Whelehan v. Bank of Am. Pension Plan for Legacy Companies-Fleet-Traditional Benefit, 6:13–CV–6279 (MAT).

• Decision Date: 17 March 2014
• Docket Number: No. 6:13–CV–6279 (MAT).,6:13–CV–6279 (MAT).
• Citation: 5 F.Supp.3d 410
• Parties: Kathleen WHELEHAN, Plaintiff, v. BANK OF AMERICA PENSION PLAN FOR LEGACY COMPANIES–FLEET–TRADITIONAL BENEFIT, Trustees of the Bank of America Pension Plan for Legacy Companies–Fleet–Traditional Benefit and Bank of America, Defendants.
• Court: U.S. District Court — Western District of New York

5 F.Supp.3d 410

Kathleen WHELEHAN, Plaintiff,

v.BANK OF AMERICA PENSION PLAN FOR LEGACY COMPANIES–FLEET–TRADITIONAL BENEFIT, Trustees of the Bank of America Pension Plan for Legacy Companies–Fleet–Traditional Benefit and Bank of America, Defendants.

No. 6:13–CV–6279 (MAT).

United States District Court,

W.D. New York.

Signed March 17, 2014.

Michael T. Harren, Chamberlain, D'Amanda, Oppenheimer & Greenfield, Rochester, NY, for Plaintiff.

Beth L. Kaufman, Schoeman, Updike & Kaufman, LLP, New York, NY, for Defendants.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Kathleen Whelehan (“Plaintiff” or “Whelehan”) claims that she was improperly denied retirement benefits under The Bank of America Pension Plan for Legacy Fleet (the “Plan”) in connection with her alleged employment at certain predecessor banks to Bank of America Corporation. Plaintiff instituted this suit pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq. (“ERISA”). Defendants The Bank of America Pension Plan for Legacy Fleet, Trustees of The Bank of America Pension Plan for Legacy Fleet and Bank of America Corporation (s/h/a, Bank of America Pension Plan for Legacy Companies–Fleet–Traditional Benefit, Trustees of the Bank of America Pension Plan for Legacy Companies–Fleet–Traditional Benefit and Bank of America) (collectively, “Defendants”) have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Rule 56”). Plaintiff has moved for partial summary judgment, seeking a determination that she is a “participant” as defined in ERISA 3(7).

II. Factual Background and Procedural History¹A. The Plan Document

The Plan is an employee pension benefit plan within the meaning of § 3(2)(A) of ERISA, 29 U.S.C. § 1002(2)(A). The “Plan Administrator” is defined as the “Bank of America Corporation Corporate Benefits Committee”, and it possesses the sole discretionary power to construe the Plan's terms, determine who is eligible for benefits, and review claims regarding the denial of benefits. Under the Plan, the Plan Administrator is given full authority to interpret, and to apply in its sole discretion, the Plan's provisions. See Plan, Article X, § 10.4(b) (“Powers of the Committee”). The Plan Administrator's powers include, but are not limited to, “supplying omissions from, correcting deficiencies in, or resolving inconsistencies or ambiguities in, the language of the Plan.” Id. Section 10.4(b)(ii) provides that the Plan Administrator “shall have the duty and power to make determinations and findings, including without limitation, determinations of factual questions, with respect to all questions that shall arise thereunder, including in connection with the determination of claims in accordance with Article XIV.” Id.

Article XIV, Section 14.1(g) (“Discretionary Authority”) further provides that “[t]o the extent of its responsibility to reviewthe denial of benefit claims, the [Bank of America Corporation Corporate Benefits] Committee shall have full authority to interpret and apply in its sole discretion the provisions of the Plan....” Id.

B. Plaintiff's Claim for Benefits

Sometime before July 28, 2011, Plaintiff inquired about pension benefits possibly owing to her under the Plan. On July 28, 2011, Plaintiff received a form letter from the Bank of America Employee Retirement Benefits Center stating, “Our records do not indicate that you have pension benefit due from the Plan.” Exhibit (“Ex.”) B–1.² Plaintiff was advised that if she felt she had such a benefit, she should fill out the enclosed Prior Employment Questionnaire and return it “with documentation of her benefit.” Id. On the partially completed Prior Employment Questionnaire submitted on August 29, 2011 (Ex. B–2), Plaintiff indicated that she worked at “Security Trust Co. Fleet Bank” from July 10, 1972, to “6/88”. Id. The Questionnaire also requested that she provide “copies of any documentation ... that verifies [her] employment history” such as “pay stubs or W–2 forms”, and any additional information from the listed employer regarding retirement benefits, such as “a Social Security Administration Potential Private Pension Benefit Information letter, prior benefit calculations or other document(s) from Bank or America, or other employer named above.” Id. The only documentation Plaintiff submitted was the following: (1) a copy of an unsworn, unsigned email dated October 26, 2011, from Robert Bantle (“the Bantle email”), purportedly a former colleague at Security Trust Co., stating that Plaintiff had been a full-time employee at Security Trust Co. and its successor organizations from July 1972, through June 1988; (2) a form purportedly submitted to the Social Security Administration (“SSA”) by Security Trust Co. for one quarter of 1972, on which the name “KA Whelehan” appears; and (3) uncertified documentation from the SSA purportedly showing earnings for Plaintiff for the Bath Volunteer Fire Department. ³See Ex. B–2.

