# KAIRYS v. SOUTHERN PINES TRUCKING, INC.

> District Court, W.D. Pennsylvania · March 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10417605

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS KAIRYS, )
)

)
Plaintiff, )
) 2:19-cv-1031-NR
v. ) )
SOUTHERN PINES TRUCKING, INC., )
)
)
Defendant. )
OPINION1
J. Nicholas Ranjan, United States District Judge
On February 7, 2022, the parties in this employment-discrimination case
proceeded to a jury trial on several claims, including one for retaliation of the exercise
of employee benefits under ERISA. The jury returned a verdict in favor of Defendant
Southern Pines Trucking on that claim. But, as the parties agreed before trial, the
jury’s ERISA verdict was advisory because there is no right to a jury trial for ERISA
claims. Thus, the Court is not bound by the advisory verdict. Hayes v. Cmty. Gen.
Osteopathic Hosp., 940 F.2d 54, 57 (3d Cir. 1991) (“A trial court has full discretion to
accept or reject the findings of an advisory jury.”) (citation omitted).
After carefully considering the evidence admitted at trial, the Court
respectfully reaches a different conclusion than the jury. The Court finds that
Plaintiff Thomas Kairys has proven by a preponderance of the evidence that Southern
Pines retaliated against him for exercising his rights to ERISA-protected benefits,
and that it interfered with his right to future benefits. As such and for the reasons

1 This Opinion serves as the Court’s findings of fact and conclusions of law pursuant
to Federal Rule of Civil Procedure 52(a). See Fed. R. Civ P. 52(a) (“In an action tried
on the facts without a jury or with an advisory jury, the court must find the facts
specially and state its conclusions of law separately. The findings and conclusions
may be stated on the record after the close of the evidence or may appear in an opinion
or a memorandum of decision filed by the court.”).
discussed below, the Court awards equitable relief to Mr. Kairys on this claim equal
to $67,500 in front pay, plus reasonable attorneys’ fees and costs.
FINDINGS OF FACT2
Initially, the Court notes – and the parties agree – that the Court is not bound
in any way by the jury’s advisory verdict as to the ERISA claim. See Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 249 (3d Cir. 2013) (“District courts are…free to reject
[advisory] verdicts, as long as doing so is not independently erroneous.”). Further,
while Southern Pines asks this Court to give “due regard” to the advisory verdict, it
is difficult to do so because the jury made no specific findings of fact. Instead, “the
ultimate responsibility for finding the facts remains with the Court[.]” Wilson v.
Prasse, 463 F.2d 109, 116 (3d Cir. 1972).
After independently considering the documentary and testimonial evidence
admitted at trial, including weighing the credibility of the testimony of the witnesses,
the Court finds as follows.
1. Mr. Kairys served as Southern Pines Trucking’s Vice President of Sales
from March 14, 2016 until April 23, 2018. Ex. 1; T. Kairys Testimony; 67:15-17.
Southern Pines’s owner and CEO, Patrick “Pat” Gallagher, personally recruited him
for the job.3 P. Gallagher Testimony, 8:16-25. Mr. Kairys’s primary duty was to grow
Southern Pines’s cryogenic trucking portfolio. Id. at 9:3-9; 10:9-11. The vision for his
job was long-term, rather than temporary. See T. Kairys Testimony, 9:7-24.

2 The Findings of Fact identify certain critical facts, but are not exhaustive. The
Court finds and considers other relevant facts, which are described in the
“Conclusions of Law & Analysis” section below as they relate to the application of
certain legal principles.

