Daniel Galman, Jr. v. Sysco Food Services of Metro N , 674 F. App'x 211 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-1744
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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
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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
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Submitted Under Third Circuit LAR 34.1(a)
November 17, 2016
Before: AMBRO, SHWARTZ, and FUENTES, Circuit Judges
(Opinion filed December 8, 2016)
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OPINION*
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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
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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.
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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.
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* * * * *
For these reasons we affirm the District Court’s dismissal of Galman’s Complaint.
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