Vardon v. State of West Virginia
MEMORANDUM OPINION AND ORDER granting defendant's 10 MOTION for Summary Judgment; directing that judgment be entered in favor of the defendant; denying as moot defendant's 6 Motion to Dismiss; directing that this case be dismissed with prejudice and stricken from the docket. Signed by Judge Thomas E. Johnston on 3/2/2012. (cc: attys; any unrepresented party) (lca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
JAMES M. VARDON,
CIVIL ACTION NO. 2:11-cv-00399
STATE OF WEST VIRGINIA,
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Motion to Dismiss [Docket 6] and Motion for
Summary Judgment [Docket 10]. For the reasons that follow, the Court GRANTS Defendant’s
Motion for Summary Judgment [Docket 10], ORDERS that judgment be entered in favor of the
Defendant, and DENIES AS MOOT Defendant’s Motion to Dismiss [Docket 6].
On June 6, 2011, Plaintiff, James M. Vardon, filed a Complaint against Defendant, State of
West Virginia (Consolidated Public Retirement Board), alleging that his “pension rights” were
violated. (Docket 2.) Pursuant to the Court’s September 2, 2010, Standing Order, this matter was
referred to United States Magistrate Judge Mary E. Stanley for submission of proposed findings of
fact and recommendations for disposition (PF&R). On June 27, 2011, Defendant filed its Motion
to Dismiss [Docket 6] and a supporting memorandum (Docket 7).
In response to Magistrate Judge Stanley’s June 28, 2011, Order (Docket 8), Plaintiff, on July
11, 2011, filed a document that is styled as both an Amended Complaint as well as a Response to
Defendant’s Motion to Dismiss. (Docket 9.) In this filing, Plaintiff alleged that in 1980 he began
work for the Mid-Ohio Valley Regional Planning Council. Id. Plaintiff then alleged that “after
working there a number of years + having money taken involuntarily out of my paycheck, supposedly
for the pension fund, I left for another job.” Id. Plaintiff stated that “about 15 years ago” he wrote
to the Defendant requesting a “retirement booklet” and received no answer. Id. Plaintiff then wrote
the Defendant a second time and this time Defendant allegedly responded with a threatening letter.
Id. Plaintiff further alleged that in 2009, the year of his sixty-second birthday, he became eligible
for a $1,500 monthly pension from Defendant. Id.
On July 22, 2011, Defendant replied [Docket 10] to Plaintiff’s Response to the Motion to
Dismiss. By Order and Notice dated July 26, 2011, Magistrate Judge Stanley construed Defendant’s
Reply as a Motion for Summary Judgment and ordered Plaintiff to respond. (Docket 12.) In this
Order and Notice, Magistrate Stanley advised Plaintiff
that he has the right and an obligation to file one or more responses to the defendant’s
reply, submitting affidavits or statements subject to the penalties of perjury, exhibits,
or other legal or factual material supporting his position in the case. In his particular
case, appropriate materials to provide to the court may include earnings statements
detailing his pension contributions, his notice of separation from the employer in
question, or other such documentation.
The plaintiff is advised that factual statements in the affidavit submitted by
the defendant will be accepted as true unless the plaintiff sets forth facts in this
response indicating the existence of a genuine or actual dispute of material fact for
trial. In the response, the plaintiff must set out either in his own affidavit or sworn
statement, or the affidavits or sworn statements of other witnesses, specific facts that
show that he and the defendant actually disagree about one or more important facts
present in this case. In the affidavits and exhibits, the plaintiff should address, as
clearly as possible, the issues and facts stated in the Complaint and in the affidavits
or other evidence submitted by the defendant. The defendant is also advised that a
failure to respond to the motions may result in entry of summary judgment denying
the relief sought in the Complaint and dismissing the suit. In preparing his responses,
the plaintiff should be aware of the fact that a knowing assertion of a falsehood in
order to avoid dismissal could, if proven, constitute perjury punishable by law.
On August 5, 2011, Plaintiff filed his Response to the Motion for Summary Judgment as
directed, but supplied no evidence to support the unsworn assertions contained in his Response.
(Docket 13.) On September 29, 2011, Magistrate Judge Stanley filed her PR&R recommending that
the Court grant Defendant’s Motion to Dismiss or, alternatively, its Motion for Summary Judgment.
On October 17, 2011, Plaintiff filed a Memorandum, which the Court construes as both an
additional Response to Defendant’s Motion to Dismiss and as Plaintiff’s objections to the PF&R.
(Docket 15.) The tone and character of Plaintiff’s assertions in this filing are similar to those
contained in his August 5, 2011, Response. Id. With two exceptions, Plaintiff’s objections to the
PF&R do not challenge any specific factual findings of the PF&R. Id. Plaintiff’s first specific
challenge relates to page four of the PF&R. Id. Plaintiff states that he does not “believe I was given
a choise (sic) to stay or leave [his employment at the Mid-Ohio Valley Regional Planning Council].
Just a small check + no explanation.” Id. His second specific challenge relates to page five of the
PF&R. Id. Here, Plaintiff states that “in 1981 military time could be used + you could always ‘buy
back’ into the system.” Id. In addition to these two factual challenges, Plaintiff also asserts that he
“never received” Magistrate Judge Stanley’s July 26, 2011,Order and Notice advising him to provide
earning statements. Id. Plaintiff suggests that Judge Stanley “must have me mixed up with another
case she is trying to dismiss + deny some one (sic) else thier (sic) right to [a] jury trial (8th
Amendment).” Id. Plaintiff asks the Court to dismiss Defendant’s Motion to Dismiss and set a date
for a jury trial. Id.
With the issues being fully briefed, this matter is now ripe for review.
II. LEGAL STANDARDS
The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely
objections constitutes a waiver of de novo review and the Petitioner’s right to appeal this Court’s
Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989); United
States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct a de
novo review when a party “makes general and conclusory objections that do not direct the Court to
a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982). On October 17, 2011, Plaintiff filed timely objections to the PF&R
(Docket 15) preserving his right to de novo review.
Summary judgment is proper where the pleadings, depositions, and affidavits in the record
show that there is “no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). If factual issues exist that properly can be resolved only by a trier of fact because they may
reasonably be resolved in favor of either party, summary judgment is inappropriate. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Pulliam Inv. Co., Inc. v. Cameo Props., 810
F.2d 1282, 1286 (4th Cir. 1987). The moving party bears the initial burden of showing that there
is no genuine issue of material fact, and that he is entitled to judgment as a matter of law. Celotex
Corp., 477 U.S. at 322-23. “The burden then shifts to the nonmoving party to come forward with
facts sufficient to create a triable issue of fact.” Temkin v. Frederick Cty Comm'rs, 945 F.2d 716
(4th Cir.1991). When determining whether there is an issue for trial, the Court must view all
evidence in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc.,
915 F.2d 121, 123 (4th Cir. 1990). The non-moving party must offer some “concrete evidence from
which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Rule 56(c)
mandates entry of summary judgment “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case.” Celotex, 477 U.S. at 322.
Hearsay statements or conclusory statements with no evidentiary basis cannot support or defeat a
motion for summary judgment. See Greensboro Prof’l Firefighters Ass’n, Local 3157 v. City of
Greensboro, 64 F.3d 962, 967 (4th Cir.1995).
“The very mission of the summary judgment procedure is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need for trial.” Fed.R.Civ.P. 56, advisory
committee notes, 1963 Amendment, Subdivision (e). In order to properly assess “proof” the party
resisting a summary judgment motion must support his factual assertions by: 1) citing to particular
parts of materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or 2) showing that the materials cited establish
the presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support proffered facts. See Fed.R.Civ.P. 56(c)(1)(A–B). Where a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required by
Fed.R.Civ.P. 56(c), the Court may, inter alia, consider any unsupported or unaddressed facts
undisputed and grant summary judgment if the summary judgment motion, its supporting materials,
and the undisputed facts show the movant is entitled to relief. See Fed.R.Civ.P. 56(e).
III . DISCUSSION
Because Defendant’s Reply [Docket 10] to Plaintiff’s Response (Docket 9) to Defendant’s
Motion to Dismiss [Docket 6] contained a supporting affidavit, Magistrate Judge Stanley correctly
construed the Reply as a Motion for Summary Judgment. See Fed.R.Civ. P. 12(d).
In support of its Motion for Summary Judgment, Defendant tendered an affidavit of its
Acting Executive Director and records custodian, Terasa L. Miller. (Docket 10-1.) Ms. Miller states
that: 1) Plaintiff was a member of the Public Employees Retirement System (PERS) for
approximately nine months—from September 1980 through May 1981; 2) in July 1981, Plaintiff,
at his request, received a refund of his employee contributions in the amount of $653.52; 3)
Plaintiff’s employee contribution request terminated his participation in the PERS; and 4) no
“documentation or other evidence” exists that would indicate that Plaintiff “is entitled to a pension
or other benefit from [PERS] or any other retirement plan administrated by the West Virginia
Consolidated Public Retirement Board.” (Id.)
Notwithstanding the explicit advice given by Magistrate Judge Stanley in her July 26, 2011,
Order and Notice, Plaintiff offered no affidavits or other sworn evidentiary materials in his August
5, 2011, Response in support of his claims. (Docket 13.) Nor did Plaintiff—who appears familiar
with the Federal Rules of Civil Procedure as evidenced by his several references to specific
procedural rules—seek to avoid a grant of summary judgment in Defendant’s favor by providing
a Fed.R.Civ.P. 56(d) affidavit or sworn declaration demonstrating that essential facts justifying
opposition to the summary judgment motion are unavailable to him. Id. Rather, on August 5, 2011,
Plaintiff filed a three-page Response with no exhibits or sworn statements. (Docket 13.) The first
two-and-a-half pages of this Response contain an unhelpful critique of the state’s retirement system
and the Court’s procedural rulings. Id. The last paragraph of the Response contains a claim that the
Defendant’s characterization of Plaintiff’s allegations as “delusional” and “irrational” was intended
by the Defendant to prejudice the Court against Plaintiff. Id. He then states “I have been advised
by libel attorneys that I have grounds for a law suit if my case is decided unfavorabely (sic).” Id.
