                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-8-2003

Wilson v. Nabisco Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2148




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"Wilson v. Nabisco Inc" (2003). 2003 Decisions. Paper 71.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/71


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                                                       NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                     No. 02-2148

                                 CLEOPATRA WILSON,

                                           Appellant
                                            v.

                  NABISCO INC; PHILLIP M ORRIS, INC.;
          TRUSTEES OF THE BAKERY AND CONFECTIONERY UNION
             AND INDUSTRY INTERNATIONAL PENSION FUND

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (Civ. No. 01-cv-00415)
                       District Judge: Hon. R. Barclay Surrick

                                      ARGUED
                                  December 19, 2002

                          (Opinion filed: December 8, 2003)

                   Before: SLOVITER and M cKEE, Circuit Judges,
                         and ROSENN, Senior Circuit Judge

Karen E. Gelula, Esq. (Argued)
606 Schiller Avenue
Merion Station, PA 19066

      Attorney for Appellant

Jeffrey Freund, Esq.
Julia P. Clark, Esq.
Robert Alexander, Esq. (Argued)
Berdhoff & Kaiser
805 Fifteenth Street, N.W.
Suite 1000
Washington, DC 20005
Stephen F. Payerle, Esq. (Argued)
Carpenter, Bennett & Morrisey
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102

Regina C. Hertzig, Esq.
Cleary & Josem
1420 Walnut Street
Suite 300
Philadelphia, PA 19102

        Attorneys for Appellees


                                          OPINION

McKEE, Circuit Judge.

        Cleopatra Wilson and seventeen other female employees or retired employees of

Nabisco, Inc., appeal the district court’s grant of judgment in favor of Nabisco on their

claim for benefits under § 502(a)(1)(B) of the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. § 1132(a)(1)(B). For the reasons that follow, we will vacate the

district court’s order granting judgment on the pleadings to Nabisco and dismissing

against the Trustees of the Bakery and Confectionary Union and Industry International

Pension Fund as moot, and remand with directions to dismiss the complaint without

prejudice to the right of the plaintiffs to present their claim for pension benefits to that

Fund.

                                               I.

        Inasmuch as we write only for the parties, we recite only those facts and portions

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of the procedural history that are helpful to our discussion. As noted, Wilson and the

seventeen other appellants are current or retired employees of Nabisco at its Philadelphia,

Pennsylvania plant. They are also participants in a multi-employer pension plan, the

Bakery and Confectionary Union and Industry International Pension Fund (the “Plan”).

Nabisco is a contributing employer to the Plan based on collective bargaining agreements

between it and the union requiring Nabisco to make contributions to the Plan on behalf of

employees in the covered bargaining unit.

       The women’s claims for benefits from the Plan stem from a class action that was

filed in 1975 and settled in 1981, viz., Karan, et al. and EEOC v. Nabisco, Inc., No. 75-

1356/77-927 (W.D. Pa.). The Karan lawsuit alleged that Nabisco had discriminated

against female employees on the basis of sex during the 1970s, in violation of Title VII.

The lawsuit alleged at least seventeen discriminatory acts, practices and policies,

involving, inter alia, pay practices, job and department assignments, job classifications,

seniority, training, bidding for jobs, harassment, job posting, promotion, fringe benefits,

overtime, layoffs, and individual acts of discrimination.

       These eighteen women received distributions under the Karan Settlement

Agreement ranging from $359.11 to $1,543.89, with most receiving distributions of

$518.72. In this action, they allege that the payments they received from the Karan

Settlement Fund were payments received for back pay for periods in which they allegedly

were discriminatorily laid off between 1973 and 1981. They claim that, because of those



                                             3
back pay payments, they are still entitled to credited “hours of service” for any periods of

lay offs during those years under § 1.25(b) of the Plan. That section provides, in pertinent

part:

               An Hour of Service is also each hour for which back pay . . .
               is awarded or agreed to by a Contributing Employer to the
               extent that such award or agreement is intended to
               compensate an Employee for periods during which he would
               have been engaged in the performance of duties for the
               Contributing Employer, excluding any hours already counted .
               . . [or] in excess of 40 in any one week. (emphasis added).

By alleging that they are entitled to “hours of service” as a result of the payments they

received from the Karan Settlement Fund, the appellants claim they are entitled to up to

ten years or more of additional credited service under the Plan, and, as a result, additional

pension benefits ranging from $7,800 to $138,000 each. They thus seek to transform the

average settlement distribution of $51,872 into $63,150 of pension benefits.

        We have previously held that an ERISA plan participant making a claim for

benefits pursuant to § 502(a)(1)(B) must exhaust the plan’s administrative remedies

before seeking judicial relief. D’Amico v. CBS Corp., 297 F.3d 287, 291 (3d Cir. 2002);

Wolf v. National Shopmen Pension Fund, 728 F.2d 182, 185 (3d Cir. 1984). Here, the

Plan contends that none of the eighteen women ever made a claim for benefits to the Plan

in the first instance.   However, at oral argument, the Plan’s counsel agreed that the Plan

would nonetheless hear and consider the women’s claim for pension benefits. Moreover,

the plaintiffs’ counsel agreed that the plaintiffs have no claim against Nabisco now. In



                                              4
light of these developments, we will vacate the district court’s order and remand with

directions to dismiss the complaint without prejudice to the right of the plan participants

to present their claims for pension credits to the Plan in the first instance.




TO THE CLERK OF THE COURT:

              Please file the foregoing Opinion.

                                            /s/ Theodore A. McKee
                                            Circuit Judge




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