Batista v. Bristol, Inc

Memorandum in Opposition re MOTION for Summary Judgment

D. Conn.March 12, 2019

1 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT CARLOS S. BATISTA, : : PLAINTIFF, : : 3:16-CV-02072-AVC V. : : BRISTOL, INC. D/B/A EMERSON : REMOTE AUTOMATION SOLUTIONS, : March 12, 2019 DEFENDANT. : PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff hereby submits this Memorandum in opposition to defendants’ Motion for Summary Judgement. A Local Rule 56(a)(2) Statement is submitted simultaneously herewith. The motion should be denied because material contested facts exist that preclude entry of summary judgment. As to the first count for benefits under ERISA §502(a)(1)(B), a question of fact exists because the Plan’s definition of “retirement” is ambiguous and can only be resolved at trial. As to the Second Count for promissory estoppel, a question of fact exists regarding representations made to Plaintiff. References below to “Defendants’ Exhibits” are to the exhibits attached to Defendants’ Local Rule 56(a)(1) Statement, and capitalized terms have the definitions contained in Defendants’ moving papers unless otherwise defined. I. FACTS Plaintiff, Carlos S. Batista (“Plaintiff” or “Batista”), worked for Bristol, Inc. or one of its predecessors (“Bristol”) from 1972 until 2006. Defendants’ Rule 56(a) Statement ¶1. When Emerson Electric Co. (“Emerson”) purchased Bristol, Batista continued working for Bristol D/B/A Emerson Remote Automation Solutions (“Bristol/RAS”) from 2006 until 2010. Defendants’ Rule 56(a) Statement ¶2. Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 1 of 16 2 Bristol sponsored the Retired Medical Stipend for Retired Employees of Bristol, Inc. Age 60+ Plan (the “Plan”). Defendants’ Rule 56(a) Statement ¶3. The sole and complete plan document is set forth in Exhibit A to the Declaration of Irene Bielen (“Bielen Declaration”), at Bristol Production 000028-000029. Bielen Declaration ¶10. The Plan provides as follows: Eligibility Any employee of Bristol, Inc. with ten (10) or more years of service who has elected to retire after his 60th birthday and whose hire date was prior to 4/1/2003. This applies to Early or Normal Retirement. *** If an employee under age 65 meets the eligibility requirements, they may be eligible to apply the stipend towards the purchase of coverage extended through COBRA should they elect COBRA benefits. When the employee reach age 65, they can use the stipend and apply it towards Medicare coverage, Medigap coverage and RX riders that they purchase elsewhere. *** If the employee participates in a company plan … they are notified on an annual basis of any increases to the plan. If their stipend is being applied towards a policy offered by the company, and an excess contribution is required (if any) the excess contribution will be deducted from the employee’s pension check and an adjustment will be made at the time of any premium changes to the account for the additional contribution to the plan. If the stipend exceeds the premium the employee is not entitled to the difference. *** In order to receive the reimbursement, the retiree must submit proof that they have medical coverage, (i.e. copy of policy, I.D. card) and proof that they have paid the required premium…Payment will be made by Bristol Inc. up to the reimbursement listed above. If the requirement premium is less…the excess will not be paid to the retiree…If…the premium required exceeds your retiree reimbursement allowance, the balance due will be deducted from your pension check each month. Defendants’ Rule 56(a) Statement ¶4. The Plan was in effect and unchanged from before the date of Plaintiff started working for PWS until he left the employment of PWS in 2015. Bielen Declaration ¶10. Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 2 of 16 3 Calculated as of either the date of his transfer from RAS to PWS in 2010-2011, or when he retired from PWS in 2015 and elected to receive pension benefits with respect to his RAS employment, Plaintiff was hired prior to April 1, 2003, was more than 60 years of age (Plaintiff’s Rule 56(b) Statement ¶1, and had more than 10 years of service. Defendants’ Rule 56(a) Statement ¶2. A. Facts Relating to Estoppel Claim In 2009, Bristol/RAS began discussions regarding a transfer of the RAS water and wastewater business to a sister company within Emerson, Power and Water Systems (“PWS”). Defendants’ Rule 56(a) Statement, ¶13. RAS and PWS are two separate and distinct companies within Emerson with separate budgets, leadership and benefit plans. Id. ¶14. As part of this discussions, the President of Bristol, Neal Ingram, invited Plaintiff to lunch in early 2010 to discuss his role in the transition. Plaintiff’s Rule 56(b) Statement ¶ 1. At the lunch, Mr. Ingram explained to Mr. Batista his role in the transition, that he could choose to accept a transfer to PWS to be in charge of the merged water operations of the two companies, or he would remain with RAS and be in charge of the energy operations that would remain with RAS. Plaintiff’s Rule 56(b) Statement ¶ 5. Batista asked whether his compensation would remain the same in the position with PWS, and Mr. Ingram assured him that it would. Plaintiff’s Rule 56(b) Statement ¶1. Plaintiff understood that by saying his compensation would stay the same, Mr. Ingram means that his benefits would also stay the same. Plaintiff’s Rule 56(b) Statement ¶10. Plaintiff was aware at the time that the medical stipend was one of the benefits for which he was eligible. Plaintiff’s Rule 56(b) Statement ¶10. Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 3 of 16 4 Batista began performing the duties of Vice President of Systems at both RAS and PWS in the spring of 2010 and managed the transition of RAS’s water business to PWS. Defendants’ Rule 56(a) Statement ¶ 15. In January 2011, he was formally transferred to the payroll of PWS. II. ARGUMENT A. Standard of Decision This Court has stated the following standard for summary judgment pursuant to Fed. Rules Civ. Pro. Rule 56: Summary judgment is appropriate if, after discovery, the nonmoving party “has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “The burden is on the moving party ‘to demonstrate the absence of any material factual issue genuinely in dispute.’ ” Am. Int'l Group, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir.1981) (quoting Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1319–20 (2d Cir.1975)). A dispute concerning material fact is genuine “if evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must view all inferences and ambiguities in a light most favorable to the nonmoving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Id. A dispute concerning material fact is not created by a mere allegation in the pleadings, or by surmise or conjecture. Stuart & Sons, L.P. v. Curtis Pub. Co., Inc., 456 F.Supp.2d 336, 342 (D.Conn.2006) (citing Applegate v. Top Assoc., Inc., 425 F.2d 92, 96 (2d Cir.1970)); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). “Conclusory assertions also do not create a genuine factual issue.” Id. (citing Delaware & Hudson Ry. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir.1990)). Holten v. Standard Parking Corp., 98 F. Supp. 3d 444, 449–50 (D. Conn. 2015) Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 4 of 16 5 B. Plaintiff Is Entitled to the Medical Stipend Under the Literal Terms of the Plan. 1. Standard of Review of Benefit Denial Reviews of denials of benefits under ERISA are subject to two standards. The presumption is that benefit denials are reviewed under the de novo standard where no deference is given to either parties interpretation of the plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 957, 103 L.Ed.2d 80 (1989) Benefit denials are reviewed under an arbitrary and capricious standard if the plan documents reserve to the plan the discretion to interpret the terms of the plan documents. Id. The burden is on the plan administrator to establish that sufficient discretion is reserved to the plan to satisfy the standard for arbitrary and capricious review. Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 230 (2d Cir.1995). The plan document in this case (Defendants’ Exhibit 1 to Bielen Declaration, Bristol Prod. 28-29) contains no language reserving any discretion to the Defendant Plan in interpreting the documents, so the Court’s review of the benefit denial is de novo. Defendants apparently concede that the standard of review is de novo, as discussed at page 14 of its Memorandum of Law, since they do not argue that the plan documents grant the plan administrator the required degree of discretion. Under the de novo standard of review, the plan must be interpreted according to its plain meaning. Any ambiguities, however, are construed against the plan. Masella v. Blue Cross & Blue Shield of Connecticut, Inc., 936 F.2d 98, 107 (2d Cir. 1991). The burden is on the defendant to demonstrate that the plaintiff’s interpretation of the plan is unreasonable. Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706, 739 (2d Cir. 2001). Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 5 of 16 6 2. A Question of Fact Exists Whether Plaintiff Retired as Required by the Plan Plaintiff’s Count One makes a claim for benefits under ERISA §502(a)(1)(B). The necessary elements of a 502(a)(a)(B) claim are well-settled: “[t]o prevail under § 502, a plaintiff must show that (1) the plan is covered by ERISA, (2) plaintiff is a participant or beneficiary of the plan, and (3) plaintiff was wrongfully denied [benefits] owed under the plan.” Giordano v. Thomson, 564 F.3d 163, 168 (2d Cir. 2009) citations omitted. Defendants do not contest the Plaintiff has satisfied the first two elements of the claim: that the Plan is subject to ERISA (Defendants’ Memorandum in Support of Motion for Summary Judgment (“Defendants’ Memo”) page 14, and that Plaintiff is a participant in the Plan (Defendants’ Answer to ¶11 of Plaintiffs’ Second Amended Complaint). A question of fact exists regarding the last point since the Plan is ambiguous regarding the meaning of the term “retire.” Plan language is ambiguous “when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.” O'Neil v. Retirement Plan, 37 F.3d 55, 58–59 (2d Cir. 1994). When a contract term is ambiguous, an issue of fact is created that can only be decided at trial. Sarmiento v. United States, 812 F. Supp. 2d 137, 140 (E.D.N.Y. 2011), aff'd in part, rev'd in part, 678 F.3d 147 (2d Cir. 2012). And, since this case is subject to de novo review, any ambiguity in the plan terms must be construed against Defendant as the drafter of the plan. Perreca v. Gluck, 295 F.3d 215, 223 (2d Cir. 2002), (“absent evidence indicating the intention of the parties, any ambiguity in the language used in an ERISA plan should be construed against the interests of the party that drafted the language.” Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 6 of 16 7 In this case, the meaning of “retire” is ambiguous. The Plan provides for a stipend for employees of the Bristol who “retire” with more than ten years of service, elect to retire after age 60, and were hired prior to April 1, 2003. There is no dispute that Mr. Batista had more than 10 years of service at all relevant times and was hired prior to April 1, 2003 (Defendants’ Rule 56(a)(1) Statement ¶1) and that he was more than 60 years of age as of January 1, 2011. Defendants’ Answer ¶18. The only issue is the factual issue of whether Plaintiff satisfied the requirement of “retiring” in a manner that qualified for benefits. Plaintiff qualified for benefits under the Plan on either of two dates. First, Plaintiff “retired” from the RAS division of Bristol Inc. when he was formally transferred to the payroll of PWS in January 2011. Retirement means “termination of one's own employment.” Black's Law Dictionary (10th ed. 2014). As Defendants concede, RAS and PWS are separate and distinct companies. (Defendants’ Rule 56(a)(1) Statement ¶14). By transferring to PWS in 2011, Plaintiff was terminating his own employment with RAS. While he did not elect to start receiving his pension benefit from Bristol at this time, he retired from RAS by terminating his employment with RAS. His benefits under the Plan therefore vested because he had satisfied all criteria for earning the benefit. Alternatively, Plaintiff “retired” from RAS in 2015 when he elected to start receiving his pension. With regard to Plaintiff’s claim that he retired and qualified for benefits in 2015 when he elected to begin receiving pension benefits, Defendants claim the word “employee” only means a current employee, so Plaintiff was not eligible for benefits since he was not a current employee of Bristol in 2015. This argument, of course, had no effect on Plaintiff’s claim that he earned the benefit in 2011 when he transferred to PWS. Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 7 of 16 8 With regard to the claim that he earned the benefit in 2015, there is no explicit requirement in the Plan that the employee be an employee of Bristol at the time the employee elects to retire. Since the Plan itself is unclear whether a retiree must be an active employee of Bristol, it is capable of two interpretations. The meaning of “retire” is therefore ambiguous. The instant case is similar to Kascewicz v. Citibank, N.A., 837 F. Supp. 1312 (S.D.N.Y. 1993). In that case, the employer issued an early-retirement incentive plan set forth in a one- page plan document that did not have eligibility criteria. Id. At 1316. An officer who on leave became aware of the program and asked to be included. The employer declined, saying only active officers were eligible, even though the plan document had no such limitation. The Court denied summary judgment to the employer, stating the Plan was ambiguous about whether only active officers qualified for the plan. The Court emphasized that with ERISA, ambiguity should be found when criteria for qualification are not clear. ERISA obligates employers to issue a summary plan description “written in a manner calculated to be understood by the average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.” 