3 Because there are two Gallaghers that testified at trial, the Court does not refer to
them by use of any honorific or title. Instead, the Court refers to Patrick Gallagher
as “Pat Gallagher” and Robert Gallagher as “Bob Gallagher.”
2. When Mr. Kairys started at Southern Pines, his annual base salary was
$125,000. Ex. 1. In January 2017, Southern Pines raised his base pay to $140,000.
Ex. 5; Ex. 29. Mr. Kairys was also eligible for monthly bonuses of up to $3,000
depending on the level of truck utilization he secured. Ex. 1. Full utilization earned
the maximum bonus. Id. Mr. Kairys earned several bonuses throughout his tenure
at Southern Pines. See Ex. 10; Ex. 15.
3. In accepting the job with Southern Pines, Mr. Kairys considered health
insurance to be an important benefit. T. Kariys Testimony, 10:18-11-9. Accordingly,
his offer letter from Southern Pines specially provided that his coverage would begin
on April 1, 2016 – about 1.5 months earlier than the standard policy for new
employees. Ex. 1.
4. In October 2016, Mr. Kairys was diagnosed with degenerative arthritis
in both hips and learned that he would need to have hip-replacement surgery. T.
Kairys Testimony, 40:19-41:7. On November 6, 2017, he notified his supervisor –
Chad Vittone – about his upcoming procedure. Ex. 6, SPT 001975. Mr. Vittone
responded that it was “no problem.” Id.
5. Mr. Kairys underwent hip-replacement surgery on November 30, 2017,
and he missed some work as a result. T. Kairys Testimony, 50:24-51:17.
6. Mr. Kairys’s medical expenses, including his surgery, were covered
under Southern Pines’s employee health insurance plan. Id. at 98:13-16.
7. Southern Pines’s insurance policy was self-insured, meaning that it paid
out of pocket for a portion of each claim made on the policy. P. Gallagher Testimony,
22:24-23:23. The company periodically received invoices itemizing the cost of medical
and pharmaceutical claims for its employees; the invoices showed weekly charges for
claims processed by date. Ex. 7.
8. Pat Gallagher did not review the weekly invoices himself. P. Gallagher
Testimony, 25:1-12. But he did review the company’s medical costs on an annual
basis. Id. at 54:23-55:1. The Court draws from this a reasonable inference that Pat
Gallagher was generally aware of the expenses incurred by the company under its
health plan.
9. After Mr. Kairys’s November 30, 2017, hip surgery, Southern Pines did
incur a spike in medical costs. See Ex. 7, SPT002611. The invoices in Southern
Pines’s records reflected that Mr. Kairys’s costs were highlighted on the spreadsheets,
though the spreadsheets had code numbers rather than names. Id. This suggests to
the Court that the costs caught the attention of someone in the company.
10. Pat Gallagher found out about the hip surgery and became upset. Mr.
Kairys testified that Pat Gallagher was upset about the costs of the surgery, and that
his brother – Southern Pines Vice President Bob Gallagher – told him to “lay low.”
T. Kairys Testimony, 48:4-17; 55:20-56:5. The Court finds this testimony to be
credible.
11. In or around Summer 2017, Mr. Kairys informed Southern Pines
representatives, including Pat Gallagher, that he would eventually need to have both
hips replaced. Id. at 55:12-19.
12. Southern Pines terminated Mr. Kairys on April 23, 2018. T. Kairys
Testimony, 67:15-17. Pat Gallagher made this decision unilaterally. P. Gallagher
Testimony, 30:1-3. This occurred right around the end of the benefits calendar year
– which was May 1. P. Vargo Testimony, Trial Transcript III:180. Mr. Kairys did
not receive any advance notice, and his employment ended immediately. See T.
Kairys Testimony, 69:20-70:15. Additionally, during his termination meeting,
Southern Pines representatives asked Mr. Kairys to sign a severance agreement that
included a release. Id. at 72:8-24.
13. Pat Gallagher knew that Mr. Kairys’s termination might result in legal
trouble; he anticipated that Mr. Kairys would hire an attorney. See Ex. 16. Still, he
said “we will not give ground on this.” Id.
14. Kyle Kunkle began working at Southern Pines on June 11, 2018, as part
of a hybrid rotation with PGT Trucking. Ex. 17. Some of his duties overlapped with
Mr. Kairys’s role. Ex. 18; T. Kairys Testimony, 22:7-11.
15. After being fired, Mr. Kairys diligently sought other employment. T.
Kairys Testimony, 75:8-76:5. But he did not obtain new employment until January
21, 2019. Ex. 22. In the meantime, he went on his wife’s insurance plan. Ex. 20; T.
Kairys Testimony, 74:16-18.
16. Mr. Kairys submitted evidence that while his annual base salary at
Southern Pines was $140,000, his annual base salary for his current position is
$132,500. Ex. 28, p. 2. Additionally, Southern Pines allotted a $1,000 monthly car
allowance for Mr. Kairys. See Ex. 15. But his current employer only provides a $500
allowance each month. Ex. 28, p. 2. Mr. Kairys also earns smaller bonuses in his
new position, though the bonus differential was not quantified with precision. T.
Kairys Testimony, 79:1-4.
17. Prior to joining Southern Pines, Mr. Kairys held approximately five jobs,
spending approximately one to seven years at each one. Id. at 107:6-108:15.
CONCLUSIONS OF LAW & ANALYSIS
Section 510 of ERISA provides, in relevant part: “[i]t shall be unlawful for any
person to discharge, fine, suspend, expel, discipline, or discriminate against a
participant or beneficiary for exercising any right to which he is entitled under the
provisions of an employee benefit plan … or for the purpose of interfering with the
attainment of any right to which such participant may become entitled under the
plan[.]” 29 U.S.C. § 1140.
This provision “prohibits employers from discharging or harassing their
employees in order to keep them from obtaining employee benefits.” DiFederico v.
Rolm Co., 201 F.3d 200, 204 (3d Cir. 2000) (cleaned up). It also “supports a claim
where an employee alleges that he or she was terminated in retaliation for the past
exercise of protected rights” under an employee benefit plan. Najmola v. Women’s
Healthcare Grp. of Pa., No. 13-6519, 2014 WL 3700260, at *4 (E.D. Pa. July 24, 2014)
(cleaned up); see also Kowalski v. L & F Prod., 82 F.3d 1283, 1287 (3d Cir. 1996)
(“There is simply no limiting language in § 510 that suggests that only future benefits
are protected.”). Though ERISA was only one count of his complaint, Mr. Kairys
essentially makes both types of claims; he alleges that Southern Pines Trucking “fired
him because of the cost of a hip replacement surgery, and to avoid having to pay for
a second hip replacement surgery.” ECF 125, p. 1.
The parties agreed that to prove ERISA retaliation, Mr. Kairys must show –
by a preponderance of the evidence – that there was a causal connection between his
termination and his use of the employee benefit plan. ECF 119, p. 18 (final jury
instructions); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002)
(citation omitted). “A causal connection may be shown in many ways …. [including]
through timing, …antagonism shown toward Mr. Kairys or a change in demeanor
toward Mr. Kairys.” ECF 119, p. 18 (final jury instructions); cf. Lauren W. ex rel.
Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Mr. Kairys’s ERISA-
protected benefits need not have been the sole reason for his termination. Dewitt v.
Penn-Del Directory Corp., 106 F.3d 514, 522 (3d Cir. 1997). But they must have been
a determinative factor. Turner v. Schering-Plough Corp., 901 F.2d 335, 347 (3d Cir.
1997). “‘Determinative factor’ means that if not for Mr. Kairys’s engagement in the
protected activity, the termination would not have occurred.” ECF 119, p. 18 (final
jury instructions).
On the other hand, to prove interference, Mr. Kairys must show that “(1) the
employer committed prohibited conduct (2) that was taken for the purpose of
interfering (3) with the attainment of any right to which the employee may become
entitled.” Jakimas v. Hoffman-LaRoche, Inc., 485 F.3d 770, 785 (3d Cir. 2007)
(cleaned up). Thus, Mr. Kairys must demonstrate that Southern Pines had the
specific intent to violate ERISA. Id. That is, he must show that Southern Pines
“made a conscious decision to interfere with [his]…benefits …. Proof that the
termination prevented [him] from accruing additional benefits through more years of
service alone is not probative of intent.” Id. (cleaned up). Again, Mr. Kairys’s
anticipated use of benefits must have been a determinative factor in his termination.
Turner, 901 F.3d at 347. But he “need not prove that the intent to interfere was the
sole reason for [his termination].” DiFederico, 201 F.3d at 206.4
In either case, “smoking gun” evidence is often rare. See Gavalik v. Cont’l Can
Co., 812 F.2d 834, 852 (3d Cir. 1987). Accordingly, plaintiffs may prove their ERISA
discrimination claims through circumstantial evidence. Id. In such cases, a finder of
fact may employ the McDonnell Douglas burden-shifting framework. Id. at pp. 852-
853. That is, “employees alleging discrimination under ERISA bear the burden of
making out a prima facie case of discrimination.” Id. at p. 852. Then, the employer
must “rebut the presumption of discrimination” by introducing evidence of “a
legitimate, nondiscriminatory reason for its challenged actions.” Id. at 853. Finally,
the plaintiff has “the opportunity to demonstrate that the employer’s articulated
reason is pretextual either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Id. (cleaned up).
In denying summary judgment, this Court already decided that Mr. Kairys
presented a prima facie case, and that Southern Pines properly articulated a non-
discriminatory reason for terminating him. ECF 79, pp. 14-16. The Court finds that
the parties met those requirements again at trial. Now, having independently

