369 N.E.2d 140 (1977)
53 Ill. App.3d 943
11 Ill.Dec. 686
CENTRAL STEEL & WIRE CO., a corporation, Plaintiff-Appellee,
v.
COATING RESEARCH CORPORATION, Defendant-Appellant.
No. 76-1609.
Appellate Court of Illinois, First District, Fifth Division.
October 7, 1977.
*141 Thomas H. Rudnik, Chicago, for defendant-appellant.
Charles L. Wolberg and Merrill B. Meyer, Chicago, for plaintiff-appellee; Rappaport & Meyer, Chicago, of counsel.
SULLIVAN, Presiding Justice.
This is an appeal from a judgment for plaintiff in the amount of $1,799.04 after a bench trial. The amount represented a balance due on the account between the parties for the sale and delivery of a quantity of material. Defendant contends (1) that the trial court erred in allowing the impeachment of its president without a foundation having been laid and in admitting certain business records; and (2) that the evidence established plaintiff contracted and did business with a third party, Coating Research Corporation of Michigan, and not with defendant.
*142 Only two witnesses testified in this case. James Miller, an inside salesman for plaintiff, stated that in February, 1975, he received a telephone order for material from Rich Vignola, who said he was ordering for Coating Research Corporation, in Schaumburg, Illinois (defendant herein) and that Vignola requested that the material be delivered to E-Z Grinding Company, also in Schaumburg. In March, 1975, the material was delivered as requested, and a billing was sent to defendant for $1,854.04of which only $75 has been paid.
Richard Vignola, president of defendant company, denied ordering the material in question and denied promising that defendant would pay for it. He said that defendant had never done business with plaintiff and the type of material involved (aluminum) was not used in the regular course of defendant's operations. He remembered receiving a billing for the material but stated his belief that he told plaintiff to send the bill to Coating Research Corporation of Michigan, located in Detroit. Vignola admitted that he designed and assembled a machine for the Michigan corporation and that the material in question which had been sent to E-Z Grinding was eventually used in the machine he had designed. He also recalled having telephone conversations with personnel of plaintiff subsequent to the original billing for the material but stated he made no promise that defendant would pay it.
Vignola testified also that Carl Bagnell had asked him in September, 1974, to design the machine and that Bagnell, being without funds, said he would form a corporation and give Vignola stock for the work he was to do. Although Coating Research Corporation of Michigan was incorporated on November 5, 1974, with Bagnell as president, Vignola said he never received any stock and did not know whether he was listed as an officer but he did cosign some of that company's checks with Bagnell.
A number of exhibits offered by plaintiff were received in evidence, including the telephone order form in the handwriting of Miller, which bears the name of defendant as the customer and Rich Vignola as the caller. Included also was a follow-up billing which was admitted for the limited purpose of showing that plaintiff had billed defendant.

OPINION
Defendant first contends that the trial court improperly allowed impeachment of its president, Vignola.
During a section 60 examination, after Vignola had denied any promise to pay for the materials, he was asked the following question by plaintiff's attorney:
"So, if I told you that my records show that you had a conversation with the Credit Manager at Central Steel and Wire on September 16, 1975 in which you promised payment, would you say that was incorrect?"
Thereafter, the following colloquy occurred:
"MR. RUDNIK: Objection, your Honor. He's already answered.
MR. MEYER: No. He can answer that.
THE COURT: Let him finish his objection.
MR. RUDNIK: He's already asked and he's already answered. It's asked and answered. I think he's trying to refresh recollection possibly with a document that's self-serving. I don't think he can even refresh the recollection of the witness at this point. So I would object. It's been answered already.
THE COURT: You may answer. Overruled. Answer.
BY THE WITNESS:
A Okay. The procedure was if I had spoke to any individuals that called for the Michigan corporation, the only answers I would have given Central Steel would have been that any payment that was due to them would probablywould have to come from the Detroit corporation."
Defendant now argues the question asked was an attempt to impeach Vignola and that the court erred in allowing the question to be asked because no foundation *143 had been laid. We reject this contention for a number of reasons: First, although a proper objection should have been sustained to the question because it is clearly improper as to form and substance, it appears that defendant objected only because the question had already been asked and answered. However, as the record discloses that the question had not been previously asked, the court did not err in overruling the objection on that ground. Moreover, a specific objection to evidence, as was the case here, is a waiver of other grounds. (See E. A. Meyer Construction Co. v. Drobnick (1964), 49 Ill.App.2d 51, 199 N.E.2d 447; Atlee Electric Company, Inc. v. Johnson Construction Co. (1973), 14 Ill.App.3d 716, 303 N.E.2d 192; 34 Ill.L. & Prac. Trial § 63 (1958).) Second, where the ground of an objection is of a character that may be obviated or remedied, the party objecting must point out the objection specifically, so as to afford the opportunity to correct it. (People v. Fain (1976), 41 Ill.App.3d 872, 355 N.E.2d 61; Mack v. Davis (1966), 76 Ill. App.2d 88, 221 N.E.2d 121.) Since foundation is required where the impeachment is by prior inconsistent statement (People v. Powell (1973), 53 Ill.2d 465, 292 N.E.2d 409), and because lack of foundation is a ground of objection which is of a character that might be obviated or remedied, it should have been specifically stated (see 34 Ill.L. & Prac. Trial § 63 (1958)). Third, because an objection to lack of foundation should have been made in the trial court, the ground may not be raised on appeal for the first time. (First National Bank of Elgin v. Husted (1965), 57 Ill.App.2d 227, 205 N.E.2d 780.) Fourth, even were we to assume error in allowing the question to be answered, reversal is not required where there has been no prejudice. (Walters v. Taylor (1976), 36 Ill.App.3d 934, 344 N.E.2d 765; Fugate v. Sears Roebuck & Co. (1973), 12 Ill.App.3d 656, 300 N.E.2d 600.) Here, Vignola made no direct answer to the question, and the only possibility of prejudice would be an implication from the question that he promised payment to plaintiff's credit manager. In view of the fact that Vignola on several occasions made the positive statement that he made no promises to pay the billing and because the record reveals no indication that the court gave any consideration to the implication in the question, we see no prejudice whatsoever to plaintiff.
Defendant also argues that the admission in evidence of plaintiff's billing statement was error because neither the keeper of the records nor his supervisor gave foundation testimony for their admission. We disagree.
It appears that the billing statement was introduced as a business record under Illinois Supreme Court Rule 236(a) (Ill.Rev. Stat.1973, ch. 110A, par. 236(a)), which provides:
"(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term `business,' as used in this rule, includes business, profession, occupation, and calling of every kind."
Under this rule, the witness who testifies as to the records may be anyone acquainted with the business and familiar with the records themselves. Benford v. Chicago Transit Authority (1973), 9 Ill. App.3d 875, 293 N.E.2d 496; Smith v. Williams (1975), 34 Ill.App.3d 677, 339 N.E.2d 10.
In the instant case, it appears from Miller's testimony that he was familiar with the company's billing process; that the statement was made in the regular course of its business and was kept as a part of its permanent records; and that he had more *144 than a surface knowledge, as the matter in question was his personal account. In the absence of any evidence to the contrary as to Miller's knowledge, it is our belief that his testimony formed a sufficient basis for the admission of the record.
Lastly, defendant contends that a third party, Coating Research Corporation of Michigan, an entity separate from defendant, was responsible for payment of the material.
It is within the province of the trial court to weigh the evidence presented and to make findings of fact (Stilwell v. Continental Illinois National Bank and Trust Co. (1964), 31 Ill.2d 546, 202 N.E.2d 477), and unless the holding of that court is manifestly against the weight of the evidence, a reviewing court will not disturb its judgment (Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 226 N.E.2d 624).
Defendant maintains that the materials in question "were ordered by Coating Research Corporation, a Michigan Corporation, and by someone other than Richard Vignola, president of Coating Research Corporation, an Illinois corporation"; that the corporations were separate entities; and that although plaintiff began to send bills to defendant and spoke to Vignola about them, "Mr. Vignola never promised to pay the debt but indicated that the Michigan corporation was the proper corporation to send the bills to." It is the testimony of plaintiff's salesman (Miller) however, that Vignola telephoned the order to him and requested that the materials be sent to E-Z Grinding Company, in Schaumburg; that Vignola represented he was calling for Coating Research Corporation in Schaumburg (defendant herein); that the material was in fact sent to E-Z Grinding Company and a bill sent to the Schaumburg address of defendant. In support of Miller's testimony, a number of records were introducedsignificant of which was the telephonic order form for the material filled out in the handwriting of Miller, bearing the name of plaintiff as the customer and Vignola as the caller, and a copy of a billing sent to defendant. Additionally, it was admitted by Vignola that he designed and assembled the machine into which the materials eventually were placed after they were initially sent to E-Z Grinding Company. Furthermore, although he admitted discussions with personnel of plaintiff concerning the billing of the material and indicated they should be sent to the Michigan corporation, the record does not disclose that he informed plaintiff at any time that the latter corporation was responsible for payment.
Under these circumstances, we cannot say that the finding of the trial court was against the manifest weight of the evidence.
In view of the foregoing, we affirm the judgment appealed from.
Affirmed.
LORENZ and WILSON, JJ., concur.


