Opposition Brief — Malone v. Gilman Paper Co.
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
JACKIE D. MALONE,
Petitioner,
v.
GILMAN PAPER COMPANY,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
BRIEF OF RESPONDENT IN OPPOSITION
WALLACE E. HARRELL
Counsel of Record
GILBERT, HARRELL, GILBERT,
SUMERFORD & MARTIN, P.C.
777 Gloucester Street
Suite 200
Post Office Box 190
Brunswick, Georgia 31521-0190
(912) 265-6700
WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED FOR REVIEW
1. Petitioner’s first question poses the issue of whether
the grant of a summary judgment is ever appropriate
when Petitioner has filed a claim for damages based
upon an alleged violation of Section 510 of the Em-
ployee Retirement Income Security Act, 29 U.S.C.
§ 1140 (1985).
2. Petitioner’s second question simply is a request that
this court review the record to determine whether
or not the district court and the Eleventh Circuit
Court of Appeals properly evaluated the evidence in
determining whether Petitioner had rebutted Respond-
ent’s clear and unambiguous evidence that there was
no causal link between Plaintiff’s alleged discharge
and his pension benefits. Inherent in this question
is whether Petitioner’s claim rises to the level of im-
portance that this Court should grant writ of
certiorari.
3. Even though the Eleventh Circuit Court of Appeals
did not reach this issue, Respondent contends that the
trial court was correct in holding that Petitioner had
no claim since ERISA § 510 does not apply to vested
pension plan participants.
(i)
ii
PARTIES TO THE PROCEEDING
Respondent agrees with Petitioner’s statement listing
the parties to the proceeding.
TABLE OF CONTENTS
eb Dg Sy) |
PARTIES TO THE PROCEEDING...
TABLE OF AUTHORITIES ......... Riliatinalasesemjmensitincedsorniece
OPINIONS BELOW ...... IGE lisiasildkiainiccsaiensncsesacncinectocee
EEE EO SEER EATON
STATUTORY PROVISIONS INVOLVED .......000000....
ee at ag) OT |
SUMMARY OF ARGUMENT ....................00000000000....
REASONS FOR DENYING THE WRIT 000...
I.
II.
Ill.
A GRANT OF SUMMARY JUDGMENT IS
APPROPRIATE WHEN PETITIONER HAS
FILED A CLAIM UPON AN ALLEGED VIO-
LATION OF SECTION 510 OF THE EM-
PLOYEE RETIREMENT INCOME SECU-
a ea cree © OOOO .............
PETITIONER’S WRIT OF CERTIORARI
SHOULD BE DENIED BECAUSE THE PETI-
TIONER’S CLAIM DOES NOT QUALIFY
UNDER THE STANDARD OF REVIEW OF
THIS COURT IN GRANTING WRITS OF
eS I cr
ERISA § 510 DOES NOT APPLY TO VESTED
PENSION PLAN PARTICIPANTS
a
ii
iv
TABLE OF CONTENTS—Continued
APPENDIX: Page
DEPOSITION OF JACK MALONE............. la
MEETING WITH JACK MALONE ............ 2a
AFFIDAVIT OF JACK MALONE... 4a
DEPOSITION OF DOMINICK RALPH SOR-
| _ FER RSNA OE RUT SO r NO Bate 5a
DEPOSITION OF WILLIAM H. DAVIS ......... 8a
DEPOSITION OF JOHN M. LOVE ............. 10a
v
TABLE OF AUTHORITIES
Cases: Page
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) 4
Baker v. Kaiser Aluminum and Chemical Corp.,
608 F. Supp. 1315 (N.D. Cal. 1984) — 0... 5, 15
Corum v. Farm Credit Services, 628 F. Supp. 707
ea a ellen 15
Dister v. Continental Group, Inc., 859 F.2d 1108
TU a nanedaoe 5-6, 9, 12-14
Gavalik v. Continental Can Co., 812 F.2d 834 (3rd
a nausea 6,9, 10, 12
Hayden v. First National Bank of Mt. Pleasant,
Texas, 595 F.2d 994 (5th Cir. 1979) _.......0..0..... 4
Ingersoll-Rand Company v. McClendon, —— U.S.
, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990)... 7-9
Johnson v. United Airlines, Inc., 680 F. Supp.
rf BO LC C"s eee 16
Kelly v. Chase Manhattan Bank, 717 F. Supp. 227
ne cusea 16-17
Lujan v. National Wildlife Federation, US.
, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).... 5
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) _................ passim
Moehle v. N.L. Industries, Inc., 646 F. Supp. 769
(E.D. Mo. 1986), aff’d. without op. 845 F.2d
Se MI: I oso 15
Texas Department of Community Affairs v. Bur-
dine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d
I es eeteisadene 9
Turner v. Schering-Plough Corp., 901 F.2d 335
I a PS ee aad oA, 6, 14
West v. Butler, 621 F.2d 240 (6th Cir. 1980)... 17
Statute:
Employee Retirement Income Security Act § 510,
Se a cessicaninn passim
Rules:
. & B.S ene ee ie 2
J. Moore, Moore’s Federal Practice Rules Pam-
phlet, Rules of the Supreme Court of the United
I SI ED CID oc cecceessnccevnareosccctersene 6, 7,9, 10
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
No. 90-1734
JACKIE D. MALONE,
Petitioner,
Vv.
GILMAN PAPER COMPANY,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
BRIEF OF RESPONDENT IN OPPOSITION
OPINIONS BELOW
Respondent agrees that the opinion of the courts be-
low are attached to Petitioner’s petition.
JURISDICTION
Respondent agrees that Petitioner has properly stated
the basis for jurisdiction of this court. Respondent de-
nies that certiorari should be granted,
2
STATUTORY PROVISIONS INVOLVED
Respondent agrees that Petitioner has properly set
forth the statutory provisions involved in the litigation
that is the basis of Petitioner’s complaint. Rule 56 of
the Federal Rules of Civil Procedure as it relates to the
burden of proof and the response required to a motion
for summary judgment is also involved.