4 The parties do not dispute that Southern Pines provided employee benefits to its
employees, including Mr. Kairys, pursuant to a plan governed by ERISA. See ECF
53, pp. 24-25. The main crux of the dispute is whether the termination decision can
be causally linked to Mr. Kairys’s exercise of rights under the plan.
weighed all the evidence admitted, the Court finds that Mr. Kairys has met his
burden to show that Southern Pines’s proffered reason was pretextual, and that Mr.
Kairys’s use – and anticipated future use – of ERISA-protected benefits played a
determinative role in his termination. Because the evidence for the two claims
overlaps, the Court will address them simultaneously.
I. Southern Pines’s explanation for the termination was pretextual.
Southern Pines claimed that Mr. Kairys’s position as Vice President of Sales
was simply eliminated. Ex. 19, p. 1. At trial, it argued that Mr. Kairys’s job was
intended to be temporary and became unnecessary once the cryogenic fleet was at full
utilization. See ECF 119, p. 19. After reviewing the evidence, the Court finds that
this explanation was pretextual for at least six reasons.
First, Southern Pines did not present any evidence that it had told Mr. Kairys
he was only a temporary addition and tasked with the completion of a specific
objective. His offer letter does not list a designated term. See Ex. 1. Mr. Kairys
testified that he intended to stay at Southern Pines long-term. T. Kairys Testimony,
9:7-24. Given that Pat Gallagher personally recruited Mr. Kairys to join Southern
Pines, it is unlikely that the two would have had such a divergent understanding as
to the scope of the job. Additionally, there is no evidence that such a task-based
arrangement was standard practice in the industry.
Second, Southern Pines’s bonus plan recognized that full utilization was a goal
that could fluctuate frequently. Mr. Kairys’s offer letter specifically incentivized full
utilization with a $3,000 maximum bonus, and it did not warn him that such an
achievement may subject him to termination. Ex. 1. Moreover, the letter explained
that bonuses are calculated monthly, implicitly recognizing that full utilization was
not a permanent state. Id. Pat Gallagher himself testified that “you might be
running at 100 percent this month. Two drivers quit as drivers, and now you’re
running at 80 percent.” P. Gallagher Testimony, 31:12-24. Therefore, it is not
plausible that reaching full utilization any given month would lead Pat Gallagher to
decide – that same month – that there would be no more work for Mr. Kairys to do.
Third, Pat Gallagher explained that cryogenic truck drivers such as those who
drive for Southern Pines must earn a hazmat endorsement – a more stringent
requirement than a traditional commercial driving license. Id. at 2:16-25. Pat
Gallagher testified that a shortage of hazmat-certified drivers factored into his
decision to fire Mr. Kairys. E.g., id. at 28:8-19 (“It was becoming more and more
difficult to get drivers.”); 35:8-14 (“Once again, you can buy equipment. But if you
don’t have the drivers, it doesn’t matter.”). His trial testimony was the first time
Southern Pines raised this rationale, and Pat Gallagher never mentioned it in his
deposition testimony – as Mr. Kairys’s counsel pointed out at trial. See Ex. 32. On
top of that, at trial, Pat Gallagher’s testimony on the driver shortage was evasive,
and the Court finds it lacking in credibility. E.g., id. at 46:3-25 (answering “no” when
asked whether “the shortage of drivers [was] one of the factors” considered, and
responding “that’s an assumption, counselor” when asked whether the driver
shortage impacted his decision).
Fourth, Pat Gallagher claimed that he became upset not because Mr. Kairys
had surgery, but because, as CEO, he did not know where his employee was. P.
Gallagher Testimony, 18:1-10; 19:10-13. The Court does not find this claim to be
credible. For starters, Mr. Kairys did not report directly to Pat Gallagher; his
immediate supervisor was Chad Vittone. Id. at 18:11-19.5 Pat Gallagher also was
not involved in the day-to-day management and operations of Southern Pines. See
id. at 42:24-43:3. It is therefore unlikely that he would have always expected to know
Mr. Kairys’s whereabouts. Moreover, Mr. Kairys testified that Bob Gallagher –

