UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANITA M. VANDERWIEL, )

)

Plaintiff, )

)

v. ) No. 12 C 4178

) Hon. Marvin E. Aspen

SCHAWK USA, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff Anita Vanderwiel (“Vanderwiel”) originally filed her complaint in the Circuit

Court of Cook County, alleging violation of the Illinois Wage Payment and Collection Act. 

Defendant Schawk USA, Inc. (“Schawk”) timely removed the case, arguing that the dispute

arose under an “employee welfare benefits plan” as defined in ERISA §3(1), 29 U.S.C.

§1002(1). In our August 30, 2012 ruling denying Vanderwiel’s motion for remand, we held that

ERISA completely preempted Vanderwiel’s state law claim. Currently before us is Defendant

Schawk’s Motion to Dismiss, which argues that: (1) Vanderwiel is not entitled to the relief

sought as a matter of law; and (2) Vanderwiel failed to exhaust the administrative remedies

required by the plan. In response, Vanderwiel continues to argue that her claim is not covered

by ERISA. For the reasons set forth below, we grant Schawk’s Motion to Dismiss.

BACKGROUND

On January 5, 2012, Vanderwiel was terminated from her employment with Schawk and

provided with a Notice of Termination (“Notice”). (Compl. ¶ 5.) The Notice contained

information about severance pay and other benefits as well as an Agreement and General
Release (“Agreement”). (Id.) The Notice specifically indicated that she was eligible for 84 days

of severance pay at a rate of $154.25 a day, or a total of $12,957.00. (Id. ¶ 6.) Vanderwiel

accepted the terms of the severance package and signed the Agreement. (Id. ¶ 8.) However, the

Severance Pay Plan provides for a “maximum of 8 weeks” (i.e., 40 days) of severance pay, thus

the calculation based on 84 days was allegedly a mistake. (Opp’n at 2; Notice of Removal Ex. B

at 5.) Accordingly, on January 17, 2012, Vanderwiel was informed that Schawk had made a

mistake with regards to her severance pay and provided a second Notice of Termination

(“Second Notice”) the following day. (Compl. ¶ 9.) The Second Notice indicated that

Vanderwiel was eligible for only 40 days of severance pay, at the same rate, for a total of

$6,170.00. (Id. ¶ 10.)

Vanderwiel subsequently demanded that Schawk honor the Agreement as executed on

January 5, 2012 and sought full payment of the $12,957. Schawk refused to pay the larger sum,

and Vanderwiel filed this suit. (Id. ¶ 11.) 

STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to test the

sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910

F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion to dismiss, we must accept all wellpleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s

favor. Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011); Thompson

v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). Pursuant to Federal Rule of

Civil Procedure Rule 8(a)(2), a complaint must include “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Accordingly, a court may

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grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks “enough facts to state a

claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127

S. Ct. 1955, 1974 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1949–50

(2009); Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010); Killingsworth v. HSBC

Bank Nev., N.A., 507 F.3d 614, 618–19 (7th Cir. 2007); EEOC v. Concentra Health Servs., Inc.,

496 F.3d 773, 776–77 (7th Cir. 2007). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.

ANALYSIS

Having previously determined that ERISA preempted Vanderwiel’s state law claim, we

must now consider whether Vanderwiel exhausted her internal administrative remedies before

filing suit. ERISA requires that “every employee benefit plan shall . . . afford a reasonable

opportunity to any participant whose claim for benefits has been denied for a full and fair review

by the appropriate named fiduciary.” 29 U.S.C.A. § 1133. “As a pre-requisite to filing suit, an

ERISA plaintiff must exhaust his internal administrative remedies.” Zhou v. Guardian Life Ins.

Co. of Am., 295 F.3d 677, 679 (7th Cir. 2002); Doe v. Blue Cross & Blue Shield United of Wisc.,

112 F.3d 869, 873 (7th Cir. 1997). The purpose behind this requirement is to “minimiz[e] the

number of frivolous lawsuits, promot[e] non-adversarial dispute resolution, decreas[e] the cost

and time necessary for claim settlement. . . [and] enable[] the compilation of a complete record

in preparation for judicial review.” Gallegos v. Mount Sinai Med. Ctr., 210 F.3d 803, 808 (7th

Cir. 2000); Lindemann v. Mobil Oil Corp., 79 F.3d 647, 649 (7th Cir. 1996). 

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There are two exceptions to the exhaustion requirement. The first exception, futility,

requires a plaintiff to show that “it is certain that [her] claim will be denied on appeal, not merely

that she doubts that an appeal will result in a different decision.” Lindemann, 79 F.3d at 650. 

The second exception occurs when there “is a lack of meaningful access to the review

procedures.” Smith v. Blue Cross & Blue Shield United of Wisc., 959 F.2d 655, 659 (7th Cir.

1992). A lack of meaningful access occurs when a “claimant attempts to initiate higher levels of

review procedure, but a party has denied claimant access to higher levels of review.” Carter v.

Signode Indus., Inc., 688 F. Supp. 1283, 1287 (N.D. Ill. 1988).

Schawk’s Severance Pay Plan provides that “[a]n employee . . . may file a written claim

with the Plan Administrator with respect to his or her rights to receive a benefit from the plan.” 

(Notice of Removal Ex. B at 10.) If the claim is denied, the employee may appeal the Plan

Administrator’s opinion to the Plan Administrative Committee. (Id.) It is only after the Plan

Administrative Committee denies the employee’s appeal that all internal administrative remedies

have been exhausted. (Id. at 11.) 

Vanderwiel does not allege in her complaint, nor in her response to Schawk’s Motion to

Dismiss, that she filed a written complaint with the Plan Administrator or appealed a rejection by

the Plan Administrator to the Plan Administrator Committee. (See Compl. ¶¶ 1–11; Mot. to

Dismiss Resp.) Rather, Vanderwiel states that “three days before this action was brought

Vanderwiel demanded [Schawk] honor the agreement . . . but [Schawk] refused.” (Compl. ¶ 11.) 

This demand does not conform to the administrative procedures outlined in Schawk’s Severance

Pay Plan. Neither does Vanderwiel claim that an attempt to appeal the denial of her claim would

have been futile, or that Schawk denied her access to the appeal process. In the absence of any

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allegations regarding the required administrative procedures, we must dismiss the complaint for

failure to exhaust administrative remedies.1

CONCLUSION

For the reasons set forth above, we grant Schawk’s motion to dismiss. It is so ordered.

 

Marvin E. Aspen

United States District Judge

Dated: Chicago, Illinois

October 16, 2012

1 Having decided the issue based on Vanderwiel’s failure to exhaust the administrative

procedures required by the Severance Pay Play and ERISA, we decline to address Schawk’s

argument that Vanderwiel is not entitled to relief as a matter of law.

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