Rather, he seeks only to obtain the amount of the monthly pension benefit he alleges was promised to him in consideration for his decision to accede to the company's wish that he retire early.
While it is true that plaintiff was first informed of the company's intention not to offer him another position in August, 1984, that act, even if discriminatory, was not the immediate cause of his harm. He alleges that he ultimately decided to retire because of the monthly pension benefit he expected to receive. He could not possibly have known in August, 1984, that the company would attempt to avoid carrying out its announced intention to lay him off and instead induce him to retire by deliberate miscalculation of his expected monthly pension. Thus, he could not have known of the allegedly unlawful and discriminatory acts directed toward him until he received his first pension check, at the earliest.
Characterizing the claim as one for inducing voluntary termination of employment by deceptive practices, it is entirely consistent with Ricks to conclude that the claim did not accrue before November 1, 1984. Consequently, this action was timely filed under the three year statute of limitations.
Defendant contends that plaintiff's pendent claims must be dismissed because of the broad preemption provision in ERISA. Where a state law claim might create the need to adjust an employer's pension plan administrative scheme, the claim would be preempted. See, Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S. Ct. 2211, 96 L. Ed. 2d 1 (1987). That situation is not presented by these state law claims, however. Plaintiff is not seeking relief from the pension plan, but from the company itself. Indeed, as the Court construes the complaint, the exhibits attached to it and the exhibits attached to plaintiff's memorandum in opposition to the motion to dismiss, there are no allegations made against the pension plan or any employees connected to it. Rather, plaintiff complains that employees in the personnel department misled him as to the amount of monthly pension benefits he was due under the company's pension plan. Plaintiff does not contend that the plan administrator's calculations are erroneous or misled him in any way. At most, plaintiff is alleging that the company used the existence of the pension plan and the fact that he was unquestionably entitled to some benefits under it to further its allegedly discriminatory purposes.
If this Court were to apply the preemption provision to the pendent claims here, we would create the potential for great and unredressable harm. It does not appear from the pleadings and supporting documents that there has been any ERISA violation. Consequently, there is no remedy for any harm under the ERISA administrative scheme. If we now allow a company to avoid the consequences of its alleged misrepresentations simply because they were made in connection with estimating pension benefits, we would leave anyone so deceived without a remedy.
The situation presented here does not differ in substance from an outright promise to pay an older employee a sum of money to retire early and then fail to do so. We conclude that plaintiff's pendent claims are not preempted by ERISA.
Having concluded that the plaintiff's federal claim is not barred by the statute of limitations and that his state claims are not preempted, the motion to dismiss will be denied in its entirety.
And now, this 8th day of March, 1988, upon consideration of defendant's motion to dismiss the complaint (Doc. # 3) and plaintiff's response thereto, IT IS ORDERED that the motion is DENIED.
IT IS FURTHER ORDERED that the defendant shall file a response to the complaint within twenty (20) days of the entry of this order.