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 12-6357

NOEL GRAY,

                Petitioner - Appellant,

          v.

WARDEN ROBERT M. STEVENSON, III,

                Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Florence.   Cameron McGowan Currie, District
Judge. (4:11-cv-00227-CMC)

Submitted:   May 31, 2012                  Decided:   June 6, 2012

Before KING, DUNCAN, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Noel Gray, Appellant Pro Se.       Donald John Zelenka, Deputy
Assistant Attorney General, William Edgar Salter, III, Assistant
Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Noel Gray seeks to appeal the district court’s order

denying relief on his 28 U.S.C. § 2254 (2006) petition.                                   The

district court referred this case to a magistrate judge pursuant

to 28 U.S.C.A. § 636(b)(1)(B) (West 2006 & Supp. 2011).                                   The

magistrate judge recommended that relief be denied and advised

Gray     that     failure        to   file        timely    objections          to    this

recommendation could waive appellate review of a district court

order based upon the recommendation.

            The     timely       filing      of    specific      objections          to     a

magistrate      judge’s     recommendation          is     necessary       to    preserve

appellate review of the substance of that recommendation when

the     parties     have     been      warned        of    the       consequences         of

noncompliance.       Wright v. Collins, 766 F.2d 841, 845-46 (4th

Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985).                              Gray

has waived appellate review by failing to timely file objections

after    receiving    proper      notice.          Accordingly,       we   deny      Gray’s

pending    motion    to     appoint       counsel,        deny   a    certificate         of

appealability, and dismiss the appeal.

            We dispense with oral argument because the facts and

legal    contentions       are    adequately       presented     in    the      materials

                                             2
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED

                                    3


978 P.2d 663 (1999)
COORS BREWING COMPANY, Petitioner,
v.
David J. FLOYD, Respondent.
No. 97SC821.
Supreme Court of Colorado, En Banc.
January 11, 1999.
*664 Hall & Evans, L.L.C., Daniel R. Satriana, Steven M. Gutierrez, Denver, Colorado, Attorneys for Petitioner
Cheryl Redmond Doyle, Denver, Colorado, Eugene F. Tardy, Lakewood, Colorado, Attorneys for Respondent
Arckey & Reha, L.L.C., Thomas J. Arckey, Jeffrey Menter, Littleton, Colorado, Sander N. Karp, Julie Berquist, Denver, Colorado, Attorneys for Amicus Curiae Plaintiff Employment Lawyers Association
Justice BENDER delivered the Opinion of the Court.
In this case, we decide whether the court of appeals correctly reversed the trial court's dismissal of two of David Floyd's tort claims against his former employer, the Coors Brewing Company (Coors). We hold that Floyd failed to state a claim for intentional infliction of emotional distress by outrageous conduct because Coors's alleged behavior does not rise to the high level of outrageous conduct required under our case law. We also hold that Floyd failed to state a claim for wrongful discharge in violation of public policy because he did not allege that he refused to participate in the illegal conduct. Therefore, on these two issues, we reverse the court of appeals decision, Floyd v. Coors, 952 P.2d 797 (Colo.App.1997), and we remand this case with instructions that the court of appeals return the case to the trial court for dismissal of these two claims.

I. FACTS
Because this case concerns the adjudication of a motion to dismiss for failure to state a claim, our recitation of the facts is a distillation of the relevant allegations in Floyd's complaint. We emphasize that these "facts" are merely allegations and that by reciting them here, we make no assessment of their truthfulness. Indeed, for the purposes of this case, we are required to accept Floyd's allegations as true.
Floyd worked as an investigator in the Security Department at Coors from March 1977 until October 1992, when he was fired. Beginning in 1984, acting on instructions from senior executives at Coors, Floyd performed surreptitious narcotics investigations of Coors employees. Coors's in-house legal counsel consented to Floyd and other Coors employees undertaking these investigations.
In November 1987, Coors's outside legal counsel advised Coors not to participate in these investigations because of unwarranted legal risks, including the potential for civil rights litigation against Coors. Despite this advice, Coors conspired with its outside legal counsel to continue these investigations and to conceal Coors's involvement in them. Thus, Coors and its outside legal counsel devised a scheme to launder Coors funds to be used in the investigations by means of fraudulent billing for legal services through the law firm. Over the course of several years, some $266,000 was laundered through the law firm for the purposes of funding the investigations. The purpose of this laundering scheme was to circumvent Coors's internal policies and to conceal Coors's disbursement of funds for the investigations.
In November 1987, an attorney from the law firm advised Floyd that the "best" drug investigations for Coors to be involved with were those that could not be traced to Coors. This lawyer and a senior Coors executive directed Floyd to "bury" evidence of the drug investigations.
*665 In August 1992, Coors executives met and planned Floyd's termination in order to protect themselves from liability for their orchestration of the drug investigations and related money-laundering scheme. That month, one of these executives, who was also Floyd's supervisor, ordered Floyd to provide an accounting for $288,000 worth of expenses related to investigations that had taken place over a period of seven years. Floyd and another Coors security officer spent an entire week reconstructing the seven years of expenses. The supervisor rejected the accounting provided without explanation.
In October 1992, senior Coors executives fired Floyd for these stated reasons: improprieties with a female employee, failure to account for company funds, and misuse of company funds. Floyd alleges that these reasons were pretextual and that the real reason Coors executives fired him was to cover up their own misconduct by making it appear that Floyd was solely responsible for the illegal investigations. Floyd claims that Coors's actions were intentional and that as a result he suffered substantial and serious emotional distress.
Assuming Floyd's factual allegations to be true, the trial court granted Coors's motion to dismiss for failure to state a claim with respect to Floyd's claim for intentional infliction of emotional distress by outrageous conduct and his claim for wrongful discharge in violation of public policy.
The court of appeals reversed both rulings. See Floyd, 952 P.2d at 804-05. The court of appeals held that the trial court's dismissal of Floyd's outrageous conduct claim was in error because reasonable people could disagree about whether the series of acts alleged by Floyd was outrageous. See id. at 804. Regarding the public policy claim, the court of appeals ruled that by claiming that his supervisors fired him in order to conceal their own illegal conduct, Floyd stated a cognizable claim for wrongful discharge in violation of public policy. See id. at 805.
We granted certiorari on the following issues: (1) whether the trial court erred in dismissing Floyd's fifth claim for relief for alleged outrageous conduct based upon the allegations of Floyd's complaint; and (2) whether the trial court erred in dismissing Floyd's sixth claim for relief for wrongful discharge in violation of public policy against Coors at the pleading stage.

II. APPELLATE REVIEW OF A MOTION TO DISMISS UNDER RULE 12(b)(5)
Before addressing each of Floyd's claims, we briefly note that we accept the claims of the complaint as true and construe them in the light most favorable to Floyd.
The trial court granted Coors's motion to dismiss Floyd's claims under C.R.C.P. 12(b)(5). This rule is designed to allow defendants to "test the formal sufficiency of the complaint." Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo.1996). In evaluating a Rule 12(b)(5) motion, courts may consider "only those matters stated in the complaint." Abts v. Board of Educ., 622 P.2d 518, 522 n. 5 (Colo.1980). A trial court must accept all allegations of material fact as true and view the allegations in the light most favorable to the plaintiff. See Dorman, 914 P.2d at 911. Such motions "are viewed with disfavor, and a complaint is not to be dismissed unless it appears beyond doubt that the plaintiff cannot prove facts in support of the claim that would entitle the plaintiff to relief." Id. When reviewing cases involving a trial court's ruling on a motion to dismiss pursuant to Rule 12(b)(5), we apply these same standards. See id.

