Biba v. Wells Fargo & Company et al

Filing 69

ORDER by Judge Maria-Elena James granting 23 Motion for Summary Judgment (mejlc1, COURT STAFF) (Filed on 11/10/2010)

Biba v. Wells Fargo & Company et al

Doc. 69

1 2 3 4 5 6 7 8 9 10 v. WELLS FARGO & COMPANY, a Delaware Corporation; GREATER BAY BANCORP, a California Corporation; and THE GREATER BAY BANCORP CHANGE IN CONTROL PLAN I, Defendant. / SUSAN BIBA, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 09-3249 MEJ ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I. INTRODUCTION Plaintiff Susan Biba filed a complaint asserting five separate causes of action and naming as Defendants Wells Fargo & Company, a Delaware Corporation; Greater Bay Bancorp, a California Corporation; and THE GREATER BAY BANCORP CHANGE IN CONTROL PLAN I, (collectively "Defendants"). (Pl.'s Compl., Dkt. #1.) Before the Court is Defendants' Motion for Summary Judgment, or in the alternative, Partial Summary Judgment as to the remaining four causes of action in the complaint. (Defs.' Mot., Dkt. #23.) For the reasons set forth below, the Court GRANTS Defendants' Motion for Summary Judgment in its entirety. II. BACKGROUND A. Factual Background Biba began working at Greater Bay Bancorp("GBB") in June 2000 as a Senior Vice President and Regional Credit Administrator of the East Bay Market. (Joint Statement of

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10

Undisputed Material Facts ("JSF") ¶3, Dkt. #24.) In 2006, Biba became the Manager of GBB's Special Assets Department ("SAD") in the Walnut Creek office. Id. at ¶¶4, 5. In October 2007, Biba was earning a base salary at GBB of $152,980.08, plus a $750/month auto allowance. (JSF ¶17, Dkt. #24.) Throughout Biba's employment with GBB, GBB had in place a "Change of Control Plan" ("Plan") that governed the issuance of severance benefits to eligible GBB employees whose employment was terminated in the event that GBB was acquired by another company. (Plaintiff's Separate Statement of Material Facts ("PF") ¶3, Dkt. #63.) GBB amended the Plan on August 21, 2001, January 1, 2005, and June 19, 2007. Id. at ¶7. The Plan was amended a final time on September 28, 2007. Id. at ¶11, Ex. 1. Among other things, the amended Plan provides that eligible employees who are terminated by a "successor employer" as a result of a change in control are entitled to receive a "base benefit." Id., Ex. 1, Sec. 4.1. For employees in Biba's position, the "base benefit" includes one year of pay, health benefits for one year, outplacement services, and a pro-rated bonus. Id. at ¶13, Ex. 1. In May 2007, Wells Fargo & Company ("WFC") announced its plan to acquire GBB (this transaction is hereinafter referred to as "the Merger" or "the Acquisition"). (JSF ¶8, Dkt. #24.) Prior to the legal close of the Acquisition, WFC provided GBB employees with information about how the Acquisition could impact their employment. Id. at ¶10. In July 2007, WFC Credit Management Group ("CMG") managers Jeanette Mebane, Robert Creed, and Sid Copeland held a meeting with all of the members of GBB's Special Assets Department, including Biba. (Mebane Decl. ¶¶1-4, Dkt. # 28.) Mebane testified that the purpose of this meeting was to begin the transition process for the GBB employees of the Special Assets Department that were scheduled to be provided with a position at WFC after the Acquisition. (Isom Decl., Ex. 4 (Mebane Depo.), 26:4-11, Dkt. # 25.) Both Mebane and Creed testified that all eight of the SAD employees, including Biba, were "mapped" to WFC's Credit Management Group. (Id.; see also Isom Decl., Ex. 6 (Creed Depo.), 14:6-10, Dkt. # 25.) Biba, however, testified in her deposition that she does not recall the exact substance of this meeting. (Lewis Decl., Ex. 1 (Biba Depo.), 34:16, Dkt. # 37.) Page 2 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

Nevertheless, around the time of this meeting, Biba communicated that she was not interested in a position with the CMG because she felt she was overqualified and it was an "inappropriate fit" for her. (Isom Decl., Ex. 1 (Biba Depo.), 43:6-21, Dkt. # 25; Isom Decl., Ex. 4 (Mebane Depo.), 36:19-20, Dkt. #25.) Accordingly, Biba undertook efforts to find a different position within WFC, but those efforts proved unsuccessful. (PF ¶21, Dkt. #63.) On September 21, 2007, Creed sent an email to WFC Human Resources Consultant 4, Brigitte Stream, containing a list of SAD employees who were "mapped" to WFC's CMG.1 (Isom Decl., Ex. 6, 14:6-10, Dkt. #25.) Biba's name was included on that list along with a note stating that "Susan has told us she is not interested in CMG - we will need to fill this as a LA 2/3/4)[.]" Id. Biba alleges that on at least two separate occasions prior to the Merger, WFC's Executive Vice President, Don Fracchia, represented to GBB's Executive Vice President for Biba's division, Ken Shannon, and other executives that WFC would not offer positions to GBB employees who did not want to work for WFC after the Merger. (Pl.'s Compl. ¶13, Dkt. #1.) Consequently, by not offering positions to the GBB employees, eligible employees such as Biba would be able to receive benefits under the Plan. Id. Shannon subsequently represented this same information to his staff, including Biba, on a number of occasions prior to the Merger. Id. at ¶21. Biba further alleges that after the Merger, WFC "failed to abide by its pre-Merger promise not to offer positions to GBB employees who did not want to work for WFC." Id. at ¶22. The Acquisition legally closed on October 10, 2007. (JSF ¶14, Dkt. #24.) On or about November 6, 2007, Mebane met with Biba and gave her a letter concerning the status of Biba's employment with WFC following the Acquisition. Id. at ¶15, Ex. 2. The relevant portions of this letter read as follows: I want to confirm your role following the effective date of [the Acquisition]. The following summarizes the position we have identified for you in Wells Fargo Bank's Credit Management Group taking into consideration, your skills and experience and provides additional information related to your ongoing employment with Wells Fargo. Defendants explained that "Mapped" means that WFC was intending to "bring over to the CMG group after the merger" to become part of the CMG. (Isom Decl., Ex. 6, 14:6-10, Dkt. #25.) Page 3 of 29
1