5 Pat Gallagher initially testified that Mr. Kairys was a “direct report” to him. Id. at
18:5-10. But immediately afterward, in response to direct questioning, he stated the
opposite. Id. at 18:11-19. This, too, undermines his credibility.
Southern Pines executive and brother of Pat Gallagher – told him that the surgery
costs made – or would make – Pat Gallagher mad, and that Mr. Kairys should “lay
low.” T. Kairys Testimony, 46:22-48:17. Pat and Bob Gallagher claim that these
conversations did not occur. E.g., P. Gallagher Testimony, 22:10-17 (Q: “Did you ever
tell Bob Gallagher that you were upset about having to pay for [Mr. Kairys’s] hip
surgery?” A: “No.”). After observing each witness’s demeanor and comparing their
statements with other evidence submitted, the Court finds that Mr. Kairys is more
credible on this point.
Fifth, the procedure of this termination was unusual. Pat Gallagher testified
that he did not consult anyone prior to making the decision to fire Mr. Kairys. P.
Gallagher Testimony, 30:1-9; 59:9-17. In its interrogatory responses, Southern Pines
stated that no documents were consulted before deciding to terminate Mr. Kairys,
either. Ex. 19, p. 2. As CEO, Pat Gallagher had the authority to terminate
employees. P. Gallagher Testimony, 43:16-44:2. But the only other examples he cited
where he made a unilateral termination decision were where employees engaged in
misconduct or suffered from poor performance. Id. at 43:16-23 (“We caught a
salesman at PGT who was stealing, falsifying his expense account. We terminated
him. Terminated CFOs that weren’t being accountable for the department and for
their accounting … Today I don’t terminate as many people because I don’t have that
many direct reports.”).
Here, there is no claim that Mr. Kairys committed any misconduct or even that
he performed inadequately. Quite the opposite. Id. at 12:25-13:4 (explaining that
Mr. Kairys received a raise because he “was doing what we hired him to do. He was
maximizing the amount of equipment we had at Southern Pines”). Indeed, Mr.
Kairys earned an $11,458 bonus less than one week before he was fired. Ex. 10. Pat
Gallagher stated that terminating an employee is never easy and keeps him up at
night. P. Gallagher Testimony, 6:9-15; 43:9-11. Yet, he gave Mr. Kairys no advance
notice and no flexibility to locate another job before his termination became effective
– which would have been an obvious accommodation for laying off a highly performing
executive for alleged cost-savings reasons. Furthermore, at the termination meeting,
Southern Pines representatives asked Mr. Kairys to sign a release. T. Kairys
Testimony, 72:8-24.
Sixth, Southern Pines’s subsequent staffing decisions undermine its assertion
that Mr. Kairys was no longer needed. Less than two months after firing Mr. Kairys,
Southern Pines borrowed a new employee, Kyle Kunkle, from a sister company, PGT
Trucking. Ex. 17. Mr. Kunkle joined Southern Pines on a “hybrid rotation” basis.
Id. Mr. Kunkle was meant to learn the operations of the business so that he could
become a better salesman. P. Gallagher Testimony, 38:13-20. Pat Gallagher
explained that “to be a salesman… you have to go through operations. Because if you
don’t understand how it works, you can’t sell.” Id. at 37:25-38:5. Under this logic,
Mr. Kairys would have already been well-versed in Southern Pines’s operations
during his tenure. Indeed, Mr. Kairys testified that his work frequently involved
operations. T. Kairys Testimony, 21:6-22:11 (examining ex. 18).6 Yet, Pat Gallagher
refused to apply his own logic in this case; he stated that he did not keep Mr. Kairys
on to do this operations work because “Mr. Kairy [sic] was sales, for the most part.”
P. Gallagher Testimony, 38:21-24. And on cross examination, he was evasive about
the sales-operations connection he himself had explained. Id. at 57:3-11 (“I think
[Mr. Kairys] probably knew operations, but that wasn’t the role he was in. He was
in sales.”).
Though his title differed, Mr. Kunkle ultimately performed some of the same
tasks Mr. Kairys had done, including some operations work, as well as “sales
maintenance” such as attending sporting events with clients. Id. at 55:2-56:10. In