STATEMENT OF THE CASE
Respondent agrees to Petitioner’s statement of the
case except as follows:
Petitioner was employed by Respondent in its account-
ing department. (4a) In an effort to increase efficiency,
eliminate duplication and reduce overhead, Respondent
decided to reorganize and consolidate the accounting de-
partment in St. Marys, Georgia, part of which was lo-
cated in New York City. (5a-7a) This resulted in the
elimination of Petitioner’s then existing position with
Respondent. (5a-7a) Petitioner admits he was of-
fered other options which included continued employ-
ment in the accounting department at a lower wage, but
he contends it was offered in such a way that he con-
cluded he would not be able to do the work. (la-2a) The
employees in New York were given different retirement
options than Petitioner since they were going to be re-
quired to either retire if eligible or move from New York
to Georgia in order to continue employment. (5a-6a)
Petitioner refers in his statement to employees of Re-
spondent who had been employed at its “bag plant” and
who were given different retirement options than he.
The bag plant was being closed and those employees
were going to be allowed to retire, if eligible, or required
to move to another city of Georgia. (1lla-12a)
It is undisputed that regardless of any action taken
by Respondent relating to its pension plan for its em-
3
ployees, Petitioner’s pension rights have been unaffected
and in fact Petitioner is now receiving retirement bene-
fits in accordance with the plan in effect when he was
an employee before he retired. The pension rights of
Petitioner had become vested and were not affected by
his decision to take early retirement. (10a-11la)
SUMMARY OF ARGUMENT
1. The Supreme Court should deny Petitioner’s Writ
for Certiorari since the first question presented by Peti-
tioner merely contends that there can be no summary
judgment granted when Petitioner has filed a claim for
damages alleging violation of Section 510 of the Em-
ployee Retirement Income Security Act, 29 U.S.C. Sec.
1140 (1985). A summary judgment is appropriate in em-
ployment discrimination cases and specifically in ERISA
§ 510 cases. This court has clearly established summary
judgment viability when the movant’s state of mind is
an element in the case.
2. Petitioner’s writ of certiorari should be denied be-
cause Petitioner’s claim does not rise to the level of
importance that the Supreme Court typically requires.
There is no conflict between the Court of Appeals decision
and this court’s interpretation of ERISA §510 nor is
there any conflict between the Eleventh Circuit Court of
Appeals decision and any other circuit.
3. Petitioner’s pension rights were fully vested at the
time of his alleged termination and therefore he cannot
invoke the protection of ERISA § 510.
4
REASONS FOR DENYING THE WRIT
I. A GRANT OF SUMMARY JUDGMENT IS APPRO-
PRIATE WHEN PETITIONER HAS FILED A
CLAIM UPON AN ALLEGED VIOLATION OF SEC-
TION 510 OF THE EMPLOYEE RETIREMENT IN-
COME SECURITY ACT, 29 U.S.C. § 1140.
Petitioner contends in this petition for writ of certio-
rari that summary judgment cannot be granted when
Petitioner has filed a claim for damages alleging a viola-
tion of Section 510 of the Employee Retirement Income
Security Act, codified as 29 U.S.C. §1140. He claims
he is entitled to a jury trial. (Petitioner’s Brief, pp. i,
8) In support of his contention, Petitioner cites Hayden
v. First National Bank of Mt. Pleasant, Texas, 595 F.2d
994 (5th Cir. 1979) where the court stated that the
granting of summary judgment in employment discrim-
ination cases are questionable. (Petitioner’s Brief, p.
8) However, no har exists on the use of summary judg-
ment in employment discrimination cases. Summary
judgment is just as appropriate in employment discrim-
ination, and more specifically, in ERISA § 510 cases as
in other cases. Indeed, in Anderson v. Liberty Lobby,
Inc., 477 US. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986), this court clearly established summary judg-
ment viability in discrimination cases in holding that
summary judgment may still be granted on the movant’s
motion in cases where the defendant’s state of mind is
an element in the case (as is the situation with employ-
ment discrimination cases). Id. at 2514, 2515. The court
in Anderson held that as long as the movant meets his
burden of showing no genuine issue of fact exists, the
non-movant is not relieved of his 6wn burden of produc-
ing evidence that establishes a genuine issue of fact to
avoid the grant of a summary judgment, even when a
party’s state of mind is an issue. The non-movant must
offer concrete evidence from which a reasonable juror
could return a verdict in his favor. Jd. at 2514.
5
The court in Dister v. Continental Group, Inc., 59 F.2d
1108 (2nd Cir. 1988) applied the Anderson rule to an
ERISA $510 case and held that to avoid summary
judgment a non-movant must offer “ ‘concrete evidence
from which a reasonable juror could return a verdict in
his favor’... and is not entitled to a trial simply be-
cause the determinative issue focuses upon the defend-
ant’s state of mind.” Jd. at 1114, quoting Anderson at
2514. The Dister court, citing Nash v. Jaqueline Coch-
ran, Inc., 548 F.Supp. 676, 678 (S.D. N.Y. 1982), also
stated that the purpose of summary judgment—avoiding
protracted, expensive, and harassing triais—apply equally
to discrimination cases and other areas of litigation. /d.
at 1114. In Baker v. Kaiser Aluminum and Chemical
Corp., 608 F.Supp. 1315 (D.C. Cal. 1984), the plaintiff
brought an action against his employer under ERISA
$510 alleging interference with his pension rights due
to wrongful discharge. In granting the defendant’s mo-
tion for summary judgment, the court stated that “a
party against whom summary judgment is sought is not
entitled to trial simply because he has asserted a cause
of action to which state of mind is a material element.
There must be some indication that he can produce the
requisite quantum of evidence to enable him to reach
the jury with his claim.” Jd. at 1319, quoting Hahn v.
Sargent, 523 F.2d 461, 468 (1st Cir. 1975), cert. denied,
425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed. 2d 754 (1976).
The purpose of summary judgment is to enable a
_ arty who believes there is no genuine dispute essential to
the opponent’s case to demand proof of a material dis-
puted fact before lengthy litigation continues. Lujan v.
National Wildlife Federation, —— U.S; ——, 110 S.Ct.
3177, 3188, 4189, 111 L.Ed.2d 695 (1990). This effective
tool is as appropriate in ERISA § 510 cases as in other
cases, and courts have established that the existence of
an employer's state of mind and intent as a factor in a
case does not preclude the use of summary judgment.
