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Bulovic v. Both

United States District Court, S.D. New York

March 31, 2014

DANICA BULOVIC, Plaintiff,
v.
BRUCE W. BOTH, U.F.C.W. LOCAL 1500 PENSION FUND PLAN MANAGER AND TRUSTEE, and U.F.C.W. LOCAL 1500 PENSION PLAN, Defendants

Danica Bulovic, Plaintiff, Pro se, Mamaroneck, NY.

For Defendants: Michael Howard Isaac, Esq., Broach & Stulberg, LLP, New York, NY.

OPINION

Page 366

OPINION AND ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

Pro se Plaintiff Danica Bulovic (" Bulovic" ) brings this Action against Defendants Bruce W. Both (" Both" ), in his capacity as Plan Manager and Trustee of the United Food and Commercial Workers International Union Local 1500 (" Local 1500" ) Pension Fund (" the Fund" ), and the Fund's employee pension benefit plan (" the Plan" ) (collectively " Defendants" ). Among other claims, Plaintiff asserts that Defendants improperly denied her application for a pension. Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, Defendants' Motion is granted.

I. Background

A. Factual Background

1. The Fund's Employee Pension Benefit Plan

The Fund maintains an employee pension benefit plan within the meaning of Section 3(2) of the Employee Retirement Income Security Act of 1974 (" ERISA" ), 29 U.S.C. § 1002(2). ( See Defs.' Statement of Material Facts Pursuant to Local Rule 56.1 (" Defs.' 56.1 Statement" ) ¶ 1.)[1]

Page 367

Through this Plan, the Fund provides benefits to certain employees whose employers contribute to the Fund on their employees' behalf pursuant to collective bargaining agreements (" CBAs" ) with Local 1500. ( See id.) The Fund was established and is maintained pursuant to an Agreement and Declaration of Trust, which came into effect on May 21, 1956, was amended on May 26, 1967, and was restated on November 28, 1975. ( See id.; Def. Both's Aff. in Supp. of Defs.' Mot. for Summ. J. (" Both's Aff." ), Ex. A.) A Board of Trustees (" the Board" ), composed of an equal number of employer and employee representatives, administers the Fund. ( See Defs.' 56.1 Statement ¶ 1.)[2] The Board is the " plan sponsor" and " plan administrator" of the Plan, within the meaning of those terms as ERISA defines them. ( See id.)[3] The Plan's terms are set forth in a Plan document, which the Board amends as needed. ( See id. ¶ 2.) The Fund also publishes explanatory summary plan descriptions (" SPDs" ), which it distributes to Plan participants in accordance with ERISA.[4] ( See id.) Between 1987 and 2011, the Fund published SPDs on January 1, 1987; October 1, 1993; January 1, 1995; January 1, 2001; January 1, 2003; January 1, 2008; and January 1, 2011. ( See id.)

2. Plaintiff's Employment and Termination

Plaintiff began working for First National Supermarkets (" First National" ) on May 1, 1989. ( See Pl.'s Statement of Material Facts Pursuant to Local Rule 56.1 (" Pl.'s 56.1 Statement" ); Defs.' 56.1 Statement ¶ 3.)[5] As of that date, Plaintiff was

Page 368

approximately 52 years old. ( See Defs.' 56.1 Statement ¶ 3 (" The year of [Plaintiff's] birth is 1937." ).) Plaintiff worked for First National until January 1997, at which point First National terminated Plaintiff's employment for cause. ( See id.; Pl.'s 56.1 Statement ¶ 3; Pl.'s Aff. in Opp. to Defs.' Mot. for Summ. J. (" Pl.'s Aff." ) ¶ 5.)[6] Plaintiff claims that the date on which she was terminated was " 20 days before [her] 60th birthday." (Pl.'s 56.1 Statement ¶ 3.) The total amount of time that Plaintiff worked for First National before being terminated was thus approximately seven years and nine months. ( See Defs.' 56.1 Statement ¶ 3.) After First National terminated her, Plaintiff worked for an entity that Defendants describe as " Temp Force" in 1997; Waldbaum's in 1998; and The Great Atlantic & Pacific Tea Company (" A& P" ) in 1999. (Defs.' 56.1 Statement ¶ 4; Pl.'s Aff. ¶ ¶ 11-13.) A& P acquired Waldbaum's in or about 1986. (Defs.' 56.1 Statement ¶ 3.) Plaintiff characterizes Waldbaum's as a " subsidiary" of A& P. (Pl.'s Aff. ¶ 11.)

