The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On September 15, 2006, Plaintiff Donald Orr filed a complaint against Defendants Roberson Management Corporation and Roger Roberson alleging a claim under the Employee Income Retirement Income Security Act (ERISA). On October 5, 2006, Defendants filed a Motion for Summary Judgment (#4). The matter is now fully briefed, and for the reasons that follow, Defendants' Motion for Summary Judgment is GRANTED.*fn1
Plaintiff Orr worked with Roberson and his companies since 1985. Orr entered into an employment agreement with Pre-Fab Transit Company on June 1, 1995. This agreement was memorialized in the First Amended and Restated Employment Contract. The First Amended and Restated Employment Contract set forth a Deferred Compensation Plan. On December 11, 1996, Pre-Fab Transit Company changed its name to PFT Roberson, Inc.
In an affidavit attached to the motion for summary judgment, Roger Roberson, the Chairman of the Board of Directors of Pre-Fab Transit Company and Roberson Management Corporation, indicates that Orr was an employee only of Pre-Fab Transit Company which later became PFT Roberson, Inc. However, while employed by PFT Roberson, Inc., Orr's compensation was paid on accounts held in the name of Roberson Management Corporation. Orr also received W-2 forms from Roberson Management Corporation. Defendant Roberson indicates in his affidavit that this procedure was setup as a "purely administrative measure between affiliated entities." Roberson states that PFT Roberson, Inc. reimbursed Roberson Management Corporation for the compensation that was paid to Orr on Roberson Management Corporation accounts. According to Roberson, this procedure was put into place to protect the confidentiality of the salaries of PFT Roberson, Inc.'s highly compensated upper management employees from the general clerical and bookkeeping employees of PFT Roberson, Inc. Roberson further indicates all of Orr's employment benefits were provided directly by PFT Roberson, Inc., including his 401(k) plan, health insurance, company car, and expense account reimbursements. According to Roberson, the PFT Roberson Deferred Compensation Plan was administered by PFT Roberson, Inc. and neither Roberson nor Roberson Management Company acted on behalf of the Plan.
Orr asserts that he was employed by Roberson Management Corporation, not PFT Roberson, Inc. One Board of Directors served all of the Roberson companies, and Roberson was the Chairman of the Board of Directors for all of them. The same people served as directors and officers for all of the companies as well. Orr asserts that the Roberson companies did not regularly observe corporate formalities and commingled funds and assets. Orr asserts that Pre-Fab transit Company was listed as his employer in the employment contract entered into on June 1, 1995, as an accommodation to Roberson.
Orr bases his ERISA claim in the instant case not on the First Amended and Restated Employment Contract which set forth the Deferred Compensation Plan. Rather, Orr bases his claim on a letter dated June 25, 1999, signed by Roberson as "Chairman of the Board of Directors." In the opening paragraph, Roberson states that "the Board of Directors of PFT Roberson, Inc., and Roberson Management Corporation have determined that it is in the best interest of the companies that your employment with PFT Roberson, Inc. be terminated." This letter went on to state:
Pursuant to Section 15(e) of your First Amended and Restated Employment Contract, this letter constitutes written notice to you of the termination of your employment as of the end of this business day (i.e. June 25, 1999). Enclosed with this letter are checks for your compensation earned through June 25, 1999 and an additional check representing ninety (90) days severance pay based on your current base compensation, as required by Section 15(e) of your Contract.
In consideration for the restrictive covenant contained in paragraph 16 of your Contract, PFT Roberson, Inc. will cause you to be paid $75,000 per annum for a period of two years commencing as of June 25, 1999, payable as an independent contractor's consulting fee rather than as wages, on a bi-weekly basis. As provided by paragraph 16 of your Contract, these payments shall be deducted and shall reduce the deferred compensation you have earned pursuant to your Contract. The Summary of your deferred compensation calculations and vesting schedule which we recently approved is enclosed with this letter. Your total vested deferred compensation balance, inclusive of the $75,000 per annum consulting fees referenced in this letter, equals $292,313.28. This amount represents the total deferred compensation and consulting fees due to you will be payable in accordance with the following schedule:
(a) $75,000 payable bi-weekly over the one year period commencing on June 25, 1999;
(b)$75,000 payable bi-weekly over the one year period commencing on June 25, 2000; and
(c) $142,313.28 payable on January 1, 2005.
As you are aware, I am willing to discuss and consider an equitable adjustment of the time period over which these amounts are payable to you and the terms of your post-employment relationship with PFT Roberson, Inc.
On August 10, 2005, an Involuntary Petition under Chapter 7 of the Bankruptcy Code was filed against PFT Roberson, Inc. On February 14, 2006, the Bankruptcy Court entered its final decree closing the bankruptcy case. PFT Roberson has been and remains insolvent since that date. Orr did not make a claim in the bankruptcy case. Roberson Management Company remains a ...