Thygeson v. U.S. Bancorp

Full title: PHIL THYGESON, Plaintiff, v. U.S. BANCORP, a Delaware corporation, d.b.a…

Court: United States District Court, D. Oregon

Date published: Sep 15, 2004

CV-03-467-ST (D. Or. Sep. 15, 2004)

Opinion

CV-03-467-ST.

September 15, 2004

FINDINGS AND RECOMMENDATION

JANICE STEWART, Magistrate Judge

INTRODUCTION

Plaintiff, Phil Thygeson ("Thygeson"), originally filed this action against defendant, U.S. Bancorp, on or about March 5, 2003, in the Circuit Court of the State of Oregon for Multnomah County, Thygeson v. U.S. Bancorp, Case No. 0303-02384. U.S. Bancorp removed the case to this court on April 10, 2003. Thygeson's Second Amended Complaint (docket #68) added defendants U.S. Bancorp Equipment Finance ("USBEF") and U.S. Bancorp Comprehensive Welfare Benefit Plan.

Thygeson was employed by defendants U.S. Bancorp and USBEF for over 18 years. His employment was terminated after the discovery of inappropriate materials he was allegedly accessing on his work computer. He was not provided with severance benefits.

Thygeson's Second Amended Complaint alleges that defendants violated The Employee Retirement Income Security Act ("ERISA"), 29 USC §§ 1001- 1461, by wrongfully interfering with his severance benefits in violation of 29 USC § 1140 (First Claim); breaching their fiduciary duties under 29 USC § 1104 by failing to notify him of how to apply for severance benefits and failing to respond to his inquiries (Second Claim); and wrongfully denying him benefits to which he was entitled in violation of 29 USC § 1132(a)(1)(B) (Third Claim). Thygeson also alleges a state law claim of invasion of privacy (Fourth Claim). This court has original jurisdiction over the federal ERISA claims under 28 USC § 1331 and supplemental jurisdiction over the state law claim under 28 USC § 1367.

Defendants' Answer to Plaintiff's First Amended Complaint (docket #18) alleges three affirmative defenses: (1) Thygeson's ERISA claims are not ripe because he failed to exhaust his administrative remedies; (2) Thygeson's ERISA claims are barred because he failed to file a claim in the proper manner and within the proper timeframe; and (3) Thygeson consented to a search of his workplace computer. Defendants also seek their attorneys fees pursuant to 29 USC § 1132(g)(1).

Defendants' Motion for Summary Judgment (docket #43) is now before this court. For the reasons stated below, defendants' motion should be granted as to the Second, Third, and Fourth Claims, and denied as to the First Claim.

LEGAL STANDARDS

FRCP 56(c) authorizes summary judgment if "no genuine issue" exists regarding any material fact and "the moving party is entitled to judgment as a matter of law." The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 US 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and designate specific facts showing a "genuine issue for trial." Id. at 324, citing FRCP 56(e). The court must "not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, 180 F3d 1047, 1054 (9th Cir 1999) (citation omitted). A "` scintilla of evidence,' or evidence that is `merely colorable' or `not significantly probative,'" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F2d 1539, 1542 (9^th Cir), cert denied, 493 US 809 (1989) (emphasis in original) (citation omitted).

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F2d 626, 631 (9^th Cir 1987). The court must view the inferences drawn from the facts "in the light most favorable to the nonmoving party." Id. (citation omitted). Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 631.

FACTS

Because all material facts must be viewed in the light most favorable to the non-movant, this court will view the evidence in the light most favorable to Thygeson. A review of the parties' facts, as well as the other materials submitted by the parties, including affidavits and deposition excerpts,¹ reveal the following facts.

I. Thygeson's Employment and Termination

USBEF employed Thygeson as a Regional Manager. Affidavit of Regis Timothy Evans ("Evans Aff"), ¶ 2. USBEF is a wholly owned subsidiary of U.S. Bank, National Association ("U.S. Bank"). U.S. Bank is a wholly owned subsidiary of USB Holdings, Inc., which in turn is a wholly owned subsidiary of U.S. Bancorp. Affidavit of Brenda Harvey ("Harvey Aff") (June 18, 2004), ¶ 2. USBEF provides equipment leasing and financing services to businesses. Deposition of Phil Thygeson ("Thygeson Depo"), p. 11.

For approximately two and one-half years, Thygeson reported directly to Tim Evans ("Evans"), the National Sales Manager. Id. at 18. As Regional Manager, Thygeson supervised approximately 14-20 sales representatives or area managers located across the United States. Id. at 17. Thygeson's job was to provide support and direction to these sales representatives, which included assisting them with marketing and structuring transactions. Id. at 17-18.

In his performance evaluation for 2001, Evans rated Thygeson as "Needs Improvement" in the following categories: "High Energy Level and Ability to Motivate People; Flexibility; Business Management; People Management; Decision Making; and Teamwork and Cooperation." Evans Aff, ¶ 4. Thygeson received this evaluation in January 2002. Thygeson Depo, p. 70.

In early 2002, Evans began receiving complaints from sales representatives that Thygeson was not providing adequate assistance and management. Evans Aff, ¶ 5, Affidavit of Jennifer Winters ("Winters Aff"), ¶ 2; Affidavit of Scott Gault ("Gault Aff"), ¶ 2. At USBEF's annual sales meeting in February 2002, a sales representative who reported to Thygeson approached Evans and asked to be reassigned to another Regional Manager because Thygeson was not providing him with anything of value as a manager. Evans Aff, ¶ 5; Gault Aff, ¶ 2. In March 2002, Evans' supervisor informed him that he had observed Thygeson sleeping on the job. Evans Aff, ¶ 6. In April 2002, Evans observed Thygeson sleeping on the job. Id. When confronted, Thygeson told Evans that he suffered from "non-debilitating intermittent narcolepsy." Thygeson Depo, pp. 65-67. When Thygeson failed to produce medical documentation for his alleged narcolepsy, Evans informed Thygeson in writing that his behavior was unacceptable. Id. at 68-69; Evans Aff, ¶ 6.

After receiving the complaints about Thygeson and observing him sleeping on the job, Evans began to more closely monitor Thygeson's work. Evans Aff, ¶ 7. When Evans walked past Thygeson's office or came into his office to talk to him, Thygeson typically was viewing his computer screen. Id. Around July 2002, Evans also received reports from some of Thygeson's subordinates that he was sending e-mails to them with inappropriate attachments. Id. at ¶ 10.

On June 26, 2002, Evans asked Jo Russo ("Russo"), USBEF's Systems Analyst, to provide him with a report showing Thygeson's internet activity over an extended period of time. Evans Aff, ¶ 8. Evans wanted to determine if Thygeson was using his office computer for business purposes. Id. Evans also asked Russo to search USBEF's network drive to determine if Thygeson had saved any pictures on USBEF's computer equipment. Id. at ¶ 10.

On July 8, 2002, Russo provided Evans with a report approximately an inch thick listing the internet sites Thygeson had visited in the 12-day period from June 26 through the morning of July 8, 2002. Id. at ¶ 9. Russo created the report by copying all the internet addresses accessed by Thygeson on each particular day. Deposition of Jo Anne Russo ("Russo Depo"), pp. 9-10, 12. She did not copy the actual content of the websites he visited. Id. at 9. Additionally, she did not enter Thygeson's office to generate the report, but used computer systems assigned to her to access information stored on USBEF's network drive. Id.

Evans reviewed the report, made some estimated calculations, and concluded that Thygeson was spending an average of four hours per day visiting internet sites on his work computer. Evans Aff, ¶ 9. Thygeson's job did not require him to view internet sites several hours each day. Id.

Russo also searched USBEF's network drive for any pictures saved by Thygeson. Russo Depo, pp. 19-21. She found inappropriate e-mails containing pictures of nudity and sexually offensive jokes that Thygeson had saved on USBEF's network drive. Id. at 22, 27-28. Russo forwarded the material directly to Brenda Harvey ("Harvey"), U.S. Bank's Senior Human Resources Generalist. Id. at 27. Russo also forwarded the internet usage report to Harvey. Deposition of Brenda Harvey ("Harvey Depo"), pp. 23-25.

On July 8, 2002, Evans contacted Harvey to seek advice with respect to Thygeson's excessive internet usage and the pictures and jokes found on the company's network drive. Evans Aff, ¶ 11. Harvey reviewed the pictures and jokes and consulted with Judi Nevonen ("Nevonen"), Manager of Employee Relations, regarding the appropriate response. Harvey Depo, pp. 16-18. After consulting Nevonen, Harvey advised Evans that the material Thygeson had saved on USBEF's Local Area Network was a violation of U.S. Bancorp's employment policies. Id. at 18, 47. Harvey also advised Evans that because Thygeson was a manager, he should be terminated for his conduct. Evans Aff, ¶ 11.

