In re Olick

• Decision Date: 28 December 2009
• Docket Number: Bankruptcy No. 07-10880ELF.,Adversary No. 07-0052ELF.,Adversary No. 07-0060ELF.
• Citation: 422 B.R. 507
• Parties: In re Thomas W. OLICK, Debtor. Thomas W. Olick, Plaintiff, v. James Kearney, et al., Defendants.
• Court: U.S. Bankruptcy Court — Eastern District of Pennsylvania

422 B.R. 507

In re Thomas W. OLICK, Debtor.

Thomas W. Olick, Plaintiff, v. James Kearney, et al., Defendants.

Bankruptcy No. 07-10880ELF.

Adversary No. 07-0052ELF.

Adversary No. 07-0060ELF.

United States Bankruptcy Court, E.D. Pennsylvania.

December 28, 2009.

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Leslie Miller Greenspan, Thomas W. Dymek, Stradley Ronon Stevens & Young LLP, Philadelphia, PA, for James Kearney, Tom Jenkins, Knights of Columbus.

Franco A. Corrado, Morgan Lewis & Bockius LLP, Philadelphia, PA, for AETNA Life Insurance Co.

Thomas W. Olick, Easton, PA, pro se.

OPINION

ERIC L. FRANK, Bankruptcy Judge.

I. INTRODUCTION

In 1995, Plaintiff Thomas W. Olick ("Olick") signed a contract with the Knights of Columbus ("the Knights"), a fraternal and charitable institution, to become one of the Knights' field agents selling life insurance policies in Pennsylvania. After ten (10) years, the relationship soured. Olick filed four (4) separate lawsuits to remedy what he perceived to be various wrongs the Knights and its employees perpetuated against him. The above-captioned adversary proceedings, which were consolidated for purposes of pre-trial management and trial, are Olick's two (2) remaining lawsuits.

As originally filed, Olick's adversary complaints contained a total of ten (10) claims and included causes of action asserted under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 ("ERISA"), the Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. §§ 1161-1169 ("COBRA"), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA"), state employment discrimination statutes and state common law.

Notably, Olick asserted two (2) distinct type of age discrimination claims, i.e., that:

1. the Knights discriminated against him on account of his age by terminating his field agent contract; and

2. the Knights retaliated against him by taking adverse action against him after learning that he filed the first of his four (4) lawsuits, a lawsuit which raised an age discrimination claim.

The original defendants in these adversary proceedings were the Knights, Olick's direct supervisor (James Kearney ("Kearney")), a co-worker (Thomas Jenkins ("Jenkins")) and Olick's health insurance carrier (Aetna Life Insurance Co. ("Aetna")).

Prior to trial, Olick settled with Aetna. Resolution of dispositive motions resulted in the dismissal of Jenkins and most of Olick's claims against the remaining defendants, the Knights and Kearney.

Left for trial were the following claims against the Knights and Kearney:

1. a COBRA claim against the Knights 2. an equitable claim under ERISA against the Knights for failing to advise Olick of his rights to convert his group life insurance policy to an individual policy and for conduct that allegedly precluded Olick from exercising his right to convert the policy; and

3. a retaliation claim against the Knights and Kearney under the ADEA, the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. §§ 951-963 and the Connecticut Fair Employment Practices Act ("CFEPA"), Conn. Gen.Stat. Ann. §§ 46a-51-46a-104.

Trial of the consolidated adversary proceedings was held on December 19 and 22, 2008.¹ Following trial, the parties submitted post-trial memoranda, the last of which was filed on May 4, 2009.

For the reasons that follow, I find that:

1. the Knights violated COBRA by sending Olick a COBRA Notice in which they backdated the "qualifying event;"

2. Olick is entitled to statutory damages for the Knights' COBRA violation;

3. the Knights did not violate ERISA;

4. the Knights did not discriminate against Olick on account of his age by terminating Olick's field agent contract and, therefore, did not violate the ADEA in that regard;

5. the Knights retaliated against Olick in violation of the ADEA by backdating, to Olick's detriment, the effective date of his termination;

6. Olick is entitled to statutory damages for the Knights' violation of the ADEA;

7. under the ADEA, Olick has no claim against his former supervisor, Kearney, because Kearney was not Olick's "employer;"

8. assuming arguendo that the PHRA or CFEPA claims may lie against a supervisor who is not an "employer," Kearney was not responsible for the Knights' retaliatory conduct and is entitled to judgment in his favor on Olick's state law retaliation claim.

II. PROCEDURAL HISTORY

In February 2006, Olick commenced the first of four (4) lawsuits he filed against the Knights and Kearney relating to his employment with the Knights as a life insurance agent in the Court of Common Pleas for Northampton County, Pennsylvania ("the First Action"). Olick filed the First Action before the termination of his employment relationship with the Knights, In the complaint, Olick asserted, inter alia, that the defendants were discriminating against him because of his age by reducing his sales territory as an insurance field agent.

