McBride v. PLM Intern., Inc.
| Decision Date | 20 August 1998 |
| Docket Number | No. 97-15433,97-15433 |
| Citation | 153 F.3d 972 |
| Parties | 98 Cal. Daily Op. Serv. 6476, 98 Daily Journal D.A.R. 8997, Pens. Plan Guide (CCH) P 23945O Kevin McBRIDE, Plaintiff-Appellant, v. PLM INTERNATIONAL, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Christopher W. Katzenbach and W. Kent Khtikian, Katzenbach and Khtikian, San Francisco, California, for plaintiff-appellant.
Randall J. Sunshine, Liner Yankelevitz Sunshine Weinhart Riley & Regenstreif, Santa Monica, California, for defendant-appellee.
Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No. CV-95-02818-CW.
Before: D.W. NELSON, BEEZER and TROTT, Circuit Judges.
Opinion by Judge BEEZER; Dissent by Judge TROTT.
Kevin McBride ("McBride") appeals the district court's order granting summary judgment in favor of PLM International, Inc. ("PLM"), and dismissing McBride's complaint. McBride, a former employee of PLM, brought suit alleging that PLM's termination of his employment violated § 1140 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461. McBride also brought various state law causes of action. The district court granted summary judgment in favor of PLM, holding that McBride lacked standing under ERISA. The district court dismissed the complaint for lack of subject matter jurisdiction and dismissed the pendent state law claims without prejudice to refiling in state court. We have jurisdiction, 28 U.S.C. § 1291, and affirm.
PLM hired McBride in March 1988. Until April 1994 McBride consistently received favorable performance evaluations. During this period PLM gave bonuses to McBride and circulated three memoranda commending him for his work performance. PLM also gave McBride increased job responsibilities throughout this period. In early April 1994 Robert Tidball, PLM's president and chief executive officer, and Douglas Goodrich, McBride's supervisor and a PLM senior vice president, told McBride that he might be promoted to director of operations. PLM instead hired Jeff Alpert as director of operations. McBride was not promoted.
On April 7, 1994, McBride submitted a request for payment of commissions earned three years previously. On April 14 Goodrich and McBride met to discuss the requested payments. Goodrich stated that he did not believe that McBride was entitled to the commissions, but that he would authorize payment if PLM's legal department determined otherwise. McBride became angry and threatened to sue PLM if the commissions were not paid. Goodrich wrote a memorandum describing this meeting and had the memorandum placed in McBride's personnel file. Soon thereafter McBride apologized to Goodrich for his inappropriate behavior at the meeting. Goodrich informed McBride that further insubordination would result in McBride's termination. PLM paid McBride the requested commissions approximately a month after this incident.
Sometime later, Goodrich asked McBride to prepare two leasing reports ("the Leasing Reports"). McBride testified that he gave the Leasing Reports to Goodrich on July 26, 1994. Goodrich testified that McBride never gave him the reports.
On August 4, 1994, McBride met with Alpert, director of operations. At this meeting, McBride accused Alpert of inappropriately McBride was a participant in and beneficiary of the PLM Employers Profit Sharing and Tax Advantaged Savings Plan ("401-K Plan") and the PLM Employee Stock Ownership Plan ("ESOP") (collectively, "the Plans"). Both of the Plans qualified as ERISA employee benefit plans. See 29 U.S.C. § 1002(3). McBride was an active member of the Junior ESOP Committee ("the ESOP Committee"), an employee committee.
working on the personal affairs of another individual during business hours.
In spring 1994 PLM announced its intention to terminate the ESOP. Under the termination plan, each share of PLM preferred stock held by the ESOP would be exchanged for one share of PLM common stock. McBride considered this exchange unfair because the common stock was less valuable than the preferred stock. McBride first voiced his concerns about the termination plan in a meeting during early April 1994 with Goodrich and Tidball. McBride also expressed his opposition to the termination at an employees' informational meeting called by PLM during summer 1994. During that meeting Tidball responded to McBride's comments with impatience and nonverbal hostility. Even though Tidball had opened the floor to employee questions, he cut off McBride's questions. McBride also voiced his concerns during weekly departmental meetings led by Goodrich and in a meeting with Tidball.
On July 20, 1994, McBride and other members of the ESOP Committee signed and delivered a letter to the United States Department of Labor ("DOL") asking that the DOL make comments to the Internal Revenue Service about PLM's planned termination of the ESOP. McBride and other members of the ESOP Committee provided information to the DOL about the ESOP and the effect of its termination on PLM employees.
Tidball and Steven Peary, PLM's chief in-house counsel, were upset with the ESOP Committee's decision to send the letter to the DOL. Tidball and Peary offered to pay for outside counsel to review the propriety of the ESOP termination if the ESOP Committee would withdraw its letter to the DOL. McBride was alone among the ESOP Committee members in opposing this offer. The ESOP Committee withdrew the letter.
McBride was terminated on August 9, 1994, less than three weeks after the letter was sent to the DOL. Goodrich wrote McBride a termination letter stating that McBride was being terminated because of his "explosive, threatening and insubordinate behavior to two different supervisors" and because of his failure to produce the Leasing Reports.
Sometime after August, PLM terminated the ESOP and gave all participants, including McBride, a lump sum distribution of their benefits under the Plans. In November 1994 McBride began employment with Union Bank of California.
In August 1995 McBride filed suit in district court, alleging (1) violation of 29 U.S.C. § 1140 (ERISA's whistleblower section); (2) wrongful termination in violation of public policy; (3) defamation; and (4) breach of the covenant of good faith and fair dealing. The district court entered an order dismissing certain of McBride's claims. McBride filed a second amended complaint alleging (1) violation of 29 U.S.C. § 1140; (2) wrongful termination in violation of public policy; and (3) defamation. PLM moved for summary judgment on each of those causes of action, and McBride moved for reconsideration of the order dismissing the fourth claim of his original complaint.
The district court granted in part PLM's motion for summary judgment. The district court held that McBride lacked standing to bring an action under ERISA because he was not a participant in an ERISA plan at the time he filed his complaint. The district court therefore dismissed the complaint for lack of subject matter jurisdiction, vacated its prior order dismissing certain of McBride's claims and dismissed the complaint without prejudice to McBride's pursuing his state law claims in state court. McBride filed a motion for reconsideration, which the district court denied. This timely appeal followed.
We review de novo the existence of subject matter jurisdiction in the district court. See Schultz v. PLM Int'l, Inc., 127 F.3d 1139, 1141 (9th Cir.1997). We also review de novo a district court's grant of summary judgment. See Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996).
The district court held that McBride lacked standing to bring a claim under ERISA because he was not, at the time of filing his complaint, a "participant," "beneficiary" or "fiduciary" within the meaning of 29 U.S.C. § 1132(a), ERISA's civil enforcement provision. We agree with the district court's analysis.
McBride's complaint alleges a violation of 29 U.S.C. § 1140. That section provides, in relevant part, that
[i]t shall be unlawful for any person to discharge ... or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan.... It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter.... The provisions of section 1132 of this title shall be applicable in the enforcement of this section.
29 U.S.C. § 1140. The last sentence of this section provides for enforcement exclusively through 29 U.S.C. § 1132, ERISA's enforcement provision. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 144, 111 S.Ct. 478, 485, 112 L.Ed.2d 474 (1990); see also McKinnon v. Blue Cross and Blue Shield of Ala., 935 F.2d 1187, 1193-94 (11th Cir.1991) ().
Because § 1140 may be enforced only through § 1132, McBride has standing to bring this action only if he is a plan participant, beneficiary or fiduciary. See Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 933 (9th Cir.1994) () (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)).
McBride contends that he has standing because he was a plan participant at the time of the alleged violation of § 1140. A participant is defined as "any employee or former employee of an employer ... who is or may become eligible to receive a benefit of any type from an employee benefit plan." 29 U.S.C. § 1002(7). At the time of his...
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