United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI, District Judge.
the court allowed Defendants' motion to dismiss Plaintiff
Brian King's state law claims, Memorandum & Order [#31],
King moved for leave to amend. Mot. Leave Amend Compl. State
Claims Under ERISA [#34]. Finding the proposed amendment
futile, the motion is DENIED.
determining whether filing an amended complaint would be
futile, the court "applies the same standard of legal
sufficiency as applies to a Rule 12(b)(6) motion."
Glassman v. Computervision Corp., 90 F.3d 617, 623
(1st Cir. 1996). Thus, a motion to amend may be granted if it
contains sufficient factual material "to state a claim
to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559
(2007)). A court construes the well-pleaded facts in the
light most favorable to the plaintiff, drawing all reasonable
inferences in the plaintiff's favor. Medina-Velazquez
v. Hernandez-Gregorat, 767 F.3d 103, 108 (1st Cir.
seeks to assert a cause of action under Â§ 510 of the
Employment Retirement Income Security Act ("ERISA")
for interference with the attainment of benefits under an
ERISA plan, and a cause of action under Â§ 502(a)(3) of ERISA
for breach of fiduciary duty. King has not provided a copy of
a proposed pleading. His motion for leave to amend does,
however, suggest the proposed pleading would contain all of
the same factual allegations as his First Amended Complaint
[#16], with the additional allegation that Defendant Jose
Almeida ("Almeida") insisted that King leave the
Covidien premises by noon on May 2, 2014, the day that
Medtronic management were present to meet with Covidien
management about the merger. See Pl.'s Mem. Law Supp.
Mot. Leave Amend 5 & n.11 [#35].
Cause of Action under Â§ 510 of ERISA
alleges that Defendants interfered with his attainment of
benefits under Covidien's Change in Control Plan and
Severance Plan. Section 510 of ERISA makes it 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 [an employee benefit plan]...." 29 U.S.C.
Â§ 1140. To state a prima facie claim for Â§ 510 interference,
King must allege "(1) prohibited employer conduct (2)
taken for the purpose of interfering (3) with the attainment
of any right to which [he] might become entitled" under
an ERISA employee benefit plan. Shahid v. Ford Motor
Co., 76 F.3d 1404, 1411 (6th Cir. 1996). King must
therefore allege some "prohibited conduct" by an
employer, Roush v. Weastec, Inc., 96 F.3d 840, 845
(6th Cir. 1996), taken with "the specific intent of
interfering with [his] ERISA benefits, " Lehman v.
Prudential Ins. Co. of Am., 74 F.3d 323, 330 (1st Cir.
1996) (quotation marks and citation omitted).
the first requirement, the statute specifically makes it
unlawful "to discharge, fine, suspend, expel,
discipline, or discriminate" against an employee. 29
U.S.C. Â§ 1140. King points to no authority holding that a
failure to disclose information about a potential merger
amounts to such "prohibited conduct" covered by Â§
510. King does assert that when an employer fails to disclose
or misrepresents facts "material to the employee's
decision" to resign, this may amount to conduct
prohibited by Â§ 510 where the employee actually does resign.
The cases King cites in support of this position, however,
involved employer conduct amounting to constructive
terminations. In Maez v. Mountain States Telephone &
Telegraph, Inc., the Tenth Circuit found the employees'
allegations that the employer "direct[ed] a campaign of
misrepresentations calculated to coerce acceptance of [a
severance pay plan]" and had "purposely
deceived" the employees into accepting the plan, to
amount to a "constructive discharge" sufficient to
state a claim under Â§ 510. 54 F.3d 1488, 1502-03 (10th Cir.
1995). Similarly, in Flanagan v. Allstate Insurance Company,
the court found that the plaintiffs had alleged that
"employment conditions were so onerous as to constitute
constructive discharge" where the employees alleged that
the employer had "formulated a program of employee
harassment, including cutting office expense reimbursement,
requiring extended hours, requiring a licensed insurance
producer to be present at all times, setting unrealistic
contact and sales quotas, threatening termination, and
requiring the execution of unnecessary and time-consuming
tasks." 213 F.Supp.2d 862, 865, 869 (N.D. Ill.
as the court noted in its prior Memorandum & Order [#31] and
in contrast to Maez and Flanagan, King alleges no
misrepresentation about the likelihood of a merger affecting
his benefits under the plans, let alone a
"campaign" of misrepresentations, or a
"program" of any other conduct that could plausibly
be considered a constructive termination. See Mem. & Order
15-17 [#31]. Rather, King alleges that he chose to leave
Covidien on realizing that his concerns about nepotism would
not be addressed. Defendants' failure to tell King about
the contemplated merger while he was making this decision
does not amount to a "constructive" discharge or
any other conduct prohibited by Â§ 510.
King's memorandum does not purport to base his proposed Â§
510 claim on Defendants' acceleration of his departure
date, Defendants assert categorically that such an
acceleration is also not "prohibited conduct" under
Â§ 510. But if an employer accelerates a departure date in
order to deprive an employee of benefits that would come due
before the employee's desired departure date, such action
may well constitute prohibited conduct under the statute.
Nonetheless, those are not the facts alleged here, where King
would not have been entitled to any benefits under either
plan had Covidien permitted him to stay until his intended
departure date. Though King suggests he is likely to have
learned of the merger in the period between his desired and
accelerated departure date and may then have sought to
rescind his resignation, he cites no authority to suggest
that, had Defendants refused to let him rescind, that action
would have amounted to "prohibited conduct" under Â§
510. See LeBeau v. Comm'r of Dep't of Emp't &
Training, 664 N.E.2d 21, 24 n.6 (Mass. 1996) (noting that
"[a] majority of courts that have considered th[e] issue
are in accord" that an employee is not involuntarily
terminated when an employer disallows him from withdrawing a
King has not alleged the prohibited conduct necessary for his
Â§ 510 claim. In addition, even if Defendants had engaged in
"prohibited conduct, " King fails to allege that
they did so with the required "specific intent of
interfering with [his] ERISA benefits." Lehman,
74 F.3d at 330. As discussed in the court's Memorandum &
Order [#31], King does not allege that Defendants knew or
should have known that he was contemplating leaving Covidien,
and therefore does not allege that they supplied false or
misleading information for the purpose of getting him to
resign and making him ineligible for benefits under the ERISA
plans. See Mem. & Order 17-19 [#31]. Thus, King's Â§ 510
cause of action fails for this reason as well.
Lehman, 74 F.3d at 330-31 ("ERISA provides no
relief if the loss of an employee's benefits was
incidental to, and not the reason for, the adverse employment
King's proposed cause of action for interference under Â§
510 of ERISA fails to state a claim ...