6 Given the small size of Southern Pines’s office, the Court finds it credible that the
duties of the three employees would occasionally overlap.
some respects, moreover, Mr. Kunkle was there so that the company “would at least
have a warm body over there to answer the phone.” Id. at 57:19-24. Thus, Southern
Pines clearly needed a third employee to function. Pat Gallagher indicated that he
preferred to save money because ‘we didn’t need the $150,000 salesperson at that
time.’ Id. at 51:3-8. Notably, however, Pat Gallagher avoided answering a juror
question – posed by the Court – asking why he did not consider offering Mr. Kairys a
different position at Southern Pines or a pay cut to keep his position. See id. at 72:8-
16.
Based on these ample inconsistencies, the Court finds it reasonable to infer
that Southern Pines’s stated reason for firing Mr. Kairys was not its true reason and
was instead a pretext for unlawful discrimination.
II. The preponderance of the evidence demonstrates that the exercise of
Mr. Kairys’s ERISA-protected benefits was the real determinative
reason behind his termination.
When coupled with the pretextual nature of Southern Pines’s proffered reason,
as discussed above, the following evidence leads the Court to find that the pretext
provided was intended to disguise discrimination because of Mr. Kairys’s use – and
anticipated future use – of his ERISA-protected health benefits.
To start, Pat Gallagher explained that twenty years ago, Southern Pines chose
a self-insured health plan specifically to “keep our cost down.” P. Gallagher
Testimony, 23:18-23. He admitted that “20 years ago I did [question health costs],
yeah. Because I didn’t know how I was paying for it…you’re trying to negotiate to
keep your medical costs down.” Id. at 23:24-24:7. Twenty years later, although Pat
Gallagher’s companies are now much larger, their health plan remains self-insured.
Id. at 22:24-23:2; 23:22-23. Therefore, even if the company has more funds, the
incentive to “keep costs down” remains strong.
To that end, Pat Gallagher demonstrated awareness that the age and health
status of employees would affect the company’s health insurance rates. Under
Southern Pines’s plan, “you accumulate how many claims you have …. And based on
the age of your employees, they give you a number.” Id. at 23:24-24:7. He understood
that age factors in because “when you’re 56 years old,” the average age of his
employees, “you’re going to have some medical issues.” Id. at 27:17-20. But again,
on cross, Pat Gallagher was evasive on these topics. E.g., id. at 53:14-54:12 (Q: “But
at an earlier time you had testified that the insurance rates were based on the
employee’s age and number of claims; correct?” A: “I don’t recall that.” Q: “Is it true?”
A: “I don’t know.” … “No. I didn’t say I didn’t know.”); id. at 62:20-63:9 (Q: “Who is
more likely to need a more expensive medical procedure, a person in their 50s or a
person in their 20s?” A: “I’m not an expert in the field.”).
At trial, Southern Pines argued that a general awareness of costs could not
lead to individualized discrimination because Pat Gallagher would not have been able
to discern which costs came from Mr. Kairys. E.g., id. at 22:21-23. After all, his
various companies have hundreds of employees in total. Id. at 4:6-13; 71:14-17.
Additionally, Pat Gallagher claimed that he never discussed the cost of Mr. Kairys’s
surgery with Bob Gallagher or did any investigation to find out the cost. Id. at 20:13-
20. The Court does not find this testimony to be credible.
As shown at trial, Southern Pines kept health insurance invoices with a single
line highlighted on each page – “SP01.” Ex. 7. The invoices show weekly expenses
for Pat Gallagher’s employees enrolled in the UPMC health plan. Id. It would not
have been difficult to discover that “SP01” was the line item for Mr. Kairys. Only 20
employees utilized this plan. Id. And though the employees were “anonymized” with
codes instead of names, the codes began with “P,” “S,” or “SP.” Common sense leads
the Court to infer that the codes correspond with Pat Gallagher’s three companies:
“PGT,” “Sudbury,” and “Southern Pines,” respectively. Id. There were only three
total employees at Southern Pines. See P. Gallagher Testimony, 16:1-3. Plus,
Southern Pines officials were aware that Mr. Kairys had surgery, which would appear
on an invoice as a larger medical expense than usual. Indeed, claims paid the week
of December 10-16, 2017 – shortly after Mr. Kairys’s surgery – amounted to
$23,277.07. Ex. 7, p. 13, SPT002611. Of these, $13,394.94 corresponded to “SP01.”
Therefore, it would not have been difficult to identify “SP01” as Mr. Kairys and parse
his expenses. Someone at Southern Pines highlighting the “SP01” charges on each
invoice suggests that Southern Pines did exactly that.
Finally, Paul Vargo – who oversaw risk management for both Southern Pines
and PGT Trucking – testified that the “[health] plan year runs from May 1st to May
1st.” P. Vargo Testimony, Trial Transcript III:180. Mr. Kairys was terminated on
April 23, 2018. T. Kairys Testimony, 67:15-17. Even if Pat Gallagher did not review
health insurance invoices week-to-week, he did examine healthcare costs on an
annual basis. P. Gallagher Testimony, 24:11-13 (“[Mr. Vargo and I] look at the
numbers, and then I sign off on it.”); id. at 54:23-55:1 (Q: “[D]o you become aware on
an annual basis of the amount of employee health care expenses?” A: “Yes. As CEO,
that’s my responsibility. It’s a cost.”). From this timeline, the Court draws the
reasonable inference that Pat Gallagher and Mr. Vargo would have reviewed medical
costs near the end of the benefit year as an annual summation. Around that same
time, Southern Pines chose to fire Mr. Kairys. Though this occurred nearly five
months after the surgery itself, the termination’s close proximity to the annual cost
review period is evidence of a causal connection. Pat Gallagher’s anger – a change in
demeanor toward Mr. Kairys – strengthens this inference, especially because of his
demonstrated priority of saving on costs.
Similarly, terminating Mr. Kairys shortly before a new benefit year started
also suggests a specific intent to prevent him from costing the company money again.
Mr. Kairys had long known that both hips needed replacement. See T. Kairys
Testimony, 46:11-15. Pat Gallagher also knew that Mr. Kairys would need a second
surgery because Mr. Kairys testified that he had informed him of that fact at a
meeting. Id. at 55:12-19. Tellingly, Pat Gallagher was evasive on the subject.
Compare P. Gallagher Testimony, 21:13-15 (Q: “Were you ever aware that Mr. Kairys
might have to have a second hip surgery?” A: “No.”) with id. at 21:16-24 (immediately
backtracking: “I’m just vaguely remembering if Bob Gallagher mentioned it walking
past in the hall.”). He also knew that investigating an employee’s health care costs
is illegal. Id. at 22:21-23. Pat Gallagher even expected to hear from a lawyer after
firing Mr. Kairys. See Ex. 16. Southern Pines’s attempt to secure a release from Mr.
Kairys upon his termination also indicates consciousness of liability for wrongdoing.
Especially when coupled with the evidence of pretext discussed above, this evidence
permits the Court to infer and specifically find a specific intent to interfere with Mr.
Kairys’s benefits. DiFederico, 201 F. 3d at 207 (“If the plaintiff proves that [his]
employer’s proffered reason was pretext, the court may infer that the employer was
in fact motivated by the specific intent to interfere with the attainment of benefits.”).
Taken together, the preponderance of the evidence ultimately shows
retaliation for use of benefits, and/or specific intent to prevent future use of benefits.
III. The Court awards Mr. Kairys equitable front pay and reasonable
attorneys’ fees and costs.
Under Section 502(a)(3) of ERISA – the enforcement mechanism for Section
510 violations – successful plaintiffs may “enjoin any act or practice which
violates…the terms of the plan, or [] to obtain other appropriate equitable relief to (i)
redress such violations or (ii) to enforce any provisions of…the terms of the plan.” 29
U.S.C. § 1132(a)(3). The Supreme Court has explained that “equitable relief must
mean something less than all relief.” Mertens v. Hewitt Assocs., 508 U.S. 248, 258 n.8
(1993) (emphasis in original). Instead, it refers to “those categories of relief that were
typically available in equity[] in the days of the divided bench.” Eichorn v. AT&T
Corp., 484 F.3d 644, 654 (3d Cir. 2007) (citing Great-West Life & Annuity Ins. Co. v.
Knudson, 534 U.S. 204, 210 (2002)). Therefore, compensatory damages are not
available. Mertens, 508 U.S. at 255. The Third Circuit excludes back pay as well.
Eichorn, 484 F.3d at 656 (“The remedy they seek is thus akin to ‘back pay,’ which is
not an equitable remedy within the meaning of the statute.” (citing Great-West, 534
U.S. at 218 n.4)). But monetary relief is still available in “limited circumstances.” Id.
at 655 n.6 (“This is not to say that an ERISA plaintiff’s demand for money necessarily
requires the conclusion that the relief sought is not ‘equitable’ within the meaning of
the statute.”). Indeed, “whether the remedy a plaintiff seeks is legal or equitable
depends on (1) the basis for the plaintiff’s claim and (2) the nature of the underlying
remedies sought.” Montanile v. Bd. Of Trs. of Nat. Elevator Indus. Health Benefit
Plan, 577 U.S. 136, 142 (2016) (cleaned up). This is “largely dependent on the facts
of a particular case and cannot be assessed in [a] sweeping [] fashion.” Sessions v.
Owens-Illinois, Inc. No. 07-1669, 2008 WL 4821755, at *6 n.10 (M.D. Pa. Nov. 4,
2008).
Reinstatement is the typical remedy for an ERISA Section 510 violation.
Eichorn, 484 F.3d at 658. It is “indisputably an equitable remedy.” Schwartz v.
Gregori, 45 F.3d 1017, 1023 (6th Cir. 1995). But it is not always feasible or
appropriate. Id. For example, there may be a high likelihood of continuing hostility
between the parties, or the position may no longer be available. Donlin v. Philips
Lighting N. Am. Corp., 581 F.3d 73, 86 (3d Cir. 2009). It may also be unduly difficult
for the Court to police an ongoing relationship between the parties. Goss v. Exxon
Off. Sys. Co., 747 F.2d 885, 890 (3d Cir. 1984). “Guided by the particular
circumstances of a case, the district court has broad discretion in determining
whether reinstatement is appropriate[.]” Feldman v. Phila. Hous. Auth., 43 F.3d 823,
832 (3d Cir. 1994) (citation omitted).
In this case, the Court finds that reinstatement is not a viable option. The
course of this litigation has shown – and engendered – strong animosity between the
parties.7 This animosity would be difficult to avoid or overcome, given Southern
Pines’s small staff. The contentiousness and frequency of disputes also persuade the
Court that policing an ongoing relationship would require frequent, burdensome
intervention. Finally, there is currently no open position at Southern Pines. P.
Gallagher Testimony, 33:20-23. Because the preferred remedy of reinstatement is
not available, the Court will instead award front pay.
When reinstatement is not workable, ERISA Section 510’s purpose would be
thwarted if front pay were not available as an alternate remedy. Cf. Maxfield v.
Sinclair Int’l, 766 F.2d 788, 796 (3d Cir. 1985) (citation omitted). “The principal object
of ERISA is to protect plan participants and beneficiaries.” Gobeille v. Liberty Mut.
Ins. Co., 577 U.S. 312, 324 (2016) (cleaned up). And, as the Third Circuit has
explained, “Congress enacted § 510 primarily to prevent employers from discharging
or harassing their employees in order to keep them from obtaining ERISA-protected
benefits.” Kowalski, 82 F.3d at 1287 (citation omitted). This applies to past benefit
recipients as well; otherwise, “employers would be free to pay ERISA benefits to an
employee and then discharge the employee for having exercised his or her right to the
benefits.” Kowalski, 82 F.3d at 1288. Foreclosing front pay as a substitute for
reinstatement would mean that “the most egregious offenders could be subject to the
least sanctions.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 853 (2001).
That is, employers who create a hostile environment or cause psychological injuries
to the plaintiff would be able to avoid liability and continue their unlawful behavior.
See id. This result squarely conflicts with the purposes of Section 510.