6
Indeed, lower courts have established manageable stand-
ards and allocations of burdens of proof in determining
whether or not summary judgment should be granted in
ERISA § 510 cases. Petitioner’s contention would strip
the courts of a tool that is beneficial to both the litigants
and the court system and which the courts have proven
competent to evaluate in ERISA § 510 actions. See
Dister v. Continental Group, Inc., 859 F.2d 1108 (2nd
Cir. 1988), Gavalik v. Continental Can Co., 812 F.2d 834
(3rd Cir. 1987), and Turner v. Schering-Plough Corp.,
901 F.2d 335 (8rd Cir. 1990) (all adopting variations
of the test of indirect intent for the establishment of a
prima facie case by this court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973). Therefore, Petitioner’s contention that sum-
mary judgment is not applicable to ERISA § 510 cases
is not meritorious.
II. PETITIONER’S WRIT OF CERTIORARI SHOULD
BE DENIED BECAUSE THE PETITIONER’S
CLAIM DOES NOT QUALIFY UNDER THE STAND-
ARD OF REVIEW OF THIS COURT IN GRANTING
WRITS OF CERTIORARL.
Petitioner’s writ of certiorari should be denied because
the Petitioner’s claim does not rise to the level of im-
portance that the Supreme Court typically requires in
granting certiorari to review a Court of Appeals de-
cision. Rule 10(1) of the Rules of the Supreme Court
states: “A petition for a writ of certiorari will be
granted only when there are special and important rea-
sons therefor.” J. Moore, Moore’s Federal Practice Rules
Pamphlet, Rules of the Supreme Court of the United
States, Rule 10(1) (1991). Petitioner’s claim does not
involve “special and important reasons” that Rule 10
requires. Both the United States District Court for the
Southern District of Georgia and the United States Court
of Appeals for the Eleventh Circuit in granting summary
judgment to the defendant, found no meritorious claims
ee
7
in the Petitioner’s arguments. Indeed, in its order, the
Court of Appeals held that the defendant met its burden
of proof in showing that no causal link between the plain-
tiff’s retirement and his pension benefits existed, while
Petitioner presented no contrary evidence to Respondent’s
motion for summary judgment. Also, deposition testi-
mony from defendant establishes that Petitioner was not
terminated, but was given several options, including con-
tinued employment with defendant in a related capacity
with reduced responsibilities and pay and retraining.
However, plaintiff voluntarily elected to take early re-
tirement. (la-3a, 6a-7a, 12a-13a). Testimony from de-
fendant’s employees established that defendant’s deci-
sion to reorganize the accounting department to enable
it to operate more effectively was the purpose in offering
plaintiff the options, and while Petitioner might contend
he was “forced” to retire, no evidence exists to indicate
the decision was made solely or even substantially for
the purpose of avoiding pension liability. (5a-6a, 8a-9a,
lla-12a, 14a-15a).
Petitioner seems to claim that the decision of the
Court of Appeals is in conflict with the Supreme Court’s
interpretation of ERISA § 510 in Ingersoll-Rand Com-
pany v. McClenden, ——-U.S. ——, 111 S.Ct. 478, 112
L.Ed.2d 474 (1990), and therefore under Rule 10(1) (c)
of the Rules of the Supreme Court, the conflict creates
an important reason for granting a writ of certiorari.
Contrary to Petitioner’s claim, the decision of the Court
of Appeals is not in conflict with this Court’s interpre-
tation of the purpose of ERISA § 510 in Ingersoll-Rand
Company. Ingersoll-Rand Company held that the fed-
eral ERISA §510 statute pre-empts state regulation
when a right has been violated that is guaranteed by
ERISA § 510. In Ingersoll-Rand Company, an employee
of nine years was released four months before his pen-
sion would have vested. The employee sued in state court,
and this court reversed the state supreme court decision,
—————————————
8
ruling that state jurisdiction must yield to the federal
enactment and should be decided under ERISA stand-
ards. /d, at 481-482, 485-486. In stating that “. . . this
claim is prototypical of the kind Congress intended to
cover under £510”, this court’s interpretation of the
purpose of ERISA § 510 is not in conflict with the Court
of Appeals decision in the instant case. Jd. at 485. Un-
like the plaintiff in Ingersoll-Rand Company, Petitioner
in the instant case was fully vested for all benefits to
which he was entitled at the time of his retirement under
Respondent’s pension pian. Petitioner has only shown
that if he had continued to work until the age of 65
instead of taking an early retirement, the benefits he
would have received would have been greater than those
which he is presently receiving and that, in effect, is a
“savings” to Respondent. This, by itself, is not sufficient
to create a cause of action since anytime any employee
is discharged, the discharge results in a savings to an
employer both in salary and pension costs. The Peti-
tioner in the instant case has not established evidence
that the Respondent had intent or purpose to interfere
with Petitioner’s pension rights. The Court of Appeals
held that Petitioner presented no contrary evidence to
defendant’s evidence that no causal link between the Peti-
tioner’s retirement and pension benefits existed. (Peti-
tioner’s Brief, pp. A-3, A-4) Therefore, the Court of
Appeals decision that the Petitioner had not met his bur-
den of proof to establish any material issue of fact does
not conflict with this court’s interpretation of ERISA
§ 510, in holding that a case where an employee is termi-
nated a few months before his pension vests is the type
of case that Congress intended to cover under § 510 to
protect “plan participants from termination motivated by
an employer’s desire to prevent a pension from vesting’.
Id. at 485. The primary issues of Ingersoll-Rand Com-
pany and the instant case differ. The Court of Appeals
in the instant case has not decided Petitioner’s ERISA
claim in a way that conflicts with /ngersoll-Rand Com-
9
pany. Therefore, contrary to Petitioner’s contention, the
claim in the instant case does not meet the standard of
review of the United States Supreme Court under Su-
preme Court Rule 10/1) (¢).
The Eleventh Circuit Court of Appeals does not render
the decision in the instant case in conflict with another
Court of Appeals decision on the same matter, nor did
the decision depart from the accepted and usual course
of judicial proceedings for this court to grant writ of
certiorari under Rule 10(1)(a) of the Rules of the Su-
preme Court. Although this question is apparently of
first impression in the Eleventh Circuit, several circuits,
in determining whether parties met their respective bur-
dens of proof in a motion for summary judgment in
ERISA § 510 cases, nave adopted this Court’s criteria
for allocations of burden and order of presentation of
proof for intent and motive elements. See Gavalik v.
