Navarro, Maureen A. v. FDIC ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3265
MAUREEN A. NAVARRO,
Plaintiff-Appellant,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 8972—Charles R. Norgle, Sr., Judge.
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ARGUED APRIL 8, 2004—DECIDED JUNE 15, 2004
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Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
EVANS, Circuit Judge. Maureen Navarro worked 39 years
for the Universal Federal Savings Bank, starting as a part-
time clerical assistant in 1963 and eventually becoming the
president and chief executive officer of the firm in 1997. In
her case here she has all the equities on her side, for the
Federal Deposit Insurance Corporation (FDIC) (more on its
involvement later) concedes that if she would have
quit—just walked off the job—on June 26, 2002, she would
be entitled to receive “deferred compensation” payments she
earned under two agreements she had with Universal. But
2 No. 03-3265
because she showed up for work the next day, June 27,
2002, she’s out of luck . . . and out of the money. So says the
FDIC and the district court which dismissed Navarro’s case
on summary judgment.
During her employment, Navarro and Universal entered
into two very modest deferred compensation agreements,
the first in 1981 and the second in 1987. These agreements
were offered to induce Navarro to continue working for
Universal. The agreements provided payments to her upon
her termination and, under certain circumstances, to her
estate. The payment level was graduated, beginning one
year after each contract was signed and reaching maximum
payments after 15 full years of service. The clause at issue
is the termination provision of each agreement. The 1981
provision provided in relevant part:
If the Employee voluntarily or involuntarily termi-
nates her present employment with the Association, for
reasons other than death or retirement, she shall then
be entitled to receive from the Association annual
severance benefits . . . for a period of 10 years next
following the date of such severance . . . .
This clause goes on to provide that if Navarro died within
that 10-year period her estate would receive the balance
of payments due. The agreement also specified that if
Navarro retired at age 65 she would receive $5,000 per year
for 10 years from Universal, and if she died prior to retire-
ment her estate would receive the money.
The 1987 agreement called for additional payments of
$5,000 per year upon Navarro’s termination, death, or re-
tirement, but the separation provision was worded slightly
differently than the 1981 contract:
In the event the Employee terminates employment for
reasons other than death or retirement, she shall be
entitled to receive from the Association annual sever-
ance benefits, as set forth below . . . .
No. 03-3265 3
The provision goes on to specify that benefits will be paid
for 15 years following Navarro’s termination and that if she
died during that 15-year period her estate would receive the
balance of payments.
On June 27, 2002, the Office of Thrift Supervision (OTS)
closed Universal and appointed the FDIC as receiver. As a
result of the receivership, Navarro was terminated from her
position as Universal’s president and chief executive officer.
In August 2002, pursuant to the procedures established
by the Financial Institutions Reform, Recovery and Enforce-
ment Act (FIRREA), 12 U.S.C. § 1821(d), Navarro filed
claims with the FDIC to recover what she believed were
benefits she earned under her two agreements with Univer-
sal. The total she sought was $119,999.30, or $3,077 for
each of the 39 years she worked at Universal.
The FDIC reviewed the claims and determined that
Navarro was not entitled to any benefits under the agree-
ments because Universal’s obligations terminated on June
27, 2002, as a result of the receivership. Thereafter,
Navarro filed this complaint, pursuant to 12 U.S.C.
§ 1821(d)(6)(A), seeking relief identical to the demands she
made in her administrative claim. The issue before us, as it
was before the district court, is whether Navarro’s rights
were “vested” under the agreements when the OTS closed
Universal’s doors.
Under 12 C.F.R. § 563.39, when the FDIC takes over as
receiver upon default of a savings and loan, “all obligations
under the [employment] contract shall terminate as of the
date of default, but this paragraph (b)(4) shall not affect any
vested rights of the contracting parties[.]” The term “vested”
is not defined in the regulations, but the district court held
that a right is vested under § 563.39 “if it is not subject to
a condition precedent prior to the termination of employ-
ment.” The district court found that the phrases “If the
Employee voluntarily or involuntarily terminates
4 No. 03-3265
her present employment” in the 1981 agreement and
“Employee terminates employment” in the 1987 agreement
created conditions precedent requiring that Navarro take
affirmative action to terminate her own employment before
her rights could be vested. Because her employment was
terminated when the FDIC took over as receiver, the court
reasoned that Navarro did not take any action to terminate
her own employment. Thus, the court held Navarro failed
to fulfill a condition precedent, her rights were not vested,
and she was not entitled to payment under either contract.
We review grants of summary judgment de novo. Thiele
v. Norfolk & W. Ry. Co., 68 F.3d 179, 181 (7th Cir. 1995).
