Gretsky v. Edelstein & Company, LLP et al

Filing 33

Judge Rya W. Zobel: ORDER entered. FINDINGS OF FACT AND CONCLUSIONS OF LAW; Judgment may be entered for all defendants as to Counts 1 & 4 and for Edelstein on Count 3;(Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO.10-11122-RWZ

GENNA GRETSKY
v.
EDELSTEIN & COMPANY LLP, et al.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW
October 18, 2011

Zobel, D.J.
Plaintiff Genna Gretsky brings this action against his former employer, defendant
Edelstein & Company LLP (“Edelstein” or “the firm”), the firm’s managing partner
William Mahoney, and another partner at the firm, Scott Kaplowitch, to recover benefits
allegedly due under the firm’s 401(k) plan (“the Plan”) (Count 1), and damages for
failure to provide Plan documents (Count 3) and for retaliatory discharge (Count 4).1
A three-day bench trial was held on September 26-28, 2011. Per the parties’
agreement, the issues tried with respect to Counts 1 and 4, respectively, were whether
the firm’s decision to administer the employer match on a “payroll period basis” was

1

Three of the original five claims remained for trial: (1) recovery of benefits due under the Plan
pursuant to 29 U.S.C. § 1132(a)(1)(B) (Count 1); (2) refusal to supply requested Plan information in
violation of 29 U.S.C. § 1132(c) (Count 3); and (3) unlawful discharge in violation of 29 U.S.C. § 1140
(Count 4). I granted plaintiff’s motion to voluntarily dismiss Counts 2 and 5, for breach of fiduciary duty
under 29 U.S.C. § 1132(a)(2), and common law violation of public policy, respectively. (Docket # 10 and
Electronic Order Oct. 4, 2010.) I granted defendants’ motion to dismiss Count 3 as against defendants
Mahoney and Kaplowitch. (Docket # 13.)

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arbitrary, and whether the firm discharged plaintiff for filing a complaint under ERISA.
(Docket # 26.) As to Count 3, the questions were: (1) when plaintiff first requested the
Plan documents; (2) whether he maintained his demand or withdrew it; and (3) whether
he requested the Plan documents a second time. Id. Plaintiff has the burden of proof
on each issue.
Following are my findings of fact and conclusions of law.
I. Findings of Fact
Edelstein is an accounting and financial services firm in Boston. Gretsky is a
certified public accountant who entered the employ of Edelstein on May 1, 2000. He
worked for the firm for nine years before he was terminated on July 2, 2009. As he
acknowledged in his trial testimony, he was an “at will” employee and worked at the
pleasure of the partners. He held several titles at Edelstein including accounting
associate and, eventually, Director of Information Systems. (Ex. # 7.) Before his
termination, Gretsky was in charge of the firm’s information technology (IT) department.
A. Edelstein’s 401(k) Plan
Among other fringe benefits, the firm offered a 401(k) plan2 for any employee
who completed three months of service and was over age 21 (a “Plan participant” or
“participant”). (Ex. # 18 at 10; Ex. # 20 at 4-5.) A summary plan description was
available to employees on the firm’s intranet site (Ex. # 5 at 3), and the Plan was also
described in the firm’s personnel handbook. (Ex. # 1 at 30; Ex. # 2 at 39; Ex. # 3 at 41.)

2

Edelstein’s 401(k) plan was combined and administered in concert with the firm’s profit-sharing
plan. The benefits at issue relate only to the 401(k) plan.

2

Edelstein was the Plan’s administrator and the Plan year ran from January 1 to
December 31. (Ex. # 17 at 2; Ex. # 19 at 2.)
Each year, a Plan participant could elect to defer a percentage of his
compensation to the Plan (“elective deferral amount”), up to the legal annual maximum
(“elective deferral limit”).3 (Ex. # 18 at 11; Ex. # 20 at 10, 13-14.) Edelstein had
discretion under the Plan to match each participant’s elective deferral amount at a rate
selected by the firm on a uniform basis for all participants (“the employer match” or
“employer contribution”). (Ex. # 17 at 6; Ex. # 18 at 11-12; Ex. # 19 at 8; Ex. # 20 at
14.) The employer match was entirely discretionary; Edelstein was not obligated to
offer the match and could change or withdraw it at any time the firm deemed necessary.
Id.
During Plan years 2006 through 2008, the firm matched each participant’s
elective deferral amount at a rate of $0.25 for every $1.00 contributed by the
participant, up to 6% of the participant’s income. (Ex. # 1 at 30; Ex. # 2 at 39; Ex. # 3 at
41.) The Plan document for 2006 and 2007 provides that all elective deferrals
“including the amount and frequency of deferrals, shall be subject to the rules of the
Administrator which shall be consistently applied and which may be changed from time
to time.” (Ex. # 18 at 11.) At trial, Firm Administrator Carmela Martell testified that it
was the firm’s longstanding practice to administer the Plan on a “payroll period” basis.4
3