Continental Can Co., 812 F.2d 834 (3rd Cir. 1987) and
Dister v. Continental Group, Inc., 859 F.2d 1108 (2nd
Cir. 1988). This court’s criteria was established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII case
alleging discriminatory treatment. This criteria was
summarized in Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981) as follows:
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to
the defendant “to articulate some legitimate non-
discriminatory reason for the employee’s_ rejec-
tion...” Third, should defendant carry this burden,
the plaintiff must then have the opportunity to prove
by a preponderance of the evidence that the legiti-
mate reasons offered by the defendant were not its
true reasons but were a pretext for discrimination.
Burdine, 450 U.S. at 252-253, 101 Sup. Ct. at 1093
10
(1981). (Quoting McDonnell Douglas, 411 U.S. at
802, 804, 93 Sup. Ct. at 1824, 1825).
Based on the analysis that follows, the decision in the
instant case by the Eleventh Circuit Court of Appeals
meets the criteria of these various tests, and therefore,
the issues of this case do not meet the standard of review
for a grant of a writ of certiorari to the United States
Supreme Court under Rule 10(1) (a) of the Rules of the
Supreme Court.
The Third Circuit Court of Appeals adopted the
McDonnell framework in Gavalik v. Continental Can
Company, 812 F.2d 834 (3rd Cir. 1987), and formulated
requirements for the establishment of a prima facie case
in ERISA § 510 cases similar to the requirements in
McDonnell. The court held that “to establish a prima
facie case under ERISA § 510, an employee must demon-
strate (1) prohibited employer conduct; (2) taken for
the purpose of interfering; (3) with the attainment of
any right to which the employee may become entitled.”
Gavalik at 852. The plaintiff must establish his prima
facie case by a preponderance of the evidence. Gavalik
at 853.
Petitioner has not demonstrated by a preponderance of
the evidence that Respondent engaged in prohibited con-
duct. Petitioner states in his brief that Petitioner was
forced to retire because of unreasonable demands and
conditions placed on him. (Petitioner’s Brief, pp. 7, 8).
However. Petitioner produces no evidence other than his
own assertions of this claim. Deposition testimony from
Gilman Paper Company employees, however, establishes
that Petitioner was offered several options, one of which
included continued employment with Gilman Paper Com-
pany in a somewhat different, but related capacity with
reduced responsibility and pay. However, Petitioner vol-
untarily elected not to take the job, but rather to take
retirement. Even if Petitioner’s contention that he was
11
“forced” to retire is accepted (though in no way sup-
ported by any evidence before this court) there is stil!
no showing that Petitioner’s alleged forced retirement is
related to his pension benefits and that he was forced to
retire to save Respondent the cost of such benefits.
(la-3a, 6a-7a, 12a-13a). -—
In his brief, Petitioner also claims that the fact that
Respondent changed pension plans and gave Petitioner
several career options “created an inference that reduc-
ing the Petitioner’s future pension benefits, which re-
sulted in a correspondence cost reduction to the Respond-
ent, was at least one of the motivating factors which
caused the Respondent to force the Petitioner into early
retirement”. (Petitioner’s Brief, pp. 7-8) However, Peti-
tioner produces no evidence supporting these allegations.
Petitioner has not established by a preponderance of the
evidence that Respondent had intent or purpose to inter-
fere with Petitioner’s pension rights. Indeed, testimony
from management level employees of the Respondent es-
tablishes that the decision to reorganize the accounting
department was made as a result of a desire to enable
it to operate more efficiently and cost effectively. (5a-6a,
8a-9a, 1la-12a, 14a-15a) There is no evidence to indicate
that this decision was made solely, or even substantially,
for the purpose of avoiding pension liability. Petitioner at-
tempts to compare his situation with that of employees
of the defendant’s former grocery bag operation and with
that of some of its New York-based employees. (Peti-
tioner’s Brief, pp. 4-5) Petitioner was not, and has not
established himself to have been equally situated with
employees of the grocery bag operations or with employ-
ees of the accounting department located in New York
City. Petitioner was not employed in New York and did
not work for the grocery bag operation. He was based
at the papermill in St. Marys, Georgia. (4a) Even if
he was similarly situated, Petitioner still has the burden
of showing a causal link between his pension rights and
12
his discharge when Respondent has made an affirmative
showing that his alleged “discharge” had nothing to do
with his pension benefits.
Petitioner also submits as evidence of the Respondent’s
prohibited intentions the fact that Respondent terminated
the overfunded pension plan in order to acquire the ex-
cess assets. (Petitioner’s Brief, p. 7) However, Petitioner
does not allege and cannot prove that the termination of
the overfunded plan worked to the detriment of any plan
participant. It is undisputed that plan participants re
received and are receiving the benefits to which they are
entitled. (9a) It is also undisputed that Respondent has
established a new pension plan. (10a-lla) Therefore,
Petitioner has failed to establish a prima facie case
against Respondent, and the Eleventh Circuit Court of
Appeals correctly granted Respondent summary judgment,
not in opposition with the prima facie framework adopted
by the Gavalik court.
The Second Circuit has also adopted the McDonnell
framework and established a three-part test for plain-
tiffs to establish a prima facie case under ERISA § 510.
To establish a prima facie case, the plaintiff must show
that the plaintiff (1) belong to a protected group, (2)
was qualified for the position, and (3) was discharged
or denied employment under circumstances that give to
an inference of discrimination. Dister at 1114-1115. The
Petitioner does not establish a prima facie case under
the Dister test because, as has already been discussed in
the context of Gayalik, the Petitioner has failed to show
by a preponderance of the evidence that he was discharged
from his job. Petitioner claims that Respondent’s busi-
ness reason for the challenged practice was a pretext.
(Petitioner’s Brief, p. 8) The Dister court established a
framework for judging pretext claims. In Dister, a fired
employee sued under ERISA § 510 claiming he was re-
leased a few months before being eligible for benefits so
that the company could avoid paying these benefits. The
13
court, under a McDonnell test, held that the plaintiff had
the burden of proving, by a preponderance of the evi-
dence, that defendant’s legitimate, non-discriminatory
reason for releasing plaintiff was pretext for discrimina-
tion. Dister at 1113, 1115. The defendant had asserted
a corporate re-organization and a change in business
priorities caused the release of plaintiff. Jd. at 1115.