During Plaintiff's employment with First National, it " was owned by Stop [& ] Shop, an employer that has contributed and continues to contribute to the Fund on behalf of certain classifications of employers pursuant to a series of collective bargaining agreements with [Local 1500]." (Def's 56.1 Statement ¶ 3.) However, according to Defendants, Temp Force was not a contributing employer to the Fund. ( Id. ¶ 4.) Defendants further state that A& P " never contributed to the Fund on behalf of employees of Waldbaum[']s [either], but instead contribute[d] to the [United Food and Commercial Workers International Union (" UFCW" )] Local 338 [(" Local 338" )] Pension Fund," which is a " separate legal entit[y]" from the Local 1500 Fund, with which the Local 1500 Fund did " not have a reciprocity agreement." ( Id.) Additionally, Defendants state that " A& P also [did] not contribute

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to the Fund on behalf of employees who work[ed] in the stores it operate[d] under its own name." ( Id.) Nowhere in Plaintiff's submissions does she provide any evidence that Temp Force, A& P, or Waldbaum's contributed to the Fund.[7]

3. The Plan Terms in Effect at the Time of Plaintiff's Termination

The Parties appear to agree that the Plan terms that were in effect when Plaintiff was terminated in January 1997 are set forth in the January 1, 1993 Restated Plan (" the 1993 Plan" ).[8] The 1993 Plan states that it " applies to participants who retire, die, accrue benefits or separate from service after 1992," and that " [t]he rights and benefits of every other Employee shall be governed by the provisions of the Plan in effect at the Employee's retirement, death or separation from service." (Both's Aff., Ex. D ¶ 2 (emphasis added).)[9] Therefore, because the 1993 Plan was in effect at the

Page 370

time of Plaintiff's separation from service in January 1997, and because the 1993 Plan states that the benefits of employees who separate from service after 1992 are to be determined by reference to the 1993 Plan, whether Plaintiff is entitled to the benefits that she seeks is determined by reference to the terms of the 1993 Plan itself, as well as the SPD that the Fund issued to explain those terms on January 1, 1995 (" the 1995 SPD" ). ( See Defs.' 56.1 Statement ¶ 5.)

The 1993 Plan explains the conditions that a Plan participant is required to meet " in order to vest in his or her pension benefit" --in other words, " the conditions under which the participant's benefit will become non-forfeitable," ( id.):

A participant shall be considered vested at the earliest date after 1975 on which the participant:
A. has satisfied the age and service requirements for an Early or Normal pension hereunder; or
B. attains Normal Pension Age; or
C. has at least ten years of Vesting Service (five years of Vesting Service if not represented by a collective bargaining representative and the date of determination is after 1988); or
D. has at least ten years of Pension Service including at least two years of Future Pension Service.

(Both's Aff., Ex. D., at 400, § 4.02.) The 1995 SPD explains this provision as follows:

After 1975, you will be 100% vested in your accrued pension benefit if you satisfy any one of the following three alternate requirements:
o you satisfy the age and service requirements for normal or early pension; or
o you have at least ten years of Pension Service; or
o you have at least ten years of Vesting Service.
Plan participants who are not covered by a bargaining agreement may satisfy the vesting requirement with five years of Vesting Service.

(Both's Aff., Ex. E, at 12, ¶ 28.)