III. OUTRAGEOUS CONDUCT
In Colorado, to state a claim for intentional infliction of emotional distress by outrageous conduct, a plaintiff must allege behavior by a defendant that is extremely egregious. Here, we hold that Floyd fails to meet that high standard as a matter of law.
Before permitting a plaintiff to present a claim for outrageous conduct to the jury, the trial court must initially rule on the threshold issue of whether the plaintiff's allegations of outrageous conduct are sufficiently outrageous as a matter of law: "Although the question of whether conduct is outrageous is generally one of fact to be determined by a *666 jury, it is first the responsibility of a court to determine whether reasonable persons could differ on the question." Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 883 (Colo.1994). Here, the trial court found that reasonable people could not differ on the question of whether Coors's alleged conduct was outrageous, but the court of appeals disagreed.
To begin our analysis of this issue, we turn to basic principles of law regarding the tort of intentional infliction of emotional distress by outrageous conduct. In Rugg v. McCarty, 173 Colo. 170, 176, 476 P.2d 753, 756 (1970), we approved the definition of this tort as set out in the Restatement (Second) of Torts § 46 (1965): "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Id. We applied the Restatement's commentary to hold that the level of outrageousness required for conduct to create liability for intentional infliction of emotional distress is extremely high: "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id.
In Cronk v. Intermountain Rural Elec. Ass'n, 765 P.2d 619, 621 (Colo.App.1988), the Colorado Court of Appeals decided a case analogous to this one in which several plaintiffs alleged claims for outrageous conduct and for wrongful discharge in violation of public policy. In that case, one plaintiff alleged that he was fired because he asked for a transfer since he could not support the policies of his supervisor, who was directing him to engage in illegal practices, while another plaintiff alleged that he was fired for giving truthful testimony to the Public Utilities Commission during their investigation of these illegal practices. See id. The court of appeals held that even though the plaintiffs' wrongful discharge claims were sufficient to survive summary judgment, as a matter of law, the plaintiffs' allegations did not meet the high standard for outrageous conduct claims that we established in Rugg v. McCarty. See id. at 622, 624.
Applying this high standard here, we hold that the conduct Floyd alleges is insufficient to state a claim for intentional infliction of emotional distress by outrageous conduct. For the purposes of this appeal, we accept as true Floyd's allegations that Coors engaged in an extensive criminal conspiracy involving illegal drugs and money laundering and that Coors fired Floyd to scapegoat him for these crimes. However, we find that the outrageousness of Coors's alleged criminal conduct towards society  conduct that Floyd participated inis irrelevant to Floyd's claim as an individual tort plaintiff seeking to sue Coors. To assess Floyd's tort claim, we focus on Coors's behavior toward Floyd and whether it was "so extreme in degree, as to go beyond all possible bounds of decency, and to be and utterly intolerable in a civilized community." Rugg, 173 Colo. at 176, 476 P.2d at 756. As a matter of law, we hold that Floyd's allegations fail to meet this exacting standard. Because no reasonable person could find that Coors's alleged scapegoating of Floyd arose to the high level of outrageousness required by our case law, the court of appeals erred in reversing the trial court's dismissal of this claim.

IV. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
Turning to the wrongful discharge claim, we hold that Floyd's complaint fails to allege facts that would create a public policy justification entitling him to keep his job.
Under common law, either an employer or an employee can terminate an at-will employment relationship without incurring legal liability for this termination. See Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 104-05 (Colo.1992). In Martin Marietta Corp. v. Lorenz, we first recognized the public policy exception to an employer's right to fire an employee. See id. at 108. As a general matter, the public policy exception allows at-will employees to pursue claims for wrongful discharge if they allege that they were discharged because they either (1) refused *667 to engage in conduct that would violate public policy, or (2) engaged in conduct that is protected or encouraged as a matter of public policy. In Lorenz, the employee, Lorenz, alleged that he had been discharged because of his refusal to obey his employer's order to write a report attesting to the suitability of some materials for space vehicles for the National Aeronautics and Space Administration (NASA). See id. at 102-03. In Lorenz's professional judgment as a mechanical engineer, the materials in question had not been subjected to adequate testing, and therefore writing such a report would have constituted a fraud on NASA. See id. Thus, in Lorenz, we recognized the public policy exception to the at-will employment doctrine, reasoning that an employee "should not be put to the choice of either obeying an employer's order to violate the law or losing his or her job." Id. at 109.
Interpreting Lorenz more recently, we held that a claim for wrongful discharge under the public policy exception must contain the following elements:
(1) the employer directed the employee to perform an illegal act as part of the employee's work related duties; (2) the action directed by the employer would violate a statute or clearly expressed public policy; (3) the employee was terminated as a result of refusing to perform the illegal act; and (4) the employer was aware or should have been aware that the employee's refusal was based upon the employee's reasonable belief that the act was illegal.

Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 527 (Colo.1996) (emphasis added).[1]
Floyd asks us to expand the public policy exception beyond Lorenz and Mariani to include situations in which an employee performs the illegal act required by his or her employer and then the employer fires the employee to cover up the employer's complicity in the crime. We decline to do so. Such an expansion of the public policy exception is not warranted. The public policy exception protects an employee from being forced to choose between committing a crime and losing his or her job.[2] If an employee commits a series of crimes and only points the finger at his employer after he has been fired, then there is no public policy rationale that supports the expansion of the exception to the general rule that an employer may discharge an at-will employee without liability.[3] An at-will employee who participates in a criminal enterprise and does nothing to blow the whistle on this criminal enterprise does not gain special protection from discharge simply because the employer was also a complicitor in the crimes committed.
Here, Floyd makes no allegation that at any time he refused to engage in the illegal acts that his supervisors allegedly directed him to do. On the contrary, he admits participating in the illegal undercover operations for at least seven years. During this long period of time, according to Floyd's version of events, not once did he express an unwillingness to follow his superiors' instructions, refuse to participate in the illegal investigations, or blow the whistle on this alleged criminal enterprise. Viewing Floyd's factual allegations in the light most favorable to him, *668 we hold that Floyd's complaint fails to state a claim for wrongful discharge under the public policy exception.

V. CONCLUSION
In conclusion, we reverse the court of appeals decision with respect to these two issues only, and we remand the case with instructions that it be returned to the trial court for dismissal of Floyd's claim for intentional infliction of emotional distress by outrageous conduct and Floyd's claim for wrongful discharge in violation of public policy.
NOTES
[1]  In that case, we held that Mariani had established a prima facie case of wrongful discharge in violation of public policy where she alleged that her employer fired her because she refused to engage in unethical accounting practices.
[2]  Of course, we recognized in Lorenz that the public policy exception is cognizable not only for an employer who retaliates against an employee for refusing to engage in illegal conduct but also one who retaliates against an employee for performing an important public obligation or exercising a statutory right or privilege. See Lorenz, 823 P.2d at 109. The purpose of the public policy exception in these instances is to ensure that in order to keep his or her job, an employee is not required to forsake an important public duty (such as whistle-blowing) or to forgo a job-related right or privilege. See id. Floyd's allegations do not implicate these issues.
[3]  We respectfully disagree with the court of appeals' reasoning that "[d]eterring employers from concealing their illegal conduct by discharging an employee relates to a substantial public interest that affects society as a whole." Floyd, 952 P.2d at 805. The public policy exception to the at-will employment doctrine is designed to avoid a situation whereby the deterrence value of the threat of a criminal sanction is undermined by the countervailing threat that a refusal to break the law will cause the employee to lose his or her job.


302 F.Supp.2d 525 (2004)
Sandra FULLER, Plaintiff,
v.
LIBERTY LIFE ASSURANCE OF BOSTON, a member of Liberty Mutual Group; the Wachovia Corporation Group Disability Plan (sic); and Wachovia Corporation, Defendants.
No. CIV. 3:02CV498.
United States District Court, W.D. North Carolina. Charlotte Division.
February 13, 2004.
*526 *527 Julie H. Fosbinder, Charlotte, NC, for Plaintiff.
Keith M. Weddington, Parker, Poe, Adams & Bernstein, Charlotte, NC, for Defendants.

MEMORANDUM AND ORDER
THORNBURG, District Judge.
THIS MATTER is before the Court on the Defendants' motion for summary judgment which is opposed by the Plaintiff. For the reasons stated below, the motion is allowed.

