                                                 NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
               ________________

                      No. 16-1744
                   ________________


                DANIEL GALMAN, JR.,

                                 Appellant

                            v.

SYSCO FOOD SERVICES OF METRO NEW YORK LLC;
   SYSCO CORPORATION RETIREMENT FUND;
       SHELLY BUDHAR; JOHN DOES 1-10;
               JANE DOES 1-10;
      ABC CORPORATIONS A THROUGH Z;
            SYSCO CORPORATION

                  ________________

       Appeal from the United States District Court
               for the District of New Jersey
         (D.C. Civil Action No. 2-13-cv-07800)
        District Judge: Honorable Kevin McNulty
                    ________________

       Submitted Under Third Circuit LAR 34.1(a)
                  November 17, 2016


Before: AMBRO, SHWARTZ, and FUENTES, Circuit Judges


            (Opinion filed December 8, 2016)
                                    ________________

                                        OPINION*
                                    ________________

AMBRO, Circuit Judge

       Daniel Galman, Jr. brought a lawsuit alleging that his former employer, Sysco

Food Services of Metro New York LLC (“Sysco”), and several related individuals and

corporations (collectively, “the Sysco Defendants”), violated the Employee Retirement

Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., and the New Jersey Law

Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-1 et seq. The United States

District Court for the District of New Jersey dismissed Galman’s Complaint because he

failed to state a claim under either act and because Galman’s NJLAD claim was

preempted by ERISA. We affirm.

I.     BACKGROUND

       A few months before retiring from Sysco, Galman asked a human resources

manager how much his lump-sum pension payment would be and requested information

about a 6% penalty that he believed had been assessed against his account. Before

receiving an answer, he retired at age 50 in September 2012.

       After retiring, Galman reiterated his request for information, clarifying that he

wanted “pension payment calculations, the numbers used in calculation of his pension,

how the lump-sum amount had been arrived at and whether the money deducted from his



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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pension payment per the 6% penalty had been included in the pension payment that he

received.” J.A. 47a. When he did not receive a satisfactory response, Galman hired an

attorney who requested similar information in writing.

        Galman, who is African-American, learned that two white employees had received

much larger lump-sum retirement payments than he did despite having held similar

positions at Sysco for about the same number of years as Galman. He also alleges that

white employees were honored in Sysco’s company newsletter when they retired, but he

was not. Finally, Galman notes that Sysco’s “management team” was white. J.A. 51a.

II.     ERISA

        ERISA gives courts discretion to impose a monetary penalty on retirement plan

administrators who fail to provide plan beneficiaries with certain required information

within 30 days of a request. See 29 U.S.C. § 1132(c)(1). Galman’s first count seeks to

enforce § 1132(c)(1)’s penalty provision against the Sysco Defendants because they did

not provide him with the information he requested about his retirement payment. The

penalty only applies, however, if a plan administrator fails to provide information that it

is required to provide by the provisions of Subchapter I of ERISA, 29 U.S.C. §§ 1001-

1145.

        Galman’s Complaint never identifies any provision of ERISA that requires the

Sysco Defendants to provide him with the specific information he requested. Moreover,

his request goes far beyond the ERISA disclosure requirements identified and examined

by the District Court. See id. §§ 1025(a) (requiring disclosure of “total benefits accrued”

and “the nonforfeitable pension benefits, if any, which have accrued, or the earliest date

                                             3
on which benefits will become nonforfeitable”), 1024(b)(4) (requiring provision of “the

latest updated summary plan description . . . or other instruments under which the plan is

established or operated”). Accordingly, Galman’s first count fails to state a claim on

which relief may be granted and was properly dismissed.1

III.   NJLAD

       The Complaint’s second count alleges that the Sysco Defendants violated the

NJLAD. Under it employers may not “discriminate against [an] individual in

compensation or in terms, conditions or privileges of employment” “because of [his]

race[.]” N.J. Stat. Ann. § 10:5-12(a). To state a discrimination claim, a plaintiff must

plausibly allege, among other things, that “[he] suffered an adverse employment action;

and [that] others not within the protected class did not suffer similar adverse employment

actions.” El-Sioufi v. St. Peter's Univ. Hosp., 887 A.2d 1170, 1182 (N.J. Super. Ct. App.

Div. 2005).

       Galman contends that the Sysco Defendants violated the NJLAD by paying him a

smaller lump sum than two white employees who held similar jobs for the same number

of years as he did. But the mere fact that Galman received a smaller retirement payment

than other employees is not enough to infer that he suffered discrimination. The

Complaint says nothing about the employees’ retirement contribution levels, annuity

elections, or age at retirement—all of which could account for the alleged disparity.

Moreover, the Complaint contains no evidence of ill will or discrimination, such as

1
  To the extent Galman raised a breach-of-fiduciary-duty claim independent from his
claim for statutory damages, that claim necessarily fails because the Sysco Defendants
had no duty to provide him with the information he requested.
                                              4
racially charged remarks. See Smith v. Millville Rescue Squad, 139 A.3d 1, 16 (N.J. 2016)

(discriminatory remarks may serve as evidence of ill will under NJLAD).

       As noted above, retiring white employees were honored in a company newsletter,

while Galman was not. That is not enough to show discrimination either. “[A]n

employer's adverse employment action must rise above something that makes an

employee unhappy, resentful or otherwise cause an incidental workplace dissatisfaction.”

Victor v. State, 952 A.2d 493, 505 (N.J. Super. Ct. App. Div. 2008), aff’d as modified,

4 A.3d 126 (2010). Actions that “result in a bruised ego or injured pride” fall below this

threshold. Id.

       Finally, the Complaint repeats under count two that the Sysco Defendants failed to

provide Galman with the information he requested about his retirement payment. Galman

offers no facts suggesting that this failure was related to his race other than that he is

African-American and Sysco’s management team is white. He also fails to allege that he

was treated differently in this regard (that is, that other employees’ requests for

information were answered).2 See El-Sioufi, 887 A.2d at 1182. Thus, the Complaint’s

second count does not plausibly allege a claim of discrimination.3



2
 Galman also pursues an aiding and abetting claim against Sysco’s human resources
manager. However, since no violation of the NJLAD occurred, this claim must fail
because there is no one to aid or abet. See Tarr v. Ciasulli, 853 A.2d 921, 929 (N.J.
2004) (holding that aiding and abetting liability requires that “the party whom the
defendant aids must perform a wrongful act that causes an injury”).
3
 The District Court held, in the alternative, that dismissal was warranted because
Galman’s NJLAD claim was preempted by ERISA. Because we uphold dismissal of the
Complaint’s second count for failure to state a claim, we do not reach that issue.
                                               5
                       *     *      *      *      *

For these reasons we affirm the District Court’s dismissal of Galman’s Complaint.




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