544 A.2d 857 (1988). The defendant's conduct must be so outrageous in character and extreme in degree that it goes beyond all possible bounds of decency and is to be regarded as "atrocious and utterly intolerable in a civilized community." See id. (quoting Restatement(Second) of Torts § 46 Comment (d) (1965)).
Silvestre bases his intentional infliction of emotional distress claim on the circumstances leading to the termination of his employment with BAC. Because Silvestre has failed to allege any extreme or outrageous conduct on the part of the defendants and because Silvestre's deposition testimony reveals that he has not suffered any severe emotional distress (Defs. 12G P 38 (plaintiff claims only to suffer from occasional difficulty sleeping and depression)), the Court must grant summary judgment in favor of the defendants on this count.
In his Eighth Count, Silvestre alleges that the defendants violated his rights under 29 U.S.C. section 1132(a)(3) and 1140 ("ERISA § 510").
ERISA § 510 entitles a beneficiary or a participant in an ERISA-approved plan to bring an action to recover benefits or to enforce ERISA-provided rights. See Pitak, 928 F. Supp. at 1372. ERISA § 510 provides that it is unlawful for an employer to discharge a participant in any employee benefit plan for "the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1132(a)(3). To establish a prima facie case under ERISA § 510, the employee must demonstrate that: (1) the employer engaged in prohibited conduct, and (2) the employer intended to interfere with any right to which the employee may become entitled. See Gavalik v. Continental Can Co., 812 F.2d 834, 852 (3d Cir.), cert. denied, 484 U.S. 979, 98 L. Ed. 2d 492, 108 S. Ct. 495 (1987)
By its terms, this section "protects plan participants from termination motivated by an employer's desire to prevent a pension from vesting." Ingersoll-Rand v. McClendon, 498 U.S. 133, 112 L. Ed. 2d 474, 111 S. Ct. 478 (1990). One essential element of proof, thus, is the employer's specific intent to engage in the proscribed activity. Gavalik, 812 F.2d at 851. Additionally, an employee cannot establish a cause of action under ERISA § 510 by alleging that the employee merely would have accrued more benefits in the future had the employee remained employed. See id. at 852 ("Proof of incidental loss of benefits as a result of termination will not constitute a violation of § 510"); see also West v. Greyhound Corp., 813 F.2d 951 (9th Cir. 1987)("An employee has no right to future, unaccrued benefits. . . .").
In this case, Silvestre fails to establish a cause of action under these ERISA provisions for two reasons. First, Silvestre's pension and retirement benefits had already vested at the time of his termination, and he has lost no vested pension or retirement benefits as a result of his termination. Silvestre's claim that his pension would have been larger had he not been terminated is not cognizable under these ERISA provisions. See Pitak, 928 F. Supp at 1372. Second, Silvestre cannot establish and ERISA violation because he has no direct or circumstantial evidence that the defendants terminated him with the specific intent of interfering with his employment entitlement. Consequently, Silvestre has failed to establish a prima facie case under ERISA § 510, and the Court must grant summary judgment in favor of the defendants.
For the reasons stated herein, the Court will grant summary judgment in favor of the defendants on Sylvestre's claims for race, national origin, and age discrimination; for violation of 42 U.S.C. sections 1985(3), 1986, and 1988; for deceit, tortious interference with contract, negligent hiring and supervision, intentional infliction of mental and emotional distress, and the prima facie tort; and for violation of 29 U.S.C. sections 1132(a)(3) and 1140. Having resolved these claims in favor of the defendants the Court need not address the issues whether punitive damages would be appropriate or whether claims are properly asserted against Raymond Smith individually.
An appropriate Order is attached.
Dated: July 15, 1997
ALFRED M. WOLIN, U.S.D.J.
In accordance with the Court's Opinion filed herewith,
It is on this 15th day of July, 1997
ORDERED that defendants' motion for summary judgment on plaintiff Manuel Silvestre's race, national origin, and age discrimination claims is granted; and it is further
ORDERED that defendants' motion for summary judgment on Silvestre's 42 U.S.C. §§ 1985(3), 1986, and 1988 claims is granted; and it is further
ORDERED that defendant's motion for summary judgment on Silvestre's causes of action for deceit, tortious interference with contract, negligent hiring and supervision, intentional infliction of mental and emotional distress, and prima facie tort causes of action is granted; and it is further
ORDERED that defendants' motion for summary judgment on Silvestre's 29 U.S.C. §§ 1132(a)(3) and 1140 claims is granted.
ALFRED M. WOLIN, U.S.D.J.