Trinkle v. Niethammer et al

Filing 30

ORDER Denying Defendants' Motion for Summary Judgment 24 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARROLL C. TRINKLE
Plaintiff,
Case No. 16-14361
v.
HON. DENISE PAGE HOOD
HAMMER TRUCKING, INC. and
ROBERT NIETHAMMER,
Defendants.
_________________________________________/
ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [#24]
I.

INTRODUCTION
Plaintiff worked as a truck driver for Defendant Hammer Trucking, Inc.

(“Hammer”) from August 2000 until approximately July 31, 2013. On December 15,
2016, Plaintiff sued Defendants for alleged interference with, and retaliation for, the
exercise of his ERISA rights, in violation of 29 U.S.C. § 1140. On February 5, 2018,
Defendants filed a Motion for Summary Judgment. [Dkt. No. 24] The Motion has
been fully briefed, and a hearing on the Motion for Summary Judgment was held on
April 11, 2018. For the reasons that follow, the Court denies Defendants’ Motion for
Summary Judgment.

II.

BACKGROUND
Plaintiff began working for Hammer in August 2000, and he held a valid

commercial driver’s license (“CDL”), which is required under State of Michigan law
to drive commercial trucks. Plaintiff was a participant in the “Hammer Trucking, Inc.
401(k) Profit Sharing Plan” (“Plan”), an employee pension benefit plan within the
meaning of ERISA In 2004, Plaintiff was diagnosed with diabetes mellitus, type 2.
At that time, Plaintiff was prescribed an oral medication and his diabetes did not affect
his ability to maintain his CDL or drive trucks for Hammer. According to Plaintiff’s
physician, John O’Brien, MD (“Dr. O’Brien”), by March 2010, Plaintiff had become
insulin dependent, Dkt. No. 24, Ex. 5 at 11-12, but Plaintiff never notified Defendants
that he had become insulin dependent. Dkt. No. 24, Ex. 3 at 16-17; Ex. 2 at 71.
Plaintiff passed his physical and was able to renew his CDL in November 2011,
even though he was insulin dependent. Under Michigan law, a person who is insulin
dependent cannot receive a CDL unless he or she obtained a waiver from the State of
Michigan after jointly – with his or her employer – an application for such a waiver.
See M.C.L. 480.12(d), 480.12(2). Plaintiff never asked Hammer, and never on his
own attempted, to apply for a waiver. According to Dr. O’Brien, Plaintiff’s diabetes
was uncontrolled after 2010, even with the prescribed insulin. Dkt. No. 24, Ex. 5 at
15, 28-29, 37-41; Ex. 3 at 56-57.
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In December 2012 or January 2013, Plaintiff had to have the big toe on his right
foot amputated due to diabetes complications. He returned to driving for Hammer
after that surgery. In early July 2013, Plaintiff notified Gwendolyn Niethammer, who
handled Hammer’s benefits, that he was having another surgery and had the second
toe on his right foot amputated on or about July 5, 2013. During the period between
those amputations, Plaintiff began to consider applying for Social Security Disability
benefits, and he first spoke to Dr. O’Brien about applying for Social Security
Disability benefits in January 2013. Dkt. No. 24, Ex. 5 at 17.
Plaintiff states that, in July 2013, due to the costs of his illness and
hospitalization, he sought to withdraw funds from his Plan account and asked
Hammer/Gwen Niethammer for permission to do so. He claims that, as he had done
before, he asked to borrow money from his Plan account but Gwen Niethammer
denied his request. Gwen Niethammer denies that any such conversation took place.
Dkt. No. 24, Ex. 2 at 49-52. On July 26, 2013, Dr. O’Brien completed a Medical
Statement for Social Security Disability Claim (“SSD Claim”) for Plaintiff, declaring
Plaintiff disabled from driving a truck and describing Plaintiff’s symptoms as “pain
& tingling in feet on insulin therapy – no longer able to possess CDL.” Dkt. No. 27,
Ex. 6; Dkt. No. 24, Ex. 9. Plaintiff’s claim for Social Security Disability benefits was
received by the Social Security Administration on July 29, 2013 at 10:27 a.m. Dkt.
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No. 24, Ex. 10; Ex. 11; Ex. 5 at 21-27; Ex. 4; Ex. 10 at 13-15.
Plaintiff states that he called the Plan Administrator and spoke to Paul Stephens
(the call seemingly occurred on July 29, 30, or 31, 2013 and, for purposes of this
Order shall be treated as having occurred on July 29, 2013). Plaintiff indicates that
he told Paul Stephens that he (Plaintiff) needed $10,000 and that Hammer was not
helping Plaintiff get money from his Plan account. Paul Stephens reportedly stated
that Plaintiff could do an “emergency medical withdrawal,” Dkt. No. 27, Ex. 2 at 33,
and Plaintiff asked Paul Stephens to get him a $10,000 loan from Plaintiff’s Plan
account. Id. In an affidavit, Paul Stephens denies having such a conversation with
Plaintiff at that time. Dkt. No. 29, Ex. 1.
On July 29, 2013, approximately 2 hours after Plaintiff’s Social Security claim
was filed, Patricia Dickerson, Director of Administration for Pension Plan Services,
Inc. (“Plan Administrator”) received via facsimile an Election of Direct Rollover for
Qualifying Distribution (“Distribution Election”) filled out in Plaintiff’s handwriting
that requested distribution of his entire Plan account. On the Distribution Election,
Plaintiff gave July 30, 2013 as his date of termination. Dkt. No. 24, Ex. 1; Ex. 4; Ex.
3 at 42. The receipt of a Distribution Election directly from a Plan participant was
unusual, since normally the employer (Hammer) would communicate with Ms.
Dickerson about any proposed loans from the Plan or distributions of an entire
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account, so she contacted Defendants. Dkt. No. 24, Ex 1. Defendants were unaware
of Plaintiff’s intent to terminate his employment or withdraw his entire Plan account
and still understood Plaintiff to be temporarily off work after having surgery. Dkt. No.
24, Ex. 2 at 45, 80-81.
Plaintiff states that, on the same day he spoke to Paul Stephens, Robert
Niethammer called Plaintiff, scolded Plaintiff for attempting to withdraw funds from
the Plan account, discharged Plaintiff from his employment at Hammer, and canceled
all Plaintiff’s fringe benefits. Id. at 21, 47; Dkt. No. 27, Ex. 3 at 144.1 On that same
day (July 29, 2013), Plaintiff elected to receive a distribution of his entire Plan
account, Dkt. No. 27, Ex. 4; Ex. 5, Ex. 10. The Plan Administrator processed
Plaintiff’s request to withdraw his entire Plan account, and within a couple weeks
Plaintiff was given all of the funds in his Plan account, less the sums Plaintiff had
directed to be paid for state and federal taxes and penalties, and Plaintiff’s last day of
employment for Hammer was July 31, 2013. Dkt. No. 24, Ex.1; Ex. 3 at 65-66, 68-70.

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Defendants claim that on July 29, 2013, Robert Niethammer called Plaintiff
after hearing from Ms. Dickerson. Defendants state that Plaintiff told Robert
Niethammer that, because of the medicine Plaintiff was taking, his doctor would
not let him drive commercial trucks anymore. Robert Niethammer told Plaintiff
that since the job required driving commercial trucks, Plaintiff was “done.” Dkt.
No. 24, Ex. 7 at 35, 49; Ex. 11 at 30. In considering Defendant’s Motion for
Summary Judgment, the Court must accept Plaintiff’s version as accurate and
Defendants’ version can be presented to the fact finder.
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Plaintiff has not been gainfully employed since he left Hammer, Dkt. No. 24, Ex. 3
at 52-54, and stated at his deposition,
Q: Okay, Did you try to get another driver job?
A: No. I was done driving.
Q: Because you were not physically able, correct?
A: Correct. No, I just didn’t want to go down the road with a missile, the
truck, a missile.
Q: Right.
A: The trucks weighed 159,000, and if I had a blackout, took too much
insulin, and my sugar went high, and I blackout, and I –I don’t want to
kill nobody, that’s why I got off the road.
Dkt. No. 24, Ex. 3 at 53-54.
In November 2013, the Social Security Administration declared Plaintiff
eligible for disability benefits as of January 1, 2014, because by then he would have
been disabled for five full months. Dkt. No. 24, Ex. 11. Plaintiff continues to receive
Social Security Disability benefits. As Dr. O’Brien testified, given the state of
medicine from 2010 to the present, there is no reasonable medical likelihood that
Plaintiff’s medical condition will ever improve to the point that Plaintiff could stop
taking insulin. Dkt. No. 24, Ex. 5 at 28-30; Ex. 3 at 28.
III.

APPLICABLE LAW & ANALYSIS
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A.

Rule 56
Summary judgment is appropriate in cases where “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,
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.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The moving party bears the burden of demonstrating that summary
judgment is appropriate. Equal Employment Opportunity Comm’n v. MacMillan
Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974). The Court must
consider the admissible evidence in the light most favorable to the nonmoving party.
Sagan v. United States of Am., 342 F.3d 493, 497 (6th Cir. 2003).
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added). To create a genuine issue
of material fact, the nonmovant must do more than present “some evidence” of a
disputed fact. Any dispute as to a material fact must be established by affidavits or
other documentary evidence. Fed. R. Civ. P. 56(c). “If the [nonmovant’s] evidence
is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50 (citations omitted).
Accordingly, a nonmovant “must produce evidence that would be sufficient to require
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submission to the jury of the dispute over the fact.” Mathieu v. Chun, 828 F. Supp.
495, 497 (E.D. Mich. 1993) (citations omitted). “When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.
B.

Analysis
Plaintiff claims that when Hammer (Gwen Niethammer) denied his request to

withdraw funds from his Plan account, Hammer interfered with his rights under
ERISA. Plaintiff also claims that when Hammer (Robert Niethammer) terminated
Plaintiff, it did so in retaliation for his attempt to exercise his rights under ERISA.
Defendants deny that Plaintiff ever spoke to Gwen Niethammer about making
a withdrawal from his Plan account in July 2013 – or that anyone at Hammer refused
any such request. Defendants argue that they did not interfere with Plaintiff’s ERISA
rights, fire him, or retaliate against him in any way. Defendants argue that Plaintiff
chose to leave his employment and apply for Social Security Disability benefits
because, as an insulin dependent diabetic, he was unable to hold a CDL, which was
a legal requirement to perform as a commercial truck driver – the job he held with
Hammer. Defendants contend that those circumstances would have forced him to quit
his job at Hammer no matter what. Defendants assert that Plaintiff has offered no
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evidence that shows any Defendant had the specific intent to interfere with his rights
under ERISA or to retaliate against Plaintiff for the exercise – or attempted exercise
– of those rights.
“‘It shall be unlawful for any person to discharge . . . a participant or
beneficiary . . . for the purpose of interfering with the attainment of any right to which
such participant may become entitled under the plan[.]’” Humphreys v. Bellaire Corp.,
966 F.2d 1037, 1043 (6th Cir. 1992) (quoting 29 U.S.C. § 1140). A plaintiff must
show that a defendant acted with the intent of interfering with his ERISA rights, or
that the defendant retaliated against the plaintiff for exercising or attempting to
exercise his ERISA rights, in order to prevail on a Section 1140 retaliation claim.
Smith v. Ameritech, 129 F.3d 857, 865 (6th Cir. 1997); Humphreys, 966 F.2d at 1043.
If there is no direct evidence of employer motivation, the court will apply the
McDonnell-Douglas/Burdine burden-shifting approach. First, a “plaintiff must show
the existence of a genuine issue of material fact that there was: ‘(1) prohibited
employer conduct (2) taken for the purpose of interfering (3) with the attainment of
any right to which the employee may become entitled.’” Humphreys, 966 F.2d at 1043
(quoting Gavelik v. Continental Can Co., 812 F.2d 834, 852 (3d Cir. 1987)). See also
Ensley v. Ford Motor Co., F. App’x 658, 660 (6th Cir. 2010); Crawford, 560 F.3d
607, 613; Smith, 129 F.3d at 865. “The plaintiff is not required to show that the
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employer’s sole purpose in discharging him was to interfere with his pension benefits,
but rather that it was ‘a motivating factor’ in the decision.” Humphreys, 966 F.2d at
1037 (quoting Meredith v. Navistar Int’l Transport. Corp., 935 F.2d 124, 127 (7th Cir.
1991) and citing Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 238 (4th Cir.
1991)).
If the plaintiff establishes a prima facie case, “the employer must produce
evidence supporting a legitimate, non-discriminatory reason for the discharge.”
Crawford v. TRW Auto US, LLC, 560 F.3d 607, 613-14 (6th Cir. 2009); Humphreys,
966 F.2d at 1043. “If the employer successfully asserts a legitimate reason for its
actions, then the presumption of wrongful action drops from the case, and the plaintiff
must either prove that the interference with pension benefits was a motivating factor
in the employer’s actions or prove that the employer’s proffered reason is unworthy
of credence.” Humphreys, 966 F.2d at 1043. “[A] plaintiff must show ‘a causal link
between pension benefits and the adverse employment decision.’” Smith, 129 F.3d at
865 (quoting Humphreys, 966 F.2d at 1044).
Plaintiff argues that he has produced direct evidence that Defendants retaliated
against him with unlawful intent. Plaintiff cites to the conversation he had with
Robert Niethammer on or about July 29, 2013, when Robert Niethammer “called him,
scolded him for attempting to withdraw funds from [Plaintiff’s] Plan account, and
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discharged Plaintiff . . . from his employment with” Hammer.
Plaintiff also contends that he has shown sufficient circumstantial evidence to
establish a prima facie case that Defendants interfered with the exercise of Plaintiff’s
rights, but he does not specify what that evidence is. He asserts that he has shown that
Defendants were motivated to interfere, though his support seems to be no more than
stating that Plaintiff “has shown a strong and direct connection between Defendants’
perception of him exercising his ERISA rights and Defendants’ action,” together with
the proximity of Defendants expressing their intent and taking action.
Plaintiff argues that the “violating” telephone conversation with Defendants
happened before Plaintiff faxed his Distribution Election on July 29, 2013, and
Defendants terminating Plaintiff on July 30, 2013. Plaintiff claims that the key
telephone conversation happened before July 26, 2013, and that the fact that Plaintiff
considered applying for Social Security Disability benefits before then does not matter
because he did not apply for such benefits until July 29, 2013. Plaintiff states that the
distribution by Hammer of the entirety of his Plan account does not foreclose his
claims, nor did his application for Social Security Disability benefits because those
benefits were not approved until November 1, 2013, and he did not start to receive any
benefits until January 1, 2014.
Defendants argue that numerous undisputed facts support granting their motion
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for summary judgment: (1) Plaintiff was ineligible for a partial distribution of his Plan
account; (2) Plaintiff could borrow – and had twice borrowed – funds from his Plan
account; (3) truck drivers who worked for Hammer were required by law to hold a
valid CDL; (4) Plaintiff began to suffer from diabetes mellitus, type 2, in 2004 and
was insulin dependent from 2010 forward; (5) Plaintiff’s diabetes condition, including
the insulin requirement, meant that he could only qualify to drive a commercial motor
vehicle if he obtained a waiver from the State of Michigan after application by
Plaintiff and Hammer (his employer) – and Plaintiff knew that; (6) Plaintiff never
applied for or obtained a waiver; (7) Plaintiff did not advise Hammer that he had a
clinical diagnosis of diabetes mellitus requiring insulin for control; (8) Plaintiff had
toes amputated in January 2013 and July 2013; (8) Dr. O’Brien completed a SSD
Claim form for Plaintiff on July 26, 2013, indicating that Plaintiff had “pain &
tingling in feet on insulin therapy – no longer able to possess CDL”; (9) on July 29,
2013, Plaintiff’s Benefit Application was received by the Social Security
Administration at 10:27 a.m. and Plaintiff requested distribution of his entire Plan
account at 12:27 p.m., giving his date of termination as July 30, 2013; and (10)
Plaintiff’s entire Plan account was distributed to him.
Defendants argue that the undisputed facts demonstrate that: (1) Plaintiff left
his employment with Hammer at the end of July 2013 because his health had
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deteriorated to the point that he was disabled from legally continuing to retain a CDL
and work as a commercial truck driver for Hammer; and (2) even if Plaintiff had asked
to borrow from his Plan account, his health – together with the legal and physical
requirements of commercial truck driving – would have forced him to quit his job at
the end of July 2013, as he was disabled, which the Social Security Administration
later determined.
Defendants assert that Plaintiff has submitted no evidence that Defendants had
the specific intent to interfere with his rights under ERISA or to retaliate against him
for his exercise or attempted of his rights under ERISA. Defendant contends that the
undisputed evidence shows that Plaintiff had decided to apply for Social Security
Disability benefits, leave his employment with Hammer, and stop driving commercial
trucks by the time he even asked Hammer for any distribution of his Plan account at
the end of July 2013.
The Court denies Defendants’ Motion for Summary Judgment. There is
evidence – although it is only Plaintiff’s testimony – that Plaintiff contacted Gwen
Niethammer about obtaining a withdrawal or loan from his Plan account and such
request was denied. There is evidence – again, it is only Plaintiff’s testimony – that
Robert Niethammer called Plaintiff and terminated him because Plaintiff had
requested withdrawals from his Plan account. The fact that Plaintiff was ineligible to
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work because he could not qualify for a CDL as insulin dependent (without a waiver)
does not vitiate his claims because Defendants did not know that he was ineligible to
drive when they (allegedly) denied his withdrawal/loan and terminated him for
attempting to exercise his ERISA rights. Accepting Plaintiff’s testimony as true, there
is evidence that Defendants had the intent to interfere with Plaintiff’s ERISA rights
and retaliated against Plaintiff for attempting to exercise such rights.
Although Defendants’ arguments are compelling – including the fact that
Plaintiff was ineligible to perform the job Hammer employed him to perform, their
arguments ignore Plaintiff’s testimony and the genuine dispute of material fact that
Plaintiff’s testimony creates.
IV.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment [Dkt. No.

24] is DENIED.
IT IS ORDERED.
S/Denise Page Hood
Chief Judge, United States District Court
Dated: May 15, 2018

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I hereby certify that a copy of the foregoing document was served upon counsel of
record on May 15, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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