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BROWN v. CONTINENTAL BAKING CO.

July 6, 1995

BROWN, plaintiff
v.
CONTINENTAL BAKING CO., defendant



The opinion of the court was delivered by: ANITA B. BRODY

 Defendant moves for summary judgment pursuant to Fed. R. Civ. P. 56. After considering the facts in the light most favorable to the plaintiff I will grant the motion in part and deny it in part for the following reasons. Plaintiff also moves to strike defendant's motion for summary judgment, I will deny this motion.

 I. ERISA

 Plaintiff seeks to recover benefits under the terms of his Plan for health, dental, disability and life insurance coverage for him and his children under § 1132(a)(1)(B) of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq.1 Defendant moves for summary judgment because Continental Baking Company (CBC) is an improper defendant, and plaintiff has failed to exhaust his administrative remedies. I will grant summary judgment on the ERISA claims for the following reasons.

 1. Plaintiff fails to articulate or offer evidence as to why he is entitled to the benefits he claims. It is evident from the agreement between the Union and defendant that there is a benefits plan for union members in existence (Pl. Exh. A-3, Agreement between Bakery Confectionery & Tobacco Workers Union Local #6 (the Union) and Continental Baking Company, Article XIV Welfare and Pensions), but plaintiff has provided no evidence regarding the Plan and the benefits he is entitled to under it. *fn2"

 2. In an action to recover benefits under § 1132(a)(1)(B) the proper defendant is either the Plan itself or a fiduciary of the Plan. See Curcio v. John Hancock Mutual Life Ins. Co., 33 F.3d 226, 232-234 (3d Cir. 1994). Defendant is neither the Plan (See Pl. Exh. A-3 establishing the Plan) nor a fiduciary. *fn3"

 3. Plaintiff has failed to exhaust his administrative remedies, Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990); Wolf v. National Shopmen Pension Fund, 728 F.2d 182, 185 (3d Cir. 1984), nor has he shown that he was threatened with irreparable harm, that resorting to administrative remedies would be futile, or that he was refused meaningful access to the Plan's administrative procedures. Tomczyscyn v. Teamsters, Local 115 Health and Welfare Fund, 590 F. Supp. 211, 213 (E.D. Pa. 1984). Plaintiff contends that he did not file an appeal because to do so would have been futile, an admission that he failed to exhaust his administrative remedies. "In order to merit waiver of the exhaustion requirement a claimant must provide not merely "bare allegations of futility," but a "clear and positive showing of futility." Canale v. Yegen, 782 F. Supp. 963, 972 (D.N.J. 1992) (quoting Makar v. Health Care Corp. of Mid-Atlantic (Carefirst), 872 F.2d 80, 83 (4th Cir. 1989)). Plaintiff has made no such showing here.

 II. Americans with Disabilities Act

 Plaintiff brings his disability discrimination claim under § 12112(B)(5)(A) of the American with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.. He alleges that he was terminated for absences attributable to his seeking help in alcohol rehabilitation. Defendant moves for summary judgment on the ground that the ADA was not yet in effect on the date that plaintiff's cause of action accrued. I agree with defendant's position and will grant summary judgment on the ADA claim.

 The ADA became effective on July 26, 1992. Plaintiff does not challenge the proposition that the ADA should not be applied retroactively, but argues that his termination did not become final until after he followed the grievance procedure. Termination decisions, however, are not tentative or non-final merely because a grievance procedure exists after discharge. Delaware State College v. Ricks, 449 U.S. 250, 261, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980); International Union of Electrical, Radio and Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229, 234-235, 50 L. Ed. 2d 427, 97 S. Ct. 441 (1976). *fn4" The parties agree to the following:

 
- On July 13, 1992, plaintiff met with Nancy Hudson, the personnel director, Miro Culic, the head of the Engineering department, and Richard Bradbury, the Shop Steward. During the meeting Nancy Hudson terminated plaintiff's employment for violation of its attendance program (Pl. Exh. B-11, David Brown's Grievance Form, Def. Exh. 1, Nancy Hudson Affidavit).
 
- On July 14, 1992, Nancy Hudson sent plaintiff a notice that his employment was terminated as of July 13, 1992 (Pl. Exh. B-14).
 
- On July 15, 1992, plaintiff filed a grievance with the Union regarding his ...

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