According to Evans, he terminated Thygeson's employment on July 9, 2002, based on evidence that Thygeson was spending an inordinate amount of time on the internet during work hours, which was detracting from his effectiveness as a manager, and on Harvey's conclusion that the sexually inappropriate material Thygeson had downloaded onto his work computer warranted discharge. Evans Aff, ¶ 12. Harvey provided a written "Notice of Termination" to Thygeson on July 10, 2004, which stated:

This is your written confirmation that U.S. Bancorp or its affiliate is terminating your employment. The termination is deemed a termination for cause as defined in the Middle Management Change in Control Severance Program. Under the terms of that program, you will not receive severance pay because your employment is being terminated for cause. The termination is effective as of July 9, 2002. The basis for the termination is violation of U.S. Bancorp's Code of Ethics and Conduct on the Job. You have engaged in gross and willful misconduct by accessing internet sites on your work computer which may be perceived as offensive or of an inappropriate nature in the work environment.

Harvey Depo, Exhibit. 1.

II. Thygeson's Communications with U.S. Bancorp

On July 16, 2002 Thygeson sent an e-mail to Harvey in which he claimed that he did not engage in the alleged misconduct and that his termination was not in accordance with the "normal disciplinary ladder." Harvey Aff (June 18, 2004), ¶ 6; Plaintiff's Exhibit 6. He "vigorously dispute[d] the allegation therein [—] gross and willful misconduct and intentional violation of the company's internet policy[.]" He asked if U.S. Bancorp had a grievance procedure to contest his termination. Id. Thygeson's e-mail did not directly discuss severance benefits. Id.

On July 24, 2002, U.S. Bancorp received correspondence from Martin Dolan ("Dolan"), Thygeson's attorney. Affidavit of Katherine Jones ("Jones Aff"), ¶ 3;² Plaintiff's Exhibit 7. Dolan requested numerous documents, including a copy of U.S. Bancorp's Middle Management Change in Control Severance Program ("Severance Pay Program"). Id. Dolan also asserted that Thygeson did not engage in the conduct for which he was terminated and requested that Harvey or U.S. Bancorp's attorney contact him to discuss the reasons for Thygeson's termination and the potential for an informal resolution. Id.

2 Katherine Jones' Affidavit (docket # 38) was submitted in support of Defendants' Memorandum in Opposition to Thygeson's Motion to Amend his First Amended Complaint. However, defendants filed their materials opposing Thygeson's Motion to Amend at approximately the same time they filed their Motion for Summary Judgment, and the Memorandum in Support of their Motion for Summary Judgment references Jones' Affidavit. Therefore, this court will also treat Jones' Affidavit as filed in support of their Motion for Summary Judgment.

On August 6, 2002, U.S. Bancorp's in-house counsel, Katherine Jones ("Jones"), responded to Dolan's request for documents and provided him with the reasons for Thygeson's termination. Plaintiff's Exhibit 8. Although referenced in her August 6, 2002 letter to Dolan, Jones enclosed the Middle Management Change in Control Severance Plan Summary Plan Description ("Summary Plan Description") in a follow-up letter sent to Dolan on August 7, 2002. Plaintiff's Exhibit 9.

On August 13, 2002, Dolan sent a letter to Harvey acknowledging that he had received the letters dated August 6 and 7, 2002, along with the accompanying documents. Plaintiff's Exhibit 10. Dolan asserted that Thygeson had claims under Title I of the Electronic Privacy Communications Act of 1986, state tort theories for invasion of privacy, and age discrimination law. Id. He offered to settle these claims in exchange for reinstatement with back pay and benefits or, in the alternative, for severance pay. Id.

Jones wrote to Dolan on August 14, 2002, requesting that he direct all future correspondence to her attention rather than to employees of her client. Plaintiff's Exhibit 11. On August 20, 2002, Jones responded to the claims Dolan asserted in his August 13, 2004 letter. Plaintiff's Exhibit 12. The parties continued to discuss options for settlement of the dispute through October 18, 2002. Plaintiff's Exhibits 13, 14, and 15.

III. U.S. Bancorp's Policies Concerning the Use of Computer Equipment at Work

U.S. Bancorp's Employee Handbook states: "Our . . . personal computers, . . . including e-mail, . . . are intended for Company business only." Harvey Aff (June 18, 2004), Exhibit 1, p. 7. The Handbook also states: "Do not use U.S. Bancorp computer resources for personal business" and "Do not access inappropriate internet sites and do not send e-mails which may be perceived as offensive, intimidating, or hostile or that are in violation of Company policy." Id. at 8. Furthermore, it adds: "Like voice mail, computer systems or other office equipment, e-mail is the exclusive property of U.S. Bancorp and is not intended for personal use." Id. With respect to monitoring, the Handbook states:

U.S. Bancorp reserves the right to monitor any employee's e-mail and computer files for any legitimate business reason, including when there is a reasonable suspicion that employee use of these systems violates . . . a company policy, or may have an adverse effect on the Company or its employees. Examples include but are not limited to e-mails containing sexual innuendo or off-color jokes; . . . [or] excessive or unauthorized use that violates Company policy.

Id. at 9.

In a section entitled "Privacy in the Workplace," the Handbook states:

U.S. Bancorp may assign workspace, equipment, or other company property for use in performing your job accountabilities. Company property is not intended for personal use. U.S. Bancorp reserves the right to access and/or search workspace and equipment that has been assigned to you. . . . U.S. Bancorp reserves the right to monitor employee accounts and electronic forms of communication, including e-mail, telephones, computer systems, and other electronic records for any legitimate business reasons.

Id. at 10.

Thygeson acknowledged in writing that he received copies of these policies. Harvey Aff (June 18, 2004), Exhibit 2. Thygeson understood that the policies in the Employee Handbook applied to him and he was expected to comply with them. Thygeson Depo, p. 34.

IV. U.S. Bancorp's Severance Pay Program

U.S. Bancorp's Severance Pay Program was designed to assist employees whose employment was terminated as a result of a change in control of U.S. Bancorp. Harvey Depo, p. 12. The Severance Pay Program is a part of the Comprehensive Welfare Benefit Plan Statement. Defendants' Exhibit 1. Several benefit programs are appendices to the Plan Statement. Defendants' Exhibit 2. Benefit Appendix A-6 is the full written plan for the Severance Pay Program (the "Plan"). Id; see also Affidavit of Dee Ann Neri ("Neri Aff"), ¶ 3. The Comprehensive Welfare Benefit Plan Statement gives the Severance Committee the authority to administer the Severance Pay Program. Defendants' Exhibit 1, §§ 6.3-6.5.

To qualify for a severance payment, a Covered Employee must have a "Termination of Employment" that occurs within 24 months following a Change in Control. See Exhibit 2, § 4.1. A Change in Control can be a Full Change in Control or a Partial Change in Control. Id. at § 1.8. An Agreement and Plan of Merger entered into between U.S. Bancorp and Firstar Corporation on October 3, 2000, was deemed by the U.S. Bancorp Board of Directors to be a Partial Change in Control. Neri Aff, ¶ 5; Defendants' Exhibit 3, p. 4. The Partial Change in Control was announced on October 4, 2000, and became effective February 27, 2001. Neri Aff, ¶ 5.

The Severance Pay Program defines "Termination of Employment" as a "termination (a) by [U.S. Bancorp] for any reason other than Cause or (b) by a Covered Employee for Good Reason[.]" Defendant's Exhibit 2, § 1.26. The Severance Pay Program defines "cause," in the case of a Partial Change in Control, as follows:

(i) the continued . . . failure by a Covered Employee to substantially perform the Covered Employee's duties with the Employer . . . after a written demand for substantial performance is delivered to the Covered Employee that specifically identifies the manner in which the Employer believes that the Covered Employee has not substantially performed the Covered Employee's duties, and the Covered Employee has failed to resume substantial performance of the covered employee's duties on a continuous basis,

(ii) . . . gross and willful misconduct during the course of employment . . . including, but not limited to, theft, assault, battery, malicious destruction of property, arson, sabotage, embezzlement, harassment, acts or omissions which violate the Employer's rules or policies (such as breaches of confidentiality) or other conduct which demonstrates a willful or reckless disregard of the interests of the Employer or its Affiliates[.]

Id. at § 1.7.

The Severance Pay Program's definition of "cause" also states: "Circumstances constituting Cause shall be determined in the sole discretion of the Principal Sponsor." Id. "Principal Sponsor" is defined as "U.S. Bancorp, a Delaware corporation, or any successor thereto[.]" Id. at § 1.22.

The Severance Pay Program requires the employer to provide a "Notice of Termination" in conjunction with any termination (except due to death) of a Covered Employee. Id. at § 3.1. A "Notice of Termination" is defined, in relevant part, as "a written notice which sets forth the Date of Termination and, in reasonable detail, the facts and circumstances claimed to provide a basis, if any, for termination of the Covered Employee's employment." Id. at § 1.19.

DISCUSSION

I. Whether U.S. Bancorp Terminated Thygeson to Deprive Him of Severance Benefits (First Claim)

Defendants argue that Thygeson's First Claim for interference with his severance benefits in violation of 29 USC § 1140 ³ is barred because he failed to exhaust his administrative remedies under the Severance Pay Program. Alternatively, defendants contend he cannot prove the merits of this claim.

