the suit under the governing law will preclude the entry of summary judgment. Id.
The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat. Laboratory, 992 F.2d 1033, 1036 (10th Cir. 1993). The movant may discharge its burden "by 'showing' -- that is, pointing out to the district court-that there is an absence of evidence to support the [nonmovant's] case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant need not negate the nonmovant's claim. Id. at 323. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The nonmovant must go beyond the pleadings and, by affidavits or the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is some genuine issue for trial. Fed. R. Civ. P. 56(c). See also Celotex, 477 U.S. at 324 (interpreting 56(e)).
Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Celotex, 477 U.S. at 322. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323.
When examining a motion for summary judgment, the court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir. 1986) (stating that "the court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues").
Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Anderson, 477 U.S. at 250. That is, the court decides whether there are any genuine factual issues that can be resolved only by a trier of fact because they reasonably may be resolved in favor of either party. Id.
The court has attempted to follow the general outline of the parties in its discussion of the issues before it. The court makes two initial findings which directly impact the ultimate decision of the court in granting defendant's motion for summary judgment. First, the court finds, as a matter of law, that the 1988 edition of the Handbook is applicable in this case. The Handbook superseded the 1986 edition and had been in use for over three years prior to the sale of Farm Publications to Farm Progress. Second, the court finds, as a matter of law, that plaintiff's claim pursuant to the Kansas Wage Payment Act, K.S.A. 44-313 et seq., is preempted by ERISA.
A. Kincaid's Entitlement to Severance Under HBJ's Plan
In Count I, Kincaid alleges that he was improperly denied severance benefits under the Plan established by HBJ.
There is no question that an unfunded severance pay policy, like HBJ's, is an "employee welfare benefit plan" within the meaning of ERISA. Firestone Tire & Rubber Co., v. Bruch, 489 U.S. 101, 115, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989); Wallace v. Firestone Tire & Rubber Co., 882 F.2d 1327 (8th cir. 1989); 29 U.S.C. § 1002(1).
The plan, as set forth in the 1988 edition of the Handbook, clearly states that severance benefits will be paid if certain conditions are met.
It also clearly states that severance is never paid when a division of HBJ is sold and an employee is offered continued employment with the buyer. This clear and unambiguous language, leads to the conclusion that plaintiff was ineligible for any severance benefits because he was offered and accepted employment with the buyer. Under elementary principles of contract law, courts do not alter the terms of contracts absent an ambiguity. Awbrey v. Pennzoil, 961 F.2d 928, 930-31 (10th Cir. 1992). There is no ambiguity in the language of the Handbook.
If a plan gives the administrator of that plan the authority to determine eligibility or construe and interpret the terms of the plan, the court will defer to the administrator. Bruch, 489 U.S. at 115. HBJ by its own words ". . . reserves the right, on a case-by-case basis, to interpret its stated or usual policies, practices, and procedures, when the company deems it necessary or appropriate." HBJ did make exceptions for two employees in plaintiff's division who were offered employment by Farm Progress, but did not accept because of substantial hardship. No employee who was offered and accepted employment with Farm Progress was paid severance.
Even if an administrator deviates from the plan among similarly situated employees, there is no basis to conclude that the administrator acted arbitrarily in denying benefits to an individual such as Kincaid.
Kelly v. American Telephone & Telegraph Co., 1989 WL 21010 (D. Kan. 1989), citing Redmond v. Burlington Northern R.R. Co. Pension Plan, 821 F.2d 461, 469 (8th Cir. 1987).
Kincaid's claim that he was unfairly treated in comparison to the two employees who received severance benefits is not persuasive. If Kincaid is awarded severance benefits, in addition to the salary he received from his continued employment with Farm Progress, the windfall he would experience is not what is contemplated under most severance benefit plans. Our Tenth Circuit Court of Appeals has "interpreted severance pay plans as forms of unemployment benefits, and not as bonus payments to be received on termination." Awbrey, 961 F.2d at 931.
A plain reading of HBJ's Plan which was contained in the 1988 edition of the Handbook and which was reasonably interpreted and administered by HBJ leads to court to conclude that HBJ Administrators did not abuse their discretion.
B. Kincaid's Claim Under the Kansas Wage Payment Act K.S.A. 44-313, et seq.