The Dister court, citing Burdine, 450 U.S. at 256, 101
S.Ct. at 1095, stated, “. .. a plaintiff may prevail upon
a showing that the employer’s given legitimate reason is
unworthy of credence, that is, that the reason supplied
was not the true reason for the unfavorable employment
decision.” Jd. at 1113. Dister also cited Lieberman v.
Grant, 630 F.2d 60, 65 (2nd Cir. 1980), stating “. .. pre-
text can be established by a showing that the asserted
neutral basis was so ridden with error that the employer
obviously could not honestly have relied on it.” Jd. at
1113. Even though the plaintiff in Dister had asserted
inconsistencies in defendant’s testimony and _ public
speeches by defendant’s executives as evidence of pretext
in defendant’s reasons for plaintiff’s release, the court
held that the plaintiff had failed to prove pretext by a
preponderance of the evidence and had not met his burden,
and so summary judgment for the defendant was prop-
erly granted. /d. at 1117.
Petitioner in the instant case produces no evidence or
case law to substantiate his claim of pretext, with the
exception of his own assertions. He has certainly not
established by a preponderance of the evidence that Re-
snondent’s decision to increase efficiency and eliminate
duplication in the accounting department was a pretext
for prohibited action in violation of ERISA § 510. There
is no evidence of inconsistencies in Respondent’s assertion
of legitimate business reasons in streamlining Respond-
ent’s accounting department. Indeed, Petitioner produces
no evidence that Petitioner’s added pension, had he re-
mained with Gilman Paper Company, was a motivating
14
factor at all in Respondent’s decision to create a more
efficient accounting department. Therefore, Petitioner has
not met his burden of proof, and under the Dister test,
the Eleventh Circuit Court of Appeals properly affirmed
summary judgment for the Respondent.
In Turner v. Schering-Plough Corp., 901 F.2d 335 (3rd
Cir. 1990), the court, applying the McDonnell test to an
ERISA § 510 case, held that the plaintiff, who had
worked for the defendant for 37 years before being re
leased and who was not deprived of his pension, had not
established a prima facie case to defeat a summary judg-
ment motion. Jd. at 348. The court stated:
All Turner has shown is that his termination de-
prived him of the opportunity to accrue additional
benefits through more years of employment. This
kind of deprivation occurs whenever an ERISA em-
ployer discharges an employee and is not alone pro-
bative of an intent to interfere with pension rights.
Where this is the only deprivation, a prima facie
case requires some additional evidence suggesting
that pension interference might have been a motivat-
ing factor. In this connection, we note that the
record contains no evidence that the savings to the
employer resulting from Turner’s termination were
of sufficient size that they may be realistically viewed
as a motivating factor.
Id. at 348.
As in the Turner case, Petitioner in the instant case
can only prove that the Petitioner no longer has the op-
portunity to accrue additional benefits through more years
of employment. Ignoring the fact that Petitioner volun-
tarily chose to retire and prevent additional benefits from
accruing, Petitioner has produced no evidence under the
Turner standard to prove by a preponderance that Re-
spondent’s legitimate, non-discriminatory reason was pre-
text or that the savings to the Respondent resulting from
Petitioner’s early retirement were of sufficient size to
15
realistically be viewed as a motivating factor. The
Eleventh Circuit Court of Appeals decision in the instant
case is not in opposition to the Turner court’s analysis of
burden of proof responsibilities in summary judgment in
ERISA §510 cases involving employees whose benefits
have vested. Petitioner has exhibited no evidence or cases
that contradict this Eleventh Circuit Court of Appeals
holding. However, Respondent has exhibited several Court
of Appeals decisions from several circuits regarding sum-
mary judgment in ERISA §510 cases that are not in
opposition to the Eleventh Circuit Court of Appeals deci-
sion. Since the standard of review of the United States
Supreme Court has not been met, the Order of the Court
of Appeals should be upheld, and the writ of certiorari
denied.
III. ERISA §510 DOES NOT APPLY TO VESTED PEN-
SION PLAN PARTICIPANTS.
Contrary to Petitioner’s assertions, an examination of
employer intent and the establishment of no causal link
between Petitioner’s retirement and his pension benefits
are not necessary to determine that the Respondent is
entitled to summary judgment. The petition for writ of
certiorari should be denied because the petitioner has no
cause of aciton under ERISA § 510. In granting sum-
mary judgment to the Respondent, the United States Dis-
trict Court for the Southern District of Georgia relied on
a long line of cases from sister jurisdictions and properly
concluded that an employee whose pension rights are
vested at the time of his termination cannot invoke the
protections of ERISA § 510. (Petitioner’s Brief, pp.
A-10-14) :
In its Order, the District Court quoted and discussed
the critical portions of Baker v. Kaiser Aluminum and
Chemical Corp., 608 F.Supp. 1315 (N.D. Cal. 1984),
Corum v. Farm Credit Services, 628 F.Supp. 707 (D.
Minn. 1986), and Moehle v. N.L. Industries, Inc., 646
16
F.Supp. 769 (E.D. Mo. 1986), aff'd. without op. 845
F.2d 1027 (8th Cir. 1988). These cases involve suits sub-
ject to rulings pursuant to ERISA § 510 and are clear
authority for the District Court’s proposition that vested
employees have no cause of action under § 510.
Other authority cited by the District Court, but not
discussed in its Order, is equally persuasive, and shows
that the weight of authority supports the District Court
decision. The court cited Johnson v. United Air Lines,
680 F.Supp. 1425 (D. Hawaii 1987). The Johnson Court
stated that because the plaintiff admitted during his
deposition that he was fully vested in his company’s pen-
sion plan at the time of his termination, to “the extent
that he alleges a violation of § 510 of ERISA based on his
alleged failure to vest in United’s pension plan because of
his discharge, defendants are entitled to summary judg-
ment” as to that count. Johnson at 1432, citing Logan v.
St. Luke’s-Roosevelt Hospital Center, 636 F.Supp. 226:
(S.D. N.Y. 1986). In the instant case, Petitioner was
fully vested in all benefits to which he was entitled at the
time of his retirement under Responcent’s Pension Plan.