3 29 USC § 1140 provides, in relevant part:

It 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, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act [ 29 USCA § 301 et seq.], or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act. . . . The provisions of section 1132 of this title shall be applicable in the enforcement of this section.

A. Failure to Exhaust Administrative Remedies

This court rejects defendants' argument that Thygeson's 29 USC § 1140 claim is invalid because he failed to exhaust the administrative remedies available to him under the Severance Pay Program. Defendants fail to recognize that for certain claims brought under ERISA itself, such as those made under 29 USC § 1140, exhaustion is not required.

In cases involving claims under 29 USC § 1132(a)(1)(B),⁴ or other ERISA provisions besides 29 USC § 1140, the Ninth Circuit has indicated that exhaustion is required. See, e.g. Chappel v. Laboratory Corp. of America, 232 F3d 719, 723 (9^th Cir 2000) (claim brought under 29 USC § 1132(a)(1)); Diaz v. United Agr. Employee Welfare Ben. Plan and Trust, 50 F3d 1478, 1483 (9^th Cir 1995) (claim brought under 29 USC § 1166) ; Graphic Communications Union v. GCIU-Employer Retirement Benefit Plan, 917 F2d 1184, 1185 (9^th Cir 1990) (court not discussing type of claim, but presumably brought under 29 USC § 1132(a)(1) because plaintiff sought a declaration that the plan's arbitration provision violated ERISA and a resolution of a vesting-rights issue); Amato v. Bernard, 618 F2d 559, 561 (9^th Cir 1980) (claim brought under 29 USC § 1132(a)); see also Watts v. Pacific Gas and Elec., 1995 WL 481750, *3 (ND Cal Aug 9, 1995) (requiring exhaustion for plaintiff's second claim brought under 29 USC § 1132(a)). However, in cases involving claims brought under 29 USC § 1140 for interference and discharge in retaliation for seeking some right under an ERISA-regulated plan, courts have not required exhaustion. Amaro v. Cont'l Can Co., 724 F2d 747, 748, 752 (9^th Cir 1984); Zipf v. Am. Tel. Teleg., 799 F2d 889, 891-94 (3^rd Cir 1986); Watts, 1995 WL 481750 at *3.

4 29 USC 1132(a)(1)(B) provides:
(a) Persons empowered to bring a civil action
A civil action may be brought —
(1) by a participant or beneficiary —

(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.]

This distinction exists because ERISA actions other than those under 29 USC § 1140 involve subsections that mandate internal appeal procedures. Therefore courts can be assisted by exhaustion in order to obtain the plan trustees' interpretation of their own plan. In contrast, claims brought under 29 USC § 1140 "solely" involve an "alleged violation of a protection afforded by ERISA." Amaro, 724 F2d at 751. For a claim under this section, "[t]here is no internal appeal procedure either mandated or recommended by ERISA to hear these claims. Furthermore, there is only a statute to interpret. That is a task for the judiciary[.]" Id.; see also Diaz, 50 F3d at 1483-84 (discussing the difference between 29 USC § 1140 precedents, like Amaro, and cases involving other ERISA claims).

Defendants argue that Thygeson's 29 USC § 1140 claim is really a claim for severance benefits under a particularized set of facts, which he has attempted to disguise as a statutory claim. In the context of a claim brought under 29 USC § 1166, the Ninth Circuit has warned against efforts to disguise a claim for plan benefits as one for statutory violation:

To be sure, many employee claims for plan benefits may implicate statutory requirements imposed by ERISA or COBRA (or perhaps other statutes, for that matter). And when the administrative resolution of those claims is then presented for judicial review, courts may then be called upon to determine whether the plan administrators have construed or dealt with those statutes in an appropriate manner. But that prospect does not give a claimant the license to attach a "statutory violation" sticker to his or her claim and then to use that label as an asserted justification for a total failure to pursue the congressionally mandated internal appeal procedures.

Diaz, 50 F3d at 1484.

On the other hand, Diaz recognized that "[n]either [ Amaro nor Zipf] involved an individual's claim for plan benefits under a particularized set of facts — the kind of scenario that is presented here and that has led this and other Circuits to establish the claimant's need to go the administrative route first rather than turning directly to the courts." Id. As both Diaz and Amaro made clear, no congressionally mandated internal appeal procedure exists in ERISA-regulated plans to judge statutory claims for interference made in retaliation for an individual seeking to enforce rights under a plan. Id.; Amaro, 724 F2d at 751. Such a retaliation claim is not a claim for benefits under a particularized set of facts, but rather a claim for interference under a particularized set of facts. Therefore, whether the protection offered by a plan is one for arbitration, as in Amaro, or internal review by various appeal boards, as here, "[j]udicial procedures are more capable of safeguarding individual statutory rights" to be free from retaliation "than are arbitral procedures" or internal appeal processes. Amaro, 724 F2d at 752. Indeed, on a fundamental level, it makes no sense to require exhaustion of remedies from the very entity that wrongfully interfered.

Accordingly, Thygeson was not required to exhaust his administrative remedies in order to seek relief under 29 USC § 1140. Therefore, it is unnecessary to reach Thygeson's argument that appealing his denial of benefits through U.S. Bancorp's internal procedures would have been futile.

B. Merits of 29 USC § 1140 Claim 1. Legal Standard

Congress enacted 29 USC 1140 "primarily to prevent `unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.'" Gavalik v. Cont'l Can Co., 812 F2d 834, 851 (3<sup>rd</sup> Cir 1987), quoting West v. Butler, 621 F2d 240, 245 (6<sup>th</sup> Cir 1980). To recover under 29 USC § 1140, a plaintiff need not prove that "the sole reason for his termination was to interfere with pension rights." Id, citing Titsch v. Reliance Group, Inc., 548 F Supp 983, 985 (SDNY 1982), aff'd, 742 F2d 1441 (2<sup>nd</sup> Cir 1983) (emphasis in original). "A plaintiff must, however, demonstrate that the defendant had the "`specific intent' to violate ERISA." Id, quoting Watkinson v. Great Atl. Pac. Tea Co., Inc., 585 F Supp 879, 883 (ED Pa 1984) (quoting Titsch, supra). Proof of a mere incidental loss of benefits is not sufficient to recover under 29 USC § 1140. Id, citing Titsch, 548 F Supp at 985 (A plaintiff cannot recover under 29 USC § 1140 where "the loss of . . . benefits [i]s a mere consequence of, but not a motivating factor behind, a termination of employment").

Absent direct evidence of specific intent, the Ninth Circuit has adopted the McDonnell Douglas burden-shifting framework for assessing an employer's liability under 29 USC § 1140. Ritter v. Hughes Aircraft Co., 58 F3d 454, 457 (9^th Cir 1995); see also McDonnell Douglas Corp. v. Green, 411 US 792, 802 (1973). Thygeson must first establish a prima facie case of discrimination. Lessard v. Applied Risk Mgmt., 307 F3d 1020, 1029 n 3 (9^th Cir 2002). "To establish a prima facie case under ERISA § 510 [ 29 USC § 1140], an employee must demonstrate (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, 812 F2d at 852.

If Thygeson demonstrates a prima facie case of discrimination, the burden then shifts to U.S. Bancorp to set forth the reasons for his ineligibility for benefits. Lessard, 307 F3d at 1029 n 3. If U.S. Bancorp satisfies this burden of production, Thygeson must then provide "specific and substantial evidence" demonstrating that U.S. Bancorp's proffered reasons are a pretext for discrimination. Id; Aragon v. Republic Silver State Disposal Inc., 292 F3d 654, 659 (9^th Cir 2002). Judgment in favor of U.S. Bancorp is appropriate if Thygeson fails to establish pretext. Ritter, 58 F3d at 459.

2. Analysis

Thygeson argues he has demonstrated a prima facie case of U.S. Bancorp's intent to fire him in order to interfere with his acquisition of severance benefits because (1) other individuals who engaged in similar conduct were not fired; and (2) Evans was looking for a reason to terminate him that might constitute misconduct for which he could be fired for "cause."

Courts have found that disparate treatment is sufficient to prove liability under 29 USC § 1140. In Ursic v. Bethlehem Mines, 556 F Supp 571, 574-75 (WD Pa 1983), an employee was terminated for allegedly taking a small quantity of hand tools shortly before he completed the 30 years of service necessary to qualify for a pension. The plaintiff was found with the tools only after undergoing extensive surveillance to which other employees were not subjected. The court held the termination was pretextual and designed to deprive the plaintiff of his impending pension rights:

Whatever importance the cost-conscious superintendent attached to his pet program of cutting tool expenditures, there is an atmosphere of "invidious discrimination" when only one employee, and the one who is within hailing distance of his hard-earned pension, is subjected to strict enforcement of [the superintendent's] unwritten edict, to secret surveillance by expensive private investigators, and to discharge for taking from the mine a trifling quantity of hand tools, while other employees roam in and out of the mine without a single dinner bucket being searched for contraband.