I. STATEMENT OF FACTS
Plaintiff Sandra Fuller began working for First Union, the predecessor to Defendant Wachovia Corporation,[1] in February 1987. Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Memorandum"), filed September 9, 2003, at 7. In January 2000, Plaintiff was forced to stop working because of numerous health problems. Amended Complaint, ¶ 5. Plaintiff returned to work in April 2000 but was only able to work for eight days because of her health problems. Plaintiff's Memorandum, at 2.
*528 Plaintiff was covered by the First Union Corporation Long Term Disability Plan, now known as the Wachovia Corporation Group Disability Plan (the "Disability Plan"). Amended Complaint, ¶ 4; Defendants' Reply Brief in Support of Summary Judgment ("Defendants' Reply Brief"), filed September 29, 2003, at 1. The Disability Plan is self-insured, meaning that the Employer, rather than an insurance company, is responsible for making the required payments. Exhibit 1, Administrative Record, attached to Defendants' Brief in Support of Motion for Summary Judgment ("Defendants' Brief"), filed August 14, 2003, at 438, 440; Defendants' Brief, at 4. The Employer makes such payments out of a Voluntary Employees' Beneficiary Association ("VEBA") trust. Exhibit 2, Affidavit of James Beaver, attached to Defendants' Brief, ¶ 3. The Employer's contributions to the VEBA trust constitute a fraction of one percent of the company's operating expenses. Id., ¶ 5.
The Disability Plan provides that "[t]he Employer is the administrator of the Plan," but "[t]he Employer may appoint one or more Employees to conduct the general administration of the Plan, and to have the responsibility for carrying out its provisions." Record, at 439. The Employer did, in fact, appoint employees to administer the Disability Plan. Those employees, Judy Shepard; Rick Winquist, and James Beaver, were known as the Benefits Committee. Beaver Affidavit, ¶ 4. By the terms of the Disability Plan, such appointment does "not constitute delegation of the Employer's responsibility but rather shall be treated as the manner in which the Employer has determined internally to discharge such responsibility." Record, supra. The Disability Plan does provide, however, that the "Employer may ... delegate to any person or entity any powers or duties of the Employer under the Plan." Id.
The Employer hired Defendant Liberty Life Assurance of Boston ("Liberty Life"), a member of Defendant Liberty Mutual Group, to perform certain administrative duties associated with the Disability Plan. Group Disability Risk Management Agreement ("Risk Management Agreement"), attached to Supplemental Affidavit of James L. Beaver, attached as Exhibit 1 of Defendants' Reply Brief. Among Liberty Life's tasks are the determination of eligibility for benefits, claims processing, investigation of claims, and payment of claims.[2] Risk Management Agreement, at Annex B. If a claimant is dissatisfied with Liberty Life's determination, he or she may appeal to the Employer, who makes a final decision. Id.; Record, at 441.
The Disability Plan further provides that the "Plan Administrator [the Employer] shall have the exclusive right and the sole discretionary authority to interpret the terms and provisions of the Plan and to resolve all questions arising thereunder, including, without limitation, the authority to determine eligibility for Benefits and the right to resolve and remedy ambiguities, inconsistencies or omissions in the Plan, and ... such action shall be exclusive." Record, at 440.
Under the Disability Plan, benefits are to be the lesser of 60 percent of the participant's pre-disability earnings or 66 2/3 percent of the participant's pre-disability earnings less the benefits from other income. Id., at 432. "Benefits from other income" include "[t]he amount of any Disability Benefits, or Retirement Benefits the Participant voluntarily elects to receive as retirement payment under the Employer's Retirement Plan" and "[t]he amount *529 of Disability and/or Retirement Benefits under the United States Social Security Act." Id., at 424-25. The term "Retirement Benefits" means money that:
(a) is payable under a Retirement Plan either in a lump sum or in the form of periodic payments;
(b) does not represent contributions made by an Employee (payments which represent Employee contributions are deemed to be received over the Employee's expected remaining life regardless of when such payments are actually received); and
(c) is payable upon:
(1) early or normal retirement; or
(2) Disability, if the payment reduces the amount of money which would have been paid under the plan at the normal retirement age.
Id., at 428-29.
When a participant receives benefits from other income in a lump sum, the benefits from other income "will be prorated on a monthly basis over the time period to which the lump sum relates or the maximum benefit period ..., whichever is less." Id., at 436. Furthermore, when a participant receives an overpayment from the Disability Plan, the participant must reimburse the Disability Plan within 60 days or the Disability Plan may reduce future benefits to recover the overpayment. Id., at 438.
Plaintiff received short-term disability benefits between January and July 2000. Amended Complaint, ¶ 5; Defendants' Brief, at 5-6. On July 26, 2000, Liberty Life sent a letter to the Plaintiff advising that her claim for short-term disability benefits beyond July 27, 2000, would be denied. Record, at 321-22. The letter acknowledged that Plaintiff was unable to elevate her arm because of a June 15, 2000, operation. However, the letter further explained that Plaintiff's manager advised Liberty Life on July 19, 2000, that Plaintiff's job did not require her to "reach above shoulder level, climb, drive/travel or lift." Id., at 321. Therefore, Liberty Life concluded there was "no objective medical information on file to support [Plaintiff's] inability to perform [her] job duties." Id.
On September 21, 2000, Plaintiff's attorney sent a letter to Liberty Life appealing the decisions to deny Plaintiff short and long-term disability benefits. Id., at 316-17. Plaintiff's attorney requested in the letter that Liberty Life "hold [its] file open for a short period of time so that we may supplement [the] file materials with those we have requested from Dr. Barron's office." Id., at 317.
On October 18, 2000, Plaintiff elected to withdraw a lump sum of $25,213.71 from the First Union Corporation Pension Plan and Trust (the "Retirement Pension Plan"). Exhibit A, Affidavit of Robert Kaska, attached to Defendants' Brief in Response to The Court's Order of December 9, 2003 ("Defendants' Response"), filed December 24, 2003, ¶ 5. Plaintiff received a check for $20,170.97 (the after-tax amount) dated December 13, 2000. Plaintiff's Response to Court Order of December 9, 2003 ("Plaintiff's Response"), filed December 29, 2003; Exhibit 2, attached to Kaska Affidavit. A letter from Liberty Life to Plaintiff incorrectly states that Plaintiff received the money in August of 2000. Record, at 75. Plaintiff had made no contributions to the Retirement Pension Plan; all contributions to the fund were from the Employer. Plaintiff's Response; Defendants' Response, at 2.
On November 21, 2000, Liberty Life acknowledged receipt of Plaintiff's appeal and explained that it would review the decision regarding short-term benefits first. If Liberty Life determined that Plaintiff was entitled to short-term benefits, it would then reconsider its decision to deny long-term benefits. Record, at 310. *530 The letter also indicated that Plaintiff had not submitted all the information necessary for Liberty Life to render a decision and requested that she do so. Id., at 310-11. Plaintiff, through her attorney, sent her medical records to Liberty Life on January 30, 2001. Id., at 279.
On February 12, 2001, Liberty Life sent Plaintiff a letter retroactively approving her short-term disability benefits from July 28 through July 31, 2000. Id., at 267. Then, on February 27, 2001, Liberty Life sent Plaintiff a letter that granted her long-term disability benefits, effective retroactively as of July 24, 2000. Id., at 251-53. The letter indicated that Liberty Life would send Plaintiff a check for $8,594.73 on March 1 to cover her accrued benefits. Id., at 253. The letter also stated that "[Plaintiff's] gross monthly benefit is equal to $1371.50 until [she returns] to work or [is] awarded Other Income Benefits." Id. The letter advised Plaintiff that Liberty Life reserved the right to recover any overpayment of long-term disability benefits. Id.
On April 10, 2001, Plaintiff received notification from the Social Security Administration of a favorable decision. Id., at 199-201. On May 12, 2001, the Social Security Administration informed Plaintiff that she would receive a check in the amount of $6,121.50 for retroactive benefits and that she would receive $838 per month. Id., at 97. Liberty Life then determined that, because Social Security benefits constitute "benefits from other income," Liberty Life had overpaid Plaintiff by $5,567.07. Id., at 92. On June 28, 2001, Liberty Life asked Plaintiff to send a check for that amount and informed her that her new monthly benefit amount would be $713.96 before taxes. Id. On July 24, 2001, Plaintiff paid Liberty Life the full amount of overpayment. Id., at 11.
By October 1, 2001, Liberty Life had discovered that Plaintiff had received the lump-sum payment from the Retirement Pension Plan the previous December. Id., at 75. Liberty Life contends that this payment constituted benefits from other income. Answer, filed February 24, 2003, ¶ 7. Pursuant to Article 3.8 of the Disability Plan, Liberty Life divided the roughly $25,200 lump-sum payment by 138, the maximum number of months of long-term disability benefits to which Plaintiff was entitled, and determined that Plaintiff was being overpaid by $182.70 per month. Record, at 76, 436. Therefore, on October 1, 2001, Liberty Life wrote Plaintiff a letter stating that she had been overpaid by $2,371.44 and asked that she send them a check for that amount. Id., at 75.[3]
By July 2002, Plaintiff still had not repaid Liberty Life. On July 22, 2002, Liberty Life spoke with Rick Green, an employee of the Employer. Id., at 16. The Benefits Committee had delegated to Rick Green the duty of coordinating with Liberty Life regarding the recovery of overpayments. Beaver Affidavit, ¶ 6. Green told Liberty Life to give Plaintiff 30 more days to make the repayment before recovering the money by withholding a portion of her monthly disability benefits. Record, at 16.
Liberty Life sent a letter to Plaintiff on July 22, 2002, explaining that, since the monthly disability payments had not been adjusted to reflect the lump-sum withdrawal, the amount of overpayment had grown to $4,202.10. Record, at 26-28. *531 The letter further stated that if Plaintiff did not return the full amount within 30 days, Liberty Life would begin withholding her monthly benefits. Id., at 27. Finally, the letter stated that Plaintiff's new monthly disability benefit amount, even if she did reimburse them for the overpayment, would be reduced by $182.70, the pro-rated amount of her withdrawal from the Retirement Pension Plan, giving her monthly benefits in the amount of $531.26. Id. On August 28, 2002, Plaintiff's new attorney sent a letter to Liberty Life stating that their decision to recoup the amount that Plaintiff received from her pension fund was inequitable and not supported by the language of the Disability Plan. Id., at 21-22. Nevertheless, Liberty Life began withholding a portion of Plaintiff's monthly disability benefits in August 2002. Defendants' Brief, at 10.