On September 1, 2011, Plaintiff received a form letter from the Bank of America Employee Retirement Benefits Center stating that they had reviewed her Prior Employment Questionnaire and documents, but “[s]ince [they] have no record of a vested pension benefit for [her] and there are no documents indicting [sic] a benefit due, [they] have determined there is no deferred vested pension benefit payable to [her] from the Plan.” Ex. B–2.

On October 27, 2011, Plaintiff sent a letter to Bank of America, requesting review of the September 1st denial of benefits. Plaintiff stated,

In addition to the documents proving that Security Trust Co. submitted my wages to Social Security with the wrong EIN, proof that I was on the payroll roster, and proof that I have attempted to clean up the records, I am enclosing a letter from the former SVP of HR at Security Trust Co./Norstar bank/Fleet Bank confirming that I was an employee in good standing from 1972 through 1988.

Ex. B–3. There are three enclosures to Plaintiff's October 27th letter. The first appears to be some sort of payroll record from Security Trust Co. showing taxable wages for an unknown time period; however, the document is almost entirely redacted. The second enclosure is the Bantle email. The third enclosures appears to be a document from the SSA (Form SSA–1690 (8–80)) for “K WHELEH”. The only employer listed on the SSA documentation is “VICTOR CENTRAL SCHOOL DISTRICT PRESIDENT BOARD OF EDUCATION.” There is an unattributed handwritten notation at the bottom stating, “Bank reported wages under wrong EIN.” See Ex. B–3.

On November 17, 2011, Janice DeFazio, Global Human Resources Senior Vice President (“DeFazio”) of Bank of America sent a letter noting that she had received Plaintiff's letter of October 27, 2011, and that it was being treated as a formal claim for benefits under the Plan's claims procedure. Ex. B–4. DeFazio enclosed an excerpt of the Plan document detailing the claims process.

On February 7, 2012, DeFazio sent Plaintiff a letter (“the Claim Denial”), stating that “[a]fter a review of the Plan's records and the documentation provided, it has been determined that there is insufficient proof to establish a vested benefit in the Plan[,]” and therefore, Plaintiff's claim was denied. Ex. B–5. In particular, DeFazio explained,

You could only be due a Plan benefit if your period of employment [with Security Trust Co. (and successor organizations) ] made you eligible for Plan benefits, you participated in the Plan, and you actually accrued a vested benefit under the Plan during your period of employment. We have conducted a good faith exhaustive search. However, while predecessors to the Plan were maintained during this period [i.e., 1972 to 1988], the Plan's records do not indicate that you are eligible for a vested benefit based on your period of employment.

Ex. B–5. DeFazio noted that although Plaintiff had provided the “letter from Robert Bantle” and “details regarding [her] wages and period of employment [,]” she had “not provided any documentation (such as a terminated vested letter) to show that [she] [is] entitled to a vested benefit under the Plan.” Id. As a result, Bank of America was “unable to verify” that Plaintiff was “eligible for a Plan benefit.” Id. Also in the Claim Denial, DeFazio informed Plaintiff that she was permitted to appeal to the Bank of America Benefits Appeals Committee (the “Benefits Appeals Committee”) within 60 days of her receipt of the Claim Denial and was permitted to submit “written issues and comments, documents, records, and other information relating to the claim ... without regard to whether such information was submitted or considered in the initial benefit determination.” Ex. B–5. The Claim Denial advised Plaintiff that the “[f]ailure to raise issues or present evidence on review may preclude those issues or evidence from being presented in any subsequent proceeding or judicial review of the claim.” Id. The Claim Denial further stated that “[i]n reviewing the decision on a benefit claim, the Benefits Appeals Committee shall have full authority to interpret and apply in its discretion the provision of the [Legacy] Plan. Its decision shall be final and binding.” Id.

C. Plaintiff's Appeal

Plaintiff appealed the Claim Denial, relying upon the documents she previously submitted and two additional items: (1) a record from the SSA (Form L191) dated December 14, 2003,⁴ indicating earnings of $4,791.26 in 1972 from Security Trust Co., and earnings of $0 in 1972 from Bath Volunteer Fire Department (Ex. B–6; repeated at Ex. B–7); and (2) an undated, unsworn letter (Ex. B–7) from a former Security Trust Co. executive Erland Kailbourne (“Kailbourne”), to Brian T. Moynihan, Chief Executive Officer of Bank of America, indicating that Plaintiff had been employed at Security Trust/Norstar Fleet from 1972 to 1988 (the “Kailbourne Letter”). Plaintiff asked the Benefits Appeals Committee to...