The inescapable inference is that an ulterior motive lay behind defendants' maneuvers, and that a speedy discharge, before Ursic's thirty year pension vested, was aimed at.

Id. at 574-575.

A disparate treatment analysis was also applied in Watkins v. Shared Hosp. Serv., 852 F Supp 640, 643 (MD Tenn 1994), where the employer fired the plaintiff for reporting time spent traveling from his home to his first pickup as time on the clock. The court held that the plaintiff met his prima facie burden under 29 USC § 1140 by showing that the employer had sanctioned the practice in all other cases but his, and also showed pretext by demonstrating the employer's reason was unworthy of credence. Id. at 643-44.

As in Ursic and Watkins, Thygeson submits evidence of defendants' disparate treatment that he claims is sufficient to give rise to an inference of discriminatory motive. According to Thygeson, Evans never told him that he was spending too much time on the internet or accessing inappropriate materials, nor did he give him a chance to explain his actions before being terminated. Thygeson Declaration, ¶ 10. On the other hand, U.S. Bancorp gave notice and discipline to other employees who engaged in excessive use of the internet; used an office computer for personal use; sent e-mails containing sexual innuendo or other inappropriate content; or viewed or accessed inappropriate, sexual, or offensive images on the computer. Plaintiff's Exhibits 20-24 (warnings given to several employees for excessive use of office computer and downloading inappropriate and/or sexual materials). Only one of these employees was terminated, and only after she failed to adhere to an Action Plan for improvement and had other specific performance issues besides e-mail infractions. Plaintiff's Exhibit 25. Three of the individuals given warnings were managers. Plaintiff's Exhibits 20-22 (warnings) and 26 (discovery interrogatory responses indicating the three employees were managers). Thygeson notes that one of the managers was given two warnings for the same behavior within a three month period. Plaintiff's Exhibit 22. The second warning informed him that the termination may be cause as defined in the Severance Pay Program, and that he would not receive severance if terminated for such reasons. Id. at 1.

Thygeson also argues that Evans was looking for a reason to fire him, presumably because of his recent poor performance, but wanted to do so in a way that would prevent him from collecting severance benefits. Thygeson claims that Evans sent some of the inappropriate e-mails for which he was terminated (Thygeson Declaration, ¶ 9) and sought to uncover these same e-mails in order to find "cause" for terminating him, thereby avoiding payment of severance benefits.⁵

5 Thygeson also challenges Evans' credibility because no evidence supports Evans' claim that he began investigating Thygeson because of complaints from employees under Thygeson's supervision. Defendants responded to this argument by submitting affidavits from several employees previously under Thygeson's supervision swearing that they approached Evans and complained about Thygeson's work. Winters Aff, ¶ 2; Gault Aff, ¶ 2.

Defendants respond by arguing that Evans had no input into Harvey's conclusion that Thygeson's misconduct rendered him ineligible for severance benefits. As a result, Evans' reasons for investigating Thygeson and firing him for misconduct are inconsequential. Additionally, defendants seek to narrow the question to whether Harvey determined that Thygeson was fired for misconduct (and hence ineligible for benefits) in order to prevent him from collecting severance benefits.

Defendants' approach is overly restrictive because it ignores the fact that before Harvey made the severance benefits decision, she advised Evans that Thygeson's conduct warranted dismissal. If sufficient circumstantial evidence supports a finding that Harvey gave this advice in order to prevent Thygeson from collecting severance benefits, then Thygeson would demonstrate a prima facie case under 29 USC § 1140. Additionally, Evans' intentions leading up to Thygeson's termination are also relevant. If Thygeson can show that Evans investigated him and reported his conduct to Harvey in order to ensure termination without payment of severance benefits, he would establish a prima facie case. Once Evans and Harvey discovered Thygeson's conduct and came to the conclusion that it was sufficient misconduct to require or justify termination for cause, the later determination that Thygeson was ineligible for severance benefits became far more likely. Therefore, solely focusing on Harvey's intentions when deciding the severance benefits issue is inapposite. .

Defendants also attack Thygeson's evidence of disparate treatment offered to show Evans' discriminatory intent. Defendants argue that the comparative evidence offered by Thygeson is unhelpful because a proper comparison is not whether other employees were fired for similar conduct, but whether employees who were fired for similar misconduct received severance benefits. Defendants also maintain that Thygeson has not demonstrated that any of the managing employees who were warned (but not fired) about improper computer use had viewed, saved, or forwarded pictures involving nudity, and has not rebutted the testimony that termination is appropriate for managers who access nude pictures on their computer. Nevonen Depo, pp. 21-22.

Despite defendants' argument, Thygeson's evidence of disparate treatment is relevant even if it only concerns employees who were not fired for engaging in similar misconduct, rather than evidence of employees who were fired for similar misconduct but received severance benefits. The question of whether a person was terminated for "cause," as defined by the Severance Pay Program, and therefore not eligible for severance benefits, is only raised when a person is terminated in the first place. If Thygeson was terminated for cause for conduct for which others were not terminated, that may evidence an intent to deny him severance benefits since it is the termination for cause that placed him at risk of losing benefits.

Moreover, Thygeson's evidence of disparate treatment is not insufficient merely because U.S. Bancorp failed to use the word "nudity" in its disciplinary notices if other employees were warned (but not fired) about materials that may have contained nudity or something similar. There is such evidence here. For example, the warning given one other manager mentioned computer use that could involve nudity, such as "downloading cartoons, pictures, videos, or similar material of a sexual nature." Plaintiff's Exhibit 22, p. 1.

Defendants next argue that Thygeson has failed to offer direct evidence demonstrating that Evans fired him in order to prevent him from obtaining severance benefits, or that Harvey had an improper intention when finding him ineligible for severance benefits. Thygeson responds that the extensive steps Evans took to survey his computer use, combined with the disparate treatment he received in comparison to his co-workers, raises a prima face case of interference under 29 USC § 1140.

Both parties agree that because Thygeson was an at-will employee, Evans could have terminated him at any time for any reason. As a result, it is difficult to explain why Evans ordered the extensive surveillance into Thygeson's computer activities. Evans' conduct might be explained by the Severance Pay Program's different treatment of immediate termination versus termination for cause.

An immediate termination would have required U.S. Bancorp to pay severance benefits to Thygeson because § 1.7(i) of the Severance Pay Program requires certain warnings before a person terminated for reasons other than cause can be denied severance benefits. In contrast, § 1.7(ii) of the Severance Pay Program permits denial of severance benefits to an employee who is terminated for cause. Considering that other employees were not terminated for engaging in similar conduct, and the lack of evidence rebutting Thygeson's testimony that Evans sent him some of the inappropriate e-mails later found in his personal folder,⁶ Thygeson has raised at least a prima facie case that Evans' investigation and termination of Thygeson were motivated by a desire to deny him severance benefits. Indeed, in many ways, Evans' surveillance and disparate treatment of Thygeson appears very similar to the conduct in which the employer engaged in Ursic.

6 Defendants did submit a sworn statement from Harvey indicating that U.S. Bancorp searched all the e-mail messages on its network by either Evans or Thygeson, but was unable to locate any evidence that Evans sent Thygeson any of the inappropriate pictures or jokes supporting his discharge. Harvey Aff (August 11, 2004), ¶ 4. At best, this statement merely creates an issue of fact as to whether Evans sent the e-mail. It does not rebut Thygeson's prima facie case.

This same evidence also rebuts defendants' final argument that Thygeson's inappropriate computer use provided a legitimate reason for his termination. Here, as in a Title VII context, which also uses the McDonnell Douglas burden shifting system, "where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate." Rosen v. Thornburgh, 928 F2d 528, 533 (2^nd Cir 1991) (citations omitted). Many open questions surround Evans' intent that are best left to decision by the fact-finder. It may be that Evans sought to acquire the evidence surrounding Thygeson's computer use to justify to a superior the termination of a manager — however unnecessary in the case of an at-will employee. More malevolently, perhaps Evans conducted the surveillance in order to have an excuse to fire an older manager that would avoid an Age Discrimination in Employment Act ("ADEA") claim.⁷ But the evidence also raises a substantial possibility that Evans engaged in this conduct in order to deny Thygeson severance benefits. Although evidence of Evans' hostility towards Thygeson is slim, it is sufficient to create a fact issue rendering summary judgment inappropriate against Thygeson's 29 USC § 1140 claim for interference.

7 There is some evidence that Evans wanted to get rid of Thygeson because he was part of the "old regime." Declaration of Steve Calaway ("Calaway Declaration"), ¶ 4.

II. Whether U.S. Bancorp Breached its Fiduciary Duties (Second Claim)

An administrator of an ERISA-regulated employee plan has a fiduciary duty to act solely in the interest of plan participants and beneficiaries. 29 USC § 1104.⁸ The Second Claim alleges that U.S. Bancorp, acting through its Human Resources officer, Harvey, and its in-house counsel, Jones, breached this fiduciary duty by notifying Thygeson that he was terminated for cause and ineligible for benefits without setting forth: (1) the specific provision of the Plan relied on to deny benefits; (2) what materials or information were necessary to perfect a claim; and (3) the Plan's applicable appeal procedures. Thygeson also alleges U.S. Bancorp failed to respond to his inquiries for more information about his rights under the Plan. Thygeson alleges these errors failed to meet requirements set out in 29 USC § 1133 ⁹ and 29 CFR § 2560.503-1(g)(1),¹⁰ and therefore breached U.S. Bancorp's fiduciary duty under 29 USC § 1104.

