The opinion of the court was delivered by: Joyner, J.
Before the court is Defendants' Motion for Summary Judgment (Doc. Nos. 29, 30). For the reasons set forth in this Memorandum, the Motion is granted.
Plaintiff has alleged two counts in the Amended Complaint:
(1) violation of Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §1001 et seq. against Bank of America Corporation ("BOA"); (2) violations of ERISA, 29 U.S.C. §1001 et seq. against the Bank of America Corporate Severance Program ("the Plan").
Plaintiff, Mr. Fitzgerald, was an employee of U.S. Trust beginning September 2005 and was placed in the Philadelphia office as a Business Development Officer. In the summer of 2006, U.S. Trust directed Fitzgerald to start work in the Investment Specialist department. In January 2007, U.S. Trust told Fitzgerald to return to Philadelphia as a Senior Sales Representative and soon after his return, he was informed that he would have a future career with BOA. Defendants', however, claim that Fitzgerald was never offered a position as an Investment Specialist at U.S. Trust and cite several emails which reflect this fact.
Fitzgerald inquired about his position in BOA and his severance options, but was told that he could not receive severance unless and until he was terminated by BOA. Defendants' claim that as a result of the merger between BOA and U.S. Trust, Fitzgerald's title changed from Senior Sales Representative to Private Client Consultant and that Plaintiff did not suffer a job elimination in connection with the merger. Plaintiff, however, alleges that his position as an Investment Specialist was terminated when the merger was completed on July 1, 2007.
In anticipation of a future merger between BOA and U.S. Trust, in April 2007, while still working for U.S. Trust, Fitzgerald received a "Transition Assistance Policy," including a "Guide to the Corporate Severance Program." On July 1, 2007, the merger was carried out and Fitzgerald became a BOA employee. Later, on March 24, 2008, Fitzgerald was told he was to be terminated as of March 28 for what BOA claims were performance based reasons after he received several warnings regarding his performance deficiencies.
Plaintiff's counsel then sent a letter to a Human Resources Executive at BOA on March 25, 2008, asserting that Fitzgerald was entitled to severance and stating that if an amicable solution was not reached, an action would be filed. Ann Marie Wiertel, a member of the legal department at BOA, conducted an investigation within BOA into Plaintiff's situation and replied to Plaintiff's counsel on May 8, 2008, asserting that Plaintiff was not entitled to severance. Plaintiff's counsel then replied, asking that Ms. Wiertel reconsider the denial, and she responded on June 5, 2008, declining to do so based on the same information that was presented in the previous denial. Finally, Plaintiff's counsel filed a letter captioned as an "Appeal from Denial of Severance Benefits" directed to the Benefits Committee and sent to BOA's counsel on August 25, 2008. The Benefits Appeal Committee denied Plaintiff's appeal in a letter dated October 31, 2008.
Defendants claim that Plaintiff was fired for performance reasons. Defendants cite several documents showing that Plaintiff received a negative or "does not meet expectations" rating in 2006 and 2007. Additionally, the Administrative Record provided by Defendants show records of several verbal warnings which were issued to Fitzgerald during 2007 and early 2008 which culminated in his termination.
This action was originally filed by the Plaintiff in state court on June 30, 2008, but was removed to this Court based on the ERISA claims on August 8, 2008. The state claims were dismissed as preempted by ERISA and Plaintiff was given leave to file an Amended Complaint, which he did on September 10, 2008. Defendants then filed a Motion to Dismiss both Counts I and II of Plaintiff's Amended Complaint which was denied.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-moving party bears the burden of persuasion at trial, "the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden." Kaucher v. County of Bucks, 456 F.3d 418, 423 (3d Cir. 2006) (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir. 1998)).
As this Court decided in its May 28, 2009, Order, we will use a deferential abuse of discretion standard of review in conducting our review. Courts reviewing the decisions of ERISA plan administrators or fiduciaries in civil enforcement actions brought pursuant to 29 U.S.C. § 1132(a)(1)(B) should apply a deferential abuse of discretion standard of review across the board and consider any conflict of interest as one of several factors in considering whether the administrator or the fiduciary abused its discretion. Estate of Schwing v. Lilly Health Plan, 562 F.3d 522, 525 (3d Cir. 2009) (citations omitted). We also recognize that, as in Schwing, "[o]ur prior caselaw referenced an 'arbitrary and capricious' standard of review, while Glenn describes the standard as 'abuse of discretion.' We... ...