Caldwell v. PNC Fin. Servs. Grp., Inc.

• Decision Date: 19 December 2011
• Docket Number: Case No. 2:11–cv–182.
• Citation: 835 F.Supp.2d 510
• Parties: Larry R. CALDWELL, Plaintiff, v. The PNC FINANCIAL SERVICES GROUP, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

835 F.Supp.2d 510

Larry R. CALDWELL, Plaintiff,

v.The PNC FINANCIAL SERVICES GROUP, INC., et al., Defendants.

Case No. 2:11–cv–182.

United States District Court,

S.D. Ohio,

Eastern Division.

Dec. 19, 2011.

James Scott Mowery, Jr., Justin Anthony Morocco, Mowery, Youell and Galeano, Jeffery Paul Nagle, Dublin, OH, for Plaintiff.

Christine E. Watchorn, Ulmer & Berne, L.L.P., Columbus, OH, Gina Desantis Wodarski, Edwards Angell Palmer & Dodge L.L.P., Boston, MA, for Defendants.

OPINION AND ORDER

JAMES L. GRAHAM, District Judge.

This is an action filed by plaintiff Larry R. Caldwell against PNC Financial Services Group, Inc., and PNC Bank (collectively “PNC”), the National City Corporation Amended and Restated Management Severance Plan (“the Plan”), Kerry Allen, a Plan administrator, and John Does 1–10. Plaintiff alleges that he was an employee of National City Bank (“National City”) as of December 3, 2008, when PNC acquired National City in a change of control. Complaint, ¶¶ 23–24. Plaintiff further alleges that he was a participant in the Plan. Complaint, ¶ 6. The Plan, attached as Exhibit A to defendants' motion to dismiss, became effective on January 1, 2005, and was amended effective September 30, 2008. The Plan was designed to provide severance benefits to certain National City employees in the event National City was acquired by another entity.

Plaintiff contends that following PNC's acquisition of National City, plaintiff was assigned to three branches, two of which were located in financially depressed areas of Columbus, Ohio. Complaint, ¶ 25. Plaintiff alleges that PNC made no allowance for the viability of plaintiff's territories in setting his loan goals, which were based on plaintiff's salary. Complaint, ¶ 26. Plaintiff alleges that he was given a formal warning in April of 2009 for failing to meet his loan goals, and that he was given a second warning and placed on a performance improvement plan in July of 2009. Complaint, ¶¶ 27, 29. Plaintiff contends that in May and June of 2009, PNC realigned the territories of employees who occupied positions similar to that held by plaintiff, but did not grant plaintiff's request to assign him additional territories. Complaint, ¶ 28. Plaintiff alleges that he was given a third warning on August 12, 2009, and that Ron Byers requested that plaintiff voluntarily resign from his employment. Complaint, ¶¶ 30–31. Plaintiff alleges that he was given a fourth warning on August 27, 2009, and that his supervisor, Don Guilbert, requested that plaintiff resign and told him that if he did not, he would be placed on probation effective September 1, 2009. Complaint, ¶¶ 32–33. Plaintiff was placed on probation on December 10, 2009, but despite the fact that plaintiff's loan goals were not met, PNC did not terminate plaintiff's employment. Complaint, ¶¶ 44–49. Plaintiff resigned from his position effective January 29, 2010. Doc. 7, Ex. B.

After his resignation, plaintiff sought to recover severance benefits from the Plan, contending that he had been constructively discharged. Complaint, ¶¶ 51–53. The Plan denied plaintiff's claim for benefits, and plaintiff's appeal from that decision was denied. Doc. 7, Ex. F. Plaintiff then filed his complaint in the instant case. In Count 1 of the complaint, plaintiff asserts a claim for breach of contract due to the denial of severance benefits. Count 2 advances a claim of age discrimination under Ohio Rev.Code Chapter 4112. Count 3 asserts a claim for benefits under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). Count 4 asserts that PNC acted with the intent to interfere with plaintiff's rights under the Plan in violation of 29 U.S.C. § 1140. In Count 5, plaintiff alleges that the defendants failed to grant his request for Plan documents in violation of 29 U.S.C. § 1132(c). This matter is before the court on the motion of defendants to dismiss Counts 1, 3, 4 and 5 of the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief may be granted.

