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William J. Flohrs v. Eli Lilly and Company and Aon Hewitt Benefit Payment Services

May 7, 2013


The opinion of the court was delivered by: Sam A. Crow, U.S. District Senior Judge


One day after this Court granted Defendant Eli Lilly Company's motion for summary judgment, Plaintiff filed his second amended complaint naming only Aon Hewitt Benefit Payment Services, LLC (Aon Hewitt) as a defendant. The sole claim stated is "[f]ailure of the Defendant to provide accurate information on when to initiate pension benefits that were due Plaintiff." Dk. 50, p. 3.

The facts stated in support of this claim are identical to those Plaintiff stated against Eli Lilly:

The Plaintiff was going to retire from [Defendant] on October 30, 2008. The Plaintiff called the Benefits Helpdesk on October 8, 2008 and asked, "If I start taking my pension benefit on November 1, 2008 or wait 5 years to start taking my benefits, will there be a difference in the amount of benefits that I would receive?" The answer the Plaintiff received from the person at the Helpdesk was, "Yes, there will be a substantial difference."

Dk. 50, p. 3. Plaintiff further alleges that based on this information, he waited to start receiving benefits, but in June of 2010, found out that "this information was wrong." Id., p. 4. He states that he contacted Eli Lilly to request back benefits due, but they refused to provide those benefits, and alleges that "Hewitt provided website services and may have provided other services (Helpdesk) to Eli Lilly and Company." Id. Plaintiff elsewhere alleges that Hewitt may have been the administrator of one or both of the committees which denied his claim. He seeks 19 months of benefits at $3,206.74 per month plus interest, filing fees, and attorney's fees, although he is acting pro se. Other than its references to Hewitt, the complaint is identical to the original complaint against Eli Lilly.

I. Motion to Strike

Plaintiff moves to strike an affidavit Eli Lilly presented in support of its previous motion for summary judgment because it discloses the amount of severance pay he received, and to strike all documents, including this Court's order, which recite that amount. Plaintiff contends that the amount of his severance pay is personal, confidential information and that disclosing it violates Eli Lilly's privacy policy; that Eli Lilly used the information for its financial gain by persuading the Court to grant its summary judgment motion; and that disclosure violates his privacy rights and constitutes the crime of identity theft.

Upon motion of a party or upon its own motion "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P.12(f). Motions to strike, however, are disfavored. Falley v. Friends University, 787 F.Supp.2d 1255, 1257 (D.Kan. April 14, 2011). The court should not strike material from a pleading unless that material has no possible relation to the controversy and may prejudice the opposing party. Id.

Plaintiff's motion to strike is denied for multiple reasons. First, the challenged affidavit was used in support of Eli Lilly's summary judgment motion which the Court granted in December of 2012. By seeking to strike the affidavit, Plaintiff essentially asks the Court to reconsider its order granting summary judgment. But such a request must be made, if at all, by a motion pursuant to Fed. R. Civ. P. 60, which Plaintiff has not filed.

Secondly, Plaintiff should have objected to disclosure of the amount of his severance pay, if at all, when he first learned of it. As Plaintiff acknowledges, the amount of his severance pay was twice stated as an uncontested fact in Eli Lilly's memorandum in support of its motion for summary judgment, and was referenced in counsel's argument as well. (See Dk. 19, pp. 9, 11, 18). Plaintiff received that memorandum and had a duty to respond to each uncontested fact asserted by Eli Lilly, see D.Kan.Rule 56.1, yet raised no objection to the repeated disclosure of the amount of his severance pay. That inaction resulted in a waiver.

Further, by initiating this lawsuit and raising a claim related to the amount of his retirement benefits, Plaintiff should reasonably have expected a defense based on the terms of the Severance Agreement. By putting the terms of the Severance Agreement at issue, Plaintiff may have waived whatever privacy interest he could otherwise show he had in those terms. Plaintiff has not shown that the amount of his severance pay has no possible relation to the controversy, or that its disclosure prejudices him in any way.

But even assuming that the merits of this issue are properly before the Court, the Court finds no reason to believe that disclosure of the amount of Plaintiff's severance pay was in error. Plaintiff does not show the Court that the amount of his severance pay is per se private, confidential, redundant, immaterial, impertinent, or scandalous. Although some companies may consider salary information of current employees to be private, in that event they instruct their employees to that effect. See e.g., Biglow v. Boeing Co., 182 F.Supp.2d 1037, 1048 (D.Kan. 2001) (finding that the supervisor "stressed the importance of confidentiality and stated that salary information is private and that plaintiff should not discuss it with co-workers.") Plaintiff has not shown that Eli Lilly considers the amount of severance pay to be private, nor has Plaintiff shown any reason why the amount of money paid to one separating from the company as Plaintiff did should be kept confidential.

Plaintiff primarily asserts that the disclosure violated Eli Lilly's internal privacy policy, but nothing in that policy defines "personal information" to include severance pay or salary, specifically, or that kind of information, generally. See Dk. 70, Exh. 1. Nor does any language in Plaintiff's Severance Agreement suggest that the amount of severance pay is private or confidential. See Dk. 20, Exh. 2, p. 54-60.

Plaintiff alludes to civil actions including breach of contract, and to federal prosecution for violation of criminal laws prohibiting identity theft, but even if such actions were somehow meritorious, they are not properly brought in this lawsuit ...

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