II. PROCEDURAL HISTORY
Plaintiff filed a complaint on November 29, 2002, and amended it on December 19, 2002. Defendants moved for summary judgment on August 14, 2003.

III. DISCUSSION

A. Summary judgment standard.
Summary judgment is appropriate when there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party, here the Plaintiff. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). By reviewing substantive law, the Court may determine what matters constitute material facts. Anderson, supra."Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. The Defendants as the moving parties have the initial burden to show a lack of evidence to support the Plaintiff's case. Shaw, supra, (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If that showing is made, the burden then shifts to the Plaintiff who must convince the Court that a triable issue does exist. Id. A "mere scintilla of evidence" is not sufficient to defeat summary judgment. Id. Moreover, in considering the facts of the case for purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the Plaintiff, as the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Scope of review
The parties disagree over the scope of review that the Court should apply in examining the initial decision to deny Plaintiff's long-term disability claim and the subsequent decisions to reduce and, eventually, to withhold Plaintiff's benefits. It is unnecessary to determine the appropriate scope of review because the Defendants' motion would be allowed even under a de novo scope of review. Therefore, the Court will review Defendants' decisions de novo.

C. Breach of fiduciary duty.
Plaintiff claims that Defendants are fiduciaries as described by 29 U.S.C. § 1002(21)(A), and that they breached the fiduciary duties imposed on them by 29 U.S.C. § 1104. Defendants claim that Liberty Life is not a fiduciary. Whether or not Liberty Life is a fiduciary under § 1002(21)(A), Plaintiff's claim for breach of fiduciary duty is fatally flawed. Therefore, the Court will not address whether Liberty Life is, in fact, a fiduciary.
*532 ERISA provides relief to plan participants for breach of fiduciary duty in §§ 1132(a)(2) and (3).[4] Plaintiff concedes that the type of relief sought in this case, relief that inures to the participant rather than the plan itself, is not available under § 1132(a)(2). Plaintiff's Supplemental Memorandum in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Supplemental Memorandum"), filed September 15, 2003, at 6. Therefore, Plaintiff's fiduciary duty claims arise under § 1132(a)(3) and seek "other appropriate equitable relief." Specifically the "appropriate equitable relief" Plaintiff seeks is restitution of 1) the money withheld from her monthly disability benefits as a result of her early withdrawal from the Retirement Pension Plan, and 2) the money that she will lose by not allowing her pension to mature until retirement age. Id., at 8-9. Alternatively, Plaintiff asks to be reimbursed for the amounts already withheld and reinstated into the Retirement Pension Plan. Id., at 9-10.
Relief sought under § 1132(a)(3) must be equitable relief, not a claim for monetary damages. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). A claim for restitution may be legal or equitable in nature. Id., at 212-14, 122 S.Ct. 708. Generally, a claim for restitution is an equitable claim when it seeks "not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant's possession." Id., at 214, 122 S.Ct. 708. "But where `the property [sought to be recovered] or its proceeds have been dissipated so that no product remains, [the plaintiff's] claim is only that of a general creditor'" and is a claim at law. Id., at 213, 122 S.Ct. 708 (quoting Restatement of Restitution § 215, Comment a, at 867 (1936)).
Plaintiff's claims for restitution of withheld funds and lost future funds are legal claims that are not cognizable under § 1132(a)(3). There is no contention that the disputed funds have been held separately by Defendants; they are simply a part of the VEBA trust or are in the Defendants' personal possession. Plaintiff is, therefore, not seeking to recover any particular fund but is merely trying to impose general liability on Defendants. Therefore, Plaintiff is procedurally barred from making claims for restitution of withheld funds and lost future funds under § 1132(a)(3).
Plaintiff's alternative claim for reinstatement into the Retirement Pension Plan, however, is a claim for equitable relief. In fact, the Fourth Circuit has explicitly held that reinstatement into a pension plan may be appropriate equitable relief under § 1132(a)(3). Griggs v. E.I. Dupont de Nemours & Co., 237 F.3d 371, 384 (4th Cir.2001). Therefore, with respect to Plaintiff's demand for reinstatement, Defendants are incorrect to claim that the relief is not available under ERISA. Defendants' Reply Brief, at 14.
But Plaintiff is not entitled to relief for breach of fiduciary duty because she cannot *533 show that there was a breach to begin with. Plaintiff claims that Defendants breached their fiduciary duties in two ways  by initially denying her claim for benefits and then by offsetting, both prospectively and retroactively, her benefits by the prorated amount she received from the Retirement Pension Plan. The Court will now examine each action separately to determine whether either action may constitute a breach of fiduciary duty.

1. Initial decision to deny benefits.
The Fourth Circuit has held that a plaintiff's claim for breach of fiduciary duty "is actually a claim for benefits where the resolution of the claim rests upon an interpretation and application of an ERISA-regulated plan rather than upon an interpretation and application of ERISA." Smith v. Sydnor, 184 F.3d 356, 362 (4th Cir.1999). In other words, when a plaintiff is merely claiming that a fiduciary misinterpreted or misapplied an ERISA plan, the proper avenue for relief is a § 1132(a)(1)(B) claim for denial of benefits, not a claim for breach of fiduciary duty. Plaintiff's present claim is simply that Defendants misinterpreted or misapplied the Disability Plan when they initially denied Plaintiff's claim for benefits. Therefore, the claim is properly stated as a claim for denial of benefits and is invalid as a fiduciary duty claim. Id.

2. Decisions to reduce and withhold payments.
The Court will discuss Defendants' decisions to reduce and withhold Plaintiff's benefits payments below. Since the Court concludes that this decision was consistent with the terms of the Disability Plan, it did not constitute a breach of fiduciary duty.

D. Denial of benefits.
The discussion supra dealt with Plaintiff's fiduciary duty claims based on Defendants' decisions to deny Plaintiff disability benefits and subsequently to reduce and withhold disability benefit payments. Plaintiff also asserts a § 1132(a)(1)(B) claim for denial of benefits based on the same two decisions. Again, the Court will examine each decision separately. Here, the issue is whether either decision constituted an unlawful denial of benefits.

1. Initial decision to deny benefits.
The Court has ruled that Plaintiff's claim based on Defendants' initial decision to deny her benefits was not cognizable as a fiduciary duty claim and that the claim must be brought, if at all, as a claim for denial of benefits. But the claim fails even when cast as one for denial of benefits because Defendants have already reimbursed her the benefits that she was denied, and the Supreme Court has held that plan participants are not entitled to extracontractual damages for delay in receiving benefits. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 144, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985).[5] Since Defendants retroactively paid Plaintiff the disability benefits that accrued while her claim had been denied and her appeal was *534 pending, Russell makes it clear that she is entitled to no additional relief. Id.

2. Decisions to reduce and withhold payments.
Plaintiff's second claim for denial of benefits is based on Defendants' decision to reduce, prospectively and retroactively, her monthly disability payments in order to recoup the money she withdrew from the Retirement Pension Plan. In this case, it is not necessary to determine which decisions are attributable to which Defendant as the Court is reviewing all Defendants' decisions de novo.
The Disability Plan clearly defines "benefits from other income" to include "[t]he amount of any Disability Benefits, or Retirement Benefits the Participant voluntarily elects to receive as retirement payment under the Employer's Retirement Plan." Record, at 424-25. Equally as clearly, the Disability Plan states that a participant's monthly benefits may be calculated as 66 2/3 percent of the participant's pre-disability earnings less the benefits from other income. Id., at 432. The Disability Plan also provides that benefits from other income that a participant receives in a lump sum are to be "prorated on a monthly basis over the time period to which the lump sum relates or the maximum benefit period ..., whichever is less." Id., at 436. Finally, the Disability Plan requires a participant to reimburse the Disability Plan for overpayments and provides that, if a participant fails to reimburse the Disability Plan, his or her monthly benefits may be reduced to recover the overpayment. Id., at 438. Defendants have simply followed the Disability Plan's plain language.
Plaintiff claims that she received the lump sum before she was actually awarded the disability benefits and that, therefore, she did not receive benefits from other income while receiving disability. This argument is not convincing because Plaintiff received retroactive disability payments covering a period that started before the time when she received the lump sum from the Retirement Pension Plan. Therefore, the Defendants made an accurate reading of the Disability Plan and did not deny Plaintiff benefits in violation of § 1132(a)(1)(B).

E. Forfeiture of vested pension funds.
In her response to the Court's January 19, 2004, Order, Plaintiff argues that the Employer, by offsetting the lump-sum payment against her monthly disability payments, is effectively recovering the lump sum that Plaintiff withdrew from the Retirement Pension Plan. Plaintiff argues this violates 29 U.S.C. § 1053(a) which mandates that, after Plaintiff's length of employment, the funds that have accrued in the Retirement Pension Plan for her benefit be nonforfeitable. But even nonforfeitable funds may be reduced by the amount that an employee receives from other sources of income. Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 514, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981); PPG Indus. Pension Plan A v. Crews, 902 F.2d 1148, 1151 (4th Cir.1990). Therefore, even assuming that the Employer is effectively denying Plaintiff her pension benefits, this would not violate § 1053(a) because the Employer could argue that the pension benefits are merely being reduced by the amount of the disability benefits. Since the monthly disability benefits are greater than the pro-rated pension benefits, the pension benefits may be reduced down to zero.
Plaintiff further argues that, even if § 1053(a) permits such a reduction, the Retirement Pension Plan does not call for one. In fact, the Retirement Pension Plan states that the funds that have accrued for Plaintiff's benefit are nonforfeitable. See Record, at 617. But mechanically, the *535 Employer is not taking back Plaintiff's retirement pension. The Employer is following the plain language of the Disability Plan and reducing monthly disability payments by the amount Plaintiff receives as benefits from other income. The Employer has accurately interpreted the Disability Plan. This application does not violate ERISA, and the fact that its effect may negate one term of the Retirement Pension Plan does not prevent the Employer from applying the plain language of the Disability Plan.
In conclusion, the Court would point out that Plaintiff knew that her appeal of the unfavorable disability decision was pending when she elected to receive the lump sum. Furthermore, Plaintiff withdrew the lump sum one month before her attorney provided the Defendants with all of the medical files necessary for the appeal. Though the Court does not blame Plaintiff for her misfortune, perhaps she could have avoided it by providing medical records more promptly.
It may well be argued that the Disability Plan provisions relating to "benefits from other income," calculation of monthly benefits, or the method of recovering an overpayment of benefits are employer-friendly. Nevertheless, where plan provisions are unambiguous, they are enforced as written.
Although ERISA establishes a comprehensive regulatory scheme for employee welfare benefit plans, it does not mandate any minimum substantive content for such plans. Rather, one of the primary functions of ERISA is to ensure the integrity of written, bargained-for benefit plans. To satisfy this objective, the plain language of an ERISA plan must be enforced in accordance with "its literal and natural meaning."
United McGill Corp. v. Stinnett, 154 F.3d 168, 172 (4th Cir.1998) (quoting Health Cost Controls v. Isbell, 139 F.3d 1070, 1072 (6th Cir.1997)) (other internal citations omitted).

IV. ORDER
IT IS, THEREFORE, ORDERED that the Defendants' motion for summary judgment is hereby ALLOWED; a Judgment dismissing this action is filed herewith.
IT IS FURTHER ORDERED that the Defendants re-calculate Plaintiff's benefits with the acknowledgment that she received her lump-sum payment in December 2000, not August 2000. If Defendants reduced Plaintiff's benefits to reflect receipt of the lump-sum payment before December 2000, they must reimburse Plaintiff to correct such error.

JUDGMENT
For the reasons set forth in the Memorandum and Order filed herewith,
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the Defendants' motion for summary judgment is ALLOWED, and this matter is hereby DISMISSED WITH PREJUDICE in its entirety.
NOTES
[1]  The company formerly known as First Union and currently known as Wachovia Corporation will be referred to as the "Employer."
[2]  Although Liberty Life has the duty of paying claims, the Employer must reimburse Liberty Life within twenty-four hours. Risk Management Agreement, at Annex B.
[3]  Defendants' calculations mentioned in this paragraph seem to assume that Plaintiff received her lump-sum payment in August 2000 rather than December 2000. All parties now agree that she received the payment in December. Plaintiff's Response; Exhibit 2, attached to Kaska Affidavit. As indicated in the Order below, the Court will allow the parties to make the calculations necessary to correct this mistake.
[4]  Section 1132(a)(2) speaks for itself on this proposition. It reads, "A civil action may be brought by ... a participant for appropriate relief under [the code provision describing liability for breach of fiduciary duty.]" Although § 1132(a)(3) does not specifically state that a participant may seek relief for breach of fiduciary duty, it does provide that "[a] civil action may be brought ... by a participant ... to obtain other equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan." The Supreme Court has held that the language of § 1132(a)(3) is "broad enough to cover individual relief for breach of a fiduciary obligation." Varity Corp. v. Howe, 516 U.S. 489, 510, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996).
[5]  In a case similar to this one, the First Circuit held that "Although the [Plaintiffs] surely suffered inconvenience and distress as a result of the delay in receiving their health care benefits, that inconvenience and distress was caused both by the initial denial of benefits, for which there is no relief here because of the relief obtained on administrative review, and by the usual operation of the ERISA-mandated internal review process. In order to state a claim for injuries resulting from the review process itself, the [Plaintiffs] would have to allege in the complaint that the internal review process  as opposed to the original denial of benefits  was in some way unusual or prolonged." Tompkins v. United Healthcare of New England, Inc., 203 F.3d 90, 95-96 (1st Cir.2000) (footnote omitted).


                          T.C. Summary Opinion 2020-2

                        UNITED STATES TAX COURT

                JAMES GORDON PRIMUS, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent

      Docket No. 20640-17S.                        Filed January 7, 2020.

      James Gordon Primus, pro se.

      Bryon M. Huang and Gennady Zilberman, for respondent.

                              SUMMARY OPINION

      COLVIN, Judge: This case was heard pursuant to the provisions of section

74631 of the Internal Revenue Code in effect when the petition was filed.

      1
       Section references are to the Internal Revenue Code in effect at all relevant
times. We round all monetary amounts to the nearest dollar. Petitioner resided in
                                                                      (continued...)
                                         -2-

Pursuant to section 7463(b), the decision to be entered is not reviewable by any

other court, and this opinion shall not be treated as precedent for any other case.

      Respondent determined that petitioner had deficiencies of $45,116 for 2012

and $41,001 for 2013. The issue for decision is whether expenses petitioner paid

in those years in anticipation of the production of maple syrup and blueberries

were nondeductible startup expenses. We hold that they were.

                                    Background

      Some of the facts have been stipulated and are so found. During the years at

issue, 2012 and 2013, petitioner lived in New York, where he worked as an

accountant at a large accounting firm.

