Jones et al v. Allen, et al
Filing
162
REPORT AND RECOMMENDATIONS that 86 MOTION for Judgment on the Pleadings be DENIED. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 1/30/2014. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Craig S. Jones, et al.,
:
Plaintiffs,
:
v.
:
Case No. 2:11-cv-380
Kerry A. Allen, Plan
Administrator, et al.,
:
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
:
Defendants.
REPORT AND RECOMMENDATION
Plaintiffs
bring
this
ERISA
action
against
their
former
employers as well as the plans and certain related individuals and
companies.
Before the Court is Defendants’ motion for judgment on
the pleadings as to Count II of the Complaint (Doc. #86).
motion
addresses
only
Plaintiffs’
violation of ERISA, 29 U.S.C. §1140.
the
Magistrate
Judge
RECOMMENDS
claim
for
This
retaliation
in
For the reasons that follow,
that
Defendants’
Motion
for
Judgment on the Pleadings as to Count II of the Complaint (Docket
No. #86) be denied.
I. Facts
Because this case is before the Court by way of a motion for
judgment on the pleadings, the only facts which the Court may
consider are those well-pleaded facts which appear on the face of
the complaint.
The relevant allegations from Plaintiffs’
complaint follow.
Plaintiffs in this action are five individuals previously
employed by Red Mortgage Capital, Inc., Red Capital Markets,
Inc., Red Capital Advisors, LLC, or Red Capital Community
Development Company, LLC, (collectively "Red Capital").
Plaintiffs filed this action against Red Capital, certain
severance plans, a plan administrator, and a company that
acquired Red Capital, alleging that those Defendants wrongly
denied them benefits and otherwise infringed on their rights
under ERISA, infringed on their contractual rights, and also
retaliated against them for exercising ERISA-related rights.
At
issue here is Plaintiffs’ claim that Red Capital retaliated
against them for exercising their rights under an employee
benefit plan and ERISA in violation of 29 U.S.C. §1140.
Red Capital engages in mortgage and investment banking
activities.
Between 1992 and 2003, Red Capital hired each of the
Plaintiffs.
In 2004, National City Corporation ("National City")
acquired Red Capital.
On December 31, 2008, Defendant the PNC
Financial Services Group, Inc. ("PNC") acquired National City,
and assumed responsibility for the administration of certain
benefit plans.
Plaintiffs have asserted claims pursuant to various
severance plans.
One such plan is the National City Corporation
Amended and Restated Management Severance Plan ("National City
Plan").
(Doc. #2, Exhs. 1 & 2.)
This plan covers certain
executives of National City and its subsidiaries, including Red
Capital, and it provides for the award of severance benefits in
certain circumstances if National City incurs a "Change in
Control."
(Doc. #51, Exhs. 1 & 2 at §§ 1.2 & 2.1(d)).
Severance
compensation may be awarded if the “Surviving Entity terminates
the Participant’s employment during the Protection Period . . .
or if the Participant terminates his employment pursuant to
Section 3.2 . . . .”
(Doc. #51, Exhs. 1 & 2 at §§ 4.1).
The
Protection Period begins on the "Effective Date," which is
defined as follows: "In the event a Change in Control ultimately
results from discussions or negotiations involving the
Corporation or any of its officers or directors, the ‘Effective
Date' of such Change in Control shall be the date uninterrupted
discussions or negotiations commenced."
(Id. at §2.1(i) & (u).)
The Protection Period continues "through to the fifteenth month
2
anniversary of the Implementation Date."
(Id. at §2.1(m) & (u).)
One version of the National City Plan was effective January 1,
2005 and amended the prior version.
National City Corporation
subsequently signed an amended version of the National City Plan
that purported to be effective September 30, 2008.
Plaintiffs have also asserted claims pursuant to an
unwritten severance agreement that they refer to as the 2006
Severance Guaranty.
Plaintiffs have also asserted claims in this litigation
pursuant to the Red Capital Group Management Severance Plan ("Red
Capital Plan"), although Defendants argue that Plaintiffs have
not alleged that their retaliation claim is based on the Red
Capital Plan.
By early 2010, PNC was in active discussions about selling
Red Capital.
On March 16, 2010, Plaintiffs and a few other individuals
“notified PNC and Red Capital that they intended to assert their
right to claim benefits under the 2005 National City Plan and/or
the 2006 Severance Guaranty (as defined below) as a result of the
PNC-National City Transaction.”
(Doc. #2 at ¶32).
On March 17,
2010, Defendants extended "offers of continuing employment" to
Red Capital's employees, but excluded Plaintiffs and other
individuals who had notified Defendants of their intention to
claim severance benefits.
Defendants initially extended offers of continuing
employment to two individuals who had sent similar notices
asserting their rights under the Plans, but their notices were
not received until after March 17, 2010.
Once Defendants
received their notice of intention to claim benefits, those
individuals were no longer considered for continued employment.
The individuals who were not initially offered continued
employment were later informed that they would be retained if
3
they would sign full releases of all claims under the PNC and Red
Capital severance plans.
A March 18, 2010 email from a representative of the ORIX
investor group informed one of the Plaintiffs that the ORIX group
considered the March 16, 2010 letters to be “precursors to
litigation.”
On March 30 and 31 of 2010, Plaintiffs notified Defendants
of their conditional resignations.1
On April 27, 2010, PNC notified Plaintiffs that their last
regularly-scheduled work day would be April 30, 2010.
received their salaries through June 26, 2010.
Plaintiffs
One of the
Plaintiffs, Plaintiff Poling, was informed that he was being
terminated as a consequence of his pursuit of his severance
claims and related refusal to execute a release of claims in
favor of Defendants.
II. Procedural History
On February 10, 2012, one of the Plaintiffs, Steven R.
Russi, filed a Motion for Summary Judgment on the Retaliation
Claim.
(Doc. #32).
On March 19, 2012, Defendants responded and
filed a cross motion for summary judgment on the same claim.
(Doc. ##37 & 38).
On September 26, 2012, after the motions were
fully briefed, the Court issued an Opinion and Order denying both
motions, holding that there were disputed issues of fact as to
Defendants defense to Mr. Russi’s retaliation claim.
(Doc. #57).
Defendants’ affirmative defenses are not at issue in the motion
before the Court here; however, several of the Court’s legal
conclusions regarding the retaliation claim are relevant here.
Those portions of the Opinion and Order are referred to in the
1
Plaintiffs continued to come to work after the
“conditional” resignations, and Defendants informed Plaintiff
Russi that PNC believed those “conditional” resignations to be
ineffective.
4
discussion that follows.
On August 16, 2013, the Court ruled on several motions
including Plaintiffs’ Motion for Partial Summary Judgment, which
the Court construed as a motion for judgment on the
administrative record.
(Doc. #125 at 9).
While that Opinion and
Order decided some of the factual disputes that Defendants refer
to in the motion currently before the Court, that Opinion and
Order did so using a standard of review appropriate to a motion
for judgment on the administrative record – it reviewed the
Committee’s determination for arbitrary and capricious error.
(Doc. #125 at 18).
Here the Court is not reviewing the
Committee’s determination.
Rather, the Court is deciding a
motion for judgment on the pleadings.
Consequently, it may not
resolve or even consider disputes of fact but, as discussed in
the section that follows, must accept as true all well-pleaded
allegations of Plaintiffs’ pleadings.
Accordingly, that Opinion
and Order is not relevant to the discussion that follows.
III. Standard for Judgment on the Pleadings
A motion for judgment on the pleadings filed under Fed. R.
Civ. P. 12(c) attacks the sufficiency of the pleadings and is
evaluated under the same standard as a motion to dismiss.
Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.
1979).
In ruling upon such motion, the Court must accept as true
all well-pleaded material allegations of the pleadings of the
opposing party, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.
Southern
Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479
F.2d 478, 480 (6th Cir. 1973).
The same rules which apply to
judging the sufficiency of the pleadings apply to a Rule 12(c)
motion as to a motion filed under Rule 12(b)(6); that is, the
Court must separate factual allegations from legal conclusions,
and may consider as true only those factual allegations which
5
meet a threshold test for plausibility. See, e.g., Tucker v.
Middleburg–Legacy Place, 539 F.3d 545 (6th Cir. 2008), citing,
inter alia, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007).
It is with these standards
in mind that the motion for judgment on the pleadings must be
decided.
IV.
Analysis
Plaintiffs have brought a retaliation claim pursuant to
ERISA, which provides in relevant part:
It shall be unlawful for any person to discharge, fine,
suspend, expel, discipline, or discriminate against a
participant or beneficiary for exercising any right to
which he is entitled under the provisions of an
employee benefit plan, this subchapter, section 1201 of
this title, or the Welfare and Pension Plans Disclosure
Act [29 U.S.C.A. § 301 et seq.] . . . .
29 U.S.C.A. § 1140.
A.
Article III Standing
Defendants first argue that Plaintiffs lack Article III
standing to bring a retaliation claim.
(Docket #86 at 10-13).
It is true that plaintiffs “must possess both constitutional and
statutory standing in order for a federal court to have
jurisdiction.”
Loren v. Blue Cross & Blue Shield of Mich., 505
F.3d 598, 606 (6th Cir. 2007) (citing Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541 (1986)).
“As the party invoking
federal jurisdiction, Plaintiffs bear the burden of establishing
standing.”
Loren, 505 F.3d at 607 (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)).
In order to establish
Article III standing, a plaintiff “must allege: (1) ‘injury in
fact,’ (2) ‘a causal connection between the injury and the
conduct complained of,’ and (3) redressability.”
Taylor v.
KeyCorp, 680 F.3d 609, 612 (6th Cir. 2012) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal
6
quotation marks and citations omitted)).
Defendants argue that Plaintiffs lack standing because “the
condition precedent for becoming eligible to receive change of
control severance pay was never fulfilled.”
(Doc. #86 at 10).
That statement and much of the argument that follows are premised
on the assertion that Plaintiffs lack standing because they will
not be able to recover benefits under the plans.
To that extent,
the argument glosses over the fact that the deprivation of plan
benefits is not the only injury in fact which Plaintiffs allege.
However, at the very end of their argument, Defendants discuss
more generally the requirements of Article III standing and
suggest that Plaintiffs cannot show a concrete and particularized
injury because Plaintiffs have not properly alleged that their
employment was terminated as a result of their attempt to assert
rights under ERISA.
(Doc. #86 at 12).
In order to establish an “injury in fact,” a plaintiff “must
have a ‘personal stake’ in the dispute, alleging an injury
‘particularized as to him.’”
Taylor v. KeyCorp, 680 F.3d 609,
612 (6th Cir. 2012) (citing Raines v. Byrd, 521 U.S. 811, 819
(1997)).
Here, Plaintiffs have alleged that upon notifying
Defendants of their intention to claim benefits, Defendants made
offers of continuing employment to all Red Capital employees
except those who had expressed an intention to claim benefits,
and that Plaintiffs ultimately lost their employment.
at ¶¶ 243-44, 248).
(Doc. #2
Such allegations of lost employment are
sufficient to satisfy the “injury in fact” requirement for
Article III standing.
Nothing in Defendants’ reply brief changes this conclusion.
There, Defendants continue to argue that Plaintiffs cannot show
injury in fact because they were not plan participants, and
because the 2005 National City Plan and the 2006 Severance
Guaranty were extinguished by the 2008 version of the National
7
City Plan.
Again, this argument fails to take into account that
one type of injury in fact which can support a retaliation claim
is an adverse employment action, as opposed simply to a loss of
benefits.
In its September 26, 2012 Opinion and Order deciding
the cross-motions for summary judgment as to the retaliation
claim, the Court determined that Plaintiff Russi successfully
established that he was injured by an adverse employment action
including being excluded from the offer of continued employment,
and ultimately being terminated.
(Doc. #57 at 17).
The
Complaint makes the same allegations as to all Plaintiffs.
#2 at ¶¶243-248).
(Doc.
Accordingly, all Plaintiffs have alleged an
injury in fact for purposes of Article III standing.
As to Defendants’ argument that because certain plans were
extinguished, Plaintiffs have no standing to assert a retaliation
claim, the same Opinion and Order held as follows:
Defendants also argue Mr. Russi has only set forth a
retaliation claim pursuant to the 2005 version of the
National City Plan, which Defendants claim, was amended
in 2008. However, whether or not Mr. Russi was
entitled to benefits under the particular version of
the plan in effect, it remains true that Mr. Russi’s
letter was an effort to seek benefits pursuant to a
plan of which he was a participant. Accordingly, Mr.
Russi’s action in writing the March 16, 2010 letter was
protected by ERISA.
(Doc. #57 at 16).
The Complaint alleges that Plaintiffs were
participants of the National City Plan.
Whether or not the 2008
amendment to the National City Plan was valid is a question of
fact not appropriately resolved at this stage.
As a result,
there is no need to consider Defendants’ argument regarding the
existence of the 2006 Severance Plan at this time.
Defendants do not argue that Plaintiffs have failed to
satisfy the second or third requirements for Article III
standing, but focus their arguments solely on the issue of
8
whether an adequate injury in fact has been alleged.
The Court
is satisfied that the allegations of the complaint are sufficient
to plead, plausibly, both causation and redressability.
Therefore, the complaint adequately alleges that Plaintiffs have
standing under Article III to pursue their retaliation claim.
B.
ERISA Standing
In addition to Article III standing, Plaintiffs must also
have statutory standing pursuant to ERISA.
Loren v. Blue Cross &
Blue Shield of Mich., 505 F.3d 598, 606 (6th Cir. 2007).
ERISA
provides that only “participants,” “beneficiaries,”
“fiduciaries,” and the Secretary of Labor may bring an action to
enforce its provisions. 29 U.S.C. § 1132.
ERISA defines
“participant” as “any employee or former employee ... who is or
may become eligible to receive a benefit of any type from an
employee benefit plan....” 29 U.S.C. § 1002(7); see also Swinney
v. Gen. Motors Corp., 46 F.3d 512, 518 (6th Cir. 1995).
Defendants argue that “[t]he crucial date for determining
‘participant’ status is May 3, 2011, when Plaintiffs filed their
Complaint.”
(Doc. #86 at 13).
In support of this argument,
Defendants cite to Morrison v. Marsh & McLennan Companies, Inc.,
439 F.3d 295, 304 (6th Cir. 2006), which considered a claim
relating to an administrator’s refusal to supply requested
information and which considered whether the plaintiff was a
“participant” at the time of the filing of the complaint.
There,
the court had already determined that the plaintiff was not a
beneficiary of the plan in question after 1999, and that she had
no statutory standing to bring a claim for refusal to provide her
with plan documents based on a request she made in 2002.
The
court did, in passing, suggest that standing was determined as of
the time the plaintiff filed suit, but that clearly was not a
necessary determination based on the facts of that case.
Apart from Morrison, there are cases where the Court of
9
Appeals has determined “participant” status as of the time the
plaintiff seeks to assert his or her rights pursuant to the plan
or ERISA rather than the time suit is filed.
See, e.g., Jordan
v. Tyson Foods, Inc., 312 F. App'x 726, 733 (6th Cir. 2008)
(concluding that the plaintiff had statutory standing because “at
the time that he requested the relevant documents, Jordan had a
colorable claim to vested benefits under the Tyson Plan”)
(citations omitted); Moore v. Lafayette Life Ins. Co., 458 F.3d
416, 445 (6th Cir. 2006) (concluding that plaintiff had statutory
standing because the plaintiff had made “at least a colorable
claim that he was an ‘employee,’ and therefore an ERISA
‘participant,’ at the time of his disability.” (emphasis added)).
The Court of Appeals for the Ninth Circuit has concluded
that for retaliation claims in particular, it may be unwise to
determine standing at the time the lawsuit is filed. McBride v.
PLM Int'l, Inc., 179 F.3d 737, 743-44 (9th Cir. 1999).2
2
This
The Ninth Circuit concluded that for retaliation claims,
“participant” status should be determined as of the date of the
alleged ERISA violation:
The concept of measuring ERISA standing at the time an
action is filed is a judicially created requirement
which is appropriate for most circumstances, but not
for the situation we face in this case. Section 1140
forbids employers and other ERISA entities from
interfering with certain protected rights and is
enforceable through ERISA's civil enforcement mechanism
in section 1132. Depriving a plaintiff of standing to
sue under ERISA for his employer's clear violation of
section 1140 would, in effect, make standing contingent
upon the occurrence of subsequent events entirely
within the control of the employer. “[I]t would seem
more logical to say that but for the employer's conduct
alleged to be in violation of ERISA, the employee would
be a current employee with a reasonable expectation of
receiving benefits, and the employer should not be able
through its own malfeasance to defeat the employee's
standing.” Christopher v. Mobil Oil Corp., 950 F.2d
1209, 1221 (5th Cir. 1992) (citing Amalgamated Clothing
10
Court agrees with that analysis, and finds nothing in the
decisions within this Circuit to the contrary.
Accordingly, the
appropriate date for determining Plaintiffs’ status as
“participants” for purposes of this retaliation claim is the date
upon which Plaintiffs exercised their ERISA rights.
Plaintiffs
have alleged that they were current employees and participants of
the National City Plan at that point.
Accordingly, Plaintiffs
have properly alleged statutory standing.
The Court notes that it is likely that even if Plaintiffs’
status as “participants” were determined as of the date of filing
the complaint, Plaintiffs would still qualify as “participants”
for purposes of ERISA standing.
“[A] former employee has
standing as a ‘participant’ where, but for the alleged
misrepresentations or breaches of duty by fiduciaries, the
employee ‘would have been in a class eligible to become a member
of the plan.’”
Shahid v. Ford Motor Co., 76 F.3d 1404, 1410-11
(6th Cir. 1996) (quoting Swinney v. Gen. Motors Corp., 46 F.3d
512, 519 (6th Cir. 1995) (additional citations omitted)).
In
Shahid the Court of Appeals held that the plaintiff had standing
as a “participant” because if the defendant had not improperly
terminated her or induced her to delay her acceptance of the plan
at issue, she may have become eligible to participate in the
plan.
Id. at 1411.
It would undermine ERISA’s intent to deny
standing to former employees who became former employees as a
& Textile Workers v. Murdock, 861 F.2d 1406, 1418 (9th
Cir. 1988)). . . . We hold that under section 1140,
participant status must be adjudged at the time of the
alleged ERISA violation. Standing under section 1140
does not depend upon whether the former employee seeks
to or could obtain reinstatement to covered employment.
The continued existence of a plan is not essential to
the enforcement of the goals section 1140 was designed
to address. See Christopher, 950 F.2d at 1221.
11
result of the employer’s retaliation.
Here, Plaintiffs have alleged that they were employees
covered by the National City Plan at the time of their March 16,
2010 letters expressing their intent to claim benefits and that
their employment did not end until April or May of 2010.
Defendants argue that Plaintiffs were not “participants” at the
time they filed the present lawsuit because they were former
employees and because the Protection Period under the National
City Plan had ended and, accordingly, “no Plaintiff can now ever
become eligible for severance benefits from either Plan.”
#86 at 15).
(Doc.
According to Defendants, after the Protection Period
expired on March 31, 2010, “Plaintiffs lost their potential
status as Plan ‘participants.’” (Doc. #86 at 15).
Based on this
reasoning, as of April 1, 2010 (the day after the Protection
Period expired), Plaintiffs were still employees, but were
employees who, according to Defendants, could no longer seek
benefits for the Change in Control that occurred when PNC
acquired National City on December 31, 2008.
This argument is not persuasive.
Regardless of whether
Plaintiffs could seek benefits for that particular Change in
Control, Plaintiffs were employees covered by the National City
Plan at that point such that, if there were another Change in
Control, Plaintiffs could have potentially been eligible for
benefits.
Accordingly, as of April 1, 2010, Plaintiffs would
have been “participants” for standing purposes.
See, e.g.,
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18 (1981)
(stating that an employee currently in covered employment fits
within the definition of a “participant”).
The only thing that
changed between April 1, 2010 and May 3, 2011 was the allegedly
retaliatory termination of Plaintiffs’ employment.
Defendants urge the Court to find that even if Defendants’
action in terminating Plaintiffs was in retaliation for
12
Plaintiffs’ having exercised their rights pursuant to ERISA and
the plans, the termination should deprive Plaintiffs of standing
to sue for the retaliation.
The Court of Appeals’ reasoning in
Swinney, 46 F.3d at 518-19, and Shahid, 76 F.3d at 1410-11
preclude that conclusion.
While it is true that under the terms
of the National City Plan, participants could not be awarded plan
benefits based on terminations that occurred outside the
Protection Period, the question here is a different one - namely,
whether Plaintiffs may obtain relief if Defendants retaliated
against them for asserting their rights under the plans or ERISA.
Nothing in ERISA’s retaliation provision requires an adverse
employment action to occur within the time frames set forth in
the plan in order to be actionable.
An action for retaliation is
not a claim for benefits made to the plan administrator, but a
distinct cause of action.
