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Michael Giordano v. Coca-Cola Enterprises Inc. and Coca-Cola Enterprises Employee' Pension

March 7, 2011


The opinion of the court was delivered by: Wall, Magistrate Judge:


Before the court is a motion for summary judgment by the Defendants, Coca-Cola Enterprises Inc. ("CCE") and Coca-Cola Enterprises Employees' Pension Plan ("CCE Plan"). Docket Entry [20 & 25]. The motion is opposed by the plaintiff, Michael Giordano. For the reasons set forth herein, the Defendants' motion for summary judgment is GRANTED IN PART AND DENIED IN PART. The claims pursuant to 29 U.S.C.§ 1132(a)(1)(B) will go to trial and the claims for breach of fiduciary duty and breach of contract are dismissed.

A conference will be held on April 1, 2011 at noon, to discuss trial dates or settlement, if both parties wish to pursue settlement discussions. If so, they should so advise the court and should fax settlement statements not to exceed 3 pages to 631-712-5725 no later than March 31, 2011.


The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.

This case involves the calculation of pension benefits owed to Plaintiff. Plaintiff, who accrued pension benefits as both a union and nonunion employee, claims that he struck an oral agreement (the "Oral Agreement") with his supervisor during his transition from a union to management position that contradicts the terms of the written pension plan applicable at the time he filed for benefits. Plaintiff claims that his pension benefits should be calculated based on the Oral Agreement, while the Defendants argue that oral modification of a pension plan is not allowed and plaintiff's benefits must therefore be calculated under the applicable written plan only. The defendants, for the purposes of this motion only, do not dispute that an oral promise as described by Giordano was made, but argue that, as a matter of ERISA law, such a promise cannot be enforced. The dispute, as explained below, boils down to a question of whether Giordano's non-union pension benefits should be subject to a set off of the pension benefits earned by Giordano in his 25 years as a union employee.

Plaintiff was hired by the Coca-Cola Bottling Company of New York ("CCBCNY") on November 15, 1971. Defendant's Rule 56.1 Statement ("Def's Stmt"), DE[21-4] at ¶1. At the time he was hired, Plaintiff became a member of the Soft Drink and Brewery Union Local 812 (the "Union"), and accrued pension benefits under the Soft Drink and Brewery Workers Union Local 812 Retirement Plan (the "Union Plan"). Id.¶¶ 1&2. On March 23, 1997, Plaintiff was promoted to the non-union position of Fleet Supervisor, at which time he ceased to accrue pension benefits under the Union Plan, instead becoming a participant in the Retirement Plan for Non-Union Employees of the CCBCNY (the "CCBCNY Plan"). Id.¶ 3, 4.

Section 11.2 of the CCBCNY Plan states in pertinent part that "[t]he benefits calculated hereunder shall be subject to a reduction for any benefit the Employee is eligible to receive on account of participation in a union retirement agreement to which the Company contributed." Forlidas Aff., DE[22], Ex. 6. Although Plaintiff had previously accrued benefits under the Union Plan, he argues that this provision does not apply to him based on the Oral Agreement. He claims that before he accepted the nonunion position as Fleet Supervisor, he negotiated the calculation of his pension benefits with his supervisors, Kevin Zoeller and Joe Chernek. Giordano Aff., DE[23-2], ¶3. Plaintiff claims that, contrary to Section 11.2 of the CCBCNY Plan, CCBCNY "agreed to pay the Plaintiff pension benefits under its employee pension benefit plan based on his hiring date of November 15, 1971, with no offset or deduction of any union pension benefits due and earned by him for the period of his union membership." Giordano Aff. ¶3; Compl.¶ 10. In other words, the gravamen of the alleged Oral Agreement was that, when he retired, Giordano would collect his union pension for his 26 years of union service, plus a nonunion pension based on his 26 years of union service and however many years he worked as a nonunion employee, without any setoff of his union pension. Giordano explains that this was a fair agreement, because the change from a union to a nonunion job meant he could no longer earn overtime and that non-union pension benefits were less generous than union pension benefits.

