ORDER GRANTING PARTIAL SUMMARY JUDGMENT

LEGGE, District Judge.

Plaintiff Howard Harlan, a former manager at Sohio,1 has sued Sohio on various causes of action arising from his termination and the benefits associated with the termination.

Harlan’s complaint in C-85-9068 states claims as follows: (1) age discrimination in violation of 29 U.S.C. § 626(b); (2) breach of his employment contract; (3) wrongful discharge in violation of public policy; (4) breach of the implied covenant of good faith and fair dealing; (5) retaliation for filing an age discrimination charge; (6) three counts of breach of fiduciary duty under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq.; and (7) age discrimination in violation of Cal.Govt.Code. §§ 12940 et seq. Defendant Sohio counterclaimed for repayment of

a loan that was made to Harlan during his employment.

In action C-86-4072, Sohio appeals the decision of a state administrative law judge, who imposed a penalty on Sohio for willfully withholding Harlan’s last paycheck in violation of Cal. Labor Code § 203.

Plaintiff Harlan has moved for summary judgment on the ERISA issues, and Sohio has filed a counter-motion. Sohio has also filed a motion for judgment on the pleadings, and/or for summary judgment, on various state law claims. These motions were heard and were submitted for decision. The court has considered the moving and opposing papers, the record and the applicable authorities and rules as set out below.

I.

FACTUAL BACKGROUND

The following facts are undisputed in the record of these motions:

Harlan had been employed by Bechtel for 21 years. Sohio recruited and hired him in 1981. Harlan alleges that Sohio made certain assurances about the nature and stability of his employment during the employment discussions. Harlan accepted the position and relocated from Texas to the Bay Area. After four years of employment, Harlan was notified in August 1985 that he would be terminated as part of a large reduction-in-force effective September 30, 1985.

When Harlan was notified of his impending termination, he communicated with So-hio about various benefits that would be available to him. Sohio was implementing a plan of benefits for the employees who were involuntarily terminated, called an Involuntary Separation Plan or “ISP.” Under the ISP, Harlan would have been eligible for certain benefits, including (1) severance pay, (2) forgiveness of a Critical Skills Loan (CSL) he had obtained from Sohio, and (3) a lump-sum payment under Sohio’s Mortgage Interest Differential Allowance (MIDA) program.

In the weeks before plaintiff’s termination, defendant informed him that he was eligible for the ISP benefits only if he signed a form Separation Agreement (the agreement). The agreement contained a clause by which the terminated employee released any claims that he might have against Sohio. Because Harlan believed he had been discriminated against on the basis of age, he did not want to release his claims. When Sohio learned that Harlan had already filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC), Harlan was told he could not sign the agreement as the EEOC charge was inconsistent with the release. Consequently, Harlan received no ISP benefits, which he challenges as a violation of ERISA.

Harlan also alleges that Sohio retaliated against him by adverse employment actions after he filed his EEOC charges. After exhausting his remedies before the EEOC and the California Department of Fair Employment and Housing, Harlan filed this suit, No. C-85-9068-CAL. Sohio has counterclaimed for the unpaid balance of Harlan’s CSL loan.

On his last day of work, Harlan was informed that his last paycheck would be electronically deposited into his bank account. In fact, the check was not directly deposited but was sent manually to Sohio’s San Francisco office. A Sohio employee in San Francisco for some reason returned the check to Sohio headquarters rather than sending it to Harlan. Sohio did not send Harlan his last paycheck until after he had filed a wage claim with the California Labor Commissioner. A state Administrative Law Judge concluded that Sohio had willfully withheld Harlan’s last paycheck and imposed an $11,769.30 penalty on So-hio. Sohio appealed to the California Municipal Court and then removed the appeal to this court. The appeal, C-86-4072-CAL, was consolidated with C-85-9068-CAL.

II.

ERISA ISSUES

Plaintiff’s Sixth, Seventh and Eighth causes of action allege that defendant breached duties under ERISA by denying

plaintiff benefits under the ISP program. Although the alleged breach of duty is the same, each cause of action seeks recovery of a separate alleged ISP benefit: severance pay (Sixth), MIDA lump-sum payment (Seventh) and CSL forgiveness (Eighth).

Plaintiff makes two alternative arguments for summary judgment on the three ERISA claims. (1) Harlan argues that So-hio breached its fiduciary duty by denying him ISP benefits based on a condition, i.e. his refusal to sign the release, that was not part of the ERISA plan. Alternatively, (2) if the release condition was part of the ISP, that condition could not lawfully be included in an ERISA plan.

Sohio’s countermotion seeks summary adjudication that the release condition was contained in the ISP plan and that such a condition is lawful. Additionally, Sohio has made several other motions on ERISA issues. Sohio moves for dismissal of the Seventh and Eight claims oh the grounds that neither the MIDA nor the CSL programs were ERISA plans. Sohio also argues that ERISA preempts plaintiff’s Second, Third and Fourth causes of action. Sohio further asks that plaintiff’s claim for punitive damages on the ERISA claims be stricken, and that plaintiff’s demand for a jury trial on ERISA issues be stricken. The court will address each of these motions below.