In her PF&R, Magistrate Judge Stanley recommended that the Court grant Defendant’s
Motion for Summary Judgment because Plaintiff failed to refute Ms. Miller’s statements with
affidavits, sworn statements, exhibits or other evidence to support his claims. Judge Stanley further
found that Defendant was entitled to summary judgment where, based on Ms. Miller’s unrefuted
affidavit, Plaintiff’s employment with the Mid-Ohio Valley Regional Planning Commission “fell far
short of the five year statutory requirement,” and, thus, Plaintiff was not eligible as a matter of law
for retirement benefits under the PERS. (Docket 14.)
Plaintiff’s two factual objections to the PF&R lack merit. Plaintiff, as advised by Judge
Stanley, was given an opportunity to present legally sufficient evidence refuting Ms. Miller’s
statements, but Plaintiff ignored Judge Stanley’s advice. (Docket 13.) Plaintiff claims in his
Amended Complaint (Docket 9) that he received a threatening letter from Defendant, but Plaintiff
chose not to tender such salient evidence as an exhibit to his August 5, 2011, Response (Docket 13).
More importantly, Plaintiff could have easily submitted an affidavit or sworn statement averring that
he was a employed with the Mid-Ohio Valley Regional Planning Council for a “number of years”
(as he claims in his Amended Complaint), but he did not. Id. Indeed, in his August 5, 2011,
Response he says nothing to refute Defendant’s evidence that he did not work for the Mid-Ohio
Valley Regional Planning Council for a full year. Id. Plaintiff’s failure to address with competent
evidence such a simple and critical fact has legal consequences, and his failure to even mention or
argue the point in his unsworn Response is particularly telling.
As for Plaintiff’s assertion that he “never received” Judge Stanley’s July 26, 2011, Order and
Notice, that claim is patently false. In Judge Stanley’s Order and Notice, she, among other things,
advised Plaintiff to provide the Court with appropriate materials such as earnings statements to
support his claims. (Docket 12, p. 2.) On August 5, 2011, Plaintiff filed his handwritten Response
to Judge Stanley’s Order and Notice, which he self-styled “Response to Order and Notice of July 26,
2011.” (Docket 13.) Thus, Plaintiff’s objection to the PF&R that he “never received” an order
suggesting he provide earnings statements is meritless.
Under these circumstances, Magistrate Judge Stanley correctly determined that Plaintiff
failed to refute the statements contained in Ms. Miller’s affidavit. Ms. Miller’s evidence shows that:
1) Plaintiff participated in the PERS from September 1980 through May 1981; 2) Plaintiff requested
and received a refund of his employee contributions to his retirement fund in the amount of $653.52;
3) this withdrawal of his retirement monies terminated Plaintiff’s membership in the PERS; and 4)
Ms. Miller found no evidence that Plaintiff was entitled to any pension or benefit from the PERS or
retirement plan administered by the West Virginia Consolidated Public Retirement Board. (Docket
West Virginia Code § 5-10-20 provides:
Article 10. West Virginia Public Employees Retirement Act
§ 5-10-20. Voluntary retirement
Any member who has attained or attains age sixty years and has five or more years
of credited service in force, at least one year of which he was a contributing member
of the retirement system, may retire upon his written application filed with the board
of trustees setting forth at what time, not less than thirty days nor more than ninety
days subsequent to the execution and filing thereof he desires to be retired: Provided,
That on and after the first day of June, one thousand nine hundred eighty-six, any
person who becomes a new member of this retirement system shall, in qualifying for
retirement hereunder, have five or more years of service, all of which years shall be
actual, contributory ones. Upon retirement, the member shall receive an annuity
provided for in section twenty-two of this article.
Based upon Ms. Miller’s unrefuted affidavit it is undisputed that Plaintiff participated in the
PERS for a nine month period and, thus, is not entitled to retirement benefits under law because he
does not have “five or more years of credited service in force, at least one year of which he was a
contributing member of the retirement system.” Id. As such, there is no genuine issue of material fact
to support Plaintiff’s claim that his “pension rights” were violated. (Docket 2.)
Accordingly, the Court the Court GRANTS Defendant’s Motion for Summary Judgment
[Docket 10], ORDERS that judgment be entered in favor of the Defendant, DENIES AS MOOT
Defendant’s Motion to Dismiss [Docket 6], and ORDERS that this case be DISMISSED WITH
PREJUDICE and stricken from the docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
March 2, 2012
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