Whisman v. Robbins

• Decision Date: 29 December 1992
• Docket Number: No. C-3-87-458.,C-3-87-458.
• Citation: Whisman v. Robbins, 810 F.Supp. 936 (S.D. Ohio 1992)
• Parties: Telford P. WHISMAN, Plaintiff, v. Loran W. ROBBINS, Trustee, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

810 F. Supp. 936

Telford P. WHISMAN, Plaintiff, v. Loran W. ROBBINS, Trustee, et al., Defendants.

No. C-3-87-458.

United States District Court, S.D. Ohio, W.D.

December 29, 1992.

COPYRIGHT MATERIAL OMITTED

Konrad Kuczak, Dayton, OH, for Telford P. Whisman.

James Alan Dyer, Sebaly, Shillito & Dyer, Dayton, OH, for Loran Robbins, Marion M. Winstead, Robert C. Sansone, R. Jerry Cook, Howard McDougall, Robert J. Baker, R.V. Pulliam, Sr., Arthur H. Bunte, Jr.

Louis Frank Solimine, Thompson, Hine & Flory, Cincinnati, OH, Joan Simmons, Central States Law Dept., Rosemont, IL, for Central States Southeast and Southwest Areas Pension Fund.

DECISION AND ENTRY FINDING IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANTS; JUDGMENT ORDERED ENTERED IN FAVOR OF THE PLAINTIFF AND AGAINST THE DEFENDANTS, ORDERING DEFENDANTS TO REINSTATE PLAINTIFF'S BENEFITS, EFFECTIVE AND RETROACTIVE TO SEPTEMBER 1, 1987; PLAINTIFF'S MOTION FOR SANCTIONS (DOC. # 72) AND FOR DEFAULT (DOC. # 79) OVERRULED IN THEIR ENTIRETY; PLAINTIFF'S APPLICATION FOR LEAVE TO SUPPLEMENT RECORD (DOC. # 93) SUSTAINED; RECORD DEEMED SUPPLEMENTED; DEFENDANTS' OBJECTIONS (DOC. # 83) TO PLAINTIFF'S RECORD DEEMED MOOT; PLAINTIFF'S MOTION TO STRIKE AFFIDAVIT OF ALBERT NELSON (DOC. # 92) DEEMED MOOT; FURTHER PROCEDURES ORDERED ON ISSUE OF ATTORNEY FEES; TERMINATION ENTRY

RICE, District Judge.

This is an action brought by Plaintiff Telford P. Whisman ("Whisman") against the Central States, Southeast and Southwest Areas Pension Fund ("Central States") and the Board of Trustees of Central States ("Trustees"), individually and collectively, pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and Section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185(a), to recover suspended pension benefits denied to him by the Trustees (Doc. # 1). This case is now before the Court for a determination upon the merits based on the record. Having considered the pleadings, the motions, the filings and attachments, and the administrative record, the Court, for the reasons more fully developed herein, enters Judgment in favor of Plaintiff and against Defendant Central States.

Facts

The pertinent facts are undisputed. Central States provides pension benefits to union employees (Doc. # 1 at ¶ 2). Defendants Loran W. Robbins, Marion W. Winstead, Robert C. Sansone, Jerry R. Cook, Howard McDougall, Robert J. Baker, R.V. Pulliam, Sr. and Arthur H. Bunte, Jr. are Trustees of the Central States pension fund (Id. at ¶ 1, 4). Whisman was employed in the Teamster industry and participated in the pension plan by virtue of his employment as a truck driver for Carolina Freight Carrier and Interstate System (Doc. # 81 at 249-250). On December 4, 1984, Whisman qualified for a twenty-year deferred pension benefit and was notified that he would begin receiving a pension at age 57 (Id. at 246-47). Thereafter, Whisman elected to retire before age 57 and began receiving a $1,000 monthly retirement benefit under a special "30-and-Out" voluntary self-payment contribution program (Doc. # 1 at ¶ 6; Doc. # 81 at 224, 230-245).

On November 23, 1986, Whisman notified Central States by letter that he had accepted employment with the United States Postal Service ("USPS") as a "Flexible" employee (Doc. # 81 at 201, 203). On March 20, 1987, the Central States Reemployment Review Committee concluded that Whisman's employment as a mail carrier violated the plan's reemployment rules, and, therefore, that he was not entitled to his pension benefits if he chose to continue working for the USPS (Id. at 199). Whisman appealed this determination to the Benefits Claims Appeals Committee but the decision denying retirement benefits was affirmed (Doc. # 1 at ¶ 9; Doc. # 81 at 192-95). Whisman's claim was also considered and denied by the Trustees (Doc. # 81 at 178-79). This denial was based on the Trustees' finding that Whisman's USPS employment was the type of work performed "for an employer engaged in the same business activities in which a Contributing Employer is engaged" (Id. at 183, 178-184).