We construe all facts in the light most favorable to the
nonmoving party and draw all reasonable inferences in
favor of that party. Bombard v. Fort Wayne Newspapers,
Inc., 92 F.3d 560, 562 (7th Cir. 1996).
Although the term “vested” is not defined in the regula-
tions, the district court’s definition is certainly reasonable.
Black’s Law Dictionary defines “vested” in part as “not
subject to be defeated by a condition precedent.” Black’s
Law Dictionary 1563 (6th ed. 1990).
The critical question thus becomes whether Navarro had
to satisfy a condition precedent, i.e., take affirmative action
to terminate her employment with Universal before her
rights under the agreements “vested.” Conditions precedent
are generally disfavored; in resolving doubts about whether
a contract contains a condition precedent, interpretations
that reduce the risk of forfeiture are favored. Restatement
(Second) of Contracts § 227(1) (1981).
Given this policy, and taking the contract as a whole, it is
clear that no true condition precedent was intended by this
language. If we read in the term “actively” prior to the
phrase “voluntarily or involuntarily terminates,” as the
district court has done, we’re left with an agreement which
contradicts itself. The word “involuntary” means “done
No. 03-3265 5
contrary to choice” or “not subject to control of the will.”
Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). We
can think of no way Navarro could simultaneously actively
and involuntarily terminate her employment; the FDIC’s
example of Navarro reluctantly quitting because of a
medical condition still involves her making a conscious
choice. The “voluntarily or involuntarily” clause was written
in the agreement to cover all situations in which Navarro’s
employment could conceivably come to an end. And Navarro
at all times had full control of when she could begin receiv-
ing benefits. This is not the stuff of a true condition prece-
dent.
This is not unlike the situation in Soriero v. Federal
Deposit Insurance Corporation, as receiver for Meritor
Savings Bank, 887 F. Supp. 103, 106 (E.D. Penn. 1995),
where the court held that a “right is vested when the
employee holding the right is entitled to claim immediate
payment. It’s not material that the employee fails to make
such a demand so long as the decision not to claim payment
lies entirely within his control.” Soriero involved a plaintiff
employee who signed an agreement which provided for
supplemental pension. Id. at 104. The Soriero plaintiff was
eligible to retire but had not applied for retirement before
the FDIC took receivership of the bank. Id. at 105. The
court found the plaintiff’s interests in the supplemental
pension were vested when the plaintiff became eligible for
retirement, and as such, plaintiff’s rights were “sufficiently
‘fixed and certain’ to be provable against the FDIC at the
moment the FDIC became the receiver for Meritor.” Id. at
108. Similarly, in Modzelewski v. Resolution Trust Corpora-
tion, 14 F.3d 1374, 1378 (9th Cir. 1994), the court stated,
“It’s not material that the employee fails to make such a
demand—exposing himself to the risk of divestiture—so
long as the decision not to claim payment is entirely within
his control.”
6 No. 03-3265
In deciding that the termination clauses created condi-
tions precedent, the district court relied heavily upon its
earlier decision in Crocker v. Resolution Trust Corp., 839 F.
Supp. 1291 (N.D. Ill. 1993). The contract in Crocker, how-
ever, was different, because it did not provide payment
if the employee was terminated for cause; not being fired for
cause was thus a condition precedent. Id. at 1295. Navarro’s
contract contained no such provision; she was entitled to
payment even if she was fired for cause. The district court
also bolstered its reasoning by stating Navarro claimed to
lose her rights under the contracts if she were to die or re-
tire. This ignores the provisions in both contracts clearly
stating that Navarro or her estate were entitled to payment
upon her death or retirement after she completed one year
of service. Navarro completed that year of service, and so
there were no further conditions required of her to vest her
rights under the agreements. As we read it, Navarro’s
rights under the agreements actually “vested” every day she
worked on the job. On June 26, 2002, her rights under the
agreements through that day were “vested.” She is entitled
to receive the modest deferred compensation due her as of
that day.
We understand the FDIC’s desire to conserve savings and
loan assets for creditors while keeping golden parachute
money from unscrupulous executives who have run an
institution into the ground to their own benefit. That is not,
however, what happened here. These were modest agree-
ments drawn up two decades before the institution de-
faulted, and Navarro’s rights in them, we hold, were vested.
To say she could have unquestionably received the benefits
if she quit—or was fired for cause—on June 26 but that she
cannot recover because she came to work on June 27 defies
logic and common sense.
For the foregoing reasons, the judgment is REVERSED and
REMANDED for further proceedings in accordance with this
opinion.
No. 03-3265 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-15-04