930 F2d 913 Childers Cj Kd v. Hubbell Incorporated

930 F.2d 913
Unpublished Disposition

Charles M. CHILDERS, Raymond Watts, Charles E. McCane, C.J.
Burcham, Kenneth A. Egan, Charles C. Wilson, Charles B.
Godgluck, Harold J. Schumacher, K.D. Egan, Richard T.
Jankowski, Steven Boothe, Lois L. Bates, Betty S. Morris,
Woodrow D. Bryan, Plaintiffs-Appellants,
HUBBELL, INCORPORATED, a foreign corporation, Defendant &
Third-Party Plaintiff-Appellee,
Products, Incorporated, a Delaware corporation,
formerly The Ohio Brass Company,
Third-Party Defendants-Appellees.

No. 90-2158.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1991.
Decided April 18, 1991.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Charles H. Haden, II, Chief District Judge. (CA-89-887-3)

Raymond Lynn Hampton, II, Vital, Vital & Hampton, Barboursville, W.Va., for appellants.

Robert Schaub, Schaub Law Offices, L.C., Huntington, W.Va., for appellee Hubbell;

Donald Bruce O'Dell, Lamp, O'Dell & Bartram, Huntington, W.Va., for appellee Enertec Petroleum.



Before SPROUSE, Circuit Judge, BUTZNER, Senior Circuit Judge, and FRANKLIN T. DUPREE, Jr., Senior United States District Judge for the Eastern District of North Carolina, sitting by designation.


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Woodrow D. Bryan is one of several plaintiffs who were salaried employees of the Ensign Division of Hubbell, Inc. ("Ensign"). Ensign manufactured and continues to manufacture electrical equipment for use in the coal mining industry. In October 1987, Hubbell sold all of Ensign's business, property, and assets as a going business to Enertec Petroleum, Inc. Since the sale, Ensign has continued operations as a part of OB Products, Inc., now renamed OB Systems and Mining, Inc. The parties stipulated that, following the sale, plaintiffs were promptly placed on OB's payroll and continued employment without interruption at Ensign at the same location, in their same positions, at the same salaries, with the same duties and with much the same, though not identical, employee benefits. None has lost any salary or wages and, at all times since the sale, OB has maintained a severance plan applicable to plaintiffs.


The action we review was instituted by Bryan and the other plaintiffs for severance pay which they contend was due them under an unwritten plan established by Hubbell. According to plaintiffs, the severance plan was established by Hubbell's practice of paying benefits to terminated Ensign employees over the years, and that once established, the plan was governed by ERISA.1 Plaintiffs further contend that, although their employment arrangement had been virtually undisturbed, the sale of Ensign triggered payment of their severance benefits because they are now working for a different corporate employer.


The district court rejected plaintiffs' argument, holding that our decision in Sejman v. Warner-Lambert Co., 889 F.2d 1346 (4th Cir.1989), cert. denied, 111 S.Ct. 43 (1990), controlled. In Sejman, which involved facts very similar to the case sub judice, plaintiffs worked in a division of Warner-Lambert which was subsequently sold to Professional Medical Products, Inc. ("PMP"). Following the sale of their division, plaintiffs continued to work for PMP "in the same job, at the same location, with the same seniority, at the same or higher salaries, and with fully comparable employee benefits." Sejman, 889 F.2d at 1347. Benefits under PMP's severance policy were later reduced and certain employees were later terminated. Plaintiffs contended that they retained a continuing right to severance payments under WarnerLambert's policy and that they were wrongly denied severance payments at the time of divestiture. In rejecting these claims, we stated:


Requiring such an ongoing obligation for severance payments after employees are employed elsewhere could discourage employers like Warner-Lambert from seeking to ensure that their former employees retain their old positions or encourage such employers to forego severance payments altogether.






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We uphold, as did the district court, Warner-Lambert's interpretation of its 1981 severance pay policy to exclude from the definition of job termination those who continued working at the same job, in the same facility, at the same tasks for comparable rates of compensation and benefits.


Sejman, 889 F.2d at 1349-50 (citations omitted).


We agree with the district court that the dispositive issue in this case is controlled by our holding in Sejman. We also find no merit to plaintiffs' other subsidiary claim. In view of the above, the judgment of the district court is affirmed.




Employee Retirement and Income Security Act, 29 U.S.C. Secs. 1001 et seq. We assume, without deciding, that a severance plan existed