The Internal Revenue Code imposes a limit on the maximum elective deferral that an
employee can make each year to a qualified 401(k) plan. See 26 U.S.C. § 402(g). For participants like
Gretsky who were under age 50, the applicable elective deferral limit for the Plan was $15,000 in 2006,
and $15,500 in 2007 and 2008.
4
At trial, Martell explained that the firm paid its employees weekly, resulting in 52 to 53 payroll
periods per year.

3

Although the 2006 and 2007 Plan document does not specify that the Plan will be
administered “per payroll,” a Plan document from 2002 indicates that the employer
matching contribution will be determined at “all payroll periods ending within each
month.” (Ex. # 16 at 13.)
Each week the firm withheld a participant’s chosen elective deferral amount from
the participant’s wages, and calculated and deposited the employer match at the stated
rate, to a maximum of 6% of the participant’s income for that payroll period.5 Once a
participant had contributed the elective deferral limit for the year, no additional amount
would be withheld from the participant’s weekly compensation until the following Plan
year began. However, since the employer match was also administered at each payroll
period, a participant who reached the elective deferral limit before the end of the Plan
year would not receive an employer match for the remaining payroll periods in that Plan
year. As discussed below, the 2006-2007 Plan document did not allow for a year-end
“true up,” or administration of an additional employer match based on a participant’s
annual gross income.
B. Gretsky’s Plan Benefits, 2006-2008
In 2006, 2007, and the first few months of 2008, Gretsky elected to defer 50% of
his compensation to the Plan (Ex. # 43), and therefore reached the elective deferral
limit well before the end of the Plan year.6 Pursuant to the firm’s policy of administering
5

Suppose, for example, that a participant made $2,000 per week. Only the first 6% of the
participant’s weekly salary, or $120, would be eligible for the employer match. Since the firm matched
eligible income at a rate of $0.25 per dollar, at each payroll period the participant would receive $30 (i.e.,
.25 x 120) in employer matching contributions if the participant’s elective deferral was at least 6%.
6
For example, in 2008 Gretsky would have reached the elective deferral limit in about 15 weeks
had he continued to defer 50% of his income. (Ex. # 5 at 1.)

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the Plan on a payroll period basis, 6% of Gretsky’s weekly income was matched only
during those weeks in which he was contributing to the Plan even though his
contributions had not yet reached the elective deferral limit. Thus, while electing to
defer a high percentage of his compensation allowed Gretsky to quickly reach the
elective deferral limit each year, his choice had the unfortunate effect of depriving him
of the maximum amount of matching contribution that the firm offered.
Around February or March 2008, Gretsky spoke to Mahoney about the
discrepancy between the employer match he received in 2006 and 2007 and the
amount he believed he was entitled to under the Plan.7 (Ex. # 27 at 4.) Mahoney
referred Gretsky to Carmela Martell. In addition to asking Martell about how to take
advantage of the full employer match, he also requested to see the full Plan document.8
(Ex. # 5 at 2-3.)
Martell responded the same day. She informed Gretsky about the firm’s method
of administering the employer match at each payroll period. Id. at 1. She further
explained how he could maximize the employer match for 2008 by filling out a form to
change his elective deferral percentage to 6%. Id. Later that day, he completed the
form—changing his elective percentage to 6%—and returned it to Martell. (Ex. # 8.)

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Gretsky claims that the firm owes him $2068.15 in unpaid employer matching contributions:
$1000.81 for 2006 and $1067.34 for 2007. (Docket # 1 ¶ 21.)
8
Specifically, Gretsky wrote: “I read the plan summary posted on the intranet but found no
formula for the calculation of the 401K match. So, I’m at a loss as to what I need to change my
percentages to in order to get the full match. If you could give me the number, I would really appreciate
it. Also, is the full plan document available for the perusal? I would like to see the provision that Bill
Mahoney was referring to, so I don’t make the same mistake again.” (Ex. # 5 at 3.)

5

In that email dated March 27, 2008, Martell also informed Gretsky that the firm
was “looking into the possibility of making changes to enable everyone to get the
maximum match allowed based on total dollar amount deferred (independent of the
weekly percentage). Stay tuned.” (Ex. # 5 at 1.) In February 2008, Martell had
inquired of the firm’s third-party administrator, Angell Pension Group, about the
possibility of administering a “true up” of the employer match on an annual basis. (Ex. #
44.) Angell Pension informed Edelstein that the Plan document provided that the
employer match is calculated “per payroll” and that the Plan would need to be amended
to allow for a “true up at year end.” (Ex. # 44.) In February 2009, the firm amended the
Plan accordingly for the 2008 Plan year. (Ex. # 9.) However, as Mahoney testified,
Angell Pension advised the firm that it was not possible to retroactively amend the Plan
for 2006 and 2007.
Gretsky testified that, after his correspondence with Martell in March 2008, he
did not raise the issue of the employer match again until May 2009.9 In a May 22, 2009
email to Mahoney, he complained that he did not receive the full employer match for
2008, and re-raised the issue for 2006 and 2007. (Ex. # 27 at 7.) The dispute over his

9

In his Complaint, Gretsky alleges that he had a conversation with Mahoney about the Plan two
weeks after his email correspondence with Martell, but admits that, after that conversation with Mahoney,
he “decided to drop the matter for the time being.” (Docket # 1 ¶ 27.)

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2008 benefits was resolved by June 2009.10 (Ex. # 27 at 3.) However, he continued to
complain about deficiencies for 2006 and 2007. Id.
On May 27, 2009, Gretsky lodged a complaint with the Employee Benefits
Security Administration (“EBSA”) about the amount of the 2006-2007 employer
matching contributions. (Ex. # 40.) In a June 5, 2009 email to Mahoney, Gretsky
informed Mahoney that he had filed a complaint with EBSA. (Ex. # 27 at 5-6.)
Mahoney responded that “[w]e can’t change [the employer matching contributions for]
2006 and 2007,” and told Gretsky: “If you think you have been treated unfairly, you
should contact ERISA.” (Ex. # 27 at 4-5.)
C. Plan Documents
Gretsky first requested Plan documents from Martell in his March 27, 2008
email. See Note 8, supra. He did not request to see them again until a June 5, 2009
email to Mahoney. (Ex. # 27 at 2, 6.) On July 2, 2009, he received a copy of the Plan
and summary plan description for the years 2006 and 2007, and a copy of the adoption
agreement and summary plan description for the 2008 Plan. (Ex. # 14.) Additional
documents—including the Angell Pension Group, Inc. Defined Contribution Prototype
Plan and Trust (Ex. # 21)—were mailed to Gretsky on September 30, 2010, as part of
Edelstein’s pretrial document production. (Ex. # 26.) He testified that he did not

10

Gretsky’s complaint with the 2008 benefits stemmed from his understandable confusion in
reviewing his Plan statements, where the final matching contribution for the 2008 Plan year was
deposited and reflected in a Plan statement for early 2009. After some correspondence with Mahoney,
in an email on June 11, 2009, Gretsky wrote to Mahoney: “Although I still dispute the 2006 and 2007
amounts, I think we can consider the 2008 matching contribution question closed. I am satisfied with it.
Thank you!” (Ex. # 27 at 3.)

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consider his request for plan documents to be fulfilled until October 1, 2010, when he
received the firm’s document production.
D. Gretsky’s Termination
The parties agree that the first eight years of Gretsky’s tenure at Edelstein were
relatively uneventful. However, the partnership’s business was increasing, it hired
additional personnel, including Kimberly Brosnan, Human Resources Director, and the
lines of responsibility became more stratified. That change began to impact plaintiff in
December 2008. Among other things, the firm became concerned with what it
perceived as his poor management of and supervisory skills over IT staff. Edelstein
engaged an outside IT consultant, Keith Wolters, and required Gretsky to meet with
Brosnan to discuss ways to improve. (Ex. ## 36, 48.) Both Brosnan and Mahoney
testified that the meetings were not productive and, as a result, Brosnan recommended
to Mahoney that Gretsky be fired in December 2008.
As Gretsky acknowledged at trial, disagreements also arose between him and
Wolters over Wolters’ approach to improving the firm’s IT department. Brosnan
testified that in April 2009, she, Mahoney, Kaplowitch, and Wolters met to discuss
Gretsky’s failure to update one of the firm’s software programs in a timely fashion, and
what the firm perceived as his disrespectful behavior toward Mahoney at a meeting of
the firm’s IT Committee. In April 2009, both Brosnan and Wolters recommended to
Mahoney that Gretsky be fired. (Ex. ## 45-46.) Despite their recommendations,
Mahoney testified that he declined to terminate Gretsky in December 2008 or April

