A former School of Engineering and Applied Science professor amended his complaint against the University in court this month, rendering GW’s current attempt to have the lawsuit dismissed moot.
Last month the University filed a motion to dismiss the first of two counts in Richard Soland’s complaint, citing a lack of tangible evidence. Under law, the professor can amend his original complaint once.
Soland, who was a professor of operations research, is suing GW for failing to notify him of an upcoming school-wide SEAS buyout program as he was in the process of taking an individual buyout.
He brought a third count against the University, former Executive Vice President for Academic Affairs Donald Lehman and Lehman’s office said in the new complaint filed March 8.
Soland now alleges negligent misrepresentation occurred, saying the defendants failed to give him correct information when he asked about a voluntary separation package.
“Upon information and belief, on several occasions, Defendants falsely and negligently represented to Plaintiff that only an individual severance package was available to Plaintiff if he chose to retire around the end of 2009,” the new complaint reads.
Soland continues to allege the University engaged in a breach of fiduciary duty, and misrepresentation and estoppel pursuant to the Employee Retirement Income Security Act of 1974 – a federal law that sets minimum standards for pension plans in private industry. Fiduciary duty refers to one’s obligation to act in the best interest of another party, and estoppel is a rule that prevents a person from denying facts already determined to be true.
Back in February, the University requested that District Judge Robert L. Wilkins dismiss that count, saying Soland hadn’t “pled facts sufficient to establish an actionable claim of misrepresentation or non-disclosure under ERISA,” according to a memorandum provided with the defense’s motion.
The defense argued in its response to Soland in February that Soland wasn’t informed about the separation plan because he wasn’t eligible for benefits under the plan.
The defense also denied in its February response that “any SEAS-wide voluntary separation program was in the works” in November 2008, the time when the professor found out details of his separation package.
Soland claims the University didn’t tell him the plan was in the works as he made his decision to retire in early 2008.
He retired at the end of December 2009, but claims in court documents had he known about the upcoming buyout he would have remained employed another five months and been eligible to receive $325,306 in severance benefits.
Soland is now seeking a severance payment equal to what he would have received under the 2009 buyout, as well as attorney and other fees.
He received $162,653 in his individual buyout.
The University offered the 2009 buyout plan to full-time professors who worked for GW since July 1994 or earlier. Soland came to GW in 1978, but his individual buyout was approved in April 2008 before the latest separation package.
Once Soland found out about the school-wide buyout, he corresponded with Lehman to determine if he was eligible.
Lehman told Soland in December 2009 that he didn’t believe the professor was eligible, as his “full-time active status” with the University ended at the end of fall 2008 semester, according to court documents.
Soland still submitted paperwork for the 2009 plan, but Lehman formally denied his claim on behalf of his office and the University in February of last year.
Though Soland appealed this decision in April 2010, he was denied again two months later. At that time Lehman allegedly admitted the separation plan doesn’t define “full-time regular active faculty member,” but argued that Soland didn’t meet a generally accepted definition of the status.
The administrator also claimed that faculty had to be employed through at least May 31, 2010, to be eligible for the plan, according to court documents.
Christopher Weals, one of the University’s attorneys, declined to comment, as his firm doesn’t comment on pending litigation.
The defense had until Friday to file a response to the new complaint, but it filed a motion that day for an extension until April 1.
The additional seven days were requested to research Soland’s new claim and because the in-house counsel for GW wasn’t available to review papers prior to filing, according to court documents. Soland’s attorney consented to this motion, the documents state.
Soland’s attorney, Jason Ehrenberg, declined to comment on the pending litigation. Soland, reached at his home via phone Friday, declined to comment, citing the advice of his lawyer.