On September 11, 1987, Whisman filed this action to recover suspended pension benefits denied to him by Central States. Whisman claims that the denial of benefits was an unreasonable, arbitrary and bad faith decision by the Trustees (Doc. # 1 at ¶ 12). Whisman also alleges that the Trustees breached its fiduciary duty under 29 U.S.C. § 1109 in causing the suspension of his retirement benefits. (Id. at ¶ 11). Whisman seeks a declaration that the suspension of his retirement benefits by the Trustees constituted a breach of their fiduciary duties; that the Trustees be required to respond personally to him for damages; that benefits be reinstated, effective September 1, 1987, with interest; that he be awarded reasonable attorney fees and expenses; and that the Trustees be prohibited from taxing the costs of this litigation to the remaining plan participants (Id. at 4-5).

Subsequent procedural history reveals that on December 13, 1988, the Court ordered that this case be submitted upon the record as it existed at the time the Trustees made their decision to suspend Whisman's benefits and directed that a complete record be filed not later than the close of business on Monday, April 17, 1989 (Doc. # 58 at 2). Thereafter, the parties submitted memoranda in support of their respective positions on the merits of the litigation (Docs. # 73, 80, 90, 94). On May 15, 1989, Whisman filed a Motion For Sanctions (Doc. # 72), on the basis that Central States had ignored its Court mandated obligation to file an administrative record in a timely fashion and that it had resisted discovery. On June 5, 1989, Central States filed a Memorandum In Opposition to that Motion For Sanctions (Doc. # 76). On June 7, 1989, Whisman filed a Reply (Doc. # 80). On that same day, Whisman also filed an Application For Default Judgment (Doc. # 79), on the basis that Central States had failed to file the aforesaid administrative record. On June 30, 1989, Central States filed a Memorandum In Opposition To Application For Default Judgment (Doc. # 89). On that same day, Whisman filed his Reply (Doc. # 91). On June 19, 1989, Central States filed Objections to Whisman's record (Doc. # 83).

On July 20, 1989 Whisman filed a Motion To Strike Affidavit Of Albert E. Nelson (Doc. # 92). On August 14, 1989, Central States filed a Memorandum In Opposition To Motion To Strike Affidavit (Doc. # 95). On July 21, 1989, Whisman filed an Application For Leave To Supplement Plaintiff's Record (Doc. # 93). On August 15, 1989, Central States filed a Memorandum In Opposition To Application For Leave To Supplement Plaintiff's Record (Doc. # 96). On July 10, 1990, Whisman filed an Application For Leave To File A Supplement To Prior Submission (Doc. # 98). This Application was granted (Doc. # 99).

The Record on Review

As a preliminary matter, this Court must decide what constitutes the complete record in this case, since the parties dispute its content.¹ The Sixth Circuit has held, in light of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), that a district court is required to focus on the evidence before the Trustees at the time of their final decision and not hold a factual de novo hearing on evidence not presented to the Trustees in connection with that claim. Perry v. Simplicity Engineering, 900 F.2d 963, 966 (6th Cir.1990) (the de novo review required by Bruch is a de novo review of the record before the administrator or fiduciary). Accordingly, this Court must not resolve the question of the suspension of Whisman's retirement benefits on the basis of evidence never presented to the pension fund's Trustees when they approved such suspension.

Both parties have filed independent versions of the record in this case (Docs. # 74, 81). Central States has objected to the majority of documents contained in Whisman's record on the basis of their irrelevancy (Doc. # 83). Since there were no objections filed with respect to Exhibits 1-45 of Whisman's record, this Court assumes that Central States has conceded to the inclusion of those documents (Id.). Whisman's record was submitted without an affidavit to establish the authenticity of its contents. Whisman's counsel merely stated, in a prelude to the record, that the documents contained within his submission were obtained from Central States in the course of discovery in the instant action and in the course of discovery in a separate action, Long v. The Central States Pension Fund, Case No. C-3-86-210 (Doc. # 74 at 2). Consequently, there is no way to determine whether Whisman has submitted accurate copies of documents that meet the Bruch standard. Central States submitted its copy of the record accompanied by the verification of Albert E. Nelson, Director of Central States Benefit Services (Doc. # 81 at 1-2). Nelson's affidavit establishes that he is custodian of Central States' records relating to the suspension of Whisman's pension benefits (Id. at 1, ¶¶ 1-2). Nelson also avers that Central States' version of the record contains true, correct and complete copies of the documents that were available to the Trustees at the time of their review (Id. at ¶¶ 2-3).

The only relevant material is what was actually considered by the Trustees. The Court finds that the Nelson affidavit demonstrates that he is in a position to verify what evidence was actually considered by the Trustees when they reached their decision to suspend Whisman's retirement benefits. The Whisman record cannot be adopted as the appropriate record because this Court can only guess as to what documents were actually before the Trustees. Therefore, in the spirit of Bruch, this Court adopts Central States' version of the record (Doc. # 81) and the uncontested portions of Whisman's record (Doc. # 74) as the appropriate record in this case. As a result, this Court does...