8 29 USC 1104, in relevant part, provides:
(a) Prudent man standard of care

(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and —

(A) for the exclusive purpose of:

(i) providing benefits to participants and their beneficiaries; and

(ii) defraying reasonable expenses of administering the plan;

(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims[.]

9 29 USC § 1133 provides:

In accordance with regulations of the Secretary, every employee benefit plan shall —

(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and

(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.

10 20 CFR § 2560.503-1(g)(1), in relevant part, provides:

(g) Manner and content of notification of benefit determination.

(1) Except as provided in paragraph (g)(2) of this section, the plan administrator shall provide a claimant with written or electronic notification of any adverse benefit determination. Any electronic notification shall comply with the standards imposed by 29 CFR 2520.104b-1(c)(1)(i), (iii), and (iv). The notification shall set forth, in a manner calculated to be understood by the claimant —

(i) The specific reason or reasons for the adverse determination;

(ii) Reference to the specific plan provisions on which the determination is based;

(iii) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;

(iv) A description of the plan's review procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under section 502(a) of the Act following an adverse benefit determination on review[.]

Defendants respond that Harvey and Jones were not acting as fiduciaries and, alternatively, that the Second Claim fails on the merits.¹¹ A. Presence of a Fiduciary

11 Defendants do not argue that Thygeson's claim under 29 USC § 1104 is barred by his failure to exhaust administrative remedies.

The Severance Committee and U.S. Bancorp are the named fiduciaries of the Severance Pay Program. Defendants' Exhibit 1, § 6.3. Neither Harvey nor Jones are members of the Severance Committee. Harvey Aff (August 11, 2004), ¶ 6; Jones Aff, ¶ 2; Neri Depo, p. 6. However, other individuals who have "discretionary authority" under the Severance Pay Program are also fiduciaries. 29 USC § 1002(21)(A).¹² 1. Jones as a Fiduciary

12 29 USC § 1002(21)(A) states:

Except as otherwise provided in subparagraph (B), a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 1105(c)(1)(B) of this title.

An attorney rendering professional services to an ERISA-regulated plan is not a fiduciary so long as he or she does not exercise any authority over the plan "in a manner other than by usual professional functions." Nieto v. Ecker, 845 F2d 868, 870 (9^th Cir 1988), quoting Yeseta v. Baima, 837 F2d 380, 385 (9^th Cir 1988). Thus, Jones acted as a fiduciary only if she acted in more than her usual professional function as in-house counsel.

The record contains six communications from Jones to Dolan, Thygeson's attorney. On August 6 and 7, 2002, Jones provided certain materials Dolan requested in his prior letters and explained the basic reasons why Thygeson was fired. Plaintiff's Exhibits 8 and 9. On August 14, 2002, she asked Thygeson to stop contacting her client's employees directly and informed Dolan she was considering his settlement proposals. Plaintiff's Exhibit 11. On August 20, 2002, she provided her analysis of why U.S. Bancorp was not liable to Thygeson under certain legal theories Dolan advanced in a previous letter. Plaintiff's Exhibit 12. On September 3, 2002, she again asked Thygeson to stop contacting U.S. Bancorp's employees. Plaintiff's Exhibit 13. Finally, on October 18, 2002, she asked for a response to U.S. Bancorp's offers to settle Thygeson's claims. Plaintiff's Exhibit 15.

None of these communications is anything more than what an attorney would typically do when attempting to resolve a dispute with a client's former employee. Moreover, because the Severance Pay Program required that a claim be filed with the Severance Committee, of which Jones was not a member, she had no authority to determine that any of Dolan's letters served as a claim for severance benefits under the Program. See Jones Aff, Exhibit 4, p. 12 (Summary Plan Description indicating that original claims should be filed with the Severance Committee); Defendant's Exhibit 2, § 8.3 (a copy of the Plan stating that "[n]o inquiry or question shall be deemed to be a claim or request for a review of a denied claim unless made in accordance with the claims procedures"). Accordingly, Thygeson has failed to demonstrate that Jones was a fiduciary exercising any authority over the Severance Pay Program "in a manner other than by usual professional functions." Nieto, 845 F2d at 870, quoting Yeseta, 837 F2d at 385.

2. Harvey as a Fiduciary

Harvey did exercise some discretion when deciding whether Thygeson was eligible for severance benefits, rather than just applying rules. In order to decide whether Thygeson was terminated for "cause" under § 1.7(ii) of the Severance Pay Program, Harvey had to decide whether Thygeson's inappropriate computer use rose to the level of "gross and willful misconduct," including "harassment" or "acts or omissions which violate [U.S. Bancorp's] rules or policies," or was "other conduct which demonstrate[d] a willful or reckless disregard of the interests of [U.S. Bancorp]. Even so, the terms of the Severance Pay Program gave her no actual discretionary authority over its management or assets. Harvey's lack of authority contrasts with the facts in Yeseta, 837 F2d at 386, where an office manager was held to be a fiduciary because even though his actual authority was in dispute, he exercised control over an ERISA-regulated plan's assets by withdrawing funds.

Nonetheless, it is conceivable that Harvey was acting as U.S. Bancorp's agent when she determined that Thygeson was not entitled to severance benefits. Rather than decide this murky issue, this court will assume, for purposes of this motion, that Harvey was acting as U.S. Bancorp's agent. Despite that assumption, as discussed next, Thygeson's claim premised on Harvey's conduct as a fiduciary fails.

B. Adequacy of Harvey's Notice to Thygeson

Defendants argue the notice requirements of 29 USC § 1133 and 29 CFR § 2560.503-1(g)(1) were not triggered because Thygeson never filed a claim for severance benefits. Defendants characterize the communications between Thygeson, Dolan and Harvey as nothing more than statements of Thygeson's belief that his termination was wrongful, his intent to institute legal action under specific theories (not including a violation of the Severance Pay Program), and an offer to settle the dispute over termination.

Thygeson counters that the termination notice he received from Harvey, which also stated that he was ineligible for severance pay because he was terminated for cause, was a "notification of any severance benefit determination." 20 CFR § 2560.503-1(g)(1). Thygeson contends that Harvey, as a fiduciary, violated 29 USC § 1133 and 20 CFR § 2650.503-1(g)(1) because her notice did not specify which provision defendants used to determine that Thygeson was ineligible for severance benefits and did not describe the procedures Thygeson could use for appealing the determination or for making an independent claim for benefits.

Two cases decided by the Seventh Circuit support defendants' position that a claim must be filed before the statutory and regulatory notice requirements are triggered. In Kleinhans v. Lisle Sav. Profit Sharing Trust, 810 F2d 618 (7^th Cir 1987), the plaintiff sent letters to his employer demanding severance benefits that were due him. The plaintiff asserted these letters requested information that the administrator was required to provide under 29 USC § 1133. The plaintiff sued under 29 USC § 1132(c),¹³ which imposes a civil penalty (up to $100 per a day) for an administrator's refusal to respond to a request for information that ERISA requires the administrator to provide. The court rejected the plaintiff's claim, holding that he "failed to fulfill one of the prerequisites for triggering the defendants' liability for the [ 29 USC § 1132(c)] statutory penalty — requesting `information' concerning the Trust or his rights under the Trust that the defendants were required to make available to him[.]" Id. at 622. It concluded that a demand for benefits or payment does not constitute a "request for information" for the purposes of 29 USC § 1132(c) because 29 USC § 1133 does not require an administrator to provide an explanation of a denial of benefits or to respond to requests for information " until such time as the claim is denied." Id. at 623 (emphasis in original).

13 29 USC § 1132(c) provides, in relevant part:

(c) Administrator's refusal to supply requested information; penalty for failure to provide annual report in complete form

(1) Any administrator (A) who fails to meet the requirements of paragraph (1) or (4) of section 1166 of this title or section 1021(e)(1) of this title with respect to a participant or beneficiary, or (B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper.

Although Kleinhans did not address whether defendants complied with the notification requirements of 29 USC § 1133, but instead decided the question of whether defendants adequately responded to the plaintiff's request for information, it did hold that a claim must be filed and rejected in order to trigger a duty to respond to inquiries for more information under 29 USC § 1133. Similarly, a notification requirement would be triggered only by a claim denial since a claimant cannot request information as to why he was denied benefits until he is first notified that his claim is denied.

Later in Tolle v. Carroll Touch, Inc., 23 F3d 174, 180-81 (7^th Cir 1994), the Seventh Circuit held that the notification procedures in 29 USC § 1133 did not apply. There was no denial of benefits because the employee never properly submitted a claim.