The 1993 Plan also explains how a participant can acquire Pension or Vesting service, ten years of which vests a participant in her benefits. According to the Plan, " 'Pension Service' means 'Past Pension Service' and 'Future Pension Service.'" (Both's Aff., Ex. D, at 103, § 1.13.) The Plan defines " Future Pension Service" as " employment by an Employee with an Employer in a position for which the Employer is required to contribute to the Fund in accordance with a collective bargaining agreement with the Union or an agreement between such Employer and the Trustees." ( Id. at 103, § 1.13B.) The Plan's definition of " Past Pension Service" is irrelevant to Defendants' Motion.[10] As

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for " Vesting Service," the Plan provides that it includes both " Pension Service," described above, as well as " Related Employment for employment after 1975 . . . ." ( Id. at 105, § 1.21.) The Plan defines " Related Employment" as " employment, after 1975, with a contributing Employer for which employment such Employer is not required by agreement with the Union or with the Trustees to contribute to the Fund, provided such employment is not separated from Covered Employment with the same Employer, by a quit, discharge, or retirement." ( Id. at 104, § 1.17.)

As to the age and service requirements for an Early Pension, the Plan states that the Early Pension Date for a participant shall be the first day of the month coinciding with or next following the latest of the participant's 55th birthday; the participant's completion of at least 25 years of Pension Service (including at least two years of Future Pension Service); the date of the participant's proper application for pension to the Trustees; and the participant's cessation of work at employment that would earn Pension or Vesting Service under the Plan. ( Id. at 500, § 5.02.) In question-and-answer format, the 1995 SPD explains this provision:

Must I wait until age 65 to start my pension?

No. If you have the proper service requirement for an early pension, you may start your pension at any time after age 55. The effective date of your early pension is called your Early Pension Date.

How do I satisfy the service requirements for an early pension?

To be eligible to receive an early pension, you must have at least 25 years of pension service.

(Both's Aff., Ex. E., at 18, ¶ ¶ 39-40 (emphasis added).)

The 1995 SPD thus clarifies that a participant must satisfy all four of the criteria that the Plan enumerates in order to establish entitlement to an Early Pension. As to the age and service requirements for a Normal Pension, the Plan provides that " [a]fter 1992, the Normal Pension Age for a participant is the later of the participant's 65th birthday and the day that is the 5th anniversary of the participant's Commencement of Participation." (Both's Aff., Ex. D, at 103, § 1.12.) The 1995 SPD explains this provision as well, again in question-and-answer format:

When may I start receiving my normal pension?
Once you are at least age 65 and withdraw from work in the retail food industry in the plan area, you may apply for a normal pension benefit provided that you have satisfied the service requirement for a normal pension. The effective date of your normal pension is called your Normal Pension Date.

How do I satisfy the service requirement for a normal pension?

You must be a plan participant for at least five consecutive years up until your 65th (or later) birthday to satisfy the service requirement after 1992 . . . .

If I have not satisfied the service requirement at age 65, can I still qualify for a normal pension at a later age?

Yes. When you satisfy the service requirement after age 65, you are then

Page 372

eligible to retire and receive a normal pension.

(Both's Aff., Ex. E, at 16, ¶ ¶ 35-37.)

Lastly, the Plan sets out the circumstances under which a participant may forfeit the Accrued Benefit and Vesting Service that she has accumulated if she leaves covered employment before vesting:

If a participant incurs a Break Year, then the participant shall have incurred a Break in Service. All of the participant's Accrued Benefit and Vesting Service earned before the end of such Plan Year shall be forfeited unless the participant is vested. If such forfeited Accrued Benefit is reinstated in accordance with [other] provisions of [the Plan], such Accrued Benefit shall then be classed as a " Frozen Accrued Benefit."
An Accrued Benefit also becomes classed as a Frozen Accrued Benefit . . . if a participant does not work enough during a Plan Year that the participant's Employers are required to ...

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