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Page v. Bancroft Neurohealth

August 29, 2008

TERRY PAGE, PLAINTIFF,
v.
BANCROFT NEUROHEALTH, INC., DEFENDANT.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION AND ORDER

This is an action brought under the Employee Retirement Income Security Act of 1974 ("ERISA"),*fn1 for payment allegedly owed by former employer Defendant to former employee Plaintiff under a severance policy and a separate deferred compensation plan. Presently before the Court are the parties' cross-motions for summary judgment, as well as their respective responses and replies. For the reasons that follow, the Court will grant Defendant's Motion for Partial Summary Judgment and Deny Plaintiff's Cross-Motion for Summary Judgment.

I. FACTUAL BACKGROUND

Defendant, Bancroft Neurohealth, Inc. ("Bancroft" or "Defendant") is a non-profit organization that runs a school as well as residential programs for the developmentally disabled.*fn2 Plaintiff, Dr. Terry Page, Ph.D. ("Page" or "Plaintiff"), is a board certified behavioral analyst who was hired by Bancroft on September 20, 1991 as Chief of Behavioral Services.*fn3 Plaintiff was promoted to the following positions in the following years: Vice President of Rehabilitation and Brain Injury Services in 1994; Vice President of Program Operations in 1996; and Executive Vice President of Clinical Affairs in 2000, the position he held at the time of his termination in 2005.*fn4 Plaintiff was terminated on September 7, 2005.*fn5 In its internal records, Bancroft cites the reason for Plaintiff's termination as "Unsatisfactory Job Performance."*fn6 Plaintiff alleges, however, that he was terminated as a result of a reduction-in-force ("RIF") or layoff, not for poor job performance.

In January 1995, Bancroft implemented a Key Executive Severance Pay Policy ("1995 Severance Policy") as well as an Incentive Compensation Plan for Key Executives ("Deferred Compensation Plan").*fn7 The Key Executive Compensation/Benefit Plan Summary ("Plan Summary") explains that the 1995 Severance Policy and the Deferred Compensation plan were offered for the purpose of "retaining" and "motivating" key executives.*fn8

Plaintiff argues that the Court should enforce the 1995 Severance Policy and Defendant argues that we should enforce the July 2005 Severance Policy, to determine Plaintiff's eligibility for severance benefits.

A. The 1995 Severance Policy

Bancroft alleges that the 1995 Severance Policy did not guarantee two years' salary to a senior executive with ten years of service terminated due to a RIF or layoff as Plaintiff proffers, rather, it provided severance, in an amount not to exceed the maximum benefit of two years' salary in the event an eligible executive was "released."*fn9 Bancroft further asserts that the 1995 Severance Policy set a maximum severance payment keyed to an employee's years of service, not a definite or guaranteed amount as alleged by Plaintiff. Plaintiff completed his tenth year of employment with Bancroft on September 20, 2001.*fn10

At the time of his termination, Plaintiff's base annual salary was $180,000.*fn11 If benefits were paid to Plaintiff under the 1995 Severance Policy, Plaintiff alleges he would be entitled to receive $360,000 in the form of either regular paychecks or in a lump sum, beginning in September of 2005.*fn12

Bancroft asserts that the 1995 Severance Policy reserved ultimate authority whether to grant any severance in its Chief Executive Officer or his designee, with the approval of the Personnel and Management Committee ("P&M Committee") of the Board of Trustees ("Board"). Plaintiff alleges that he understood his right to receive severance under the 1995 Severance Plan to be vested and guaranteed once he completed ten years of employment at Bancroft.*fn13

B. The June 2005 and July 2005 Severance Plans

Taking the position that Plaintiff is bound by the July 2005 Severance Policy instead of the 1995 Policy, Bancroft alleges that Plaintiff was fired for performance related reasons, so he is not entitled to severance pay under the existing policies.*fn14 Bancroft alleges that it encountered severe financial problems in 2004, and as a result, its Board amended the 1995 Severance Policy to halve the maximum benefits from two years' salary to one year's salary.*fn15 Plaintiff alleges that these 2004 changes were not officially adopted and disseminated until June 2005 ("June 2005 Severance Policy").*fn16 The June 2005 Severance Policy eliminated the key executives' car allowances.*fn17 This amendment was documented in Bancroft's Board minutes, which was noticed to Plaintiff upon his receipt of a copy of the minutes from the relevant board meeting, even though he was not in attendance.*fn18 Plaintiff alleges that the only material change to the severance policy referenced in the Board Minutes coinciding with the 2004 amendments, which were disseminated in policy form in June 2005, was the reduction of the severance benefit from two years' salary to one year's salary.*fn19 Plaintiff maintains that the June 2005 Severance Policy incorporated a number of additional modifications to the 1995 Severance Policy that were not mentioned as having been approved by the Board in the minutes he received from the relevant meeting, including redefining the type of termination that would render an employee ineligible for benefits, and adding the requirement that beneficiaries sign a written release of claims.*fn20