A.

Sohio’s ISP is an employee welfare benefit plan within the scope of ERISA.2 29 U.S.C. § 1002(1)(A); Jung v. FMC Corp., 755 F.2d 708, 710 n. 2 (9th Cir.1985). Sohio as the plan administrator is required to administer the plan in accordance with the reporting and disclosure requirements and the standards of fiduciary responsibility of the Act. 29 U.S.C. §§ 1021-31; 1101-14. This court reviews the fiduciary’s actions under an “arbitrary and capricious” standard. Jung, 755 F.2d at 711; Anderson v. Ciba-Geigy Corp., 759 F.2d 1518, 1520-21 (11th Cir.), cert. denied, 474 U.S. 995, 106 S.Ct. 410, 88 L.Ed.2d 360 (1985); Harm v. Bay Area Pipe Trades Pension Plan Trust Fund, 701 F.2d 1301, 1304 (9th Cir.1983).

An administrator breaches its fiduciary duties if it fails to administer a plan in accordance with the plan’s language. 29 U.S.C. § 1104(a)(1)(D); Blau v. Del Monte Corp., 748 F.2d 1348, 1354 (9th Cir.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985). A fiduciary is also obligated to administer the plan “for the exclusive purpose of providing benefits to participants and their beneficiaries.” 29 U.S.C. § 1104(a)(1)(A).

B.

Plaintiff contends that Sohio breached its fiduciary duty by denying him ISP benefits for a reason not contained in the plan itself; that is, the release. The Ninth Circuit has held that a fiduciary’s imposition of conditions not contained in the plan’s language is arbitrary and capricious and thus a violation of ERISA. Blau, 748 F.2d at 1356; accord Dennard v. Richards Group, Inc., 681 F.2d 306, 318 (5th Cir.1982); Morgan v. Mullins, 643 F.2d 1320, 1321 (8th Cir.1981). If the release was not in fact a part of the plan, Sohio breached its fiduciary duty by denying Harlan benefits because he would not sign the release.

It is undisputed that the summary of the ISP3 which Harlan received before he was

terminated did not contain a release clause, nor any mention that a release was a condition of eligibility. Under the “Eligibility” section, the summary stated:

However, the Separation Agreement was given to Harlan at the same time as the other ISP documents. That agreement did contain the paragraph releasing all claims against the company.4 The agreement, although not identifying the ISP by name, referred to the benefits contained in the plan and expressly conditioned receipt of those benefits on signature of the release provision.

This is not a situation where the plan had already been in effect, and defendant later sought to condition the benefits on a later-required release. Here the benefits and the condition were offered to plaintiff at the same time. By declarations filed with this motion, Sohio officials also stated that the release condition was always part of the plan, and that the clause was consistently applied so that no one received benefits without signing the release. Those declarations were substantially undenied.

The court concludes that all of the documents delivered to plaintiff constituted the “plan.” That “plan” included the condition that plaintiff release defendant as a condition to receiving the benefits. Plaintiff cannot accept the benefits and at the same time say that the condition was not part of it.

C.

Harlan contends that inclusion of the release condition was illegal under 29 U.S.C. §§ 1104(a)(1)(A) and 1110(a). He maintains that it violates Section 1104(a)(1)(A)5 because that condition was not “for the exclusive purpose of providing benefits to participants and their beneficiaries.” Harlan also argues that it is unenforceable under Section 1110(a),6 which prohibits exculpatory provisions in ERISA plans. As a plan fiduciary, Sohio is of course bound by the duties imposed those sections.

Plaintiffs argument under section 1104(a)(1)(A), however, cannot apply to the creation of a plan. ERISA does not require employers to establish employee benefit plans. Adams v. General Tire & Rubber Co., 794 F.2d 164, 166 (4th Cir.1986) (“[A]n employer has no obligation under ERISA or any other federal law to provide supplemental unemployment compensation or any other type of benefits to his employees.”) Nor does ERISA dictate any substantive eligibility requirements that the employer must adopt if he chooses to establish a plan. See, e.g., Blau, 748 F.2d at 1353 (explaining that “ERISA mandates no

minimum substantive content”).7 Once an ERISA plan is created, the courts may not examine the reasonableness of provisions contained in the plan. United Mine Workers v. Helen Mining Co., 762 F.2d 1155, 1160 (3rd Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 527, 88 L.Ed.2d 459 (1985).

ERISA provides for certain procedural protections regarding the plan after the plan and its eligibility requirements are created. See Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 374-75, 100 S.Ct. 1723, 1732-33, 64 L.Ed.2d 354 (1980) (congressional purpose in enacting ERISA was to make sure employee who had fulfilled necessary conditions to obtain benefit would actually receive it); