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Greene v. Drobocky

United States District Court, W.D. Kentucky, Bowling Green Division

August 13, 2014

BERNICE F. GREENE, Plaintiff,
v.
DR. OLES B. DROBOCKY, DMD MS, and Defendants DROBOCKY ORTHONTICS, PSC

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, District Judge.

This matter is before the Court upon Defendants Dr. Oles B. Drobocky, DMD MS and Drobocky Orthodontics, PSC's (collectively "Defendants"), Motion for Summary Judgment. (Docket No. 93.) Plaintiff Bernice F. Greene has responded. (Docket No. 112.) Defendants have replied. (Docket No. 116.) This matter is now fully briefed and ripe for adjudication. For the following reasons, the Court will GRANT in part and DENY in part Defendants' Motion for Summary Judgment. (Docket No. 93.) The only remaining claim for trial is Plaintiff's Fraud by Inducement claim.

Plaintiff has also made a Motion for Summary Judgment. (Docket No. 95.) Defendants have responded. (Docket No. 112.) Plaintiff has replied. (Docket No. 117.) This matter is now fully briefed and ripe for adjudication. For the following reasons, the Court will DENY Plaintiff's Motion for Summary Judgment. (Docket No. 95.)

Plaintiff has made a Motion to Exclude Defendants' Expert Dr. Scott Bauries. (Docket No. 100.) Defendants have responded. (Docket No. 110.) For the following reasons, the Court will GRANT in part and DENY in part Plaintiff's Motion to Exclude. (Docket No. 100.)

Defendants have made a Motion to Exclude Plaintiff's Expert Mark Johnson. (Docket No. 102.) Plaintiff has responded. (Docket No. 115.) For the following reasons, the Court will GRANT in part and DENY in part Defendants' Motion to Exclude. (Docket No. 102.)

BACKGROUND

Plaintiff Bernice F. Greene was employed by Defendants from February 26, 2003, until approximately December 31, 2011.[1] (Docket No. 71, at 4.) Eventually, she performed the duties of both a "Scheduling Coordinator" and "Executive Assistant, " in addition to handling payroll and accounts receivable/accounts payable matters. ( Id. at ¶ 18.) As part of her responsibilities, she maintained personnel files and communicated "constantly" with PenSys, a third party plan administrator, regarding relevant employee information. (Docket No. 93-3, at 2.)

In 2002, Defendants implemented a company Defined Benefits Plan offering, as an employee benefit, the opportunity for employees to save for their retirement. (Docket No. 70, at 3.) Plaintiff contends that when she was hired in 2003 "she was informed by Defendants that one of her benefits was participation in a Defined Benefits Plan in which she could begin vestment after only one year and become fully vested after five years of service, " and that she was originally included in the Plan. (Docket No. 70, at 4.) Subsequently, she alleges that Defendants engaged in a pattern of unlawful discrimination against older employees in the company, those approaching and exceeding the age of 50, by denying them participation in the Plan based on their age in order to maximize Drobocky's own share of funds invested in the Plan. ( Id. at 3.)

Specifically, she states that in 2005 a "contribution distribution" sheet was calculated and provided to her showing the amount of Company funds that would have been contributed on her behalf.[2] ( Id. at 5.) Thereafter, Plaintiff alleges that Defendants informed her that, because of her age, she would be removed from the Plan, but that Dr. Drobocky told her "I will take care of you." ( Id. ) She understood this to mean she would have her retirement compensated at the same value as it would be under the Plan. ( Id. )

On the other hand, Drobocky has contended throughout this litigation that Plaintiff was never intended to be in the Plan and upon her "return" to Drobocky Orthodontics as a full time executive assistant she was informed of her exclusion. (Docket No. 93-4.) However, the 2003 Adoption Agreement only excluded the positions of "clinical liaisons, clinical organizers, sales directors, and the owner's spouse, " not the position of executive assistant. ( See Docket No. 98-13.)

