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 light most favorable to the plaintiff. Cornfield v. Consolidated High Sch. Dist. 230, 991 F.2d 1316, 1324 (7th Cir. 1993) (citing Ellsworth, 774 F.2d at 184).
As an initial matter, we disagree with the defendants that Tarver has failed to allege the futility of presenting her benefits claims to the Plan Administrator. Although "in most situations" we require that ERISA claimants exhaust administrative remedies prior to bringing suit, Kross v. Western Elec. Co., 701 F.2d 1238, 1244 (7th Cir. 1983), we will excuse failure to file an administrative claim if it would be futile to do so, Powell v. AT&T Communications, Inc., 938 F.2d 823, 826 (7th Cir. 1991). The 1995 Plan anoints North American's Head of Human Resources as the Plan Administrator, who makes "final and conclusive" decisions with respect to all Severance Pay Plan questions. 1995 Plan Summary at 7. In her response brief, Tarver seemingly claims that it was the Plan Administrator who told Tarver that benefits were conditioned on signing the waiver. See PI.'s Resp. Br. at 4 ("The Plan Administrator told Plaintiff . . . to either sign the waiver and release, or forfeit severance pay, vacation pay and insurance."); see also id. at 5. We will consider these allegations in her brief, Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992), and accordingly conclude that dismissal for failure to exhaust is improper at this stage.
But several of the ERISA claims packed into Count IV must nonetheless be dismissed for failure to state a claim. Severance benefit plans are "welfare" benefit plans under ERISA, rather than "retirement or pension" benefit plans. Young v. Standard Oil (Indiana), 849 F.2d 1039, 1045 (7th Cir.) (comparing 29 U.S.C. § 1002(1) with § 1002(2)), cert. denied, 488 U.S. 981, 102 L. Ed. 2d 561, 109 S. Ct. 529 (1988). Accordingly severance benefits are unaccrued and unvested, and "an employer does not owe its employees a fiduciary duty when it amends or abolishes a severance benefit plan." Id. To the extent that the plaintiff asserts that North American violated a fiduciary duty by abolishing the 1994 Plan, which did not require a waiver and release, and instituting in its place the 1995 Plan, we dismiss those claims.
In addition to the fiduciary duty claims, Tarver also seems to argue that the denial of severance benefits was "arbitrary and capricious," the standard by which we review a benefits determination where the plan grants the administrator discretion over the determination, see Allison v. Dugan, 951 F.2d 828, 832 (7th Cir. 1992) (construing Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989)); Young, 849 F.2d at 1045. If by this allegation Tarver means to argue that she should have been considered for severance benefits under the 1994 Plan, see Compl. PP 70-71, we dismiss that claim because the plan in effect at the time of her termination was the 1995 Plan, and the administrator was required to enforce the plan's terms. See McGath v. Auto-Body N. Shore, Inc., 7 F.3d 665, 670 & n.5 (7th Cir. 1993) (citing 29 U.S.C. § 1104(a)(1)(D)).
If instead the plaintiff is asserting that she should have received severance benefits under the 1995 Plan, and that North American acted arbitrarily and capriciously by giving her only 13 days to consider the waiver, see Pl.'s Resp. Br. at 2-3, we dismiss those claims because Tarver neither executed the waiver nor ever maintained that she was willing to execute the waiver. Accordingly, the terms of the 1995 Plan precluded her from receiving severance benefits,
and given her unwillingness to execute a waiver, a procedural failure to provide her with more time did not prejudice her. See Kreutzer v. A.O. Smith Corp., 951 F.2d 739, 743 (7th Cir. 1991).
Finally, to the extent that Tarver alleges a violation of ERISA § 510, 29 U.S.C. § 1140, Pl.'s Resp. Br. at 3-4, we dismiss that claim as well. Section 1140 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 the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan . . . .