A federal appeals panel has restored the right of a former Oak Park village manager to sue the village over a pension dispute in which he accused the village of forcing him out to block him from becoming fully vested in the village's pension plan.
Thomas Barwin said he resigned his at-will post, under threat of termination, in February 2012, about 30 months before fully qualifying for the municipal pension program. His lawsuit against Oak Park claims the village forced him out to prevent him from obtaining full benefits, while also refusing to let him buy out-of-state pension credits, as had been village practice, to make up the time difference.
U.S. District Judge Mary Rowland dismissed Barwin’s complaint, finding he couldn’t plausibly allege breach of duty of good faith and fair dealing simply by expecting the village wouldn’t fire or force a resignation from an at-will employee. She also entered summary judgment against him regarding the denial of pension credit purchase.
Barwin challenged that decision before the U.S. Seventh Circuit Court of Appeals. Circuit Judge Ilana Rovner wrote the opinion, issued Nov. 22; Judges Amy J. St. Eve and Candace Jackson-Akiwumi concurred.
According to court records, Barwin was a city manager in Michigan before coming to Oak Park in 2006, when he was around 50 years old. He and the village contributed to the Illinois Municipal Retirement Fund and agreed it would take eight years for his rights to fully vest. According to Barwin, Village President David Pope assured him that, should his employment end before that time, he could purchase reciprocal out-of-state credits to satisfy the minimum, subject to Village Board approval. Barwin said Pope said the village did the same for the prior manager, who had also been recruited from outside Illinois.
“Following his discussion with Pope, Barwin looked into the matter and independently confirmed what Pope had told him,” Rovner wrote. “Indeed, a total of at least five village employees (including Barwin’s predecessor) had made requests to purchase out-of-state pension credits, and the requests of all five had been granted.”
Barwin, who served as a city manager in Sarasota, Florida, until retiring at the end of 2020, said the Oak Park trustees never voted on his request to purchase pension credits because Pope never brought them the request. He claimed he didn’t make the request until after tendering his resignation because he had multiple children in college and was trying to reduce his cost of the credits.
“Barwin had a right to request a refund of the contributions he had made to the IMRF, and for its part the village could allocate the contributions it had made for Barwin to its other pension obligations,” Rovenr wrote. “So the contributions were not rendered pointless with Barwin’s ouster, and we do not read the provision dictating that the parties make such contributions as reflecting a shared expectation, let alone commitment, that Barwin would continue in the village manager position long enough for his pension rights to vest.”
The Seventh Circuit panel agreed with Judge Rowland’s ruling that Barwin can't show any expectation he would be employed long enough to meet the vesting threshold.
But the appellate judges disagreed with her determination that Barwin lacked evidence to show a village practice of allowing senior employees to buy pension credits.
The panel noted the last Oak Park employee allowed to purchase such credits did so in 2001, but said there was no evidence trustees had ever denied such a request over several decades. The judges suggested Rowland should’ve considered the fact trustees approved the deal for Barwin’s predecessor. Those factors, Rovner wrote, raised enough of a factual dispute to render summary judgment improper.
The village relied on contract language to underscore its position the right to purchase pension credits wasn’t codified, and suggested it had abanonded those prior practices. But the panel noted Oak Park is a small enough community with few enough management employees to establish that “a rigid focus on the day the employee is hired or even the duration of his tenure as an employee may not be appropriate.”
The panel further said Judge Rowland felt she couldn’t factor Pope’s comments to Barwin about the prior manager buying pension credits because of a contract clause nullifying “any prior discussions or representations by or between the employer and the employee” unless specifically included. But Rovner said the contract language as a whole was ambiguous in explicitly incorporating rights for senior employees as a matter of practice, and Barwin’s lawsuit adequately challenged exactly what such practices were.
“When Barwin specifically inquired about the point, Pope described what the village’s practice was,” Rovner wrote. “Pope was effectively describing it as an ongoing, current, practice (or so a fact-finder might conclude).”
The panel reversed the summary judgment and remanded that part of Barwin’s complaint to federal district court for further proceedings.
Barwin has been represented in the matter by attorney Ruth Irene Major, of Chicago.
Oak Park has been represented by attorney Michael A. Warner Jr., of Franczek Radelet, of Chicago.