7 For example, Mr. Kairys and his wife both testified that Southern Pines caused him
mental anguish to the point of depression. See T. Kairys Testimony, 83:7-84:5; 87:22-
88:8. For its part, Southern Pines immediately declared that it “[would] not give
ground on this” and refused to pay Mr. Kairys severance pay for nearly four years, as
discussed above. Ex. 16.
In other statutory contexts, the Third Circuit has held that front pay is an
acceptable substitute when reinstatement is not appropriate. E.g., Feldman, 43 F.3d
at 831 (Section 1983); Donlin, 581 F.3d at 86 (Title VII); Maxfield 766 F.2d at 797
(ADEA). And though it has not addressed front pay in ERISA cases, other courts
have permitted such an award. E.g., Schwartz, 45 F.3d at 1023. In light of this close
association with reinstatement, and considering Section 510’s similarity to other
antidiscrimination statutes, the Court finds that awarding front pay is appropriate
here.
Front pay is a forward-looking remedy. At bottom, its purpose is to allow a
victim of discrimination to “reestablish [his] rightful place in the job market.”8 Goss
747 F.2d at 889. The Court must exercise its discretion in selecting a cut-off date that
represents “a reasonable future period” to achieve this goal. Donlin, 581 F.3d at 87
(citing Goss, 747 F.2d at 889). When calculating an appropriate front-pay award,
courts consider a variety of factors. These include “an employee’s duty to mitigate,
the availability of employment opportunities, the period within which one by
reasonable efforts may be re-employed, the employee’s work and life expectancy…the
plaintiff’s age, length of employment, likelihood that [he] would have remained in
[his] position,” among other pertinent factors. Hosler v. Jay Fulkroad & Sons, No.
13-1153, 2015 WL 3865877, at *13 (M.D. Pa. June 23, 2015) (cleaned up).
Here, Mr. Kairys’s mitigation efforts are not in dispute. He testified that over
the nine months he was unemployed, he participated in networking and job boards,
reached out to industry contacts, and applied to hundreds of jobs. T. Kairys
Testimony, 75:8-76:5. Based on the specialized nature of the cryogenic trucking
industry, the Court can reasonably conclude that comparable employment