Bancroft alleges that its financial difficulties continued into 2005, and the June 2005 Policy was amended again in July 2005, and approved by the Board as the "[July] 2005 Severance Policy" at that time.*fn21 Plaintiff again received copies of the Board minutes from this July 2005 meeting where these amendments were adopted to create the July 2005 Severance Policy.*fn22 The July 2005 Severance Policy differs from the 1995 Severance Policy in the following ways: (1) it reduces the severance benefit to an employee with greater than ten years of service from 24 months' to 9 months' salary;*fn23 (2) it allows severance benefits only in the event that an eligible executive was terminated as a result of a RIF or layoff;*fn24 and (3) it requires the signing of a separation agreement and release as a prerequisite for severance benefits.*fn25 Bancroft alleges that the 2005 Severance Policy continued to reserve authority to grant severance to the CEO or his designee with the approval of the P&M Committee.*fn26

Plaintiff alleges that following the July 2005 amendments, the administrative assistant to Bancroft's Chief Executive Officer erroneously disseminated the June 2005 Severance Policy to employees instead of the July 2005 Severance Policy.*fn27 Plaintiff further alleges that there is no record of Plaintiff ever having signed a written acknowledgment of receipt of the July 2005 Severance Policy, and that he signed for receipt of the June 2005 policy instead.*fn28 Plaintiff alleges that the one change effected by the July 2005 Severance Policy was the reduction of severance benefits for employees with ten years or more of service from one year's salary to 9 months' salary. Plaintiff alleges that as a key executive of Bancroft, he was made aware of the modifications to the original 1995 Severance Policy.*fn29 Plaintiff alleges that these changes were seen as unilateral and unfair by himself and other members of the executive staff.*fn30 Lastly, Plaintiff alleges that Bancroft never provided him with a separation agreement upon his termination, which he was required to submit as a prerequisite for severance eligibility under the July 2005 Severance Policy.

C. Deferred Compensation Plan

Plaintiff alleges that at various times throughout his employment with Bancroft, he elected to defer compensation pursuant to the 1995 Deferred Compensation Plan.*fn31 Bancroft alleges that Plaintiff was eligible to, and did, participate in its Deferred Compensation Plan, and that he agreed to be bound by the terms thereof by signing a written acknowledgment at the end of the Plan document.*fn32 Bancroft alleges that each year a committee determined whether a bonus should be set aside as deferred compensation based on a Participant's performance during the preceding year.*fn33 Bancroft further asserts that distribution of deferred compensation was subject to a five-year "Deferral Cycle."*fn34 When a participant in the Deferred Compensation Plan left Bancroft, monies contributed to a deferral cycle that had not been completed were not distributed to the participant, but were forfeited instead.*fn35 The Deferred Compensation Plan defines a "Separation of Service" as "a severance of the employer-employee relationship, other than a severance on account of Total and Permanent Disability or death."*fn36 Bancroft alleges that Plaintiff's termination on September 7, 2005 constituted a separation from service, as defined by the Deferred Compensation Plan.*fn37

II. PROCEDURAL HISTORY

Plaintiff initiated this action in the Court of Common Pleas of Philadelphia County on or about September 14, 2006, asserting a breach of contract claim arising from the 1995 Severance Agreement and another breach of contract claim arising from the Deferred Compensation Plan.*fn38 Defendant removed the matter to this Court on or about October 18, 2006 on the basis of diversity jurisdiction as Plaintiff is a citizen of the Commonwealth of Pennsylvania, Defendant is a corporation organized under the laws of New Jersey, and the amount in controversy exceeds $75,000.*fn39 Plaintiff filed an Amended Complaint on April 23, 2007, including an additional breach of contract claim, seeking enforcement of the June 2005 draft of the severance policy, in the alternative to Count I, which argues for enforcement of the 1995 Severance Policy.*fn40 In July of 2007, Plaintiff filed his Second Amended Complaint, which includes: an ERISA claim for denial of benefits owed under the 1995 Severance Policy (Count I); in the alternative, an ERISA claim for denial of benefits owed under the June 2005 Severance Policy (Count II); and a third ERISA denial of benefits claim arising from the Deferred Compensation Plan (Count III).*fn41 The parties filed cross-motions for Summary Judgment on October 1, 2007. Plaintiff moves for summary judgment on all counts of the Second Amended Complaint, while Defendant moves for partial summary judgment on Counts I and II. The parties timely filed their respective responses and replies, so the issues before the Court on summary judgment are fully briefed and ready for disposition.