Giordano states that the promise that his non-union pension would be calculated without reference to his union pension made up for the difference and that he would not have taken the non-union job but for the promise. He further states that without the Oral Agreement regarding his pension benefits, "it would have meant that based on the numbers, for the ten years I had anticipated working, I would be accumulating no additional union benefits, while at the same time earning no additional or future management pension benefits." Giordano Aff., DE[23-2], ¶3.

Soon after Plaintiff's promotion, the stock of CCBCNY was acquired by CCE, and on December 31, 1998, the CCBCNY Plan was merged into the CCE Plan. Id.¶¶ 5&6. With the merger of the two plans, Plaintiff became a participant in the CCE Plan and he remained a participant in the CCE Plan until he filed his initial claim for benefits on March 22, 2007. Def's Stmt. at ¶¶7, 14,&15. The terms of the CCE Plan were used to calculate Plaintiff's benefit determination issued by the CCE Plan on June 1, 2007. Def's Stmt. at ¶16. The parties dispute the accuracy of the determination issued on that day. Plaintiff's Local 56.1 Statement ¶16.

Plaintiff reports that, starting in 1998, he received an annual Total Rewards Statement regarding his pension benefits that did not mention any set off for the union pension. Giordano Aff., ¶4. The 2008 Total Rewards Statement reported that Giordano's accrued monthly non-union benefit, if he retired at age 66, would be $2,179.00. Id., Ex. C. The defendants point out that the Total Rewards Statement also included a disclaimer that stated " "Every effort has been made to ensure the accuracy of the information provided. However, errors can occur; this statement contains only brief summaries of the various benefits. In all cases, actual benefits will be paid in accordance with the applicable plan documents, insurance contracts, and Federal regulations." DE [22], Forlidas Aff., Ex. 6, next to last unnumbered page.

In January 2006, Giordano reports, he received a Pension Benefit Estimate Statement issued by One Source, the pension administrator, not by CCE. That Statement reported his hire date as 11/15/71 and stated his accrued monthly pension benefit as $1,782.04 if he retired at age 63. Id., Ex. D. The defendants point out that the 2006 statement also contained a disclaimer, which stated that "These pension benefit amounts assume you have never had service under a collective bargaining agreement," and that "This estimate is based on the data and assumptions shown above. . . . Any estimate is designed to show you what your future pension benefits may be, based on certain assumptions. Remember, this is only an estimate and your actual pension benefit will be based on actual personal information when you retire or leave the company."Id., Ex. 4 (italics in original).

In 2006, Giordano decided to retire and gave notice to the company. He received a notice advising him that his non-union pension benefits would be $444.89. Giordano Aff., Ex. E. He wrote a letter to the company, reporting that the notice of benefits was wrong because when he was hired into management, it was agreed that he "would be covered by the New York Coca-Cola Pension Plan from the date starting 11/15/1971 and not have [his] Union time deducted." Id., Ex. F. The defendants say that the reason for the difference was a data entry error. Suzanne Forlidas states that "[i]t appears that employment records provided to CCE by the CCBCNY Plan at the time of the CCBCNY acquisition did not indicate Plaintiff's prior status as a union employee. As a result, Mr. Giordano's employment record was entered into the Pension System as if he had been a non-union employee since his original date of hire. The Pension System then generated pension estimates for Mr. Giordano based on this inaccurate information." Forlidas Aff., DE[22], ¶12.

Ms. Forlidas also explains the way that the pension benefits amounts were arrived at taking into consideration Giordano's union pension, a rather complicated process. Article I.A. of the CCE Plan, in which Giordano was a participant at the time of his retirement, sets forth the formula for calculating accrued benefits. Forlidas Aff., Ex. 1 and see Brainerd Letter, Ex. 11. Because Plaintiff had been a participant in the CCBCNY Plan before its merger with the CCE Plan, his accrued benefits under the CCE Plan would be the greater of two potential calculations, either A, or C, where "A" is the participant'sbenefit under the merged plan, in this case the CCBCNY Plan, "B" is an amount determined by multiplying 1.15% of the participant's "final average earnings" by his number of years of "benefit service" credited under the CCE Plan after the Merger Date, and "C" is an amount determined by multiplying 1.15% of the participant's final average earnings by all of the participant's years of "benefit service." ...

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