partnership, joint venture, corporation, mutual company, joint-stock company, trust, estate, unincorporated organization, association, or employee organization." Id. at § 1002(9). The Plan argues that § 1140 applies to any "person" who commits the proscribed acts, and that § 1002(9) does not list plans among the numerous entities that qualify as "persons." Therefore, the Plan contends, the portion of the Complaint that alleges that the Plan violated § 1140 should be dismissed.
The plaintiffs argue that, although a literal interpretation of the ERISA definition of "person" does not include a plan, courts have construed the language broadly. The plaintiffs urge us to interpret § 1140 to allow for actions against the plan.
In support of their contention, the plaintiffs cite five cases. None of these cases, however, directly addresses the issue of § 1140 actions against plans, or even arguably supports the plaintiffs' contentions. In Gavalik v. Continental Can Co., 812 F.2d 834 (3d Cir. 1987), neither the plan nor the plan administrators were named defendants. In Lucash v. Strick Corp., 602 F. Supp. 430 (E.D. Pa. 1984), the plan was a named defendant, but the court only discussed § 1140 in the context of federal preemption of state law. In Greenblatt v. Budd Co., 666 F. Supp. 735 (E.D. Pa. 1987), and Ferguson v. Freedom Forge Corp., 604 F. Supp. 1157 (W.D. Pa. 1985), the courts denied summary judgment against the plan administrators, holding that the plaintiffs might prove violations of § 1140 by those individuals. Finally, Eckersley v. WGAL TV Inc., 831 F.2d 1204 (3d Cir. 1987), does not seem to involve any claim under § 1140 whatsoever.
This court conducted a comprehensive computer search of all cases involving § 1140 with plans or plan administrators as named defendants. In none of those cases did a plaintiff have a surviving count under § 1140 against a plan. Although we do not draw the negative inference from the lack of precedent that such an action is impossible, we do consider the lack of any reported case involving a § 1140 action against a plan to be significant.
In the absence of a case law refinement of the parameters of § 1140, we turn to legislative history to determine whether Congress intended § 1140 to create a civil action against a plan. The legislative history of § 1140 reveals that Congress intended the section to prevent unscrupulous employers from discharging employees to prevent benefits from vesting. 119 Cong.Rec. 30374, reprinted in Legislative History at 1774-75. Congress wanted to protect the employment relationship that gives rise to an individual's benefits. West v. Butler, 621 F.2d 240 (6th Cir. 1980).
After reviewing the statutory text, the legislative history, and the case law, we conclude that a plan is not a proper defendant under 29 U.S.C. § 1140. The language of the statute lists a large variety of defendants and does not list plans. The legislative history indicates that § 1140 was directed at employment decisions, which would not normally be under the control of the plan. We find no indication that the exclusion of plans from the definition of "person" in § 1002(9) was unintentional. Therefore, we will grant the Plan's Motion to Dismiss with respect to 29 U.S.C. § 1140.
The plaintiffs are not necessarily without remedy under § 1140, however. They still have an active claim against Koppers, and may have a potential action against the plan administrators, who fit the definition of "person" under § 1002(9). Although unusual, in some circumstances a plan administrator may have sufficient involvement in employment decisions to incur liability under § 1140.
In order to recover from a plan administrator under § 1140, the plaintiff must first establish his prima facie case. To establish a prima facie case under § 1140, the plaintiff must demonstrate: (1) prohibited conduct (2) taken for the purpose of interfering (3) with the attainment of any right to which the employee may become entitled. Gavalik v. Continental Can Co., 812 F.2d 834, 852 (3d Cir. 1987); Furcini v. Equibank, NA 660 F. Supp. 1436, 1439 (W.D. Pa. 1987).
Once the plaintiff has made his prima facie case, the burden of production shifts to the defendant "to introduce admissible evidence of a legitimate, nondiscriminatory reason for its challenged actions." Gavalik, 812 F.2d at 853; Furcini, 660 F. Supp. at 1439-1440. If the defendant introduces such evidence, the production burden shifts back to the plaintiff to demonstrate that the defendant's contention is either pretextual or not worthy of credence. Gavalik, 812 F.2d 834 at 853; Furcini, 660 F. Supp. at 1440.
Clearly, the circumstances in which the plaintiff will have a valid claim against the plan administrator under § 1140 are rare; most plan administrators do not have authority to discharge employees or take any of the other proscribed actions. However, if the plaintiffs feel that they have a claim against any plan administrators under § 1140, they must move this court for leave to amend their complaint to add additional defendants.
B. Other ERISA Violation
With respect to the Plan's alleged violations of ERISA provisions other than § 1140, the Plan asserts that the plaintiffs have failed to exhaust their administrative remedies. The Plan claims that this court lacks jurisdiction until the plaintiffs have exhausted those remedies. Wolf v. National Shopmen Pension Fund, 728 F.2d 182 (3d Cir. 1984); Zipf v. American Telephone and Telegraph Co., 799 F.2d 889 (3d Cir. 1986).
The plaintiffs concede that they must exhaust their administrative remedies, but contend that they have done so. They assert that the Plan's internal claims and appeals procedure has a two-step review:
(1) Should a participant's claim be denied in whole or in part, the participant is to receive a written explanation of the reason for the denial;