I. Standards for a Rule 12(b)(6) Motion

In ruling on a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff, accept all well-pleaded allegations in the complaint as true, and determine whether plaintiff undoubtedly can prove no set of facts in support of those allegations that would entitle him to relief. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir.2008); Harbin–Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005). To survive a motion to dismiss, the “complaint must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice. Id.

While the complaint need not contain detailed factual allegations, the “[f]actual allegations must be enough to raise the claimed right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and must create a reasonable expectation that discovery will reveal evidence to support the claim. Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776, 780 (6th Cir.2007). A complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950. Where the facts pleaded do not permit the court to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief as required under Fed.R.Civ.P. 8(a)(2). Ibid.

In evaluating a motion to dismiss, a court generally is limited to the complaint and exhibits attached thereto. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.2001). Most materials outside the pleadings may not be considered in ruling on a 12(b)(6) motion to dismiss unless the motion is converted to one for summary judgment under Fed.R.Civ.P. 56. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir.1999), abrogated on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Weiner v. Klais & Co., Inc., 108 F.3d 86, 88 (6th Cir.1997). However, the court may consider a document or instrument which is attached to the complaint, or which is referred to in the complaint and is central to the plaintiff's claim. Fed.R.Civ.P. 10(c) (“[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes”); Weiner, 108 F.3d at 89.

Plaintiff does not oppose defendants' motion to dismiss Count 5 of the complaint. Accordingly, Count 5 will be dismissed.

II. Count 1—Breach of Contract

Defendants argue that plaintiff's state law breach of contract claim should be dismissed because it is preempted by ERISA. Under 29 U.S.C. § 1144(a), ERISA supersedes “any and all State laws insofar as they may now or hereafter relate to an employee benefit plan.” § 1144(a). “Any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted.” Aetna Health Inc. v. Davila, 542 U.S. 200, 209, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). The Sixth Circuit has noted that “virtually all state law claims relating to an employee benefit plan are preempted by ERISA.” Cromwell v. Equicor–Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991) (holding that plaintiffs' breach of contract claim for failure to pay plan benefits was preempted by ERISA).

Plaintiff argues in response that his breach of contract claim is not preempted because the Plan is not an ERISA employee welfare benefit plan. ¹ The definition of an employee welfare benefit plan includes a plan established or maintained by an employer for the purpose of providing “(A) benefits in the event of ... unemployment ... or (B) any benefit described in section 186(c) of this title.” 29 U.S.C. § 1002(1). Since 29 U.S.C. § 186(c) refers to severance benefits, the Sixth Circuit has held that severance plans are included in the definition of 29 U.S.C. § 1002(1)(B). See Shahid v. Ford Motor Co., 76 F.3d 1404, 1409 (6th Cir.1996). The Supreme Court has also held that “plans to pay employees severance benefits, which are payable only upon termination of employment, are employee welfare benefit plans.” Massachusetts v. Morash, 490 U.S. 107, 116, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989).

However, the Sixth Circuit has held that not all severance pay plans are ERISA plans. Swinney v. General Motors Corp., 46 F.3d 512, 517 (6th Cir.1995). In order to determine whether a severance plan is an ERISA plan, the court “must look to the nature of the plan itself.” Kolkowski v. Goodrich Corp., 448 F.3d 843, 848 (6th Cir.2006).² An employee benefit program is regulated by ERISA only if it is administered through a “plan, fund, or program” established to provide benefits under any of the covered categories. Sherrod v. General Motors Corp., 33 F.3d 636, 638 (6th Cir.1994). In determining whether a “plan, fund, or program” exists, a court should focus on whether the employee benefit requires an...