A.    The Quebec Property

      During 2010 and 2011 petitioner viewed several properties for sale in

southwest Quebec. He observed that one of those properties, consisting of 266

acres, contained almost 200 acres of maple trees,2 including more than enough

mature maple trees to produce maple syrup commercially. Petitioner’s mother

      1
      (...continued)
Quebec, Canada, when he filed the petition.
      2
      Maple syrup producers refer to a grove or forest comprising maple trees as
a “maple bush”. We have used that phrase occasionally herein.
                                         -3-

acquired the property in September 2011,3 and petitioner maintained constructive

ownership from September 2011 throughout the years at issue.4

      In addition to maple trees, the property included areas with other species of

trees, overgrown pastures, and hay fields; and 12 acres suitable for growing crops.

The property also contained various improvements, e.g., a main house, two

apartments, a garage, a barn, a horse riding arena, and a building with a pool and a

gymnasium.

      1.     Petitioner’s Maple Trees and Plans To Produce Maple Syrup

      When petitioner purchased the property, most of the maple trees were large

enough to produce sap.5 Before collecting sap and producing syrup, petitioner

wanted to thin the maple bush, which would cause the trees to produce more and

better sap, and install a system of pipes (pipeline) to collect sap. Petitioner would

not be able to thin the maple bush after he installed the pipeline to collect sap. He

began thinning the maple bush in 2011 and continued thinning in the years at

      3
       To buy property in Quebec the buyer must meet a residency test.
Petitioner’s mother qualified, but petitioner, who lived in New York, did not.
      4
        For convenience we will treat the acquisition in September 2011 as
petitioner’s acquisition.
      5
        Before sap can be collected from maple trees, the trees have to reach a
certain diameter to ensure the tree can withstand the strain caused by collecting
sap.
                                         -4-

issue. In 2015 he began installing the pipeline and purchasing the equipment

needed to produce syrup from sap. In 2016 he started to modify the barn to house

the equipment. In 2017 he began collecting sap and producing maple syrup. He

sold 18,000 pounds of maple syrup in 2017.

      2.     Petitioner’s Plans To Produce Blueberries

      When petitioner acquired the property, he also decided to produce

blueberries. In 2012 and 2013 he cleared the areas where he planned to plant

blueberry bushes. Petitioner ordered 2,000 blueberry bushes in 2014 and planted

them in 2015. Petitioner had not harvested any blueberries as of the time of trial.

B.    Petitioner’s 2012 and 2013 Tax Returns

      Petitioner timely filed his Forms 1040, U.S. Individual Income Tax Return,

for 2012 and 2013. On petitioner’s Schedule F, Profit or Loss From Farming, for

2012 he reported $201,881 in total expenses (including $162,958 for repairs and

maintenance, $7,454 for taxes, and $6,610 for utilities). On his Schedule F for

2013 petitioner reported $118,503 in expenses (including $71,895 for repairs and

maintenance, $12,029 for taxes, and $8,475 for utilities). Most of petitioner’s

deductions for the years at issue were for the costs of repairs of various buildings,

such as electrical and plumbing repairs, mold removal, window replacements, and

roof work.
                                       -5-

                                    Discussion

      The issue for decision is whether, as petitioner contends, his expenses in

2012 and 2013 to prepare for producing and selling maple syrup and blueberries

are deductible under section 162 as expenses of a trade or business (or section 212

as expenses of an income-producing activity), or, as respondent contends,

nondeductible startup expenses under section 195.

A.    Startup Expenditures

      Petitioner contends that he was cultivating (in this case, thinning) the maple

bush during 2012 and 2013 and that his expenses in 2012 and 2013 were

deductible under section 162 or 212 and were not startup expenses. Respondent

contends that petitioner’s activities during 2012 and 2013 were nondeductible

startup expenses under section 195 and that during those years petitioner had not

yet commenced his trade or businesses of producing maple syrup and blueberries.

We agree with respondent.

      For expenses to be deductible under section 162 or 212, they must be

associated with an active trade or business or other income-producing activity. A

taxpayer may not deduct “start-up” expenses under section 162(a) or 212.

Sec. 195; Toth v. Commissioner, 128 T.C. 1, 4 (2007). Startup expenses are,

among other things, expenses incurred to create an active trade or business.
                                       -6-

Sec. 195(c). The startup phase occurs before business operations have

commenced. McMillan v. Commissioner, T.C. Memo. 2019-108, at *28;

McKelvey v. Commissioner, T.C. Memo. 2002-63, aff’d, 76 F. App’x 806 (9th

Cir. 2003). Expenses are not deductible under section 162 until the business is

actually functioning and performing the activities for which it was organized.

Richmond Television Corp. v. United States, 345 F.2d 901, 907 (4th Cir. 1965),

vacated and remanded on other grounds, 382 U.S. 68 (1965); see also Toth v.

Commissioner, 128 T.C. at 4; Reems v. Commissioner, T.C. Memo. 1994-253,

1994 WL 243475.

         In McKelvey, we disallowed deductions claimed by a taxpayer who bought

land for use as a tree farm but had not yet harvested any trees. In McManus v.

Commissioner, T.C. Memo. 1987-457, aff’d without published opinion, 865 F.2d

255 (4th Cir. 1988), a taxpayer who had purchased various components to use in

manufacturing and selling mud logging devices was not engaged in a trade or

business because none of the mud logging devices had become operational. In

neither of those cases had the taxpayer performed the activity for which the

business was organized. Thus, neither activity had advanced beyond the startup

phase.
                                        -7-

      Preparing a property to produce a commodity (such as maple syrup or

blueberries) is not a trade or business or income-producing activity before sap is

collected or blueberry bushes are planted. The facts in Reems are analogous to

those present here. In Reems a taxpayer purchased land to start a logging

business. After the taxpayer acquired the property he began to clear, repair, and

build logging roads and to sell small batches of firewood, trees, and plants. Reems

v. Commissioner, 1994 WL 243475, at *3. The costs of those activities during the

years at issue were startup expenses in part because the taxpayer did not log any

trees during the year at issue. Id. at *3-*4. In Heinbockel v. Commissioner, T.C.

Memo. 2013-125, we held the taxpayers had not begun their vineyard business

because they had not planted any vines. Petitioner did not plant any blueberry

bushes before or during the years at issue. His costs of land clearing were startup

expenditures.

      Petitioner’s activities performed during 2012 and 2013 were incurred to

prepare the farm to produce sap and plant blueberries. Those are startup expenses

under section 195 and may not be deducted under section 162 or 212.

B.    Petitioner’s Contentions

      Petitioner contends that thinning a maple bush on his land is a section 162

or 212 active business activity. Petitioner argues that a taxpayer is in the business
                                         -8-

of farming if he or she cultivates orchards or groves and that thinning a maple

bush on his land is cultivation. Petitioner cites Internal Revenue Service

Publication 225, Farmer’s Tax Guide. The first sentence of the publication during

the years at issue stated: “[Y]ou are in the business of farming if you cultivate,

operate, or manage a farm for profit either as owner or tenant.” Similarly, we have

said that a taxpayer not cultivating crops was not in a farming business. See

Vianello v. Commissioner, T.C. Memo. 2010-17, 2010 WL 342905, at *7. Those

appearances of the word “cultivate” are consistent with the other cases cited

herein. That is, while cultivation of plants is an essential part of a trade or

business involving production of commodities from those crops, cultivation,

without more, is not sufficient to show that the activity has progressed past the

startup phase.

      Petitioner asserts that thinning a maple bush is a generally accepted industry

practice. We accept that point, but following industry practice does not establish

that an activity has progressed beyond the startup phase. Walsh v. Commissioner,

T.C. Memo. 1988-242 (finding that the taxpayers were following industry practice

for restaurants when they signed a lease and purchased assets to use in the

restaurant, but they were still in the startup phase because they had not yet opened

to the public), aff’d, 884 F.2d 1393 (6th Cir. 1989).
                                        -9-

      Petitioner cites Toth v. Commissioner, 128 T.C. 1, Jackson v.

Commissioner, 864 F.2d 1521 (10th Cir. 1989), aff’g 86 T.C. 492 (1986), and

Blitzer v. Commissioner, 231 Ct. Cl. 236 (1982), in support of the proposition that

revenue is not required for a business to leave the startup phase and enter the

active phase. We agree. During the years at issue, however, petitioner had not

collected sap, installed any of the infrastructure needed to convert sap into syrup,

or purchased any blueberry bushes. Many other steps remained in order for

petitioner to complete the startup phase and collect revenues from maple syrup and

blueberry production.