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

Your job title will be Loan Adjustment Manager 3 and you will be reporting to myself or one of the California CMG Loan Adjustment Managers. Your current location will be at 1255 Treat Blvd., Walnut Creek . . . . Your annual base salary will be $148,525.20 (less applicable taxes and withholdings), you will continue to be paid on Greater Bay's regularly scheduled scheduled paydays. There will be no changes in your participation in Greater Bay's benefit plans through the end of the year. Based on your decision not to accept the position available, you will report to work through November 30, 2007 and then you will be in a non-working status through December 31, 2007. Id., Ex. 2. On November 8, 2007, WFC's Human Resources Manager, Kathy Kroll, sent Biba a second letter further describing Biba's employment situation after the acquisition. Id. at ¶16, Ex. 3. The relevant portions of this letter read as follows: I understand that you received a letter from Jeanette Mebane dated November 1, 2007 confirming your position of Loan Adjustment Manager 3 with Wells Fargo, It is my understanding that you do not want to continue your employment with Wells Fargo. I want to take this opportunity to explain the impact of this decision so that you understand the situation as you consider your options. [The Plan] provides severance benefits if, during the one year period following a Change in Control, your employment is terminated by Wells Fargo or Wells Fargo does not provide you a Comparable Position. [The Plan] defines Comparable Position but it is my understanding that it generally means a position that provides you the same base salary rate as you had prior to the Change in Control and is based in a location that does not require to increase your commute by more than 35 miles each way. The Loan Adjustment 4 position described in my November 1 letter meets these criteria, and [the Plan] does not give you the flexibility to decide whether you want to continue your employment performing the job duties of a Comparable Position or terminate your employment and receive [Plan] severance pay and benefits. The November 1 letter stated that, based on your decision not to accept the Loan Adjustment Manager 3 position, you would be working through November 30, 2007 and then you would be in a non-working status through December 31, 2007[.] I want to clarify that if you choose to voluntarily resign, we would appreciate the opportunity to work out a mutually agreeable departure date, but you are not required to work through a specific date and you will not be in a non-working status[.] And although the letter doesn't specifically mention severance benefits, I want to make sure you fully understand the situation. Id., Ex. 3. Despite this letter, Biba continued working for WFC through the October 2007 Merger until

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Page 4 of 29

1 2 3 4 5 6 7 8 9 10

February 2008. (JSF ¶29, Dkt. #24.) Although the November 1 letter references a base salary of 148,525.20, Defendants allege, and Biba does not dispute, that Biba was actually paid the same salary she earned immediately prior to the Acquisition until January 2008 when her base salary was increased to $161,980.08. (Defs.' Reply Mot. 3:4-9, Dkt. # 64.) On December 14, 2007, WFC's Benefits Enrollment Database identified Biba's position as Loan Adjustor 4. (PF ¶89, Dkt. # 63.) At all times relevant to this case, Patrick Pierce was Biba's direct supervisor throughout their employment at GBB and WFC. (Plaintiff's Separate Statement of Material Facts ("PF") ¶3, Dkt. #63.) On December 18, 2007, Biba and Pierce met with Fracchia to discuss why WFC was not honoring its promise to grant severance to eligible GBB employees who chose not to remain with WFC after the Merger. (PF ¶69, Dkt. #63.) As a result of Fracchia's conduct during that meeting, Pierce and Biba filed complaints against Fracchia with a human resources representative complaining that Fracchia had been "verbally abusive and physically confrontational" in the meeting. Id. at ¶74. In December 2007, WFC Human Resources Specialist Rene Tassio discovered that Biba had not completed an I-9 Form or the background authorization forms. (JSF ¶18, Dkt. #24.) WFC employees are required to successfully complete these forms as a material condition of their employment. Id. at ¶19. In early January 2008, Biba notified GBB human resources, her WFC managers and leave department, and Pierce that she needed to take medical leave for knee surgery which was scheduled for the third week of February 2008. Id. at ¶¶138, 139. WFC On January 24, 2008, Stream sent Biba a memorandum notifying Biba that WFC was placing her on paid administrative leave until January 28, 2008 pending her completion of the background authorization form. Id. at ¶20. On January 28, 2008, Biba faxed Stream a signed authorization form that included a number of conditions with a letter explaining her concerns about signing the authorization. Id. at ¶21, Ex 5. In an email sent on January 29, 2008, Stream informed Biba that WFC "cannot entertain the conditions to your background check authorization. . ." because "successful completion of Wells Fargo's background check process is a material condition Page 5 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

of your employment at Wells Fargo." Id. at ¶22, Ex. 6. Nevertheless, Biba was given until January 30, 2008 to complete the authorization. Id. Biba completed the background authorization form without conditions but "under protest" on January 30, 2008. Id. at ¶23. However, WFC did not receive Biba's authorization by the deadline set by Stream and therefore notified Biba's managers that WFC was going to terminate her employment. (Isom Decl., Ex. 3, Dkt. # 25.) Later that day, Biba sent Stream an email indicating that she had faxed the form in a timely manner, but she faxed it to the wrong fax number. Id. As a result, WFC stopped processing Biba's termination and confirmed that she could return to work. Id. On February 1, 2008, the company WFC uses to conduct its background checks (USIS) sent an email notifying WFC that it was unable to run the background check because Biba's social security number was "frozen." Id. at ¶24, Ex. 7. Stream and Biba communicated several times over the next few days, both by phone and email, regarding the security freeze on Biba's social security number. (JSF ¶25, Dkt. #24.) On February 5, 2008, Stream emailed Biba requesting an "update to the request for allowing USIS to complete the background check." Id. at ¶26, Ex. 8. On that same day, Biba submitted a harassment complaint against Stream and Fracchia relating to Stream's communications with Biba concerning the incomplete forms and Fracchia's conduct during the December 18, 2007 meeting. Id. at ¶30, Ex. 11. On February 7, 2008, Biba sent an email to Stream notifying her that the security freeze had been temporarily lifted for three days. Id. at ¶27, Ex. 9. Although not entirely clear why, WFC was still unable to complete the background check because the security freeze had still not been completely lifted. (Isom Decl., Ex. 2 (Stream Depo. 8:18), Dkt. #25.) On or about February 11, 2008, Mebane and Creed decided to terminate Biba's employment. (JSF ¶28, Dkt. #24.) On February 12, 2008, Mebane gave Biba a letter providing information surrounding Biba's "involuntary termination." Id. at ¶29, Ex. 10. That letter reads as follows: This letter provides you information surrounding your involuntary termination of employment effective February 13, 2008. In the past few weeks, we have been trying to work with you to gather information necessary to continue your employment at Wells Fargo. We recently discovered Page 6 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

through an audit that you had not completed a Background Check Authorization Form. It took many phone calls and emails to obtain your authorization and our third party vendor still cannot access the necessary records to perform the background check. Last week, we learned through a separate audit that you failed to complete another critical form, the I-9. Completion of the I-9 is also a material term of employment at Wells Fargo. When we researched the findings of this audit, we learned that you had told one of [GBB]'s Human Resources Consultants in mid-Decemeber that you refused to sign Wells Fargo's employment forms because you were not going to work for Wells Fargo. Because some of these forms, such as the I-9 and the Background Check Authorization were mandatory, the Human Resources Consultant followed up with you again a few weeks later in an effort to try to collect completed forms from you. It is my understanding that you provided a response similar to the response you gave her in December. Susan, you were asked months ago to complete a number of employment-related forms. You initially refused and to date many of these forms and processes remain incomplete (e.g. the background check, the I-9 Form, Team Member Acknowledgement Form, etc.). Your failure to comply with Wells Fargo's material conditions of employment has caused us to terminate your employment. Id. Biba's termination took effect on February 13, 2008. Id. at ¶29. On December 1, 2008, Biba submitted a claim for benefits to the Plan administrator pursuant to Section 6.5(a) of the Plan. (PF ¶41, Dkt. #63.) WFC never responded to Biba's claim. Id. at ¶42. B. Procedural Background On July 16, 2009, Biba filed the present complaint, naming as defendants WFC, GBB, and the Plan, and asserting five separate causes of action: (1) a claim for severance benefits under the Plan pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA") § 502(a)(1)(B), 29 U.S.C. §§ 1001, et seq., § 1132(a)(1)(B); (2) a claim for equitable relief under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3); (3) a claim for discrimination under ERISA § 510, 29 U.S.C. §1140; (4) a claim for violation of California Labor Code § 201; and (5) a claim for interference with Biba's right to take protected medical leave under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2615(a)(1) . (Pl.'s Compl., Dkt. #1.) On May 24, 2010, the parties filed a stipulated judgment with respect to Biba's claim for violation of California Labor Code § 201. (JSF ¶32, Ex. 12, Dkt. #24.) On May 27, 2010, Defendants filed a Motion for Summary Judgment or in the alternative, Page 7 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

Partial Motion for Summary Judgment. (Defs. Mot., Dkt. #23.) Also on May 27, 2010, the parties filed a Joint Statement of Undisputed Material Facts. (JSF, Dkt. #24.) On June 24, 2010, Biba filed an Opposition (Pl.'s Opp'n., Dkt. #34), and a Separate Statement of Material Facts in Opposition to Defendants' Motion for Summary Judgment (PF, Dkt. #63). On July 1, 2010, Defendants filed a Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment, or in the alternative, Partial Summary Judgment. (Defs. Reply, Dkt. #64.) On July 15, 2010, the Court held a hearing on the matter. III. DISCUSSION A. Jurisdiction and Venue This Court's jurisdiction to review this matter arises under 29 U.S.C. § 1132(a), which grants to every participant in a covered employee benefit plan a statutory right to bring a civil action in federal district court to recover benefits owed under the plan. Although ERISA does not expressly require exhaustion of administrative remedies for employees seeking to recover benefits under employee benefits plans, the Ninth Circuit has held, with few exceptions, that exhaustion of internal administrative remedies is a prerequisite to filing suit in federal court to recover those benefits. Amato v. Bernard, 618 F.2d 559 (9th Cir. 1980). In the present case, Biba's administrative remedies are deemed exhausted because the Plan administrator failed to respond to Biba's claim for benefits. Jebian v. Hewlett-Packard Co., 349 F.3d 1098, 1103 (9th Cir. 2003) (claim for benefits "deemed denied" based on the administrator's failure to render a decision in a matter consistent with the procedural requirements set forth in the plan). Venue is proper in the Northern District of California under 29 U.S.C. § 1132(e)(2) because the Plan is administered in this District and the alleged wrongful conduct took place in this District. Venue is also proper under 28 U.S.C. § 1391(b) because a substantial number of the events or omissions giving rise to Biba's claims occurred within this District. /// Page 8 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

B.

Standard of Review A challenge to a denial of benefits allegedly owed under an ERISA plan is reviewed de

novo "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Likewise, a de novo standard is appropriate where a claim for benefits is "deemed denied" based on the administrator's failure to render a decision in a matter consistent with procedural requirements set forth in the plam. Jebian v. Hewlett-Packard Co., 349 F.3d 1098, 1103 (9th Cir. 2003). Summary judgment is proper when the pleadings, discovery, and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, discovery and affidavits that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325. A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see also Liberty Lobby, 477 U.S. at 248. When the nonmoving party relies only on its own affidavits to oppose summary judgment, it cannot rely on unsupported conclusory allegations to create an issue of material fact. United States v. 1 Parcel of Real Property, 904 F.2d 487, 492 n.3 (9th Cir. 1990) (citing Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978). However, the opposing party need not produce evidence in a form that would be admissible at trial in order to avoid a summary judgment. Celotex, 477 U.S. at 324. Nor must the Page 9 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

opposing party show that the issue will be resolved conclusively in its favor. Liberty Lobby, 477 U.S. at 248-49. All that is necessary is sufficient evidence supporting the asserted factual dispute and requiring a jury or judge to resolve the parties' differing versions of the truth at trial. Id. The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Rather, the evidence and inferences to be drawn from the facts must be viewed in the light most favorable to the nonmoving party. Id. at 631. However, in determining whether to grant or deny summary judgment, it is not a court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1966). Rather, a court is entitled to rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment. Id. C. Application to the Case at Bar 1. 29 U.S.C. § 1132(a)(1)(B) Claim

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In her first ERISA claim for relief, Biba is seeking to recover severance benefits allegedly owed to her under the Plan pursuant to 29 U.S.C. § 1132(a)(1)(B). Because the Plan administrator failed to address Biba's benefits claim all together, let alone in a manner consistent with the Plan requirements, Biba's ERISA claims are entitled to a de novo review by this Court. To be eligible for benefits under 29 U.S.C. § 1132(a)(1)(B), Biba has the burden of showing that: (1) the Plan is covered by ERISA, (2) Biba is a participant or beneficiary of the Plan, and (3) Biba was wrongfully denied severance pay owed under the Plan. Burrey v. Pacific Gas and Elec. Co., 159 F.3d 388, 392 (9th Cir. 1998). It is undisputed that the Plan is covered by ERISA and that Biba was, at all relevant times, a Plan participant. (JSF ¶6, Dkt. #24.) Thus, the only material question remaining is whether Biba was wrongfully denied severance benefits owed to her under the terms of the ERISA Plan. Section 4.1 of the Plan provides that "an employee . . . shall be eligible for a Base Benefit if: Page 10 of 29

1 2 3 4 5 6 7 8 9 10

(a) Subject to Sections 4.2 and 4.3, the Employee's employment is terminated as a result of a Change in Control (or constructively terminated by not being provided a Comparable Position (as defined in Section 4.3)) within one (1) year . . . of the Change in Control . . . ; and (b) The Employee's employment is not terminated for Cause . . . ." (JSF, Ex. 1, Dkt. #24.) Section 4.2(b) of the Plan provides that an employee shall not be entitled to benefits if "[t]he employee is provided a Comparable Position . . . by the successor employer or by a Member Company, regardless of whether the Employee accepts the offer . . ." Id. (emphasis added). Under Section 4.2, an employee who is terminated for "cause" is also not entitled to receive severance benefits under the Plan. Id. Defendants contend that Biba was not wrongfully denied severance benefits under the Plan for two reasons: (1) WFC provided Biba a comparable position; and (2) WFC terminated Biba for cause. (Defs.' Mot. 10:3-7, Dkt. #23.) Biba asserts that she is entitled to severance benefits under the Plan because: (1) WFC never offered her a comparable position; or (2) alternatively, assuming that WFC did offer her a position, it wasn't comparable under the Plan; and (3) WFC constructively terminated her before she was purportedly terminated for cause. (Pl.'s Opp'n. 13:1720, Dkt. #34.) At the outset, the Court must first address the parties' competing interpretations of Section 4.2(b) of the Plan. In a claim for severance benefits allegedly owed under an employee benefits plan covered by ERISA, the terms the plan shall be interpreted "in an ordinary and popular sense as would a person of average intelligence and experience." Richardson v. Pension Plan of Bethlehem Steel Corp., 112 F.3d 982, 985 (9th Cir. 1997) (citing Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir. 1990) (citation omitted)). "Courts should first look to explicit language of the agreement to determine, if possible, the clear intent of the parties." Id. (quoting Armistead v. Vernitron Corp., 944 F.2d 1287, 1293 (6th Cir. 1991) (citations omitted)). However, if the plan is ambiguous, the court may examine extrinsic evidence to determine the intent of the parties. Richardson, 112 F.3d at 985 (citing Taylor v. Continental Group Change in Control Severance Pay Plan, 933 F.2d 1227, 1232-33, 1236 (3d Cir. 1991)).

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Page 11 of 29

1 2 3 4 5 6 7 8 9 10

The conflict here turns on whether the Plan required WFC to make an affirmative employment offer or simply make a comparable position available to Biba after the Acquisition took place. In her opposition, Biba focuses on the term "offer," arguing that Section 4.2(b) required WFC to make an overt or formal employment offer. (Pl.'s Opp'n. 13:22-27, Dkt. #34.) Meanwhile, Defendants focus on the term "provide," arguing that the Plan does not compel the acquiring company to make a formal employment offer, so long as a comparable position was made available to the employee. (Defs.' Reply 2:20-21, Dkt. #64.) This is a fine distinction indeed, and looking to the explicit language of the Plan, the clear intention of the Plan's drafters is not immediately apparent. In the employment context, the use of the term "provide" suggests that a comparable position need only be made available to a Plan participant, whereas the term "offer," in contrast, connotes the existence of a formal and affirmative employment offer comparable in nature to contractual principles of offer and acceptance. However, as they are used in this context, the terms "provide" and "offer" are used interchangeably; with "offer" being used later in the same sentence to qualify to the term "provide." This construction creates a patent, albeit slight, ambiguity making it difficult to discern which of the two was intended to be the operative term. Due to this ambiguity, the Court is permitted to consider extrinsic evidence to assist in interpreting the meaning of Section 4.2 of the Plan. Richardson, 112 F.3d at 985. In support of their interpretation, Defendants point to evidence that WFC provided transition materials to GBB employees as part of the Acquisition, which provide that "[b]ecause this is a stock acquisition, employees do not receive offers of employment as all employment is considered continuous." (Defs.' Reply 2:23-26, Dkt. #64; Stream Decl. Ex. 1, Dkt. #26.) This is the only evidence provided by either party relating to the interpretation of Section 4.2 of the Plan. When considering this evidence in conjunction with the plain language of the Plan, it becomes apparent that Defendants' construction of Section 4.2(b) is consistent with the Plan drafters' intention. Because Biba has provided no additional evidence to support her alternative construction of Section 4.2(b), the Court is inclined to accept Defendants' interpretation. Accordingly, this Court finds that, under the specific circumstances surrounding this case, Section 4.2(b) does not require Page 12 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

WFC to make an affirmative employment offer to Biba. Instead, the requirements of Section 4.2(b) are satisfied if a comparable position was made available to Biba after the Acquisition took place and Biba was aware of that opportunity. However, this does not end the Court's inquiry into this matter. The Court must still determine if any genuine issues of material fact exist as to whether WFC provided Biba with a comparable position after the Acquisition. Pursuant to Section 4.3 of the Plan, a "comparable position" is one that provides a base salary of at least one hundred percent of the base salary of the position held by the employee immediately prior to the Acquisition and is based at a principle place of employment that would not increase the employee's one-way commute by more than thirty five miles. (JSF, Ex. 1. Dkt. #24.) As proof that WFC made a comparable position of employment available to Biba, Defendants point to evidence showing that as early as the July 2007 introductory meeting, Biba, along with each of the other members of GBB's SAD, was "mapped" to continue working at WFC's CMG after the Acquisition. (Isom Decl., Ex. 4 (Mebane Depo. 26:4-11), Dkt. #25; Isom Decl. Ex. 6 (Creed Depo. 14:6-10), Dkt. # 25.) The record also shows that around the time of this meeting, Biba communicated to WFC that she was not interested in a position in the CMG because she believed she was overqualified for the position, but that she was interested in working for WFC in some other capacity. (Isom Decl., Ex. 1 (Biba Depo. 43:6-21), Dkt. # 25; Isom Decl., Ex. 4 (Mebane Depo. 36:19-20), Dkt. #25.) Accordingly, Biba undertook efforts to find a different position within WFC, but those efforts proved unsuccessful. (PF ¶21, Dkt. #63.) In addition, WFC sent a letter to Biba on November 1, 2007, which identified the Loan Adjustment Manager ("LAM") 3 position as the position available to Biba at an annual salary of $148,525.20; an amount obviously less than her pre-acquisition salary of $152,980.08 plus a $750/month auto allowance. (JSF, Ex. 2, Dkt. #24.) This same information was once again conveyed to Biba in a second letter sent by WFC to Biba on November 8, 2007, which "confirmed" the position of LAM 3 as the position available to Biba. (JSF, Ex.3, Dkt. #24.) Although it is not entirely clear from the record what her formal job title was, it is certainly evident that Biba continued working for WFC through Page 13 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

the legal close of the Acquisition on October 7, 2007 until her employment was terminated for Cause effective February 13, 2008. (JSF ¶29, Dkt. #24.) The Court must also determine if the position WFC provided to Biba was comparable under the terms of the Plan. Biba argues that even assuming that WFC did provide her with a position after the Acquisition, the position was not comparable because it did not satisfy the salary and location requirements set forth in Section 4.3 of the Plan. (Pl.'s Opp'n. 14:22-15:2, Dkt. #34.) In support of her argument, Biba points to the November 1, 2007 letter, which identified the Loan Adjustment Manager ("LAM") 3 position as the position available to Biba at an annual salary of $148,525.20; an amount obviously less than her pre-acquisition salary of $152,980.08 plus a $750/month auto allowance. (Pl.'s Opp'n. 13:22-25, Dkt. #34.) Biba also points out that the maximum salary at the time for the LAM 3 position was $149,500. (PF ¶146, Dkt. #63.) Similarly, Biba points out that the November 8 letter "confirmed" the position of LAM 3, but subsequently referred to the Loan Adjustor 4 position, which has an even lower pay scale. (Pl.'s Opp'n. 14:5-7, Dkt. #34.) Defendants acknowledge these discrepancies, but maintain that the salary and job title information reflected in the letters were merely a typos, and point out that her payroll records indicate that Biba was working at the same location, earning at least as much as she did prior to the Acquisition until she was terminated for Cause on February 12, 2008.2 (Defs.' Reply 4:12-15, Dkt. #64.) Even viewing the submitted evidence in a light most favorable to Biba, the Court finds that WFC did, in fact, provide Biba with a comparable position. Notwithstanding the underlying confusion about Biba's job title, the submitted evidence clearly demonstrates that Biba was fully aware that a position was available to her in the CMG should she choose to accept it. This dispute arose because Biba was dissatisfied with the position available to her in the CMG and chose not to accept a position therein. However, Biba's dissatisfaction with the position available to her is immaterial under the relevant sections of the Plan, which provide that an employee who is provided

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2

A detailed account of Biba's February 12, 2008 termination for Cause is discussed infra. Page 14 of 29

1 2 3 4 5 6 7 8 9 10

a comparable position is not entitled to severance benefits "regardless of whether she accepts the position." (JSF, Ex. 1, Sec. 4.2(b), Dkt. #24.) Biba cannot create a triable issue of fact by pointing to a single written correspondence that reflects incorrect salary information when the evidence clearly shows that Biba continued to work at the same location earning at least the same base salary she was earning immediately prior to the Acquisition. The Court finds that Biba was not wrongfully denied severance benefits under the Plan because WFC provided her with a comparable position after the Acquisition legally closed.3 Accordingly, Defendants are entitled to summary judgment as a matter of law as to the first cause of action in Biba's complaint. 2. 29 U.S.C. § 1132(a)(3) Claim

United States District Court

11
For the Northern District of California

In her second ERISA claim for relief, Biba contends that WFC is equitably estopped from denying benefits under 29 U.S.C. § 1132(a)(3), based upon representations made regarding Biba's entitlement to those benefits. (Pl.'s Opp'n. 16:7-8, Dkt. #34.) Biba argues that she is entitled to full benefits under the Plan based upon her reliance on WFC's oral promises that she would have the option to elect to receive severance benefits instead of accepting a position with WFC. Id. at 16:811. Defendants move for summary judgment on Biba's equitable estoppel claim, arguing that Biba has failed to satisfy all of the required elements of this claim. (Defs.' Mot. 13:5-6, Dkt. #23.) 29 U.S.C. § 1132(a)(3) provides that a civil action may be brought by a plan participant to obtain equitable relief to redress ERISA violations, or to enforce any applicable provisions of ERISA or the terms of the plan. Although the Ninth Circuit recognizes that equitable estoppel can be applied to ERISA claims in certain circumstances, its availability is severely restricted. Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812, 821-22 (9th Cir. 1992); see also Kaiser Permanente Employees Pension Plan v. Bertozzi, 849 F. Supp. 692, 697 (N.D. Cal. 1994). To succeed on a 29 U.S.C. § 1132(a)(3) equitable estoppel claim in the Ninth Circuit, an ERISA beneficiary must prove that: (1) a material misrepresentation was made by a plan representative; (2) Similarly, because WFC provided Biba with a comparable position, Biba's argument that she was constructively terminated prior to being terminated for cause fails as matter of law. See infra. Page 15 of 29
3

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

the beneficiary reasonably and detrimentally relied on the misrepresentation; (3) the misrepresentations were made under extraordinary circumstances; (4) the relevant provisions of the Plan are ambiguous; and (5) the representations involved an oral representation of the plan. Spink v. Lockheed Corp., 125 F.3d 1257, 1261 (9th Cir. 1997) (citing to Pisciotta v. Teledyne Industries, Inc., 91 F.3d 1326, 1331 (9th Cir. 1996)). For purposes of this motion, Defendants concede that material misrepresentations were made to Biba regarding an oral interpretation of the Plan. (Defs.' Mot. 13:19-20, Dkt. #23.) Thus, the only questions that remain are: (1) whether Biba reasonably relied to her detriment on the misrepresentations; (2) whether Biba can prove the existence of extraordinary circumstances; and (3) whether the relevant provisions of the plan are ambiguous. (Defs.' Mot. 13-16, Dkt. #23.) a. Reasonable and Detrimental Reliance

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In an equitable estoppel claim brought under 29 U.S.C. § 1132(a)(3), the plaintiff has the burden of proving that she reasonably relied to her detriment on the material misrepresentation. Spink, 125 F.3d at 1261. To establish reasonable reliance, Biba must, at minimum, prove that she was "ignorant" of the true facts relevant to her claim for benefits. Ellenberg, 763 F.2d at 1096; see also Jordt v. Clerks, 2006 WL 228953, at *8 (N.D. Cal. Jan. 30, 2006). Biba has not established that she was ignorant to the true facts relevant to her claim for benefits. In fact, Biba ignores this requirement all together and focuses solely on the detrimental reliance requirement. Defendants concede that on at least two separate occasions prior to the Merger, Fracchia represented to Ken Shannon and other WFC executives that WFC would not offer positions to GBB employees who did not want to work for WFC after the Merger. (Defs.' Mot. 13:19-20, Dkt. #23.) Consequently, "[b]y not offering positions to the GBB employees, eligible employees such as Pierce and Biba would be able to receive benefits under the Plan." (Pl.'s Opp'n. 4:27-28, Dkt. #34.) Shannon subsequently represented this same information to his staff, including Biba. Id. These representations are clearly inconsistent with the express terms of the Plan, which states that Biba would not be entitled to severance benefits under the Plan if WFC provided her with a comparable position, regardless of whether or not she accepted the position. (JSF, Ex. 1, Sec. 4.2(b), Dkt. #24.) Page 16 of 29

1 2 3 4 5 6 7 8 9 10

Although Biba was likely unaware of this inconsistency when she first learned of the misrepresentation, the submitted evidence demonstrates that Biba was, indeed, apprised of the true facts well in advance of the legal close of the Acquisition in October 2007. For example, Biba attempted to "clarify" her entitlement to severance benefits with WFC several times because she "knew" that Fracchia's promise was not consistent with the language of the Plan. (Lewis Decl., Ex. 1 (Biba Depo. 71:9-19, 98:1-22, 117:15-19, 120:1-6), Dkt. #37.) In the November 8, 2007 letter, WFC employee Kathy Kroll clearly and unambiguously stated that "the Change in Control Plan does not give you the flexibility to decide whether you want to continue your employment . . . or terminate your employment and receive Change in Control Plan severance pay and benefits." (JSF, Ex. 3, Dkt. #24.) This same information was again conveyed to Biba in December 2007 by Pierce, who informed Biba that WFC "would not make severance available to anyone who did not want a job with WFC." (PF ¶68, Dkt. #63.) Because Biba became aware that the oral misrepresentations were clearly inconsistent with the language of the Plan prior to the Acquisition, the Court finds that Biba's alleged reliance on the promise after the Acquisition cannot be characterized as reasonable. Even if Biba was able to prove that her reliance on the oral misrepresentations was reasonable, she has nevertheless failed to establish that such reliance was detrimental. For there to be detrimental reliance, Biba must prove that she made a decision in reliance on the alleged misrepresentation that resulted in some detriment to her. Bopp v. Idaho Nat'l Lab. Empl. Ret. Plan, 709 F.Supp.2d 1024, 1032 (D. Idaho 2010). Biba alleges that the detrimental reliance requirement is satisfied because Fracchia's oral misrepresentations induced her to continue working for WFC through the Merger and to not pursue other employment opportunities. (Pl.'s Mot. 18:9-11, Dkt. #34.) However, merely refraining from seeking other employment is not considered "detrimental" reliance sufficient to overcome summary judgment in an equitable estoppel claim under ERISA. Skinner v. Northrop Grumman Ret. Plan B, 2010 WL 679061, at *8 (C.D. Cal. Jan. 26, 2010) (finding that plaintiff's argument that detrimental reliance occurred because plaintiff remained employed longer than plaintiff otherwise would have is "plainly insufficient[]"). Under similar facts, courts have found detrimental reliance to exist only where the plaintiff was induced to Page 17 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

voluntarily quit a current job or to reject another pending employment offer. Piekarski v. Home Owners Sav. Bank, F.S.B., 956 F.2d 1484, 1494 (8th Cir. 1992) (no detrimental reliance found where the plaintiff "did not decline pending job offers or pass up a concrete opportunity to look for other jobs."). Biba likens her situation to that of the plaintiff in Enniss v. Enniss, a Southern District of California case wherein the court found that the plaintiff had, indeed, demonstrated detrimental reliance. See 2004 WL 5416322 (S.D. Cal. 2004). However, Biba's reliance on Enniss is misplaced. In Enniss, the court found that the plaintiff had detrimentally relied on the defendant's promise to fund the plaintiff's retirement because that promise actually induced the plaintiff to quit his current job and give up his entitlement to a Union pension fund. Id. at *6. Biba's situation is easily distinguishable from the facts presented in Enniss. Unlike the plaintiff in Enniss, Biba simply remained employed longer than she may otherwise have been: she was not induced to quit her current job or to decline another pending job offer. In other words, Biba merely refrained from seeking other employment, which does not constitute detrimental reliance. b. Extraordinary Circumstances

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

To establish an equitable estoppel claim under 29 U.S.C. § 1132(a)(3), the plaintiff has the burden of proving "extraordinary circumstances."4 Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1142 (3d Cir. 1993). "Extraordinary circumstances" generally involve acts of bad faith on the part of the employer, attempts to conceal a significant change in an ERISA plan, or affirmative acts of fraud. Jordan v. Federal Express Corp., 116 F.3d 1005, 1011 (3d Cir. 1997). Extraordinary circumstances have been found where the plaintiff repeatedly and diligently inquired about benefits and the defendant repeatedly misrepresented the scope of coverage available to the plaintiff over an extended course of dealing. Curcio v. John Hancock Mut. Life. Ins. Co., 33 F.3d 226, 238 (3d Cir. 1994). Additionally, a plaintiff's particular vulnerability may be a factor to consider when determining the existence of extraordinary circumstances. Id. The Ninth Circuit has adopted the Third Circuit's inclusion of an extraordinary circumstances element in ERISA equitable estoppel claims. Enniss, 2004 WL 5416322, at *4. Page 18 of 29
4

1 2 3 4 5 6 7 8 9 10

Applying these principles to Biba's case, the Court finds that Biba has failed to establish the presence of extraordinary circumstances. First, Biba has not alleged that she is particularly vulnerable or susceptible to lies or misrepresentations. Second, even assuming that material oral misrepresentations were made on several occasions, WFC employees subsequently corrected the misinformation at least as early as the November 8, 2007 letter, which stated that the Plan "does not give you the flexibility to decide whether you want to continue your employment performing the job duties of a Comparable Position or terminate your employment and receive Change in Control Plan severance pay and benefits." (JSF, Ex. 3, Dkt. #24.) Biba asserts that WFC acted with bad faith through "covert plans to eliminate her position and trumped-up termination decision." (Pl.'s Opp'n. 19:8-10, Dkt. #34.) However, this position enjoys no support in the record, and rests entirely on unfounded speculation and conjecture. As support for this claim, Biba points to a September 21, 2007 email sent by Creed to Mebane, wherein Creed identifies Biba as one of the SAD employees to be mapped to WFC's CMG, but also states in parentheses that "Susan has told us she is not interest in CMG - we will need to fill this as LA 2/3/4." (Lewis Decl., Ex. 12, Dkt. #37.) Biba also points to CMG organization charts, prepared by Creed, which show that Biba's position was to be eliminated. Id. However, Biba's characterization of these documents disregards the fact that every statement made regarding the elimination of Biba's position was clearly conditioned on the understanding that Biba had, herself, decided not to accept a position in the CMG. Biba has provided absolutely no evidence to support her claim of bad faith, and such "conclusory allegations of collusion, without factual support, are insufficient to defeat summary judgment." National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997). c. Whether the Plan is Ambiguous

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In claims brought under ERISA, equitable relief is only available if the relevant "provisions of the plan at issue are ambiguous such that reasonable persons could disagree as to their meaning or effect." Pisciotta, 91 F.3d at 1331. Even if the relevant provisions of the plan are ambiguous, a plan participant is not entitled to rely on misrepresentations made by a plan employee if doing so Page 19 of 29