8

2009 because he appreciated Gretsky’s years of service with the firm and wanted to
give him a chance to improve.
The issue came to a head on July 1, 2009, at Gretsky’s annual review, at which
Mahoney, Brosnan, and, for the latter part, Kaplowitch were present. Gretsky became
upset when Mahoney informed him that he needed to improve his interpersonal skills.
(Ex. # 12.) Among other things, he raised his voice, called Mahoney prejudiced, and
made comments which Brosnan, Mahoney, and Kaplowitch perceived as threats to the
firm’s data security. Although Gretsky testified that his ERISA complaint was discussed
at the review, Mahoney and Brosnan both deny that there was any substantive
discussion of the ERISA issue. After Gretsky left the review, Mahoney, Kaplowitch,
Brosnan, and some of the firm’s other partners met and reached a decision to terminate
Gretsky. The ERISA complaint was not discussed at this meeting. Gretsky was
terminated the following morning.
II. Conclusions of Law
A. Recovery of Benefits Due
Edelstein’s 401(k) plan is an employee benefit plan governed by ERISA. 29
U.S.C. § 1002(3). Under ERISA, a “participant or beneficiary” of an employee benefit
plan may sue “to recover benefits due to him under the terms of his plan. . . .” 28
U.S.C. § 1132(a)(1)(B). Where a plan grants discretionary authority to the plan
administrator, the court will review the administrator’s decisions to determine whether
they are arbitrary and capricious. Sullivan v. Raytheon Co., 262 F.3d 41, 50 (1st Cir.
2001). Since the Plan gave Edelstein complete discretion to determine whether and in
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what amount to provide an employer match, the court will apply this standard to
evaluate Edelstein’s decision not to award Gretsky an additional employer match for
2006-2007. The administrator’s decision will be upheld if it was within the
administrator’s authority, reasoned, and supported by substantial evidence in the
record. Id. (quoting Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir.
1998)) (internal quotation marks omitted).
It was within Edelstein’s authority to administer the elective deferral and
employer match on a payroll period basis. The Plan document for 2006-2007 provided
that elective deferrals were subject to the rules of the administrator (Ex. # 18 at 11) and
earlier Plan documents explicitly provide for administration at each payroll period. (Ex.
# 16 at 13.)
All participants were advised that the employer match was completely
discretionary and could be changed at any time deemed necessary by Edelstein. See,
e.g., Ex. # 2 at 39. Since Gretsky was not assured of receiving an employer match at
all, he was not denied a “benefit[ ] due” to him under the Plan, especially where the
benefit was administered in a uniform fashion for all participants. There is no evidence
that Edelstein singled out Gretsky; to the contrary, Carmela Martell testified that
Gretsky was not the only employee who was unable to maximize the employer match
because of the firm’s decision to administer the Plan on a payroll period basis. Finally,
Edelstein reasonably relied on the advice of its third-party administrator, Angell
Pension Group, that it was not possible to conduct a true up for the years 2006-2007, in
informing Gretsky that the firm could not change his employer match for those years.
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For these reasons, Edelstein’s administrative decision was not arbitrary or
capricious, and the firm did not improperly deny Gretsky benefits due to him under the
Plan.
B. Refusal to Supply Plan Information
ERISA contains several disclosure provisions to ensure that an “individual
participant knows exactly where he stands with respect to the plan.” Firestone Tire and
Rubber Co. v. Bruch, 489 U.S. 101, 118 (1989) (citing H.R. Rep. NO. 93-533, p. 11
(1973), U.S. Code Cong. & Admin. News 1978 p. 4649). One such provision, 29
U.S.C. § 1024(b)(4), requires the administrator to provide certain plan information to a
plan participant upon written request.11 If the administrator “fails or refuses to comply
with a request for any information” which the administrator is required to furnish, the
administrator “may in the court’s discretion be personally liable to such participant or
beneficiary in the amount of up to $100 a day from the date of such failure or refusal.”
29 U.S.C. § 1132(c)(1).
The court may appropriately consider the motives of the administrator and the
prejudice to the plaintiff (or lack thereof) in deciding whether to award penalties under
this section. Sullivan v. Raytheon Co., 262 F.3d 41, 52 (2001). See also RodriguezAbreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 588-89 (1st Cir. 1993) (decision

11

Subsection 1024(b)(4) reads, in relevant part: “The administrator shall, upon written request of
any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the
latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other
instruments under which the plan is established or operated.” The comma after “summary,” although
present in the statutory text, is most likely a scrivener’s error. Subsection (b) refers throughout to the
“summary plan description,” sans comma, which is the most natural and intended reading of the statute.

11

not to impose penalties justified where there was no evidence that the administrator
acted intentionally or in bad faith in failing to timely provide requested plan documents,
and plaintiff suffered no prejudice by the delay); Kansy v. Coca-Cola Bottling Co. of
New England, 492 F.3d 54, 61 (1st Cir. 2007) (denial of sanctions justified where
plaintiff admitted that he suffered no prejudice from defendant’s delay in producing
certain documents).
1. Gretsky’s First Request for Plan Information
Gretsky requested the full 2007 Plan document on March 27, 2008. Even
though he made his request with the goal of sorting out the employer matching issue,
his request for the full Plan document is unambiguous: “[I]s the full plan document
available for perusal?” (Ex. # 5 at 3.) While Carmela Martell explained how the firm
administered the elective deferral and employer match, she admitted that the summary
plan description “[was not] specific about the matching amount,” (Ex. # 5 at 1) and she
did not give him a copy of the Plan document as he requested.
However, sanctions are not warranted because Edelstein did not act in bad faith.
Martell answered Gretsky’s inquiry about how to maximize the employer match and,
that same day, Gretsky changed his elective deferral percentage based on her advice.
(Ex. # 8.) The firm understandably thought that the issue had been resolved, a position
supported by Gretsky’s admission both in his Complaint (Docket # 1 ¶¶ 27-28) and at
trial that he did not pursue the issue again until 14 months later. Cf. Winchester v.
Pension Comm. of Michael Reese Health Plan, Inc., 942 F.2d 1190, 1194 (7th Cir.
1991) (defendant’s laches defense was warranted where defendant reasonably
12

assumed matter was closed and that plaintiff had received information necessary to
determine “exactly where she stood with the plan,” given plaintiff’s two year delay in
renewing her request for plan information). The 14-month lag also suggests that
Gretsky was not prejudiced by Edelstein’s failure to furnish the Plan documents within
30 days of his March 27, 2008 request.
2. Gretsky’s Second Request for Plan Information
Gretsky renewed his request for Plan documents on June 5, 2009, but on June
11, 2009, he acknowledged that his 2008 benefits were no longer in dispute (Ex. # 27
at 3) and clarified that his request was for the “rules in effect in 2006 and 2007[.]” (Ex.
# 27 at 2.) On July 2, 28 days after his renewed request, the firm sent summary plan
descriptions and Plan documents for the years 2006-2008.12 While Gretsky does not
dispute that Edelstein sent him these documents within the 30-day statutory period, he
argues that the Angell Pension Group, Inc. Defined Contribution Prototype Plan and
Trust (Ex. # 21) was necessary to understand how the employee match was calculated.
It was thus an “instrument[ ] under which the plan [was] established or operated,” 29
U.S. C. § 1024(b)(4), that Edelstein failed to furnish within 30 days of his request.
It is not necessary to determine whether the Prototype Plan and Trust was a
document “under which the plan is established or operated,” because Edelstein was
not obligated to furnish this document to Gretsky. The Prototype Plan and Trust is
referenced in the 2008 Plan materials (Ex. # 20 at 13), and by this time, Gretsky had

12
At trial, Gretsky testified that in mid-June 2009 Mahoney invited him into his office, promised
to show him the Plan documents, and then refused to do so. This incident, while curious, is irrelevant
given that the firm responded to Gretsky’s request within the 30-day period provided by statute.