C.    Conclusion

      Petitioner’s expenses during 2012 and 2013 were startup expenses in

preparation for producing maple syrup and blueberries under section 195 and are

not deductible under section 162 or 212.

      To reflect the foregoing,

                                              Decision will be entered for

                                       respondent.


                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 15-6233

JUAN CELSO ZAVALETA PEREZ,

                  Petitioner - Appellant,

          v.

FRANK L. PERRY,

                  Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cv-00311-JAB-LPA)

Submitted:   April 23, 2015                 Decided:   April 28, 2015

Before SHEDD, DUNCAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Juan Celso Zavaleta Perez, Appellant Pro Se.     Clarence Joe
DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Juan   Celso       Zavaleta    Perez       seeks    to    appeal       the    district

court’s    order     accepting       the     recommendation           of    the    magistrate

judge and dismissing as untimely his 28 U.S.C. § 2254 (2012)

petition.      The order is not appealable unless a circuit justice

or    judge   issues      a    certificate        of    appealability.             28    U.S.C.

§ 2253(c)(1)(A) (2012).              A certificate of appealability will not

issue     absent     “a       substantial      showing      of        the    denial      of   a

constitutional right.”              28 U.S.C. § 2253(c)(2) (2012).                   When the

district court denies relief on the merits, a prisoner satisfies

this    standard     by    demonstrating          that    reasonable         jurists      would

find that the district court’s assessment of the constitutional

claims is debatable or wrong.                 Slack v. McDaniel, 529 U.S. 473,

484    (2000);     see    Miller-El     v.    Cockrell,         537    U.S.       322,   336-38

(2003).       When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the petition states a

debatable claim of the denial of a constitutional right.                                 Slack,

529 U.S. at 484-85.

       We have independently reviewed the record and conclude that

Perez has not made the requisite showing.                        Accordingly, we deny

the motion for a certificate of appealability and dismiss the

appeal.       We dispense with oral argument because the facts and

legal    contentions          are   adequately         presented      in    the     materials

                                              2
before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                    DISMISSED

                                     3


510 U.S. 1025
Wotnoskev.Wisconsin.
No. 93-802.
Supreme Court of United States.
December 13, 1993.

1
Appeal from the Ct. App. Wis.

2
Certiorari denied. Reported below: 177 Wis. 2d 621, 503 N. W. 2d 22.


BLD-162                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                        No. 11-1215
                                       ____________

                             BERNARD J. DELPRATO, JR.,
                                                  Appellant

                                             v.

                        DAY CHEVROLET INCORPORATED
                        __________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civ. No. 10-cv-00667)
                            District Judge: Gary L. Lancaster
                       __________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 14, 2011

        Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                              (Opinion filed: May 12, 2011)
                                     ____________

                                         OPINION
                                       ____________

PER CURIAM

       Appellant Bernard J. DelPrato, Jr., filed a pro se civil action in the United States

District Court for the Western District of Pennsylvania against his former employer, Day

Chevrolet. In his amended complaint, he claimed that Day Chevrolet fired him in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the

Equal Protection Clause of the 14th Amendment, based on its claim that he was illegally
competing with them when he allegedly bought a car from a private individual and

attempted to sell the car. DelPrato asserted that Day Chevrolet’s rule that employees may

not buy or sell a vehicle for personal gain was not consistently applied to all employees.

For example, an employee of Arab or Middle Eastern descent was allowed to buy a 2003

Corvette Convertible from a potential customer because Day Chevrolet would not pay the

price the customer wanted for the car. This employee did not get fired. Another

employee sold his 1994 BMW privately on Day Chevrolet property, and management did

not complain about it or take any adverse action against him. DelPrato sought $140,000

in damages.

       Day Chevrolet moved to dismiss the amended complaint, contending in the main

that DelPrato had not exhausted his Title VII administrative remedies, and, for purposes

of a federal civil rights action, Day Chevrolet was a private party and not a state actor.

DelPrato filed a brief in opposition to the motion to dismiss, in which he claimed for the

first time that his termination violated the Equal Pay Act, 29 U.S.C. § 206(d)(1).

       The Magistrate Judge then filed a Report and Recommendation, in which he

recommended that Day Chevrolet’s motion to dismiss the amended complaint be granted.

The Magistrate Judge noted that Title VII requires a plaintiff to exhaust administrative

remedies prior to bringing suit in court, 42 U.S.C. § 2000e-5(e)(1). An employee cannot

be terminated for a discriminatory reason, but to bring a claim alleging discriminatory

treatment, the employee must, prior to filing suit, file a claim with the Equal Employment

Opportunity Commission (“EEOC”). DelPrato had not filed such a claim. In addition, a

lawsuit to enforce federal civil rights under 42 U.S.C. § 1983 must allege state action.

Private citizens or private, non-governmental corporations like Day Chevrolet are not

                                              2
liable under section 1983. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 939 (1982).

Last, under the Equal Pay Act, a plaintiff must show that employees of the opposite sex

were paid differently for performing equal work, but DelPrato did not complain about

unequal pay based on gender. He did not discuss pay at all, and the individuals to whom

he compared himself were both men. Accordingly, DelPrato’s amended complaint did

not state a claim to relief that was plausible on its face, Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009).

       Delprato filed Objections to the Magistrate Judge’s Report and Recommendation,

challenging only the Equal Pay Act determination. DelPrato asserted for the first time

that a Day Chevrolet female employee sold her Chrysler Minivan to an employee of

Armstrong Auto for personal gain and was not fired or reprimanded.

       In an order entered on December 27, 2010, the District Court adopted the Report

and Recommendation as the Opinion of the Court, and granted Day’s motion to dismiss

the amended complaint.

       DelPrato appeals. Our Clerk advised him that the appeal was subject to summary

affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit

argument in writing. Although a briefing schedule did not issue, DelPrato filed a 12-page

Informal Brief and Appendix, in which he has challenged only the Equal Pay Act

determination. DelPrato has repeated his assertion that a female employee sold her

Chrysler Minivan for personal gain and was not fired or reprimanded. We will consider

DelPrato Informal Brief and treat it as a summary action response.

       We have jurisdiction under 28 U.S.C. § 1291. Under Third Circuit LAR 27.4 and

I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that no

                                              3
substantial question is presented by the appeal. We exercise plenary review over a Rule

12(b)(6) dismissal. See Weston v. Pennsylvania, 251 F.3d 420, 425 (3d Cir. 2001). A

motion to dismiss should be granted if the plaintiff is unable to plead “enough facts to

state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007). The plausibility standard “asks for more than a sheer possibility

that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949. “Factual allegations

must be enough to raise a right to relief above the speculative level....” Twombly, 550

U.S. at 555.

       In order to make out a case under the Equal Pay Act, the plaintiff must show that

members of the opposite sex get paid more for equal work “on jobs the performance of

which requires equal skill, effort, and responsibility, and which are performed under

similar working conditions.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)

(internal quotations removed). See also Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d

Cir. 2000). DelPrato’s assertion in his Objections concerning his female co-worker does

not involve pay or any other type of compensation by his former employer and thus does

not implicate the Equal Pay Act. Instead, his allegations concern that he was

discriminated against on the basis of race, nationality and gender. Allegations of this

nature are properly raised in a Title VII action after administrative remedies are

exhausted, just as the District Court concluded.

       A plaintiff bringing an employment discrimination claim under Title VII must

comply with the procedural requirements set forth in 42 U.S.C. § 2000e-5 by filing a

timely discrimination charge with the EEOC. See id. at §§ 2000e-5(b), (e)(1), (f)(1). He

must wait until the EEOC completes its investigation of the claim before he can initiate a

                                              4
private action. See Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465,

470 (3d Cir. 2001). Without final agency action, the plaintiff has not exhausted his

administrative remedies and cannot bring suit. See id. at 471. The District Court

properly characterized DelPrato’s action as one arising under Title VII, and properly

dismissed it for failure to exhaust administrative remedies. DelPrato does not claim that

he pursued his wrongful termination claim by filing a charge with the EEOC.

       We further agree with the District Court that DelPrato’s equal protection claim

fails for lack of state action. Day Chevrolet’s infringement of DelPrato’s federal rights

was not properly alleged to be “fairly attributable to the State,” Lugar, 457 U.S. at 937,

and, for this reason alone, a section 1983 action will not lie.

       For the foregoing reasons, we will summarily affirm the order of the District Court

dismissing the amended complaint. The Clerk is directed to file the Informal Brief.

                                              5