III. LEGAL STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."*fn42 A genuine issue of material fact exists when "a reasonable jury could return a verdict for the nonmoving party."*fn43 "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."*fn44 All inferences must be drawn, and all doubts resolved, in favor of the nonmoving party.*fn45

If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to do more than simply show that there is some metaphysical doubt as to the material facts.*fn46 The nonmoving party cannot "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claim.*fn47 A mere scintilla of evidence in support of the nonmoving party's position will not suffice; rather, the non-moving party must present evidence on which a jury could reasonably find for the non-movant in order to survive summary judgment.*fn48 Accordingly, "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."*fn49

IV. DISCUSSION

Plaintiff argues that he is entitled to Summary Judgment on the following grounds: 1) the 1995 Severance Policy is the operative document to determine Plaintiff's severance benefits, and that Policy is a "top hat" plan governed by federal common law contract principles, under which Bancroft's 1995 Severance Policy constitutes an offer for a unilateral contract that was accepted when Plaintiff continued employment in consideration for the severance pay promised by Bancroft for 10 years of service; 2) in the alternative, if the Court does not enforce the 1995 Severance Policy, it should enforce the June 2005 Severance Policy, under which Plaintiff is owed one year's salary; and 3) Bancroft's in-house counsel has conceded that Plaintiff is entitled to deferred compensation in the amount of $9,499.

Bancroft argues that it is entitled to summary judgment on Counts I and II of the Second Amended Complaint on the following grounds: 1) the July 2005 Severance Policy is the operative document governing Plaintiff's eligibility for benefits, so Plaintiff cannot enforce the 1995 Policy, and even if he could, Plaintiff is not entitled to benefits under the 1995 Plan because it is an employee welfare benefit plan, not a top hat plan, under which Plaintiff's rights to benefits were not vested; and 2) the June 2005 Draft of the Severance Policy that Plaintiff seeks to enforce in the alternative to the 1995 Severance Policy was never adopted by Bancroft, and therefore, the July 2005 Severance Policy controls and Plaintiff is not entitled to any benefits because he was terminated for poor job performance. We note that Bancroft's Partial Motion only moves for summary judgment on Counts I and II, however, it does oppose Plaintiff's motion for summary judgment on Count III in its response to Plaintiff's Motion.

As a preliminary matter, all three of Plaintiff's causes of action in the Second Amended Complaint are asserted under ERISA. ERISA is a comprehensive federal statute enacted "in the interests of employees and their beneficiaries" to provide minimum standards to employee benefit plans, "assuring the equitable character of such plans and their financial soundness."*fn50 ERISA's framework ensures that employee benefit plans are governed by written documents and summary plan descriptions, as these are the statutorily established means of informing participants and beneficiaries of the terms of their plan and its benefits.*fn51 Even though Plaintiff does not specifically identify this provision of ERISA in the Second Amended Complaint, Plaintiff's claims fall squarely within § 1132(a)(1)(B), which provides, "[a] civil action may be brought by a participant or beneficiary to recover benefits due to him under the terms of his plan, [or] to enforce his rights under the terms of the plan . . . ." Therefore, ERISA governs this Court's analysis of Plaintiff's claims.

After establishing that ERISA applies to this action, we turn to our standard of review under ERISA. In drafting ERISA, Congress did not set out a standard of review applicable to actions brought by a plan participant alleging a denial of benefits, as is the case here.*fn52 To fill this gap, federal courts adopted the "arbitrary and capricious" standard developed under a provision of the Labor Management Relations Act ("LMRA").*fn53 In determining the appropriate ERISA standard of review, the Supreme Court held in Firestone Tire & Rubber Co. v. Bruch that universal application of the arbitrary and capricious standard is inappropriate.*fn54 Instead, the Firestone Court applied principles of trust law, and laid out the rule that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan," in which case the arbitrary and capricious standard applies.*fn55

Every version of Bancroft's severance plan that the parties seek to enforce in their cross-motions for summary judgment contains a clause stating "[a]uthorization to grant severance pay in accordance with this policy will be determined by the Chief Executive Officer, or his designee with the agreement of Personnel and Management Committee."*fn56 Likewise, Bancroft's Deferred Compensation Plan explains, "[a]ny decision or action taken by the Committee [comprised of three Bancroft officers], arising out of or in connection with the construction, administration or interpretation of the Plan and its rules and regulations shall be conclusive and binding upon all Participants . . . ."*fn57 The Third Circuit has held similar language sufficient to grant the plan administrator authority to determine eligibility for benefits.*fn58 Therefore, we find that Bancroft's severance policy and Deferred Compensation Plan both expressly give the administrator discretionary authority to ...


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