8 This differentiates it from back pay, which aims to compensate plaintiffs for past
losses rather than future losses. See Eichorn, 484 F.3d at 657. Here, the Court is not
requiring Southern Pines to pay the lost wages Mr. Kairys would have been due under
his contract. Compare Great-West, 534 U.S. at 714.
opportunities would be few and far between. Mr. Kairys’s age – 55 – may limit his
hiring prospects further. See T. Kairys Testimony, 2:7-8. Mr. Kairys had been at
Southern Pines for over two years, and he expressed a desire to remain there. Id. at
8:24-9:24. Each of these factors weighs toward a longer front pay period.
Ultimately, the Court finds it most appropriate to determine a front pay period
by analogizing it as closely as possible to reinstatement – the preferred remedy this
award seeks to approximate. That is, the Court will estimate how long Mr. Kairys
would remain in his position if the limitations discussed above did not exist, and he
were reinstated at Southern Pines immediately. Mr. Kairys testified that he hoped
to stay at Southern Pines until retirement. T. Kairys Testimony, 114:19-23. But
front pay is not meant to “guarantee every claimant…an annuity to age 70.”
Anastasio v. Schering Corp., 838 F.2d 701, 709 (3d Cir. 1988). Therefore, the Court
cannot rely on Mr. Kairys’s stated hopes alone.
Mr. Kairys has been in sales for over twenty years. T. Kairys Testimony,
106:23-107:1. Before joining Southern Pines, Mr. Kairys held approximately five jobs,
spending approximately one to seven years at each one. Id. at 107:6-108:15. Based
on this track record and the nature of the industry, balanced against Mr. Kairys’s
advancing years and expressed desire for stability, the Court finds that five years of
front pay is an appropriate period.
As to amount, there are multiple ways the Court could calculate a reasonable
rate for front pay. First, focusing squarely on the defendant’s gain, the Court could
award Mr. Kairys the amount that Southern Pines would have had to pay for his
second hip surgery – money that the company saved by ensuring he could not exercise
his health benefits a second time. The Court could then add the difference between
Mr. Kairys’s annual salary and Kyle Kunkle’s annual compensation for his work at
Southern Pines – money the company saved by utilizing a younger worker who was
less likely to incur health expenses.9 Alternatively, the Court could award Mr. Kairys
the difference between his compensation at Southern Pines and what he is earning
now at his new position. Based on the record introduced at trial, the latter option is
more appropriate; it is designed to help Mr. Kairys re-establish himself in a cryogenic
trucking sales position, eliminate the need for additional accounting and expert
testimony, and avoid overcharging Southern Pines.
Mr. Kairys submitted evidence that while his base salary at Southern Pines
was $140,000 per year, his base salary for his current position is $132,500 per year.
Ex. 28, p. 2. So, despite his additional years of experience, he still earns $7,500 less
per year.10 Additionally, Southern Pines allotted a $1,000 monthly car allowance for
Mr. Kairys. See ex. 15. But his current employer only provides a $500 allowance
each month. Ex. 28, p. 2. That is a difference of $6,000 per year.
Upon his termination in 2018, Mr. Kairys had already earned $16,337 in
bonuses that year. Ex. 15. At his new job, on the other hand, Mr. Kairys’s bonuses
are smaller and less frequent. T. Kairys Testimony, 79:1-7. However, the Court finds
that factoring bonuses into front pay would be inappropriately speculative here. For
one thing, there is little evidence regarding the details of the Southern Pines bonus
plan in place when Mr. Kairys was fired. See ex. 14; P. Gallagher Testimony, 16:1-
17. Moreover, Southern Pines changed its bonus plan after Mr. Kairys’s termination.
P. Gallagher Testimony, 16:18-22. And the new plan differs significantly from the
old model. See id. at 16:25-17:3. Even with more information, though, the Court

