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TARVER v. NORTH AMERICAN CO. FOR LIFE & HEALTH INS

March 6, 1996

MARSHA L. TARVER, Plaintiff,
v.
NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE; and NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE EMPLOYEES SEPARATION PAY PLAN, Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Marsha Tarver brings this action against her former employer, North American Company for Life and Health Insurance, and against the company's Employees Separation Pay Plan, alleging among other things violations of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Presently before the court is the defendants' motion to dismiss two counts of the complaint. For the reasons stated below, we grant the motion to dismiss in part and deny in part.

 I. Background

 In evaluating this motion to dismiss, we take the complaint's well-pleaded allegations as true and consider exhibits incorporated into the complaint. Webster v. New Lenox Sch. Dist. 122, 917 F.2d 1004, 1005 (7th Cir. 1990). Tarver began working for North American in 1981, and eventually became a Senior Sales Coordinator by the time her employment was terminated in January 1995.

 During much of the time Tarver worked for the defendant, a "Termination Pay" plan was in effect. Dated December 1986, this plan provided that qualified employees would receive a portion of their salary if they were terminated for reasons specified in the plan. Compl., Ex. A (exhibit pages 1-4). The plan, which we will refer to as the "1994 Plan," was in effect during 1994 and did not require terminated employees to sign a waiver of any kind. However, effective January 1, 1995, North American adopted a new "Separation Pay Plan." Compl., Ex. A (exhibit pages 5-10). The 1995 Plan distinguished between "base" separation pay and "supplemental" separation pay. Base separation pay was set at only one week's salary, while supplemental separation pay started at two weeks' salary and increased according to a formula based on the employee's years of service.

 Unlike the 1994 Plan, however, the 1995 Plan conditioned the receipt of supplemental separation pay on the terminated employee's execution of a "Waiver and Release Agreement." The waiver provided that, in exchange for supplemental separation pay, the employee "agree[s] to release and never sue the Company with respect to any and all claims of any type to date arising out of any aspect of your employment or the termination of your employment." Compl., Ex. F.

 Although imprecisely expressed, the complaint does allege that Tarver was presented with such a waiver on January 5, 1995, when North American notified Tarver that the company planned to eliminate her position, and that her last day would be January 19. Compl. PP 24, 26. Tarver claims that she was given only thirteen *fn1" days to decide whether to execute the waiver or else forfeit the severance payment offered to her, id. P 62; apparently, she was offered $ 8627.50, id., Ex. F. Tarver refused.

 According to the plaintiff, her supervisor, Kevin Little, eliminated her position and created a new position in order to replace her with a younger male. Compl. PP 20-23. This was the ultimate goal of a "plan to discriminate" "devised" by Little on January 14, 1994, when Little wrote a memorandum criticizing Tarver's work. Compl. PP 14, 21, Ex. C. Accordingly, in Counts I and II of her complaint, Tarver alleges that the termination was due to gender and age discrimination.

 As for the counts regarding benefits, however, the complaint is not entirely clear. Count III, entitled "Wrongful Denial of Benefits," apparently asserts that the defendants violated the Older Workers Benefit Protection Act (OWBPA), Pub. L. No. 101-433, § 201 (1990), 29 U.S.C. § 626(f), because North American did not provide Tarver with sufficient time to consider the waiver. Compl. PP 64, 66. Count IV, entitled "ERISA Violations," first alleges that the defendants violated 29 U.S.C. §§ 1002(1), (2)(B)(i), and 29 C.F.R. §§ 2510.3-1(a)(3), 2510.3-2(b)--which are definitional sections--by conditioning "severance pay," "profit sharing," or "assignment of her insurance benefits and other benefits" on execution of the waiver. Compl. P 68. In addition, under the blanket assertion that the defendants violated "the provisions of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1451," Compl. P 71, Tarver claims that the defendants breached their fiduciary duties and "acted wrongfully" by denying her benefits under the 1994 Plan, id. P 70, and that the defendants decided prior to January 1, 1995 to discharge Tarver but waited until after the new year to announce the decision in order to "effect a forfeiture of Plaintiff's vested benefits under the 1994 Plan," id. P 69.

 Presently before the court is the defendants' motion to dismiss Counts III and IV. North American argues that it owed no fiduciary duty to Tarver with regards to severance benefits; that alternatively the plaintiff has failed to exhaust the company's claims procedure; and that, at the least, there is no cause of action under the OWBPA where the employee does not execute a waiver. In response, Tarver first explains that the OWBPA "is not asserted as an independent cause of action," but rather in support of the arbitrary and capricious administration claim under ERISA. In light of this concession, we dismiss Count III and refrain from deciding the issue. Rather, we limit our discussion below to the remaining disputed issues, namely, the ERISA claims in Count IV.

 II. Standard for Reviewing Motion to Dismiss

 A motion to dismiss should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 644 (7th Cir. 1995); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986). We take as true the well-pleaded factual allegations of the complaint and view them, as well as reasonable inferences drawn from them, in the ...


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