In April 2006, Drobocky obtained a benefit statement and realized Plaintiff was a participant in the Plan. (Docket No. 70, at 5.) As a result, Drobocky contacted Kathy Theilbar at Pensys, the third party plan administrator, and "informed her that Greene was excluded from the Plan because she was an Executive Assistant and because she really wasn't part of the practice.'" ( Id. ; see also Docket No. 98-17.) Eventually, after contacting a Regional Manager and explaining that it was a mistake that Plaintiff was included in the Plan, Drobocky had Plaintiff removed from the Plan. (Docket No. 70, at 5-6.) This change was originally reflected by a handwritten correction in the 2006 Plan document adding the job title of "Executive Assistant" as an exclusion, and in subsequent Plan documents as a typeset correction. (Docket No. 98-13.)

James Arnold, a Pensys employee, testified that Plaintiff told him that "she was never supposed to be in the plan to begin with" based on "an agreement she had with Dr. Drobocky, " although he admitted he did not know the nature of that agreement or what Plaintiff was given in exchange for coming out of the Plan. (Docket No. 93-8; see also Docket No. 93-10; 93-11; 93-12.) Arnold also stated that all of his contact regarding the Plan was through Plaintiff and reiterated several times that she communicated to him that her inclusion in the Plan was a "mistake." ( Id. ) However, Plaintiff does not recall ever speaking with Arnold at any point.

Plaintiff admits that she was aware that in 2005-2009 she was not getting retirement benefits and not being treated as part of the Plan. (Docket No. 93-5; see also Docket No. 93-6.) However, she contends that the "I will take care of you" statement by Drobocky is the reason she did not inquire into or challenge the decision to remove her from the Plan. ( See Docket No. 70, at 9 ¶ 31.) Sometime in 2009, Drobocky closed out the 2002 Plan. As a result of this closing out of the 2002 Plan, Drobocky gave his employees the option of cashing out, which almost all chose to do. Because Plaintiff handled payroll and processed paperwork for PenSys, she learned what other employees received from the cash out. Accordingly, Plaintiff states she started to understand how much retirement she could have realized by participating in the Plan.

Plaintiff voluntarily terminated her employment with Defendants in December 2011. (Docket No. 93-16.) Although Plaintiff states she was informed she would be "taken care of" in regards to retirement funds, Defendants never reimbursed her other than a $6, 000.00 payment to her IRA account in 2010. (Docket No. 70, at 8.) Plaintiff filed the Complaint, (Docket No. 1), giving rise to this action on May 21, 2012.

DISCUSSION

Plaintiff alleges violations of the Age Discrimination in Employment Act (ADEA) and the Employee Retirement Income Security Act (ERISA) in Count I. (Docket No. 70, at 9-10.) The basis for her ADEA claim is that she was improperly removed from the Plan because of her age. The apparent basis for her ERISA claim is that she was improperly removed from the Plan without written notification and without informing her of her right to object to the removal or to participate in the Plan's administrative appeals process. In Count II, Plaintiff alleges a violation of the Kentucky Wage and Hour Statute, KRS § 337.385. In Count III, Plaintiff alleges a Fraud by Inducement claim. (Docket No. 70, at 11-12.) In Count IV, Plaintiff alleges a Fraud by Omission claim. ( Id. at 12.) Count V and Count VI allege breach of contract and equitable estoppel under ERISA claims, respectively. ( Id. at 12-13.)

Motions to Exclude by Plaintiff and Defendants (Docket Nos. 100, 102)

Regarding Defendants' Motion to Exclude Plaintiff's Expert Mark Johnson, (Docket No. 102), and Plaintiff's Motion to Exclude Defendants' Expert Dr. Scott Bauries, (Docket No. 100), the Court will GRANT in part and DENY in part these Motions. The vast majority of these experts' testimony and opinions are legal conclusions, namely whether Defendants' purported actions are violations of ERISA. Expert testimony is not proper for issues of law. U.S. ex rel. Compton v. Midwest Specialities Inc., 142 F.3d 296, 301 (6th Cir. 1998). Accordingly, the Court will GRANT in part both Defendants', (Docket No. 102), and Plaintiff's, (Docket No. 100), Motions to Exclude as to ...


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