It would largely defeat the purpose of
the statute to allow a defendant to deprive a plaintiff of
standing and, as a result, defeat a retaliation claim simply by
engaging in retaliatory behavior.
Defendants also argue that both the 2005 National City Plan
and the 2006 Severance Guaranty “ended” on September 30, 2008
when the National City Plan was amended.
(Doc. #86 at 13).
As
discussed above, whether or not the 2008 amendments to the
National City Plan were valid, the National City Plan continued
to exist, and accordingly, Plaintiffs were, at the very least,
participants in the National City Plan at the time of the adverse
employment action.
C.
Elements of Retaliation Claim
Next, Defendants reassert the argument (which they also made
in their cross motion for summary judgment) that Plaintiffs have
not adequately alleged the elements of a retaliation claim.
Those arguments are no more persuasive in this context.
First, Defendants argue that Plaintiffs were not exercising
13
rights to which they were entitled under the provisions of a
plan.
In support of this argument, Defendants point to a
Southern District of California case involving former employees
of Defendants who brought ERISA suits under the same plans.
In
that case, Bluhm v. PNC Financial Services Group, Inc., USDC,
S.D. Cal. Case No. 11-cv-313-GPC, the court determined for
purposes of the pending motion for summary judgment that the
“Committee members reasonably determined that the 2005 Plan and
the alleged Interim Agreement were properly amended under Section
2.1(i) of the 2005 Plan.”
(Doc. #86-1 at 17).
Relying on Bluhm,
Defendants argue that Plaintiffs had no rights under the 2005
version of the National City Plan because it was properly amended
in 2008.
For purposes of the motion for judgment on the pleadings
before the Court here, however, the Court is guided by the
allegations in the complaint.
Viewing Defendants’ argument in
that context, it has not yet been determined for purposes of
these Plaintiffs’ retaliation claim whether the 2008 amendment to
the National City Plan was proper.
Further, even if it was,
Plaintiffs had rights under whichever version of the National
City Plan was in effect.
This Court has already determined that
Plaintiff Russi’s March 16, 2010 letter was an “effort to seek
benefits pursuant to a plan of which he was a participant.”
(Doc. #57 at 16).
The same reasoning applies to the other
Plaintiffs as well.
Defendants also argue that there was no adverse employment
action because Defendants offered to keep Plaintiffs if they
would sign a release of all employment-related claims, including
any claims to severance benefits.
They contend what really
happened was that they failed to hire the Plaintiffs, not that
they terminated Plaintiffs’ employment.
Both of these arguments
were also addressed and decided by the Court in its September 26,
14
2012 decision.
As to the failure-to-hire argument, the Court
held that Defendants terminated Plaintiffs, that the termination
was made before the Purchaser purchased portions of Red Capital,
and for that reason it “was more like a termination or
discontinuation of employment rather than a failure to hire.”
(Doc. #57 at 17).
As to the release-of-employment-related-claims
argument, the Court held that “it would run afoul of the intent
of §510 to immunize adverse employment actions which were
conditioned on ceasing the ERISA-protected conduct that prompted
the adverse employment action in the first place.”
18).
(Doc. #57 at
For all of these reasons, the Court concludes that
Plaintiffs’ allegations are sufficient to state a claim for
retaliation under ERISA.
D.
Remedy
Lastly, Defendants
argue that Plaintiffs cannot seek money
damages as relief for their retaliation claim.
Plaintiffs
respond that they are not seeking severance benefits as a part of
their retaliation claim but rather equitable relief including
reinstatement.
(Doc. #102 at 21).
It appears that the parties
are in agreement that Plaintiffs may only seek equitable relief
on their retaliation claim, and there is no need to discuss the
issue of remedy further.
V.
Conclusion
For all the foregoing reasons, the Magistrate Judge
concludes that none of Defendants’ arguments about Article III
standing, ERISA standing, or the adequacy of the complaint to
state a retaliation claim under §1140 have merit.
Therefore, the
Magistrate Judge RECOMMENDS that Defendants’ Motion for Judgment
on the Pleadings as to Count II of the Complaint (Doc. #86) be
DENIED.
VI.
If any party objects to this Report and Recommendation, that
15
party may, within fourteen (14) days of the date of this report,
file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
Upon proper
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal,
the decision of the District Court adopting the
Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
16
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