The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Vicki M. Aken ("plaintiff" and/or "Aken") brings this action against defendants Xerox Corporation ("Xerox"), Lawrence M. Becker ("Becker"), Xerox Corporation Retirement Income Guarantee Plan Administrator ("Plan Administrator"), and Xerox Corporation Retirement Income Guarantee Plan ("RIGP") (collectively referred to as "Defendants"), seeking recovery of disputed pension benefits.*fn1 Specifically, Aken alleges that she sustained losses with respect to retirement benefits allegedly due to her under Xerox's RIGP. Aken states that she relied upon the alleged misrepresentation by Defendants of benefits available to her because of her participation in Xerox's Voluntary Reduction in Force ("VRIF"). Further, plaintiff alleges that Defendants are estopped from claiming clerical error based on the documents reviewed by plaintiff.
Defendants move this Court for an Order pursuant to Fed. R. Civ. P. 56 granting the Defendants' Motion for Summary Judgment*fn2 and dismissing the Second Amended Complaint in its entirety. Defendants argue that there is no genuine issue of material fact for trial and the Defendants are entitled to judgment pursuant to Rule 56. For the reasons that follow, Defendants motion is granted and plaintiff's Second Amended Complaint is dismissed.
It is important to note that plaintiff and her counsel never filed her Second Amended Complaint with the Court in contravention of Fed. R. Civ. P. 5(d)(1), Local Rule 7.1(a) and Magistrate Judge Payson's August 9, 2007 Scheduling Order. The Court, however, was able to obtain a copy of the Second Amended Complaint and upon its review, it appears that plaintiff served Defendants with the Second Amended Complaint on or about September 6, 2007. Rule 5(d)(1) states that "Any paper after the complaint that is required to be served--together with a certificate of service--must be filed within a reasonable time after service." See Fed. R. Civ. P. 5(d)(1) (emphasis added). It is clear that plaintiff has committed a procedural error, which to date she has not attempted to correct.
Plaintiff was originally hired by Xerox in November of 1970. However, plaintiff separated from her employment on January 2, 1975. She was rehired by Xerox three years later on October 2, 1978 and continued to work at Xerox until she elected to retire. During the course of her employment, plaintiff was a participant in the RIGP, a defined benefit plan governed by ERISA. Upon being hired, employees are provided with a copy of a Summary Plan Description ("SPD") of the RIGP. Both the SPD and the RIGP provide that the method of calculating an employees' retirement benefits is based upon the average of an employee's five highest-paid calendar years with Xerox and an employee's years of service. In addition, the RIGP states that in determining years of participation, "periods of employment which terminated prior to January 1, 1976 shall be ignored." Further, the SPD and the RIGP also state that an employee will only receive credit for "up to 30" years of service. Accordingly, based upon the terms of the RIGP, at the time of plaintiff's retirement, she was entitled to receive a pension benefit based upon 27 years of service following her date of rehire.
Xerox advised all XNA Marketing and Teleweb Employees in the United States, including plaintiff, on October 25, 2005 about a VRIF program. The VRIF provided participating employees with a certain number of weeks of salary continuance. It also contained a schedule that explained that the amount of salary continuance was dependent upon an employee's credited years of service. However, under Xerox's policy, for an employee who separates from Xerox before January 1, 1976 and is then rehired, that employee's years of service "for all service related benefits," including vacation and salary continuance, is based upon their actual years of service following rehire.
Plaintiff continued to work for Xerox until January 28, 2006, when she went on salary continuance, electing to participate in Xerox's VRIF. Plaintiff elected to participate in the VRIF by signing a Request to Participate and General Release on November 30, 2005. The request was granted on December 14, 2005. Prior to electing to participate in VRIF, plaintiff alleges she logged onto a website run by Hewitt Associates to determine the amount of pension benefits she would receive. Plaintiff further alleges that she received an estimate which erroneously included her pre-1976 employment with Xerox and indicated she had a total of 32 years of service, for which she would be eligible for a lump sum pension benefit totaling $296,536.21.*fn3 Notably, all printouts were labeled "estimate" in bold face type, and further note that "changes in earnings, service, investment performance, pension payment start date, beneficiary designation, or other factors could cause a difference in the actual benefit you receive."
Under the terms of the VRIF, plaintiff was entitled to receive one and a half weeks of pay for each year of service and other benefits in exchange for a release of all claims under state and federal law against Xerox, including claims brought under ERISA. Based on Xerox's policy, employees who terminate before January 1, 1976 were treated as new hires should they be rehired at a later date. As a result, on January 27, 2006, plaintiff was awarded 40.5 weeks of salary continuance, based on her 27 years of service following her date of rehire. In exchange for salary continuance and other VRIF benefits, plaintiff was obligated to and did sign a release. By signing the release, plaintiff agreed to waive all claims under state and federal law against Xerox, including claims brought under ERISA.
On January 31, 2006, the Plan Administrator determined that plaintiff's employment from November 1970 to January 1975 was incorrectly included in previous years of service estimates. On February 6, 2006, the Xerox Benefits Center contacted plaintiff to alert her to the fact that the previous estimates she had been given were incorrect and that any future calculations would properly reflect only her 27 years of service. Plaintiff did not run any further estimates until September 28, 2006, when she initiated her retirement, at which time her lump sum of payment was correctly determined to be $242,401.05. Plaintiff claims that she is entitled to pension benefits based upon an additional five years of service as well as an additional 11.5 weeks of salary continuance in accordance with VRIF, since her pension benefit estimates indicated that she had 32 years of service.*fn4 Plaintiff bases her claims on allegations that Xerox has made negligent misrepresentations and is "estopped from claiming clerical error."
I. Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.11[a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249; see also, Fed.R.Civ.P. 56(e)("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.").
Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving ...