Scarber v. United Airlines, Inc. et al

Filing 48

ENTER MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/10/2016:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JEROME SCARBER,
Plaintiff,
Case No. 15 C 9147
v.
Judge Harry D. Leinenweber
UNITED AIRLINES, INC.,
TRACEY ROSE, ANNELLA SAHLI,
and JEFF SMISEK,
Defendants.

ORDER
Before the Court is the Defendants’ Motion to Dismiss in Part and
to Stay Remaining Proceedings [ECF No. 36].

For the reasons stated

below, the Court grants the Motion.

STATEMENT
The Court draws the following facts from the Amended Complaint
and assumes they are true.

The Plaintiff, Jerome Scarber (“Scarber”),

is a flight attendant for United Airlines (“United”).
are United and several of its agents.

The Defendants

In September 2014, United

offered certain employees a voluntary retirement package, known as the
“early

out

plan”

(or

simply,

“the

plan”).

By

taking

certain

administrative steps, qualifying employees could enroll in the plan,
retire, and receive a lump-sum payment of $100,000.
Scarber wanted in, so he signed a required document, which he
refers to as a “waiver,” and submitted it before the deadline.

The

United administrative agent responsible for processing the waiver told
him that he was “all set.”

However, when United later released the

names of employees who received the early out benefit, Scarber was not
included.

United later informed him that it did not process his

application for the program.

Scarber subsequently emailed various

United

officials

(their

precise

relation,

if

any,

to

the

plan

is

unknown), protesting the rejection of his application.
Scarber believes he followed the required procedures.

He filed

suit in this Court, and now alleges in his Amended Complaint that the
Defendants

violated

his

rights

under

an

employment

governed by ERISA, see, 29 U.S.C. § 1001, et seq.
the

face

of

the

Complaint

United’s

reason

benefit

It is unclear on
for

denying

participation in the plan, but that doesn’t matter at this stage.
law,

Scarber

must

exhaust

his

plan

administrative

remedies

him
By

before

proceeding with his ERISA claim.
Although ERISA is silent on exhaustion, see, 29 U.S.C. § 1001, et
seq., the Seventh Circuit has held repeatedly that an ERISA plaintiff
must exhaust internal administrative remedies prior to filing suit.
See, e.g., Zhou v. Guardian Life Ins., 295 F.3d 677, 679 (7th Cir.
2002); Wilczynski v. Lumbermens Mut. Cas., 93 F.3d 397, 401 (7th Cir.
1996).

United’s

specific

early

procedures,

out

plan

including

a

requires

an

specific

review

receives an “adverse benefit determination.”
Scarber did not follow these procedures.
letter

sent

by

his

counsel

to

the

applicant

to

process

follow
if

he

See, ECF No. 12, Ex. A.

His Complaint states that a
CEO

of

United

and

“others”

(unidentified) at the company exhausted all administrative remedies,
but that is insufficient to prove exhaustion.

The plan designates a

specific administrator for handling grievances, and it contemplates
the exchange of various documents relating to any claims before the
administrator makes a final, written decision, which must include the
reasons for any adverse determination.

Scarber does not dispute that

he did not contact the proper plan administrator.
Scarber

instead

argues

that

United

should

be

estopped

from

requiring him to exhaust his administrative remedies because it never
provided him a copy of the plan.

He claims he first read the terms of

the plan when United attached a copy to a filing as part of this
litigation.

See, ECF No. 12, Ex. A.

That contention is concerning;

however, it does not appear that an injustice has occurred warranting
estoppel, because the Defendants contend that “the Plan contains no
limitations period” and that Scarber “may still submit a claim under
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the Plan [and] pursue it through the full administrative process.”
that

is

true,

there

is

little

harm

to

Scarber

in

having

If

these

proceedings stayed while he exhausts his administrative remedies.
The Court assumes the Defendants mean there is no time limit in
which

to

file

an

initial

complaint

with

the

plan

administrator,

because the plan does impose a 60-day window for requesting review of
any adverse determination.
apparently,

the

appropriate

plan

parties

See, ECF No. 12, Ex. A, at pages 7-8.
agree

that

administrator,

Scarber

and

never

never

received

determination within the meaning of the plan’s terms.
the 60-day clock never started running.
that

could

Scarber

lead

would

be

to

serious

entitled

problems

to

renew

contacted
an

But
the

adverse

That would mean

If Defendants mean otherwise,
for

his

them

down

argument

the

road,

and

for

estoppel

and

may)

exhaust

his

request any other available relief in this Court.
Because

Scarber

has

not

yet

(and

still

administrative remedies as required under law and the terms of the
plan, the Court stays these proceedings until Scarber resolves his
Complaint

administratively.

This

relating to his negligence claim:

includes

a

stay

on

proceedings

as the Defendants point out, the

negligence claim would be moot if Scarber were granted benefits under
the plan in the course of United’s internal review.
Lastly, Scarber explicitly declines to contest dismissal of his
claim under the Illinois Human Rights Act for racial discrimination.
The Court dismisses that claim accordingly.
The Court grants Defendants’ Motion to Dismiss in Part and to
Stay Remaining Proceedings [ECF No. 36].
Amended

Complaint

is

dismissed.

His

Count V of the Plaintiff’s
claims

under

ERISA

and

for

negligence are stayed pending his exhaustion of his administrative
remedies.

Harry D. Leinenweber, Judge
United States District Court
Dated: 6/10/2016
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