In January 1976, plaintiff experienced a recurrence of
ulcerated varicose veins from which he had suffered for several
years, and which had necessitated several prolonged absences
from work in the past. He was hospitalized from February 2
through February 17, 1976, under the care of Dr. Tom R.
DeMeester. On March 11, 1976, DeMeester released plaintiff to
return to work on March 22, 1976.
On March 19, 1976, Dr. Daniel E. Conrad, Medical Director for
Long Lines' Central Region, examined plaintiff. Dr. Conrad had
examined plaintiff previously in connection with his leg
problems and concluded that plaintiff was medically unable to
return to work. Conrad discussed this assessment with DeMeester
and reexamined plaintiff on April 15, 1976, but reconfirmed his
opinion and refused to allow plaintiff to return to work.
On September 2, 1976, DeMeester again examined Lindahl and
reported to Conrad that Lindahl should be able to work.
DeMeester reiterated this opinion by letter dated November 16,
1976. Conrad nonetheless continued to feel that plaintiff was
unable to work, and discussed his opinion with McCahan.
Together they arranged for plaintiff to be seen by Dr. Peter
Nennhaus, a cardiovascular surgeon. Nennhaus indicated that
Lindahl's disability was not at all serious and could easily be
controlled by use of Kenalog ointment and a knee-high Kendrick
stocking. Nennhaus regarded the Kendrick stocking as vastly
superior to the Jobst brand Lindahl had been using and as
equivalent to bed rest for curing ulcerated venous problems.
On January 20, 1977, Conrad reexamined plaintiff, and found
that plaintiff still had unhealed ulcers. Since a year off of
work with supposed bed rest and leg elevation had not fully
healed Lindahl's condition, Conrad concluded that plaintiff's
condition could not be expected to improve by use of the
Kendrick stocking. Conrad therefore recommended to plaintiff's
supervisor, Stanley Bushhouse, that plaintiff be involuntarily
retired due to the likelihood of a recurrence in the near
future. Bushhouse and his superiors furthered this
recommendation to the EBC with the notice that both plaintiff
and his personal physician disagreed with Conrad's opinion. The
EBC, on February 8, 1977, voted to place plaintiff on
involuntary retirement, notwithstanding his opposition.
Plaintiff was informed by Conrad of the involuntary
retirement in late January. On January 28, 1977, the Union
filed a grievance on plaintiff's behalf alleging that the
company terminated him in violation of its collective
bargaining agreement. After April 25, 1979, when the parties
failed to reach agreement in informal grievance meetings, the
Union demanded arbitration. Long Lines refused on the ground
that the arbitration clause covered only dismissals and not
retirements. In 1980, the Union filed suit to compel
arbitration in federal district court. On September 9, 1980,
Judge Hubert L. Will ordered the parties to arbitrate the issue
of arbitrability. The parties proceeded to arbitration that
summer, and this suit was filed the following January. On March
31, 1982, Arbitrator Zel S. Rice II determined that the dispute
was not arbitrable, and rejected the Union's arguments that the
EBC had violated ERISA through its actions.
Statute of Limitations
In Count I of plaintiff's complaint, which is the sole
remaining count in this lawsuit*fn1, plaintiff seeks damages
for the defendants' breach of fiduciary duty under ERISA. This
claim is governed by the limitations period under section 413
of ERISA, 29 U.S.C. § 1113(a)(2):
No action may be commenced under this subchapter
with respect to a fiduciary breach of any
responsibility, duty or obligation under this
part . . . after the earlier of
(1) six years after (A) the date of the last
action which constituted a part of the breach or
violation, . . . or
(2) three years after the earliest date (A) on
which the plaintiff had actual knowledge of the
breach or violation. . . .
The present lawsuit was filed on January 26, 1982. Plaintiff
testified at his deposition that he knew in January 1977 that
the EBC would have final say over any company recommendation
for involuntary retirement. Since the EBC's decision was
rendered on February 8, 1977, it is obvious that more than
three years passed from the date plaintiff actually learned of
the facts comprising the alleged ERISA violation and the
present suit. Defendants therefore move that judgment be
entered on limitations grounds.