(9a, Petitioner’s Brief, p. A-14)
In another case cited by the District Court, Kelly v.
Chase Manhattan Bank, 717 F.Supp. 227 (S.D. N.Y.
1989), a discharged employee brought an action which,
in part, alleged that his termination deprived him of an
opportunity to accrue additional benefits under his com-
pany’s pension plan. The court noted that the employer
had conceded that the plaintiff was fully vested in his
pension plan at the time of his dismissal, and that the
plaintiff’s claim was that had he remained as an employee
he would have accrued additional benefits. Kelly at 232.
The court held that “such a claim is not cognizable un-
der § 510.” Ibid. citing Dister v. Continental Group, 859
F.2d 1108, 1111 (2nd Cir. 1988). In the instant case,
Respondent readily concedes that Petitioner is fully vested
in the pension plan for benefits earned up to the time of
17
Petitioner’s election to take an early retirement. (9a,
Petitioner’s Brief, p. A-14) As in Kelly, Petitioner’s
claim is that had he remained an employee, he would
have accrued additional benefits. As in the claim in
Kelly, the claim in the instant case is not cognizable
under § 510.
In West v. Butler, 621 F.2d 240 (6th Cir. 1980), the
6th Circuit Court of Appeals reviewed the legislative his-
tory behind ERISA § 510. The Court held that, in pass-
ing ERISA § 510, Congress intended to prohibit employ-
ers from taking negative action against employees who
had not yet vested in their pension rights. West at 245.
In the instant case, it is undisputed that the Respondent
has in no way prevented Petitioner from obtaining his
pension rights vested at the time of his retirement. (9a,
Petitioner’s Brief, p. A-14) Congress did not intend for
employees with vested pension rights to have a cause of
action under ERISA §510. West at 245. Therefore,
contrary to Petitioner’s assertions, summary judgment is
appropriate in the instant case without reaching an ex-
amination of the evidence produced by the Petitioner re-
garding employer intent in Petitioner’s effort to meet his
burden of proof. Since Petitioner is vested, he has no
cause of action under ERISA § 510 and the petition for
writ of certiorari should be denied.
CONCLUSION
Respondent contends that it is clear this is a case
where the plaintiff has claimed damages based upon an
alleged violation of § 510 of the Employee Retirement
Income Security Act. A court may grant a summary
judgmei.. just as in other cases. Here Petitioner failed
to make an adequate response to Respondent's motion and
failed to show any causal link between Petitioner’s al-
leged discharge and his pension benefits. Respondent
made a clear showing that the reason for the change in
his job status had nothing to do with his pension rights.
18
Further, Petitioner has no claim under ERISA § 510
since it does not apply to vested pension plan participants.
For these reasons Respondent contends the petition for
certiorari should be denied.
Respectfu}ly submitted,
WALLACE E. HARRELL
Counsel of Record
GILBERT, HARRELL, GILBERT,
SUMERFORD & MARTIN, P.C.
777 Gloucester Street
Suite 200
Post Office Box 190
Brunswick, Georgia 31521-0190
May 28, 1991 (912) 265-6700
APPENDIX
la
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
Civil Action No. CV289-096
JACKIE D. MALONE,
Plaintiff,
Vs.
GILMAN PAPER COMPANY,
Defendant.
STATE OF GEORGIA )
)
COUNTY OF CAMDEN __)
Deposition of JACK D. MALONE, taken on behalf of
the defendant herein, pursuant to Agreement, at 10:00
o’clock a.m., on Wednesday, November 1, 1989, at High-
way 40 East, Post Office Box 813, St. Marys, Camden
County, Georgia before Karen G. Bondurant a Notary
Public in and for the State of Florida at Large.
Q And after you had thought about it, do you recall
who you talked to about it when you decided that you
would not take that job?
A Yes, sir, I do.
Q Who was that?
A_ I talked to Mr. John Love and Mr. Billy T. Sutton.
2a
Q Do you recall when you talked with them, ap-
proximately?
A It was shortly before I retired. I had had a meet-
ing with Mr. Love and Mr. Sutton earlier, and John had
explained some of the options.
* * . *
Meeting With Jack Malone
4-22-86 @ 11:25 to 11:45 A.M.
Present:
Dominick Sorrentino
Lee Tompkins
B.T. Sutton
Jack Malone
1) Explained to Mr. Malone that Gilman felt that they
could not offer him severance pay or early retirement
with pay out at age 62.
2) Offered Mr. Malone the following options:
A) Retirement at his current age, with no severance
pay.
B) A job in Accounting—with retraining under the
Asst. Accounting Manager and a cut in pay of
$6,000 per year. Explained that he could not
make more than the Asst. Accounting Manager.
C) Explained that he could apply for LTD, and Mr.
Tompkins and Mr. Love would aid in trying to
get it approved.
Mr. Malone was not pleased at the options. He
wanted to be the first in St. Marys Kraft Div. to be
placed on full retirement (@ age 62—even if he is only
56) with severance pay is given to Kraft Bag employees
(salary) when the Grocery Bag Dept. closed (3 months
pay plus 1 week pay for each year worked up to a maxi-
mum of 1 year pay).
3a
Jack Malone:
Questions asked by Guy Farmer to Lee Tompkins
and Lee to Sutton.
Talked with Mike Pillen & D. Sorrentino on salary
range and job duties.
1st Question:
Any employee under a Supervisor making more than
the Supervisor?
Answer:
No
This is why Jack Malone is being requested to take
a pay cut from $37,000 to $31,000.
Accounting Manager 47,850 M.F. Randolph
Asst. Acct. Manager 32,000 Hub Baez
Accountant 25,730 E. Buck
Jr. Accountant 31,000 Jack Malone
Accounting Clerks ——--
2nd Question:
What will be the duties of Jack Malone if he stays
with the Company in this new job!!
Answer:
Mr. D. Sorrentino stated that he would handle Petty
Cash, some journal duties, account payable items
and other general duties * * *.
4a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
Civil Action No. CV289-096
JACKIE D. MALONE,
Plaintiff,
Vs.
GILMAN PAPER COMPANY,
Defendant.
AFFIDAVIT OF JACKIE D. MALONE
Personally, before the undersigned officer duly author-
ized by Georgia law to administer oaths and take ac-
knowledgments, appeared JACKIE D. MALONE, who,
after first having been duly sworn, deposes and says on
oath as follows, to-wit:
1. My name is JACKIE D. MALONE. I am the Plain-
tiff in the above styled action.
2. I was formerly employed by the Defendant, GIL-
MAN PAPER COMPANY, and was so employed until
July 1, 1986. At the time of my last employment with
GILMAN PAPER COMPANY, I was employed in the
Accounting Department at GILMAN PAPER COM-
PANY’S St. Marys, Georgia, facilities. I had been em-
ployed in the Accounting Department for approximately
twenty-five years. I was employed by GILMAN PAPER
COMPANY for a total of thirty-two years.
« * * *
5a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
Civil Action No. CV289-096
JACKIE D. MALONE,
Plaintiff,
vs.
GILMAN PAPER COMPANY,
Defendant.
STATE OF GEORGIA )
)
COUNTY OF CAMDEN )
Deposition of DOMINICK RALPH SORRENTINO,
taken on behalf of the plaintiff herein, pursuant to Agree-
ment, at 1:20 o’clock p.m., on Wednesday, November 1,
1989, at Gilman Paper Company, St. Marys, Camden
County, Georgia, before Karen G. Bondurant a Notary
Public in and for the State of Florida at Large.
Q Well, what were the circumstances under which
you transferred to St. Marys?
A The financial MIS Group relocated down here in
St. Marys, and I was part of the group.
Q Did Gilman still maintain an office in New York?
A Yes.
Q Where is the corporate headquarters of Gilman at
the present time?
A Gilman Paper Company?
Ait
6a
Q Yes, sir.
A I believe it is—it’s down here at St. Marys,
Georgia.
Q Well, before the financial MIS Group moved to St.
Marys, where was the headquarters of Gilman?
A In New York City.
Q When did the change take place under which the
financial MIS Group was transferred to St. Marys?
A I think it was July—June, July, August of ’86.
Q What was the reason for the change which took
place under which the financial MIS Group was moved
from New York to St. Marys?
A Well, the reason was that it would be more con-
venient to be here and [eliminate]* duplication of efforts
* * *&
CROSS EXAMINATION
BY MR. HARRELL:
Q (Handing document to witness) Mr. Sorrentino,
I’d like to hand you an exhibit that has been marked as
Defendant’s Exhibit No. 2 and ask you if you recognize
that document?
A (Examining document) Yes, I do.
Q That document concerns a meeting that apparently
took place on April 22nd, 1986; is that right?
A That’s correct.
Q And were you at that meeting?
A Yes, I was.
Q What do you recall about any conversation with
Jack Malone at that meeting?
A I remember that Billy Sutton went through the
options on [the paper with] Jack Malone asking—the
options that are written here in this memo. And he went
* Bracketed material reflects corrections in witness deposition by
Court Reporter.
aan ereermenniiaeaialtmniamaemniiaiea a
7a
through these three options very clearly, and the—what-
ever is written in the memo.
Do you want me to go through the options?
Q Yes, please.
A Well, he explained to Jack Malone that he could
take retirement without any severance pay. He could
either be the [Jr. Accountant]—work for Herb Baize,
the assistant—which will be the assistant accounting
manager, at a reduction in salary of $6,000, or he can go
[out on] LTD, which is disability, if he like.
Q Was there any discussion about why his salary
would have to be reduced?
A Yes. Mainly because the—Herb Baize was making
less than he was, and Herb was the assistant manager.
And we was making $6,000 [less]—Jack Malone was
making $6,000 more than Herb Baize.
Q Was there any discussion about the conditions of
employment, that is, how the—any training program
would be instituted and the conditions that would be em-
ployed in connection with that training program?
A Not at that meeting, because it was a very short
meeting. It was only 20 minutes, as you can see. Mr.
Sutton just went through the options with Jack.
Q Did Mr. Malone make any response to—to this?
Did he make any decision at that time?
A No, he didn’t.
Q At that time, had you moved to St. Marys?
A No.
Q What was your reason for being at this meeting?
A I was at this meeting mainly because Herb Baize
reports to me. And I guess that if Jack reported to Herb
Baize, he would be basically under my division.
. * * .
EE —
8a
IN THE UNJTED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
Civil Action No. CV289-096
JACKIE D. MALONE,
~ Plaintiff,
VS.
GILMAN PAPER COMPANY,
Defendant.
STATE OF GEORGIA) )
)
COUNTY OF CAMDEN) _ )
Deposition of WILLIAM H. DAVIS, taken on behalf of
the plaintiff herein, pursuant to Stipulation and Agree-
ment, at 2:00 o’clock p.m., on Wednesday, November 1,
1989, at Gilman Paper Company, St. Marys, Camden
County, Georgia before Karen G. Bondurant a Notary
Public in and for the State of Florida at Large.
o . . *
Q. What knowledge do you have concerning the deci-
sion to move the financial operations of Gilman Paper
Company from New York to St. Marys?
A I probably have as much as anybody.
Q What were the factors which caused Gilman Paper
Company to move the financial operations from New York
to St. Marys?
A Well, in the first place, office space is very expensive
in New York. And we had leased the second floor of the
Time and Life Building from I guess it’s the Rockefeller
9a
Estate interest that owned the Rockefeller Center until
they sold it to the Japanese here in just the last couple
of days.
Q Rockefeller Center?
A Rockefeller Center. The Time and Life Building
is one of the buildings in Rockefeller Center. There’s
about 10 or 15 of them total.
Q And the rent was kind of high?
A Rent was high. And not only was the rent high,
the rent had escalated dramatically since we signed the
lease.
I think it was around $12 to $18 a square foot per
year that we were paying for the space. And we had the
opportunity to sublease it for $42 a square foot to some-
one else.
So there was quite a bit of money to be made by free-
ing up most of the space that we had leased, and it just
made a lot of sense.
We were faced with a decision to put in a new com-
puter and spend a couple million dollars on a computer
system. And it made a lot of sense to make the move at
that time and build a building down here to house that
computer equipment and also to move our accounting and
computer people to St. Marys.
* * * *
Q And the reason that the plan was terminated was
so that Gilman could—Gilman Paper Company could get
these, what you call, excess funding—excess funds?
A That’s correct.
Q And once they’re withdrawn, then, of course, they’re
no longer available to pay pensions to employees?
A We’ve already paid all the pensions to the employ-
ees when we give them the annuity and all the cash, so
we ended our obligation.
* * * ”
|
|
|
10a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
Civil Action No. CV289-096
JACKIE D. MALONE,
Plaintiff,
vs.
GILMAN PAPER COMPANY,
Defendant.
STATE OF GEORGIA) )
)
COUNTY OF CAMDEN) )
Deposition of JOHN M. LOVE, taken on behalf of the
plaintiff herein, pursuant to Agreement, at 11:05 o’clock
a.m., on Wednesday, November 1, 1989, at Highway 40
East, St. Marys, Camden County, Georgia, before Karen
G. Bondurant a Notary Public in and for the State of
Florida at Large. °
Q When did—approximately when did the current
plain come into existence?
A I believe it was the first of ’88—'87.
Q Now, prior to the first of 87, what plan were you
a participant in?
A A similar plan for the salaried employees of Gil-
man Paper Company.
Q Now, was it salaried employees only in St. Marys
or did it also include the St. Marys-based employees, or
what employees did it include?
A It included all salaried employees of the company.
lla
Q Were you a participant in the same plan which
Jack Malone was a participant in at the time of his
retirement?
A There wasn’t—I don’t want to be too technical on
this, but there wasn’t a plan in existence at the time
that Mr. Malone actually went into retirement.
Q Were you a participant in the same plan with Mr.
Malone_one year prior to the date of his retirement?
A Yes.
Q And then that plan terminated?
A Yes.
Q And anew plan came into existence?
A Yes.
Q What is your understanding as to the reason the
earlier plan terminated?
A It was an overfunded plan, similar to many other
plans in our industrial and in other industries at that
time.
Q When you say overfunded, what do you mean?
A There were excess funds to provide the benefits
that the plan was to provide. They were—the acfuary’s
assumptions had been somewhat conservative, and there
were excess funds there which were not needed 40 provide
the benefits that the plan called for.
Q Are you aware of any decisions on the part of
Gilman Paper Company to try to get management em-
ployees to take early retirement?
A What management employees?
Q Well, management employees based here in St.
Marys.
A To take early retirement?
Q Yes.
A Related to this move?
124
Q Well, related to that move or just any other prac-
tice of the company to encourage management-level em-
ployees to take early retirement so as to cut costs.
A No, sir.
Q You're saying the bag plant employees’ jobs were
no longer existing?
A Yes.
Q Mr. Malone’s position was also being eliminated;
wasn’t it?
A Portions of it, yes. My understanding, at any rate.
Q There was a complete restructuring in the depart-
ment where ha had been working so that he would have
had to have retrained in order to remain an employee of
Gilman; is that right?
A Yes.
Q Now, if Mr. Malone had continued to work until
age 65, the pension benefits which he would have received
each month at that time would be substantially greater
than the benefits which he currently receives; is that not
correct, sir?
A It would have been greater, certainly, yes.
Q What meetings did you sit in on or participate in
where Mr. Malone was present and his future employ-
ment or employment options with the company were
discussed?
A When Mr. Malone was present?
Q Yes, sir.
A I had at least one meeting with him, and I believe
there were possibly two.
Q Do you recall the dates of those meetings?
A_ No, sir, I do not.
Q Did you make any notes or other records concern-
ing those meetings?
A No, sir, I did not.
13a
Q Tell me what you recall being discussed at this
meeting or meetings where Mr. Malone was present.
A My best recollection is that the options that were
available to Mr. Malone and what he desired to do about
those options, and to try to explain to him in as much
detail as I could what the options meant to him.
l4a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
Civil Action No. CV289-096
JACKIE D. MALONE,
Plaintiff,
Vs.
GILMAN PAPER COMPANY,
Defendant.
STATE OF GEORGIA )
)
COUNTY OF CAMDEN )
Deposition of MICHAEL PALLEN, taken on behalf
of the plaintiff herein, pursuant to Agreement, at 3:00
o'clock p.m., on Wednesday, November 1, 1989, at Gilman
Paper Company, St. Marys, Camden County, Georgia
before Karen G. Bondurant a Notary Public in and for
the State of Florida at Large.
Q And you joined the company as a controller?
A Yes.
Q Did you have any role in the decision to move the
accounting functions of Gilman Paper Company from
New York to St. Marys?
A Yes.
Q What role did you have?
A There was a decision made that we should look
into the benefits that could be accrued from combining
the operations.
We were aware that there was duplication of certain
efforts. And we also felt that by being closer to the
se eta gl nt aa a et ea A LO a at
l5a
operations, that the accounting department and the fi-
nanical functions would be more effective.
And I was asked my opinion on that and was ob-
viously a key player in that. And I came to the con-
clusion that this was in the best interest of the company
and supported that plan.
Q Now, did that move have a significant effect on the
job position which Jack Malone had held prior to the
time that the accounting functions of Gilman were moved
to St. Marys?
A I don’t know if I understand your question.
Q Did the decision to move the accounting functions
of Gilman Paper Company to St. Marys have an effect
on Mr. Malone’s position with the company?
A It did in the sense that we reevaluated all of the
functions. We were bringing down certain staff, we were
bringing down certain functions that had previously been
performed in New York, and we were trying to meld
requirements, eliminate certain duplications and match up
people as best as we could with the new tasks that they
were going to be doing.
Q Did you perfor manv sort of study or make any
inquiries as to exactly what Jack Malone did with Gilman
Paper Company?
A I worked with my two key assistants, Dom Sor-
rentino and Billy Sutton in laying out who was going to
be doing what, and what their opinions of people’s abili-
ties were. So I worked with them and relied on their
feedback to me.
Q What did Mr. Sutton tell you concerning Mr. Ma-
lone in the job which he performed for Gilman?
A Mr. Sutton was rather disappointed in Mr. Ma-
lone’s performance. He indicated that he had been happy
—unhappy for an extended period of time. And he re-
lated the specific jobs that Mr. Malone was doing, which
in my, you know, discussions with him and further pur-
suit, were basically clerical jobs.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.