his favor.


The Fund is a multiemployer pension plan that is co-sponsored by the Treasurers and Ticket Sellers Local 751 and contributing employers who are parties to collective bargaining agreements with the Union.*fn2 (Affirmation of Sara Corello ("Corello Aff."), Ex. 2.) The Fund is administered by a Board of Trustees, which is comprised of three Trustees representing the Union, and three Trustees plus one alternate Trustee representing contributing employers. (Id., Ex. 2, at D000732-000733.) Defendant Robert Cleary ("Cleary") served as a Trustee and Manager of the Fund until November 3, 2003, when he resigned from his position as President of Local 751. (Id., Ex. 3.)

Union members, all of whom are treasurers and ticket sellers for theaters and events in the New York metropolitan area, qualify for pension benefits through the Plan by accruing service credits for each year of employment.*fn3 (Id., Ex. 1, at D000010.) Service credits are awarded, in full or half units, for a specified amount of covered employment.*fn4 (Id., Ex. 1, at D000013.) Under the Plan, a union member accrues pension credits according to the following schedule:

* less than 60 days of covered employment = 0 pension credits

* 60-99 days of covered employment = 1/2 year of pension credit

* 100 or more days of covered employment = 1 full year of pension credit

(Id.) A union member cannot earn more than one full pension credit in a given year. (Id.)

Under the Plan's rules, a union member with fifteen service credits is eligible for a "normal pension" after the age of 62, or may opt for early retirement benefits beginning at the age of 57.*fn5 (Id., Ex. 1, at D000061-000064.) Union members with fewer than fifteen service credits may still qualify for a Vested Pension when they reach 62 years of age. (Id., Ex. 1, at D000063.)

1. Diamond's History as a Union Employee

Plaintiff Stuart Diamond ("Diamond") joined Local 751 in 1966 (Affirmation of Stuart Diamond ("Diamond Aff.") ¶ 2); and participated in the Local 751 pension plan. Between 1966 and 1972, Diamond earned six full years of service credit towards the pension plan. In 1972, Diamond moved to California, where he stayed until 1981. (Id. ¶ 4.) His employment in California fell outside of Local 751's jurisdiction, so Diamond received no service credit for these 9 years. (Id.)

Diamond returned to New York in 1981, and resumed working within the jurisdiction of Local 751.The Fund credited Diamond with ninety-five days of covered employment during the 1982 plan year, resulting in only a half-year of pension credit. (Id. at ¶ 6.) From 1983 to 1997, Diamond received one full service credit towards the Local 751 pension plan each year, except during the 1984 plan year, for which he received no service credits. (Corello Aff., Ex. 6.)

In late 1997, Diamond worked as a ticket seller for the Christmas show at Radio City Music Hall ("Radio City"), a covered employer. On December 22, 1997, Diamond's drawer at a Radio City ticket window was found to be short of cash; and Radio City terminated Diamond's employment.*fn6 (Diamond Aff. ¶ 14-26.) Immediately after the Radio City incident, Diamond contacted Ron Argenzio ("Argenzio"), a treasurer for whom he had previously worked, and asked for a job. (Id. ¶ 28; Argenzio Dep. 49:21-50:21.) At the time, Argenzio worked as the treasurer for various shows at the Javits Center. (Argenzio Dep. 52:10-19.) He hired Diamond to work the Stella Management Show at the Javits Center for two days in January 1998. This was Diamond's last job under the jurisdiction of Local 751.

Argenzio also offered Diamond a job working the NBA Spectacular at the Javits Center in February 1999, which would have been a four or five day job. (Id. 52:10-15, 53:23-54:6.) When Argenzio called Local 751 to get additional names from the work list,*fn7 however, Cleary told Argenzio that he did not want Diamond working the show. (Id. 54:12-55:15.) Cleary did not give a precise reason for this, other than referring to the "trouble at Radio City." (Id. 55:11-15, 56:9-22.) As a result of this conversation, Argenzio called Diamond and told Diamond that he could not work the NBA Spectacular.*fn8 (Id. 58:7-13.)

Diamond went to the union office and confronted Cleary, demanding to know why Cleary would not let him work. According to Diamond, Cleary responded: "Because nobody wants you." (Diamond Aff. ¶ 35.) Diamond claims that this statement was false, however, as he was repeatedly told by Argenzio that he would hire Diamond for shows at the Javits Center were it not for Cleary's demand that he be taken off the work list. (Id.)

Argenzio's deposition testimony supports Diamond's version of the facts. Argenzio testified that he had at least "three, maybe four" conversations with Cleary about hiring Diamond for shows, but each time Cleary told Argenzio that he did not want Diamond hired.*fn9 (Id. 60:22-61:4, 62:2-4, 63:18-25.) It appears that other treasurers were also told not to hire Diamond, as Argenzio knew of at least one other Javits Center treasurer who passed up Diamond for a show without explanation. (Id. 59:8-60:15.) Cleary told Argenzio not to hire at least one other union member for Javits shows. (Id. 61:19-63:10.) As with Diamond, Cleary did not explain to Argenzio why he did not want the other man hired. (Id.)

Diamond alleges that when he met with Cleary in 1998 about getting work, he also asked Cleary about his pension benefits and how many days he had. Diamond claims that Cleary told him he had enough days to get his benefits, so he should not worry about it, stating: "If a guy is short a couple of days, I can give it to him, I've done it before." (Diamond Aff. ¶ 38.) Diamond also claims that Cleary affirmed this advice in later conversations. (Id.)

Diamond wrote at least two letters to the Union demanding to see his pension records, but, according to Diamond, Cleary refused to provide them. (Id. ¶¶ 43, 48-49 & Exs. 5-6.) While Cleary sent Diamond his pension credit card and a computer-generated printout of his service, he would not permit Diamond to visit the Fund office to examine additional records. (Id. ¶¶ 50-51 & Exs. 5-6.) Larry Waxman, also a Local 751 union member, had a similar problem with Cleary in 2003. (Bach Aff., Exs. A & B.) Mr. Waxman also wrote Cleary requesting information about his service credits and when he would become eligible for a pension. (Id.) Like Diamond, Cleary frustrated Mr. Waxman's efforts to review his file and figure out the status of his benefits. (Id.) There is some suggestion that Mr. Waxman's difficulties with Cleary were also driven by personal animus, as Mr. Waxman's February 2003 letter to Cleary refers to Cleary's "ongoing antipathy toward [Larry Waxman's] brother."*fn10 (Id.)

Unable to secure covered employment, and in reliance on Cleary's representations that Diamond had sufficient credits, Diamond filed an application for early retirement pension benefits on January 15, 1999. (Corello Aff., Ex. 4.) By letter dated January 29, 1999, Cleary, in his capacity as the Fund's Manager, denied Diamond's claim for early retirement benefits, based on its finding that Diamond only had 14.5 years of service credits, 1/2 credit short of eligibility. (Id., Ex. 5.)

Diamond appealed the Plan's determination on a number of grounds, including failure to properly credit vacation pay in 1982 and 1998, failure to properly credit double shifts, failure to credit Diamond the 6 service credits accrued prior to 1972, and failure to credit certain jobs with covered employers. In a series of letters, Fund counsel and the Trustees rejected all of Diamond's appeals.

As a Trustee and Manager of the Fund, Cleary took part in the appeal process. For example, on June 13, 2003, Diamond's attorney submitted a letter to Ms. Corello documenting certain jobs that Diamond worked, but for which he was not given service credit. Rather than research the information independently, Fund counsel consulted with Cleary about whether the jobs listed-Diamond's work at the Eugene O'Neill Theatre, Roosevelt and Yonkers Raceways and the West Side Tennis Club-should be counted. (Id., Exs. 31 & 33.) Based upon Cleary's representations that the shows did not play as Diamond claimed and that the employers were not covered employers obligated to contribute to the Local 751 pension plan, Corello initially ...

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