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narrowed his request to 2006-2007. Furthermore, any failure by Edelstein to furnish
this document did not prejudice Gretsky because it pertained to a Plan year for which
the benefits are not in dispute.
C. Unlawful Discharge and Retaliation
ERISA prohibits the unlawful discharge of a participant “for exercising any right
to which he is entitled under the provision of an employee benefit plan . . . or for the
purpose of interfering with the attainment of any right to which such participant may
become entitled under the plan.” 29 U.S.C. § 1140. The plaintiff bears the burden of
proving that the employer terminated him with the specific intent of interfering with his
ERISA benefits. Kouvchinov v. Parmetric Tech. Corp., 537 F.3d 62, 66 (1st Cir. 2008).
The “specific intent” requirement obligates a plaintiff to demonstrate that the employer’s
action was a “motivating factor” behind the termination. Barbour v. Dynamics Research
Corp., 63 F.3d 32, 37 (1st Cir. 1995) (citing Dister v. Continental Group, Inc., 859 F.2d
1108, 1111 (2d Cir. 1988)). See also id. (“No ERISA cause of action will lie where the
loss of benefits was a mere consequence of, but not a motivating factor behind, a
termination of employment.”); McGann v. H & H Music Co., 946 F.2d 401, 408 (5th Cir.
1991)(under 29 U.S.C. § 1140, “the asserted discrimination is illegal only if it is
motivated by a desire to retaliate against an employee or to deprive an employee of an
existing right to which he may become entitled”).
Where, as here, the plaintiff has no direct evidence of specific intent to
discriminate, the burden-shifting framework of cases involving circumstantial proof of
discrimination applies. Kouvchinov, 537 F.3d at 67 (citing McDonnell Douglas Corp. v.
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Green, 411 U.S. 792, 802-05 (1973)). As a threshold matter, the plaintiff must make a
prima facie case of discrimination. Id.13 To do that, “[he] must present sufficient
evidence from which the employer’s specific intent to interfere with the plaintiff’s
benefits can be inferred.” Barbour, 63 F.3d at 38. He must show that: (1) he is entitled
to ERISA’s protection; (2) he was qualified for the position; and, (3) he was discharged
under circumstances that give rise to an inference of discrimination. Id.
As a participant in the Plan, plaintiff was unquestionably entitled to protection
under ERISA. 29 U.S.C. § 1002(7). Whether he was qualified for the position held
remains in dispute, but is not necessary to resolve since he has offered no credible
evidence that he was discharged under circumstances giving rise to an inference of
discrimination.
Gretsky claims that the firm unlawfully fired him because he raised questions
about the employer match, requested Plan documents, and complained to EBSA.
(Docket # 1 ¶56.) I credit the testimony of defendants and Brosnan that his complaint
was not discussed at the performance review on July 1, 2009, and that, in any event, it
played no part in the decision to terminate. In addition, Edelstein produced unrefuted
evidence that Brosnan recommended terminating Gretsky as early as December 2008,
and both Brosnan and IT consultant Wolters again recommended termination in April
2009—well before the employer matching issue resurfaced on May 22, 2009, or plaintiff

13

If the plaintiff does so, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Kouvchinov, 537 F.3d at 67. If the
employer meets its burden, then the plaintiff must demonstrate that the reasons given by the employer
are a pretext for discrimination. Id. The court need not reach these last two prongs because Gretsky fails
to make a prima facie case.

15

submitted his complaint to EBSA.
Nor is the scheduling of Gretsky’s annual review (in July) suggestive of
discriminatory motive. Gretsky had been reviewed at approximately the same time the
previous year. (Ex. # 11.) Moreover, I accept the testimony of Mahoney that he and
Brosnan entered Gretsky’s annual review with no intention of firing him, but felt they
were left with no choice after his reaction to the feedback he received. Finally, the
amount in controversy—approximately $2,000—was relatively small and there is no
evidence that the firm was unwilling to pay Gretsky that amount. To the contrary, the
firm contacted Angell Pension Group to inquire about the possibility of administering a
true up, but was told a retroactive true up for 2006 and 2007 was not possible.
I find that plaintiff has simply failed to prove that he was discharged for filing a
complaint with EBSA.
III. Conclusion
In accordance with the court’s findings of fact and conclusions of law, judgment
may be entered for all defendants as to Counts 1 and 4, and for Edelstein on Count 3.
Further, the judgment shall reflect that the court previously allowed plaintiff’s motion to
voluntarily dismiss Counts 2 and 5 (Docket # 10), and defendants’ motion to dismiss
Count 3 as to Mahoney and Kaplowitch (Docket # 13).

October 18, 2011

/s/Rya W. Zobel

DATE

RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

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