29 U.S.C. § 1022(a)(1); Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911, 914 (2d Cir). Close scrutiny is particularly justified when applying the rule of contra proferentem. Since an insurance plan is not negotiated document, it is more like a form contract to which the principle applies. The court’s conclusion applies directly to Plaintiff’s case: where the Plan was drawn up by one party only and where ERISA imposes requirements on that party to provide certain information and they have failed to do so, it would be inappropriate to grant summary judgment to that party on the basis of plan language that is less than fully clear. Kascewicz supra,837 F. Supp. at 1318. Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 8 of 16 9 Defendants did not satisfy their obligation under ERISA to clearly state the conditions for qualifying for benefits under the Plan. In light of this failure, the rule of contra proferentum, and Plaintiff’s reasonable interpretation of Plan entitling him to benefits, the meaning of “retire” must be resolved at trial, so summary judgment on Count One should be denied. 3. Defendants Cannot Show Plaintiff’s Interpretation of the Plan is Unreasonable. a. Defendants’ Right to Change the Plan Is Irrelevant Because It is Undisputed that The Plan Was Not Changed Before Plaintiff’s Retirement Defendants discuss at length that the plan documents reserved the right to Emerson to change the terms of the Plan, and so the benefits never vested. Defendants’ Rule 56(a)(1) Statement ¶¶5-6; Defendants’ Memorandum page 5. But it is undisputed that the Plan was never changed – the same plan document was in effect throughout the relevant period of early 2010 to 2015, and that the Plan continues to the present day. Plaintiff’s Rule 56(a)(2) Statement ¶ 13. Defendants identify the original two-page plan document (Defendants’ Rule 56(a)(1) Statement, Exhibit A, pages 00028-00029. While Defendants may have had the power to change the plan at any time to deprive Plaintiff of any future benefits, or even to eliminate they Plan, they did not do so in this case. Therefore, any power to change or terminate the Plan is irrelevant to determining Plaintiff’s entitlement to benefits. Defendants are not saying “we changed the Plan so you are no longer eligible for benefits” or “we terminated the Plan so you are no longer entitled to benefits.” For instance, they have not asserted that the February 2011 PowerPoint presentation giving a window to elect the Plan was an amendment to the Plan that deprived Plaintiff of benefits under the Plan. Rather, Defendants are claiming that the right to change the Plan they can decide whether an individual receives the benefit even if the individual satisfies the requirements of the Plan. Since the Plan does not reserve discretion to decide whether to grant Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 9 of 16 10 benefit in an individual case, the right to change the Plan does not grant give the Plan discretion as to who gets benefits. Defendants have provided no authority for the proposition that reserving the right to change the Plan means they get to decide whether a participant who qualified for benefits under the terms of the Plan. Nor does anything in the Plan say the Plan has discretion to decide whether an eligible participant will receive benefits. Since the Plan itself was never changed or amended, Defendants’ power to do so does not affect Plaintiff’s entitlment to benefits under the Plan. b. The Pension Plan and the February 2011 PowerPoint Are Extrinsic Documents That Are Only Relevant to Resolve the Plan Language Ambiguity at Trial. As discussed above, the only plan document is the original notice. Defendants cite to various notices given to individuals transferred from RAS to PWS that they would not be eligible for the Plan benefits after they transferred, including a power point presentation from February 2011. Defendants also attempt to rely on the provisions of the pension plan to establish the meaning of the term “retire” in the Plan. Defendants’ Memorandum at 20. None of documents are plan documents of the Plan, as Defendants have identified only the two-plan description of the Plan as the complete and accurate plan document. Bielen Declaration, ¶10. Extrinsic evidence such as non-plan documents can be considered to resolve an ambiguity in the plan. I.V. Services of Am., Inc. v. Trustees of Am. Consulting Engineers Council Ins. Tr. Fund, 136 F.3d 114, 120 (2d Cir. 1998). But, if there is an ambiguity in the plan, as discussed above, summary judgment is not appropriate and the ambiguity should be resolved at trial. Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 10 of 16 11 C. Summary Judgment Should Not Be Granted on Plaintiff’s Promissory Estoppel Claim As Defendants state in Defendants’ Memorandum, the elements of a claim of promissory estoppel under the federal common law of ERISA are "(1) a promise, (2) reliance on the promise, (3) injury caused by the reliance, and (4) an injustice if the promise is not enforced." Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 109 (2nd Cir. 2008). The promissory estoppel claim is based on a promise to Plaintiff that he would receive the same compensation in his new position with PWS that he received at RAS. A question of fact exists regarding the promise made to Plaintiff. Plaintiff asserts that the President of RAS, Neil Ingram, promised him, at a lunch to tell him of the opportunity to transfer to PWS, that his compensation would be the same as in his position at RAS, which promise he understood to refer to the entire compensation package, including benefits. Plaintiff’s Rule 56(a)(2) Statement, ¶¶2,3. Mr. Ingram, on the other hand, doesn’t remember such a lunch, or any specifics of his conversations with Plaintiff about the new position. Plaintiff’s Rule 56(a)(2) Statement, ¶¶2,3. Since resolution of this question depends on a determination of credibility, it should not be decided on summary judgment. Barber v. Sun Life & Health Ins. Co., 894 F. Supp. 2d 174, 184 (D. Conn. 2012). Defendants discuss at length in their brief that Plaintiff’s claim that a promise was made is not credible since Plaintiff raised the issue of his entitlement to the medical stipend repeatedly without mentioning any promise. Defendants’ Memorandum at 25. This argument of credibility demonstrates that the promissory estoppel cannot be decided on summary judgment and the trier of fact must make the determination of whether the promise was made. Plaintiff also relied on the promise in accepting the position at PWS. Plaintiff’s Rule 56(a)(2) Statement, ¶6. Defendants again argue that the claim of reliance is not worth of Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 11 of 16 12 credence because he didn’t discuss the promise or any reliance on the promise while pursuing his claim internally with the employer. Defendants’ Memorandum at 26. Defendants’ elaborate on this claim that Plaintiff did not in fact rely on any promises in paragraphs 47 to 75 of it Rule 56(a) Statement. That defendants are asking the Court to consider 28 different facts to decide reliance hardly shows that lack of reliance is an uncontested fact. Again, this argument demonstrates whether Plaintiff relied on the promise must be decided at trial and not on summary judgment. The fact that the employer retains the right to change or even eliminate the plan, or that the benefit doesn’t vest, does not mean a participant can’t rely on it. In Schonholz, the court held the right to change the benefit or that the benefit had not vested did not mean the Plaintiff couldn’t rely on the benefit. Schonholz, 87 F.3d at 79. (2d Cir. 1996). Plaintiff was also plainly injured by his reliance, since he accepted a position expecting to get paid the medical stipend, but only learning in February 2011, two months after his formal transfer to PWS and almost a year after he had started working in the position, that he might not receive the stipend. Defendants’ Rule 26(a)(1) Statement, ¶¶15, 19. Injustice would result if the promise is not enforced: Defendants received the benefit of their side of bargain, by having an individual intimately familiar with RAS water business handle the merging of the two units within PWS. Plaintiff, however, was deprived of a material portion of his end of the bargain by being deprived of the medical stipend. The additional element of a promissory estoppel claim under ERISA, that extraordinary circumstances exist, is satisfied in this case as established by the Schonholz case. Defendant specifically wanted Plaintiff to accept the transfer to be in the charge of the transition of a business function and fourteen transferred employees. Plaintiff’s Rule 56(a)(2) Statement ¶ 1. Defendant’s president personally assured Plaintiff his compensation would stay the same, which Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 12 of 16 13 promises were confirmed by the human resources departments of each company. Plaintiff’s Rule 56(a)(2) Statement ¶2. This is exactly the type of allegation that the Second Circuit in Schonholz v. Long Island Jewish Med. Ctr., 87 F.3d 72, 78 (2d Cir.1996) stated could constitute extraordinary circumstances: a high corporate official (a Chief Operating Officer in Schonholz and a president in this case), made a promise of a specific employee benefit (severance in Schonholz and the medical supplement in this case), to an specific plan participant in order to induce that participant to take a specific action (retirement in Schonholz and a transfer in this case). This is not a case like Devlin v. Transp. Communications Int'l Union, 173 F.3d 94, 102 (2d Cir. 1999) where the allegation was that there were general promises made to a group of participants without any showing that the employer wished any particular participant to retire. The Second Circuit in Devlin made this distinction clear: elucidated what constitutes extraordinary circumstance and how it was satisfied in the Schonholz case: “it was as though the Medical Center had intentionally used the promise of severance benefits to win Schonholz's resignation, and then reneged once she resigned.” Devlin, 173 F.3d at 102. Defendant cites Aramony v. United Way Replacement Benefit Plan, 191 F.3d 140, 152 (2d Cir. 1999) in support of its argument. But the Court in Aramony stated that the plaintiff had not alleged that the promise was made to induce a specific action: Nothing, for example, suggesting that United Way made a promise to Aramony in order to induce him to take action for United Way's benefit only later to renege on the promise. That sort of behavior by an employer could, under Schonholz and Devlin, amount to “extraordinary circumstances.” Aramony, 191 F.3d at 152. Defendants claim that summary judgment should be granted on the promissory estoppel claim because the alleged promises were oral, citing Perreca v. Gluck, 295 F.3d 215, 224 (2d Cir. 2002). The Second Circuit has recognized that a promise may not have to be in writing upon “a Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 13 of 16 14 showing tantamount to proof of fraud.” Moore v. Metro. Life Ins. Co., 856 F.2d 488, 492 (2d Cir. 1988) In Moore, the Court noted “[t]he record contains no hint of bad faith, intent to deceive or even conduct that was objectively, if unintentionally, misleading on Metropolitan's part.” Id. In the instant case, though, Plaintiff has alleged such behavior in that Defendants gained its part of the bargain, while depriving Plaintiff of his bargain. This behavior is tantamount to fraud, and so should be enforceable even in the absence of a writing. Plaintiff has alleged the specific circumstances that constitute extraordinary circumstances: a specific promise made by a senior officer of the company to a specific individual in order to induce the individual to take an action that benefitted the company. Plaintiff has therefore alleged a valid claim for promissory estoppel under ERISA, and Defendants’ motion for summary judgment should be denied. III. CONCLUSION For the reasons stated above, Defendants’ Motion for Summary Judgment should be denied on Count One because the word “retire” in the Plan is ambiguous, which ambiguity can only be resolved at trial, and denied on Count Two as a question of fact exists regarding the promises that were made to Plaintiff to induce him to take the new position and whether he relied on such promises. PLAINTIFF CARLOS BATISTA By: /s/ Fed. Bar ct#08456 David S. Rintoul Zeldes, Needle & Cooper, P.C. 1000 Lafayette Blvd., Suite 500 Bridgeport, CT 06604 Tel: 203-333-9441 Fax: 203-333-1489 Email: drintoul@znclaw.com His Attorney Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 14 of 16 15 Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 15 of 16 16 CERTIFICATE OF SERVICE I hereby certify that on March 12, 2019, a copy of the foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. /s/Fed. Bar ct#08456 David S. Rintoul Case 3:16-cv-02072-AVC Document 61 Filed 03/12/19 Page 16 of 16