1 2 3 4 5 6 7 8 9 10

would expand or enlarge the benefits provided by the express language of the plan itself. Bopp, 709 F.Supp.2d at 1032 (citing to Greany, 973 F.2d at 822); see also Rodrigue v. Western and S. Life Ins. Co., 948 F.2d 969, 971 (5th Cir. 1991) (noting that "ERISA's writing requirement protects the plan's actuarial soundness by preventing plan administrators from contracting to pay benefits to persons not entitled to them under the express terms of the plan"). Biba cites to two amendments to the original Plan, arguing that at as a result of these amendments "[i]t is impossible to know which Plan was operative at the time of the statements made to Biba upon which she relied." (Pl.'s Opp'n. 21:3-4, Dkt. #34.) First, Biba points out that under Section 4.2(b) of the original Plan, to be eligible for benefits one must not have been offered a "position of comparable pay and status[,]" defined as a position with: 1) at least one hundred percent of the pay, bonus opportunity, and benefits; 2) a similar scope of duties and responsibilities; and 3) one that does not require the employee to increase his one-way commute by 35 miles. Id. at 7-14; Pl.'s Compl. Ex. 1.) Section 4.2(b) was subsequently amended on June 19, 2007 to state that one must not have been offered a "Comparable Position[,]" defined in Section 4.3 as a position that provides a regular base pay of at least one hundred percent of the employee's base pay immediately prior to the effective time of the Change in Control; and is based at a principal place of employment that would not require the employee to increase his normal one-way commute by more than 35 miles. (Pl.'s Opp'n. 21:15-22, Dkt. #34; Pl.'s Compl., Ex. B.) Second, Biba points out that the June 19, 2007 amendments also modified Section 3.4 by expanding the definition of a "for cause" termination to include an "[e]mployee's failure to comply with any material terms or conditions of employment[.]" (Pl.'s Opp'n. 21:18-20, Dkt. #34; Pl.'s Compl., Ex. B.) Biba then quickly suggests that "some of the Plan provisions arguably violate Section 7.1 of the Plan, creating further ambiguity as to whether and to what extent Plan amendments were effective."5 (Pl.'s Opp'n. 21:4-6, Dkt. #34.) However, Biba has failed to offer any evidentiary or

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Section 7.1 of the Plan provides that "[the] Plan may be amended from time to time, or terminated at any time at the discretion of the Board of Directors by a written resolution adopted by a majority of the Board of Directors, provided, however, that no amendment or termination shall adversely Page 20 of 29

5

1 2 3 4 5 6 7 8 9 10

legal support for this argument, and without such support, the Court is unwilling to entertain such a blind assertion. Moreover, there is nothing ambiguous about the specific provisions of the Plan referred to by Biba. Indeed, in each version of the Plan, the message of the relevant provisions is clear and straightforward; if an employee is offered a comparable position with a successor employer, as defined by section 4.3, that employee is not eligible to receive severance benefits under the Plan regardless of whether the employee accepts the position or not. None of the amendments Biba cites modify the clear meaning of these provisions, nor do they affect the substance of the alleged misrepresentations made to Biba. Consequently, Biba has failed to establish that the relevant provisions of the Plan are ambiguous. Because Biba has failed to satisfy all of the elements of her equitable estoppel claim, the Court finds that Defendants are entitled to summary judgment as a matter of law as to the second cause of action of Biba's complaint. 3. 29 U.S.C. § 1140 Claim

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In her third ERISA claim for relief, Biba alleges that WFC terminated her employment to avoid paying Biba severance benefits owed under the Plan in violation of 29 U.S.C. § 1140. (Pl.'s Compl. ¶44.) Defendants move for summary judgment as to this claim, arguing that: 1) Biba has failed to establish a prima facie case of discrimination; and 2) even if she had, Biba has failed to carry her burden of showing that WFC's purported reasons for terminating Biba's employment were a pretext for discrimination. (Defs.' Mot. 18:15-16, 19:18-19, Dkt. #23.) Under 29 U.S.C. § 1140, an employer is prohibited from taking an adverse action against an employee because the employee has asserted a right to benefits under an ERISA plan. See Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 880 (9th Cir. 1989), cert. denied 498 U.S. 814 (1990). The Ninth Circuit "[has] adopted the McDonnell Douglas burden-shifting framework for assessing an employer's liability for discriminatory interference with a plaintiff's exercise of protected rights under section [1140]." Lessard v. Applied Risk Management, 307 F.3d 1020, 1025 (9th Cir. 2002) affect the right of a Participant to receive a severance benefit that the Participant has accrued on account of his termination of employment as a result of a Change in Control." (JSF, Ex. 1, Dkt. #24.) Page 21 of 29

1 2 3 4 5 6 7 8 9 10

(citing Ritter v. Hughes Aircraft Co., 58 F.3d 454, 457 (9th Cir. 1995)). Under this framework, a plaintiff must first make out a prima facie case of discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). If a plaintiff successfully establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. at 255. If the defendant can articulate a legitimate reason for the adverse employment action, the burden shifts back to the plaintiff to then demonstrate that the defendant's proffered reason is a mere pretext for discrimination. See id. at 253. To establish a prima facie case of discrimination, Biba must establish that she: 1) belonged to a protected group; 2) was qualified for the position; and 3) was discharged or denied employment under circumstances that give rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). It is undisputed that Biba has satisfied the first two prongs of this scheme. Defendants do, however, maintain that Biba has failed to create a triable issue of fact that she was terminated under circumstances giving rise to an inference of discrimination because she has not offered any evidence that WFC acted with a "specific intent" to violate 29 U.S.C. § 1140. (Defs.' Reply 12:1-3, Dkt. #64.) To support her claim that she was terminated under circumstances that give rise to an inference of discrimination, Biba offers no direct evidence that WFC acted with a specific intent to interfere with her rights under section 1140. Instead, Biba relies entirely on the assertion that "she had been promised benefits under the Plan for working through the Merger." (Pl.'s Opp'n. 23:5-6, Dkt. #34.) Although "[t]he nature of the plaintiff's burden of proof at the prima facie stage is de minimus[,]" Dister, 859 F.2d at 1114; an inference of discrimination "may not be created by mere subjective belief or debatable assertions." Little v. Cox's Supermarkets, 71 F.3d 637, 643 (7th Cir. 1995). Biba offers no additional evidence to substantiate her claim, yet she prematurely proceeds with her argument as though her prima facie case for discrimination is a foregone conclusion. This is insufficient to establish a prima facie case of discrimination. Even though Biba has failed to establish a prima facie case of discrimination, the Court will proceed with the remaining analysis under the McDonell Douglas framework. Under this Page 22 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

framework, Defendants must be able to articulate a legitimate non-discriminatory reason for terminating Biba's employment. Burdine, 450 U.S. at 255. Defendants' stated reason for terminating Biba's employment is based on her failure to complete a number of employment related forms, which were defined as material conditions of employment under the Plan. (JSF ¶29, Dkt. #24.) Defendants allege that Tassio, a GBB employee, became aware that Biba had not completed the requisite Background Authorization Check Forms and I-9 Form in or around the middle of December 2007. (Defs.' Mot. 6:18-20, Dkt. #23.) Soon after making this discovery, Tassio made two phone calls to Biba requesting that she complete these forms, as they are a material condition of employment with WFC. (Isom Decl., Ex. 5, (Tassio Depo.) 47:19-48:8, Dkt. #25.) On January 24, 2008, Stream, a WFC Human Resources Consultant, sent Biba a memorandum notifying her that WFC was placing Biba on administrative leave until January 28, 2008 pending her completion of the Background Authorization Form.6 (Id. at 7:10-13.) On January 28, 2008, Biba faxed Stream a signed authorization form that included a number of "conditions." (JSF ¶20, Ex. 4, Dkt. #24.) On January 29, 2008, Stream informed Biba through email that WFC could not accept the conditions attached to the Form and gave Biba until the following day to produce the authorization. Id. at ¶22, Ex. 4. In a letter to Stream, Biba explained that she was "concerned" with signing the authorization because it appeared to be "very broad and far-reaching in its scope[]" and she had been the victim of identity theft. Id. at ¶21. Biba signed the authorization without conditions but "under protest" on January 30, 2008. Id. at ¶23. On February 1, 2008, WFC discovered that the background check could not be completed because Biba's social security number was "frozen." (JSF ¶24, Ex. 7, Dkt. #24.) Stream contacted Biba several times over the next few days requesting that Biba unfreeze her account to allow WFC to conduct its background check. Id. at ¶¶25, 26, Ex. 8. On February 5, 2008, Biba made a harassment complaint against Stream related to Stream's communications with Biba regarding the completion of the employment forms. Id. at ¶30, Ex. 11. On February 7, 2008, Biba notified On that same day a security freeze was placed on Biba's credit report at Biba's request. (JSF ¶24, Dkt. #24; Isom Decl., Ex. 10, Dkt. #25.) Page 23 of 29
6

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

Stream that the freeze on her account had been temporarily lifted for three days. Id. at ¶27, Ex. 9. WFC again attempted to conduct the background check a number of times over the next four days but were unable to do so because Biba's account remained frozen. (Isom Decl., Ex. 2, 139:11-16, Dkt. #25.) On February 12, 2008 -- over two weeks after the initial deadline for completing the background authorization and months after WFC first requested she complete the forms -- Mebane sent Biba a letter terminating Biba's employment with WFC. (JSF ¶29.) In the letter, WFC stated its reasons for terminating Biba's employment as difficulties faced in obtaining the requisite background authorization forms and the incomplete I-9 Form. (JSF ¶29, Dkt. #24.) Because Defendants have successfully articulated a legitimate, non-discriminatory reason for terminating Biba, the burden shifts back to Biba to establish that Defendants' stated reason was pretextual and that her employment was actually terminated "because of a specific intent to interfere with [her] ERISA rights." Dytrt v. Mountain State Tel. & Tel. Co., 921 F.2d 889, 896 (9th Cir. 1990). "[N]o action lies, where the alleged loss of rights is a mere consequence as opposed to a motivating factor behind the termination." Id. (citing Kimbro, 889 F.2d at at 881). A plaintiff can show pretext by demonstrating that the employer's stated reason is "unworthy of credence." Burdine, 450 U.S. at 256. Moreover, where the defendants' stated reason for the termination is the plaintiff's violation of a workplace rule, the plaintiff must present evidence that "[s]he did not violate the rule or that, if she did, the defendant[s] selectively enforced the rule in a discriminatory manner." Williams v. Agilent Techs., 2004 WL 2780811 at *4 (N.D. Cal. December 3, 2004) (citing Fong v. American Airlines, Inc., 626 F.2d 759, 762 (9th Cir. 1980) (holding, in Title VII race discrimination case, where plaintiff conceded violation of workplace rule against theft and offered no evidence that the rule was not enforced against similarly situated persons of races other than that of plaintiff, plaintiff failed to demonstrate prima facie case). Courts must take great care when determining if summary judgment is appropriate where issues of motivation and intent are involved, as these issues inevitably present evidentiary difficulties. Dytrt, 921 F.2d at 896. However, "a party against whom summary judgment is sought is not entitled to a trial simply because he has asserted a cause of action to which state of mind is a Page 24 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

material element." Id. To survive summary judgment, Biba must do more than merely challenge the judgment of WFC through the lens of her own self-interested assertions. Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). "There must be some indication that [s]he can produce the requisite quantum of evidence to enable [her] to reach the jury with [her] claim." Dytryt, 921 F.2d at 896 (quoting Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976). Not surprisingly, Biba relies entirely on circumstantial evidence and timing to support her claim of pretext. Biba alleges that WFC's reliance on Biba's failure to complete the I-9 Form and the difficulties WFC encountered in obtaining the background authorization form as the reason behind the termination are "unworthy of credence[.]" (Pl.'s Opp'n. 23:14-19, Dkt. #34.) First, Biba points to what she refers to as "Creed's plans to eliminate Biba's position[.]" Id. However, characterizing Creed's conduct as such is misleading and unsupported by the evidence. The email and corresponding documentation from which Biba draws this inference do nothing to suggest that Creed was developing a covert plan to eliminate Biba's position, as Biba suggests. (Lewis Decl., Ex. 12, 13, Dkt. # 37.) Rather, this evidence shows that at the time of the email, WFC was uncertain as to exactly how GBB employees would fit into the new WFC scheme, but that Biba had communicated that she was not interested in taking a position with the CMG. Id. Any claim to the contrary, without more support, is nothing more than a unfounded conclusory assertion. Second, Biba offers no justification for how her earlier meeting with Fracchia regarding his misrepresentations is related to her subsequent termination. Defendants do not dispute that Fracchia had been "verbally abusive and physically confrontational" in the meeting and communicated that WFC would not honor his earlier promise. (PF, ¶74, Dkt. #63.) However, notwithstanding Fracchia's abrupt reaction, the result of that discussion was ultimately that Biba learned from the original source of the misrepresentations that Fracchia's earlier promise would not be honored. Finally, it is unclear how Biba's request for medical leave in early February would affect her section 1140 claim and Biba offers no explanation as to how this event is relevant to her argument of pretext under ERISA. Additionally, Biba fails to rebut, or even address, Defendants' Page 25 of 29

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

assertion that at the time of Biba's termination, WFC had already taken the position that Biba was no longer entitled to severance benefits under the Plan because she had continued working with WFC through the Merger. (Defs.' Reply 12:9-12, Dkt. #64.) Additionally, Biba argues that it was improper for WFC to base its termination decision on her failure to complete the I-9 Form without giving her the opportunity to do so before effectuating the termination. (Pl.'s Opp'n. 23:16-17, Dkt. #34.) However, contrary to Biba's assertion, WFC's stated reason for the termination involves both Biba's failure to complete the I-9 Form and WFC's inability to complete Biba's background check as a result of the account freezes put in place by her. (JSF ¶29, Dkt. #24.) Admittedly, had WFC relied entirely on the incomplete I-9 form, Biba's argument might be more tenable. But that is not the case here. The evidence shows that not only was the I-9 Form never completed, the background check was never fully completed despite considerable efforts on the part of WFC, even though Biba did eventually sign the background check authorization form. (Isom Decl., Ex. 2, 139:11-16, Dkt. #25.) Thus, the evidence presented by Biba is insufficient to establish that WFC's "proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256. Accordingly, the Court finds that Defendants are enti