Additionally, the express language of 29 USC § 1133 requires the denial of a claim. A plan administrator must only "provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied" and "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review[.]" 29 USC § 1133 (emphasis added).

Similarly, a careful examination of 29 CFR § 2560.503-1(g)(1) reveals that despite its broad reference to "any adverse benefit determination," it also only applies when an individual has filed a claim for benefits. The purpose of the overall regulation is described as: "set[ting] forth minimum requirements for employee benefit plan procedures pertaining to claims for benefits by participants and beneficiaries." 29 CFR § 2560.503-1(a) (emphasis added). A "claim for benefits" is defined as "a request for a plan benefit or benefits made by a claimant in accordance with a plan's reasonable procedure for filing benefit claims." 29 CFR § 2560.503-1(e). Additionally, the notice requirements themselves only apply to a "claimant," which implies that a claim must first be filed. 29 CFR § 2560.503-1(g)(1). Finally, the timing requirements for a notification of benefit determination only apply if a claim is first filed and denied:

[I]f a claim is wholly or partially denied, the plan administrator shall notify the claimant, in accordance with paragraph (g) of this section, of the plan's adverse benefit determination within a reasonable period of time, but not later than 90 days after receipt of the claim by the plan, unless the plan administrator determines that special circumstances require an extension of time for processing the claim.

29 CFR § 2560.503-1(f)(1)

Accordingly, both 29 USC § 1133 and its implementing regulation, as well as supporting case law, require a participant or beneficiary to file a claim before the notice requirements are triggered. Thygeson does not contend that he complied with the requirements for filing a claim for severance benefits under U.S. Bancorp's Severance Pay Program. Therefore, he cannot prevail on a claim for a failure to provide adequate notice of benefit ineligibility under 29 USC § 1133.

C. Response to Thygeson's Inquiries

Thygeson argues that his July 16, 2002 e-mail to Harvey, which he sent after receiving his notice of termination, as well as Dolan's later communications to Harvey and Jones, were requests for more information on appeal procedures to which defendants failed to respond in violation of 29 USC § 1133, which breached their fiduciary duties under 29 USC § 1104.¹⁴

14 Although Thygeson pleads this claim based on a violation of 29 USC § 1133, that statute requires written notice of denial with reasons and does not address requests for information. Instead, a failure to respond to requests for information violates 29 USC § 1132(c). Since 29 USC § 1132(c) provides its own civil remedy, its violation may not constitute a breach of 29 USC § 1104.

As Kleinhans made clear, the requirement to respond to a claimant's inquiries only applies when a claim for benefits has been rejected. 810 F2d at 623-24. Thygeson and his attorney's letters were, at best, demands for benefits, but did not constitute claims for benefits filed pursuant to the terms of the Severance Pay Program. Therefore, the manner in which Harvey and Jones responded to these communications did not breach their fiduciary duties under 29 USC § 1104. D. General Fiduciary Duty Principles

Thygeson's final argument is that even if the manner in which defendants notified him of his ineligibility for benefits and responded to his inquiries did not violate 29 USC § 1133, defendants still breached the general principles of fiduciary duty set out in 29 USC § 1104. In effect, Thygeson argues that the general duty of an administrator of an ERISA-regulated plan under 29 USC § 1104 to act solely on behalf of the plan's participants and beneficiaries required defendants to do more than explain why he was terminated and mail him a Summary Plan Description.

The general fiduciary duties embodied in 29 USC § 1104 require less from a fiduciary than 29 USC § 1133 and 29 USC § 1132(c) require from an employer who is notifying a claimant of ineligibility or responding to inquiries. Instead, 29 USC § 1104 only requires that the fiduciary act on behalf of participants and beneficiaries according to a prudent person standard. Without being able to demonstrate that defendants violated 29 USC § 1133 when providing him with information, Thygeson cannot demonstrate they otherwise acted in violation of this standard. Harvey's notification to Thygeson that he was ineligible for severance benefits was brief, but this court cannot conclude that a prudent person in like circumstances would have provided more details. This is especially the case considering that prior to his termination, Thygeson received materials outlining his rights under the Severance Pay Program, including a copy of the Summary Plan Description. Affidavit of Sheri L. McGrath, ("McGrath Aff"), ¶ 2; Thygeson Depo, pp. 108-09. If Thygeson contested his eligibility for benefits, he could have referred to the Summary Plan Description to determine how to file a claim for benefits.

Because defendants did not breach their fiduciary duties to Thygeson, summary judgment should be granted against Thygeson's claim for relief under 29 USC § 1104.¹⁵ III. Whether U.S. Bancorp Abused its Discretion in Denying Benefits (Third Claim)

15 It is unnecessary to determine whether Jones' responses to Dolan adequately fulfilled general fiduciary duty principles because Jones was not a fiduciary.

The Third Claim alleges that Thygeson should be awarded benefits pursuant to 29 USC § 1132(a)(1)(B) because his termination was not for "cause" as defined in the terms of the Severance Pay Program. Defendants respond by first arguing Thygeson's 29 USC § 1132(a)(1)(B) claim for benefits is barred because he failed to exhaust his administrative remedies. Alternatively, defendants argue that Thygeson fails to raise a material issue of fact as to whether he was fired for some other reason than his misconduct.

As discussed previously, in cases involving claims for relief under 29 USC § 1132(a), exhaustion is required. See, e.g. Chappel, 232 F3d at 723; Graphic Communications, 917 F2d at 1185; Amato, 618 F2d at 561; Watts, 1995 WL 481750 at *3. Thygeson does not contend that he exhausted his administrative remedies. However, exhaustion can be excused when it would be futile or remedies are inadequate.¹⁶ Diaz, 50 F3d at 1483. Thygeson argues that it would have been futile for him to apply for severance benefits for several reasons.

16 Thygeson also argues that exhaustion can be excused if a breach of fiduciary duty occurred. However, exhaustion cannot be excused under that theory since no breach of fiduciary duty occurred here.

First, Thygeson asserts that he could not have filed a proper claim without a copy of the Severance Pay Program's full written Plan and that he was refused a copy of the Plan without a subpoena and only provided a copy after he filed this lawsuit. This argument fails. Thygeson's attorney was provided with a Summary Plan Description as early as August 7, 2002. That Summary Plan Description provides the following information:

Filing a Claim for Severance Pay

If you think you're eligible for payment under the Programs and/or the Excess Plan, but you're not contacted, you can file a claim for benefits. You can also file a claim if you think you're entitled to a different amount of severance pay. If you have a dispute about the amount of severance pay, you should file the claim for severance benefits before signing the release.

All claims for severance benefits must be sent in writing to:

Severance Administration Committee

U.S. Bancorp

[the Committee's address]

* * *

Appealing a Denied Claim

If your claim is denied, you have the right to appeal. You must file a written request for appeal with the Severance Administration Committee within 60 days of the day you're notified that your claim has been denied.

Jones Aff, Exhibit 4, p. 12.

Thus, to determine eligibility for severance pay without first being contacted, to dispute the amount of severance pay, or to appeal a denied claim, a former employee must contact the Severance Committee. In effect, Thygeson fit at least two of these categories since he disputed the amount of severance pay he was given ($0) and wanted to appeal what he may have viewed as Harvey's denial of his claim. Therefore, based on the information in the Summary Plan Description, Thygeson should have known to file a claim with the Severance Committee.

Moreover, to the extent Thygeson needed to see the Plan, filing a claim would not have been futile since he had adequate access to the Plan. Thygeson could have obtained the Plan by following the procedures set out in the Summary Plan Description ( id. at 16), which Jones provided Dolan in August 2002. Additionally, Jones' August 6, 2002 letter specifically informed Dolan that the Summary Plan Description explained how to obtain a copy of the Plan.¹⁷ Plaintiff's Exhibit 8.

17 Thygeson argues Jones' August 6, 2002 letter indicates the Plan can only be obtained by subpoena. He is incorrect. Early in her letter, Jones mentions the Summary Plan Description and how Thygeson can obtain a full copy of the Plan. It is only later in the letter that Jones states, "with respect to the remaining items you have requested, it is the bank's policy to require a subpoena before disclosing such documents." Id. This reference is certainly not to the Plan, since that is previously discussed in Jones' letter, but is instead presumably to materials requested by Dolan in his July 24, 2002 letter, such as complaints made against Thygeson that formed a basis for his termination.

Second, Thygeson argues that filing a claim would have been futile since the Severance Committee had no power to overrule the Human Resources Department's determination that he was terminated for cause and therefore ineligible for benefits. It is apparent from the terms of the Severance Pay Program that the Severance Committee is the entity which determines whether a claim for severance benefits should be granted or denied. The Plan indicates that both an original claim and an appeal of a denied claim must be filed with the Severance Committee. Defendants' Exhibit 2, §§ 8.1 and 8.2. Therefore, whatever may have been the actual purpose of Harvey's apparently gratuitous decision to inform Thygeson that he was ineligible for benefits, only the Severance Committee had the authority to accept or deny his claim.