9 Even if Southern Pines really did intend to scale back its sales activities and would
have cut Mr. Kairys’s compensation accordingly, this wage difference likely would
still be substantial, given the difference in age and experience between Mr. Kairys
and Mr. Kunkle.

10 It would not be proper for the Court to speculate as to whether, when, and how
much Mr. Kairys’s pay may have increased had he stayed at Southern Pines. See
Donlin, 581 F.3d at 81-82. So, the Court will adopt the $7,500 wage differential.
finds that making projected bonus calculations would be too speculative. This is
because in sales, compensation depends not only on the salesperson’s ability, but also
on economic factors that affect entire industries. Goss, 747 F.2d at 890.11
Therefore, the Court will set front pay at a rate of $13,500 per year – which is
the annualized wage and car allowance differential. Considering a five-year period,
this results in a total of $67,500 in front pay.
Finally, the Court finds that an award of reasonable attorney’s fees and costs
is appropriate under 29 U.S.C. § 1132(g). Under Ursic v. Bethlehem Mines, a Court
must consider five factors in determining eligibility. 719 F.2d 670, 673 (3d Cir. 1992).
These factors are: “(1) the offending part[y]’s culpability or bad faith; (2) the ability of
the offending parties to satisfy an award of attorney’s fees; (3) the deterrent effect of
an award of attorney’s fees; (4) the benefit conferred upon members of the pension
plan as a whole; and (5) the relative merits of the parties’ positions.” Templin v.
Indep. Blue Cross, 785 F.3d 861, 867 (3d Cir. 2015). Here, the factors weigh in favor
of awarding attorneys’ fees for several reasons.
First, a party is culpable if it is at fault, even if there was no malice or guilty
purpose. McPherson v. Emps. Pension Plan of Am. Re-Ins. Co. Inc., 33 F.3d 253, 257
(3d Cir. 1994). As discussed above, Southern Pines is culpable because it retaliated
against Mr. Kairys for using his health benefits and interfered specifically to prevent
him from using additional benefits. This is not simply a denial-of-benefits case under
ERISA. It is a case of intentional retaliation, which brings with it more culpability.
Second, though Pat Gallagher testified that Southern Pines carries debt, he
equated the debt to a car payment and did not suggest financial insolvency or
inability to pay. P. Gallagher Testimony, 73:1-6; 75:7-22. Indeed, based on the

11 There was some testimony at trial regarding increased health-benefit costs
incurred by Mr. Kairys since his termination. The Court finds that there is
insufficient precision with that evidence to factor it into any front pay award.
overall testimony at trial as to the operations of Southern Pines, the business was
presented as profitable with ongoing operations and significant assets.
Third, an award of attorney’s fees in this case is important to deter further
wrongdoing by Southern Pines, especially because traditional remedies like
compensatory and punitive damages are unavailable. Southern Pines demonstrated
its cost-averseness, and the award of fees will chill future temptations to interfere
with ERISA benefits to save money.
Fourth, regarding “the benefit conferred upon members of the pension plan as
a whole,” the Court finds that this factor is largely duplicative of the deterrence factor
above, and is otherwise inapplicable or neutral here. See Hamilton v. Bank of New
York (Delaware), No. CIV.A. 94-436 MMS, 1995 WL 447659, at *6 (D. Del. July 18,
1995) (“The Court agrees that an award of fees in this case will not greatly benefit
the Plan members as a whole. The settlement did not effect a change in Plan
administration or policy that impacts anyone other than the plaintiff. Plaintiff
asserts that the Plan will provide more information to future claimants; this,
however, is the same as the deterrence argument, i.e., that an award will deter
certain conduct of the defendants, and does nothing to confer a positive immediate
benefit on other Plan members.”).
Fifth, the Court finds that Southern Pines’s version of events was pretextual,
meaning that the merits of its case are weak at best. Even if the other factors
Southern Pines argued played some role in Mr. Kairys’s termination, the company
still fired him because of his health benefits. The Court acknowledges that the jury,
in effect, viewed the evidence (and likely the witnesses’ credibility) in a different
manner in reaching its advisory verdict in favor of Southern Pines. But the Court
need not give that advisory verdict any deference. In the Court’s independent review
of the evidence and witness testimony, the merits of Southern Pines’s basis for the
termination are weak.
Accordingly, based on these factors, the Court will order an award of
reasonable attorneys’ fees and costs, with the amount to be determined upon
submission of a post-judgment fee petition.
CONCLUSION
For the foregoing reasons, the Court grants judgment in favor of Mr. Kairys as
to Count III of the Second Amended Complaint and awards him equitable relief of
$67,500, and any associated reasonable attorneys’ fees and costs.

DATE: March 31, 2022 BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417605. Public record. Not legal advice.