nothing to interpret here: Plaintiff has not produced a single criterion for participation for the court to interpret in its favor. I cannot interpret the only criterion Plaintiff has offered during trial, that all employees were eligible, since that criterion was clearly not intended by Dorrance. In the absence of an ambiguous contract term to interpret, this court cannot supply meaning.
McVeigh may argue that although he may not be able to supply the criteria for participation Dorrance intended for the pension plan, he has proven that whatever that criteria were, he qualified under them, since he was told by Mr. Raef that he would receive a pension if he accepted employment with Dorrance. See N.T. April 1 at 46. This testimony is not credible. Mr. Raef testified that he did not make such a statement. N.T. April 2 at 12. Sharon McVeigh, McVeigh's ex-wife and who attended the meeting where the alleged statement was made, testified that she could not recall such a statement having been made. N.T. April 1 at 168. In fact, Mr. Raef testified that he recalled Dorrance specifically telling McVeigh when he was hired that "I [Dorrance] have no pension plan." N.T. April 2 at 15.
Plaintiff has not proved, by a preponderance of the evidence, that he would have qualified to participate in the pension plan that he alleges had been established by Dorrance's actions. There is no need, therefore, for this court to pursue the question of the existence of the alleged pension plan.
IV. McVeigh's Severance Pay
Defendants withdrew their offer to McVeigh of severance pay after he refused to sign a waiver promising not to pursue the alleged vested pension benefits under ERISA. See N.T. April 1 at 78 (McVeigh had to sign an "agreement" in order to receive severance pay); N.T. April 2 at 84 (Mr. Pindle testifying that the "agreement" McVeigh was asked to sign was a release of claims against the estate). The Defendants had no right to offer McVeigh severance pay with such an onerous condition attached; the choice offered McVeigh was a violation of ERISA. The court's reasons for finding this are twofold. First, it is clear that the Executors chose to offer severance pay on behalf of Dorrance. Their actions could be understood as their best attempt to enforce Dorrance's wishes, in which case it would not be difficult for this court to find that the Executors believed that Dorrance had a severance pay plan, and they were administering it. But see N.T. April 2 at 114 (Mr. Pindle testifying that he believed that the Executors did not believe that they had a legal obligation to offer severance pay). If in fact Dorrance had a severance pay plan, it would be an "employee benefit plan" and would be governed by ERISA in much the same way that a pension plan would have been. See Scott v. Gulf Oil Corp., 754 F.2d 1499, 1502 (9th Cir. 1985) (severance pay may be an employee welfare benefit under 29 U.S.C. § 1002(3)). If this is the case, then Defendants are prohibited from discriminating against McVeigh--as a participant in an employee welfare benefit plan--because of his decision to exercise his rights under ERISA. See 29 U.S.C. § 1140; see also Panter v. American Synthetic Rubber Corp., 686 F. Supp. 1210 (W.D. Ky. 1984) (applying § 1140 to severance pay plan).
Second, even if the offer to McVeigh was not part of a severance pay plan established by Dorrance, it seems to this court that it is still a violation of § 1140 to coerce an employee to waive his claims under ERISA through the threat of denying him some employment benefit that he would have normally received, even if that employment benefit is not itself protected under ERISA and even if the ERISA claim urged by the employee is ultimately found by a federal court to be without merit. If this were not the case, the federal courts would have fewer opportunities to judge the merits of disputed ERISA claims, since employers would on their own initiative reduce the number of claims filed by workers by threatening aggrieved workers with the denial of employment benefits not protected by ERISA.
McVeigh's claim for pension rights that have vested in him through his employment with Dorrance is without merit, since McVeigh has not proven, by a preponderance of the evidence, that he participated in the pension plan he alleges Dorrance had established. McVeigh should have, however, been able to enjoy the severance pay plan established by the Executors in Dorrance's name without the undue burden of abandoning right to sue under ERISA. The appropriate order follows.
Edward N. Cahn
May 19, 1992
AND NOW, this 19th day of May, 1992 for the reasons set forth in the foregoing Opinion, IT IS ORDERED as follows:
1. Defendants are hereby directed to offer to plaintiff William McVeigh a severance payment of $ 51,000.
2. On all other claims by plaintiff brought under 18 U.S.C. 1001 et. seq. ("ERISA"), judgment is hereby ENTERED in favor of defendants Philadelphia National Bank et. al.
BY THE COURT:
Edward N. Cahn, J.