Additionally, the terms of the Severance Pay Program and the testimony of Severance Committee members establish that the Severance Committee could have found that Thygeson's termination did not constitute "cause" under the Severance Pay Program, regardless of any determination made by Harvey or other U.S. Bancorp employees. As discussed previously, when a Partial Change of Control occurs and no written demand for performance is made, as here, the test for whether an employee was terminated for "cause" for the purposes of the Severance Pay Program is set forth in § 1.7(ii). That section requires "gross and willful misconduct during the course of employment . . . including but not limited to [certain crimes], harassment, acts or omissions which violate the Employer's rules or policies . . . or other conduct which demonstrates a willful or reckless disregard of the interests of the Employer[.]" Defendants' Exhibit 2. Therefore, if Thygeson had filed a claim, the Severance Committee would have determined whether his conduct was "gross and willful misconduct" or demonstrated a "willful or reckless disregard" of U.S. Bancorp's interests. In doing so, the Severance Committee could have decided that "cause" for termination did not rise to the high level of "gross and willful" or "willful and reckless disregard" necessary to constitute the "cause" for denying severance benefits. Two members of the Severance Committee so testified. See Nevonen Depo, pp. 24-26; Neri Depo, pp. 16-18.

Moreover, the terms of the Severance Pay Program explicitly state that: "Circumstances constituting Cause shall be determined in the sole discretion of the Principal Sponsor." Defendants' Exhibit 2, § 1.7. "Principal Sponsor" is defined as "U.S. Bancorp, a Delaware corporation, or any successor thereto[.]" Id. at § 1.22. The Comprehensive Welfare Benefit Plan Statement clarifies that U.S. Bancorp delegates its authority to determine severance benefits to the Severance Committee, which in turn has the authority to perform whatever acts are necessary to administer the Severance Pay Program. See Defendants' Exhibit 1, §§ 6.3-6.3.1. Therefore, to the extent some interpretation is required of the "Circumstances constituting Cause," such as whether conduct was "gross and willful misconduct," the Severance Committee has the authority to make that determination.

Accordingly, the Severance Committee had the authority to make an independent determination of Thygeson's eligibility for severance benefits, such that it would not have been futile for him to file a claim for benefits. Accordingly, Thygeson has no excuse for his failure to exhaust the administrative remedies available to him and his claim under 29 USC § 1132(a)(1)(B) is barred.

IV. Invasion of Privacy (Fourth Claim)

The Fourth Claim seeks to hold defendants liable for invading Thygeson's privacy by accessing the files he stored in his "personal" folder of U.S. Bancorp's computer network and remotely determining the address of the websites he visited while at work. Defendants seek summary judgment because Thygeson had no reasonable expectation of privacy in his use of U.S. Bancorp's computers and computer network.

A. Legal Standards

Invasion of privacy is a tort designed to protect a plaintiff's right "`to be let alone.'" Mauri v. Smith, 324 Or 476, 482, 929 P2d 307, 310 (1996), quoting Humphers v. First Interstate Bank, 298 Or 706, 714, 696 P2d 527, 531 (1985) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, at 851 (5th ed 1984)). Four different theories support a claim for invasion of privacy: (1) intrusion upon seclusion; (2) appropriation of another's name or likeness; (3) false light; and (4) publication of private facts. Id, citing French v. Safeway Stores, 247 Or 554, 556, 430 P2d 1021, 1022 (1967) (citing Note, Right to Privacy: Social Interest and Legal Right, 51 Minn L Rev 531, 539-40 (1967) and RESTATEMENT (SECOND) OF TORTS § 652A (1977)). The only theory at issue here is intrusion upon seclusion.

In order to establish a claim for intrusion upon seclusion, a plaintiff must prove: "(1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff's solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person." Id. at 483, 929 P2d at 310. B. Analysis

The parties do not dispute that an intrusion occurred, but argue over whether it was an intrusion on Thygeson's solitude in a manner that would be highly offensive to a reasonable person. Thygeson argues that he had a reasonable expectation of privacy in those materials saved in his "personal" folder on his work computer, especially those materials he saved there after accessing them through his personal e-mail account.

Thygeson also argues that he had a "reasonable expectation that his personal e[-]mail account was private." Complaint, ¶ 47. Thygeson accessed two e-mail accounts from his work computer to send personal e-mails: (1) the e-mail account on U.S. Bancorp's system; and (2) his personal internet e-mail account accessed through an internet webpage (his "Netscape account").¹⁸ Defendants never accessed the actual content of either of these accounts. Russo Depo, pp. 9, 20-21. Instead, Russo, USBEF's Systems Analyst, remotely determined the address of the websites that Thygeson visited using his work computer and U.S. Bancorp's internet access. One of these websites was Thygeson's Netscape account. Therefore, Thygeson's allegation of an intrusion based on an expectation of privacy in his personal e-mail account is presumably a reference to this search by Russo. This intrusion is separately addressed from Thygeson's allegation concerning his "personal" folder on U.S. Bancorp's network. 1. Accessing Files in Thygeson's Personal Folder

18 The record contains copies of e-mails found in Thygeson's folder on U.S. Bancorp's computer network that Thygeson sent from his Netscape account, which had an e-mail address of "pthygeson@netscape.net." In addition to this private internet e-mail account, testimony indicated that Thygeson may have had another personal internet e-mail account accessed while at work through American On-Line ("AOL"). See Thygeson Depo, p. 80. Indeed, Russo's report on Thygeson's internet usage demonstrated that Thygeson accessed a webpage associated with AOL numerous times. Harvey Aff (June 18, 2004), Exhibit 6. However, no copies of any e-mails sent to or from an AOL account are in the record. Therefore, for purposes of clarity, when referring to Thygeson's e-mails sent or received from his personal internet e-mail, this court will refer only to Thygeson's Netscape account.

The Ninth Circuit has not directly addressed an invasion of privacy claim similar to the one alleged here. However, decisions by other courts provide some guidance.

In McClaren v. Microsoft Corp, 1999 WL 339015, *1 (Tex Ct App 1999), the plaintiff alleged an invasion of privacy claim against his employer, Microsoft, which accessed personal folders on a network that allowed storage of e-mail messages. Access was obtained through a network password as well as a personal password created by the plaintiff and allowed by Microsoft. The court focused its analysis on differentiating K-Mart Corp Store No. 7441 v. Trotti, 677 SW2d 632 (Tex App 1984), writ ref'd N.R.E., 686 SW2d 593 (1985), which found a reasonable expectation of privacy when an employer provided a locker but allowed employees to buy and use their own lock for the locker. McClaren distinguished the locker in Trotti from the personal e-mail folders because the locker was provided to the employee for the specific purpose of storing personal belongings, whereas the plaintiff's computer and the e-mail application were provided to him for the purposes of his employment. Additionally, the locker in Trotti was a "discrete, physical place where the employee, separate and apart from other employees, could store her tangible, personal belongings." McClaren, 1999 WL 339015 at *4. In contrast, the email storage system involved messages that were transmitted to the server-based inbox and stored there until the plaintiff moved them to his personal folders. Holding the plaintiff had no reasonable expectation of privacy in his e-mail saved in personal folders, the court reasoned:

Even [if the plaintiff's practice was to move e-mail messages to personal folders], any e-mail messages stored in McLaren's personal folders were first transmitted over the network and were at some point accessible by a thirdparty [because they were temporarily stored in the central routing computer accessible to the employer]. Given these circumstances, we cannot conclude that McLaren, even by creating a personal password, manifested — and [his employer] recognized — a reasonable expectation of privacy in the contents of the e-mail messages such that [the employer] was precluded from reviewing the messages.

Id. (footnote omitted).

As in McLaren, Thygeson used his employer's e-mail system to send and receive personal messages, some of which he saved in personal folders on U.S. Bancorp's computer network. If the plaintiff in McLaren did not have a reasonable expectation of privacy when his employer accessed the files on its network that the plaintiff saved using a personal password, then Thygeson could not have had a reasonable expectation of privacy in the e-mails he sent and received using his U.S. Bancorp office e-mail and then saved in a folder on U.S. Bancorp's network that he merely labeled "personal" without even creating a password.

Although Thygeson also saved some e-mails in his personal folder that he accessed using his Netscape account, this activity is still similar to McClaren. Thygeson used his employer's computer and network for personal use and saved personal information in a location that could be accessed by his employer, despite warnings in the Employee Handbook that personal use was prohibited and monitored. Indeed, the situation is very similar to a hypothetical given in Trotti, where the court found that if the employer provided the locker and the lock and retained the master key, the employee could have no expectation of privacy. Id, citing Trotti, 677 SW2d at 637. Here, U.S. Bancorp provided the computer, internet access, and computer network, and retained the key such that Russo was able to remotely search Thygeson's personal files on the network. Thygeson could not have a reasonable expectation of privacy in anything he chose to put in a network folder to which U.S. Bancorp retained the key.

The use of password-protection and personal folders on the company intranet system to save e-mails sent using an office e-mail system, including sexually explicit e-mails from internet joke sites, also was found insufficient to create a reasonable expectation of privacy in Garrity v. John Hancock Mut. Life Ins. Co., 2002 WL 974676, *2 (D Mass 2002), citing McLaren, 1999 WL 339015 at *4.