Shortly after filing the First Action, Olick received a COBRA Notice from the Knights advising him that his employment and his family's health insurance benefits had been terminated retroactive to November 1, 2005. In response, in March 2006, Olick amended his complaint in the First Action to add Aetna (his employer-sponsored health benefits provider) as a defendant. Subsequently, he amended the complaint to add charges of retaliation. Aetna removed the First Action to the U.S. District Court for the Eastern District of Pennsylvania ("the District Court"), at No. 06-cv-01531, whereupon Olick again amended the complaint, this time adding his coworker, Jenkins, as a defendant. See Olick v. Kearney, 451 F.Supp.2d 665, 670 (E.D.Pa.2006) (procedural summary).

In January 2007, Olick filed a second lawsuit against the Knights, Kearney, Jenkins and Aetna in the District Court ("the Second Action"). See Olick v. Kearney, No. 07-cv-00121 (E.D.Pa.). Because the First Action (commenced in state court and removed to the District Court) and the Second Action (collectively, "the District Court Litigation") involved common questions of law and fact, the District Court consolidated them. See Olick v. Kearney, No. 06-cv-01531 (E.D. Pa., Docket Entry No. 163); Olick v. Kearney, No. 07-cv-00121 (E.D. Pa., Docket Entry No. 8).

On February 9, 2007, Olick filed the present chapter 13 bankruptcy case in this court. On February 13, 2007, approximately one (1) year after Olick first commenced employment-related litigation against Kearney and the Knights, after several of his claims had been dismissed by the court, and after the completion of extensive discovery with respect to the surviving claims, Olick filed a motion to voluntarily dismiss the District Court Litigation under Fed.R.Civ.P. 41. On February 20, 2007, the District Court granted Olick's motion without prejudice. See Olick v. Kearney, No. 06-00531 (E.D.Pa.) (Docket Entry No. 194). One day later, Olick, acting pro se, filed the first of his two (2) adversary proceedings in this court; he filed the second adversary proceeding on February 28, 2007. This court consolidated the adversary proceedings under Adv. No. 07-0060 on May 31, 2007. (See Adv. No. 07-0052, Docket Entry No. 60; Adv. No. 07-0060, Docket Entry No. 63).

In the two (2) adversary complaints, Olick named the same four (4) defendants that he named in the District Court Litigation and asserted several claims that were previously dismissed by the District Court. By order dated June 26, 2007, this court de-constructed the combined sixty-three (63) pages and six hundred ten (610) paragraphs of the two (2) adversary complaints and determined that there were actually ten (10) claims asserted against the defendants within the seven (7) counts.²

The scope of these adversaries has diminished considerably since their inception. After several pre-trial motions were resolved, four (4) claims remained.³ Through his acceptance of Aetna's Offer of Judgment, see Fed. R. Bankr.P. 7068 (incorporating Fed.R.Civ.P. 68), Olick settled his claims against Aetna,⁴ which left the following claims for trial:

1. a COBRA claim against the Knights;

2. an ERISA claim against the Knights; and

3. a retaliation claim under the ADEA, PHRA and CFEPA against the Knights and Kearney.

These claims were tried on December 19 and 22, 2008. At trial, three (3) witnesses testified (Olick, Kearney and James Lee) and a substantial amount of documentary evidence was admitted.

III. FINDINGS OF FACT

Based on the evidence presented at the trial,⁵ I make the following findings of fact.

A. The Knights Hires Olick to be a Field Agent

1. On June 1, 1995, Olick entered into a contract with the Knights to be a field agent for the sale of life insurance policies in Pennsylvania. (Ex. P-1).

2. The Knights-Olick contract had three parties: (1) Olick, the field agent; (2) Kearney, the general agent; and (3) the Knights. (Id.).

3. The Knights-Olick contract provided, inter alia, that:

a. Kearney, as general agent, appointed Olick a field agent as the Knights' insurance sales representative for various Knights "councils." (Id. ¶ 2)

b. The Knights could "change or revoke the assignment of designated councils at any time." (Id.).

c. Kearney, as general agent, could "change or revoke the assignment of councils in accordance with the guidelines established by the [Knights]." (Id.).

d. "[n]othing contained in this Agreement shall be construed to create the relationship of employer and employee between the [Knights] and the Field Agent, between the [Knights] and the General Agent, or between the General Agent and the Field Agent. The Field Agent shall be free to exercise independent judgment as to the eligible persons from whom applications for insurance will be solicited, and as to the time and place of such solicitation. The Field Agent shall abide by rules and procedures established by...