Other courts also found that employees have no expectation of privacy in e-mail that an employer can access. In Smyth v. Pillsbury Co., 914 F Supp 97 (ED Pa 1996), the court found no reasonable expectation of privacy in e-mail an employee sent to his supervisor over the company e-mail system, even though the employer made assurances that such communications would not be intercepted by management or used as grounds for reprimand. "Once plaintiff communicated the alleged unprofessional comments to a second person . . . over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost." Id. at 101. As in Smyth, Thygeson had no reasonable expectation of privacy in e-mails he saved on a network U.S. Bancorp created and could access. Moreover, if statements that e-mail was private were insufficient to create an expectation of privacy in Smyth, then Thygeson also had no expectation of privacy when he was specifically warned that office computers were for personal use and activity on them could be monitored.

One court has even held that an individual who is not an employee had no right to privacy in information a defendant accessed on its own computer system. Wilkinson v. Methodist, Richard Young Hosp., 612 NW2d 213, 216 (Neb 2000) (holding there was no invasion of privacy where a hospital accessed its own computer records in order to find out the plaintiff's private insurance record for purposes of paying a hospital bill).

In addition, Thygeson may not have had a reasonable expectation of privacy in his personal folders simply because of the explicit policies set out in U.S. Bancorp's Employee Handbook. In a criminal case involving a Fourth Amendment defense to information seized from a computer during a government employer's search and seizure, the Fourth Circuit found no reasonable expectation of privacy, given an explicit computer monitoring policy:

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in light of [his employer's] Internet policy. The policy clearly stated that [the employer] would "audit, inspect, and/or monitor" employees' use of the Internet, including all file transfers, all websites visited, and all e-mail messages, "as deemed appropriate." This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the Internet were private, such a belief was not objectively reasonable after [his employer] notified him that it would be overseeing his Internet use.

U.S. v. Simons, 206 F3d 392, 398-99 (4^th Cir 2000) (footnote and internal citations omitted).

As in Simons, U.S. Bancorp had no reasonable expectation of privacy against a remote search of his computer files because of the explicit warnings in U.S. Bancorp's Employee Handbook. The Handbook specifically states: "Our . . . personal computers, . . . including email, . . . are intended for Company business only." Harvey Aff (June 18, 2004), Exhibit 1, p. 7. It also states that "U.S. Bancorp reserves the right to monitor any employee's e-mail and computer files for any legitimate business reason, including when there is a reasonable suspicion that employee use of these systems violates . . . a company policy[.]" Id. at 9. These warnings are just as clear as those found to nullify an expectation of privacy in Simons. Thygeson acknowledges that he was provided with a copy of these policies. Harvey Aff (June 18, 2004), Exhibit 2.

Thygeson cites several cases to support his alleged right to privacy. However, all these cases can be differentiated from Thygeson's situation. The first case, Leventhal v. Knapek, 266 F3d 64 (2^nd Cir 2001), involved a claim under 42 USC § 1983 by an employee of a state agency, alleging that his Fourth Amendment right to be free from unreasonable searches and seizures was violated by the agency's search of the hard drive of his office computer. Although the court later found no Fourth Amendment violation because the search was justified and of appropriate scope, it first held the plaintiff had a reasonable expectation of privacy in the contents of his computer. This expectation arose because the computer was in a private office to which the plaintiff had exclusive use; the plaintiff did not share his computer with other employees; the public and visitors did not have access to his computers; the technical support staff normally announced its maintenance of computers in advance; and other employees searched unattended computers infrequently and only for selected documents. The court specifically noted that the agency did not have a "general practice of routinely conducting searches of office computers or had placed [the plaintiff] on notice that he should have no expectation of privacy in the contents of his office computer." Id. at 74. In contrast, U.S. Bancorp's Employee Handbook directly placed Thygeson on notice that his computer was not for personal use and that his activity could be monitored. Therefore, Leventhal does not provide support for Thygeson's argument that he had a reasonable expectation of privacy in his personal e-mail folder.

In the other case, Restuccia v. Burk Tech., 1996 WL 1329386, *1 (Mass Super Ct 1996), the court denied summary judgment against an invasion of privacy claim where the employer used its supervisory password to read employee e-mail sent and received using an office e-mail system. The court found a material issue of fact as to whether the plaintiffs had a reasonable expectation of privacy in their e-mail messages and whether the employer's reading of the e-mail messages constituted a substantial interference. However, the employer in Restuccia had no policy against using the office's e-mail system for personal messages; employees were not told supervisors had access to their e-mail using supervisory passwords; and employees were not specifically told that their computer files, including e-mail messages, were automatically saved onto back-up files to which supervisors had access. In contrast, U.S. Bancorp's Employee Handbook made it clear that computers were for business purposes only and that employee activity on them could be monitored. Therefore, Restuccia is easily distinguished from this case.

No precedents support Thygeson's argument that he had a reasonable expectation of privacy in the e-mails saved in his personal folder. On the contrary, other courts are clear that when, as here, an employer accesses its own computer network and has an explicit policy banning personal use of office computers and permitting monitoring, an employee has no reasonable expectation of privacy. Therefore, Thygeson's invasion of privacy claim fails to the extent it relies on U.S. Bancorp's intrusion into his personal folder.

2. Monitoring Website Addresses

The monitoring of addresses of the websites Thygeson visited, including the website he used to access his Netscape account, raises slightly different issues. In contrast to an e-mail system provided by an employer, most employees have a higher expectation of privacy when accessing personal internet e-mail accounts, such as Netscape or Hotmail accounts, even when doing so while at work. However, it is an entirely different issue whether this expectation is reasonable when the employer has an explicit computer policy.

Thygeson relies on Fischer v. Mt. Olive Lutheran Church, 207 F Supp2d 914 (WD Wis 2002), where the court denied a motion for summary judgment against an invasion of privacy claim. In Fischer, a church accessed its employee's personal internet e-mail account (a Hotmail account) as part of an investigation into whether the employee had used the church's internet access for sexual conversations. After finding the elements of the state's invasion of privacy claim should be interpreted in conformity with the RESTATEMENT (SECOND) OF TORTS § 625B, the court denied summary judgment, explaining:

Because it is disputed whether accessing plaintiff's email account is highly offensive to a reasonable person and whether plaintiff's email account is a place that a reasonable person would consider private, I will deny defendants' motion for summary judgment as to this claim.

Id. at 928.

This cursory examination of the law and facts is not persuasive. Moreover, one key fact in Fischer differentiates it from this case: the church accessed the content of e-mails on the plaintiff's Hotmail account by guessing at his password. Id. at 920. Here, defendants never accessed the content of the e-mails in Thygeson's Netscape account. Instead, defendants only accessed the record of the addresses of the webpages Thygeson visited. Furthermore, this information was available on defendants' own network. This situation is wholly unlike the invasive sort of search involved in Fischer. Additionally, Fischer did not discuss whether the church had a policy on personal computer use and monitoring. Here U.S. Bancorp had an explicit policy on these matters.

Absent any persuasive precedent favoring Thygeson, this court is unwilling to conclude that Thygeson had a reasonable expectation of privacy when using his computer and U.S. Bancorp's internet access. Any subjective expectation of privacy Thygeson had was unreasonable given the Employee Handbook, which explicitly states that U.S. Bancorp's computers are not for personal use and employee activity can be monitored. This is especially true when the information defendants collected was only the website addresses, rather than the actual content of the websites Thygeson visited, and defendants conducted this surveillance remotely. This type of search is analogous to a pen registry search, where in the Fourth Amendment context, courts have held that defendants have no reasonable expectation of privacy in the telephone numbers they dial because the numbers are conveyed to the telephone company. Smith v. Maryland, 442 US 735, 741-744 (1979). Similarly, Thygeson could have no reasonable expectation of privacy in the website addresses he accessed using U.S. Bancorp's network and internet access.¹⁹

19 This analysis might differ if defendants had accessed the content of the websites Thyesson visited, especially his emails sent using his Netscape account. In the Fourth Amendment context, the Supreme Court has recognized a greater expectation of privacy in the content of telephone conversations. See Katz v. United States, 389 US 347 (1967). Similarly, an employee might have a reasonable expectation of privacy in the content of the actual e-mails he accesses and sends using a private internet e-mail account. On the other hand, this expectation of privacy might be nullified by explicit employer policies on computer use and monitoring.

Accordingly, because both of Thygeson's allegations of an intrusion on his seclusion lack merit, his invasion of privacy claim should be dismissed.

RECOMMENDATION

For the reasons stated above, defendants' Motion for Summary Judgment (docket #43) should be GRANTED IN PART AND DENIED IN PART. Summary judgment should be denied as to the First Claim ( 29 USC § 1140), but granted as to the Second, Third and Fourth Claims.

SCHEDULING ORDER

Objections to this Findings and Recommendation, if any, are due October 4, 2004. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.

If objections are filed, then the response is due within 10 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.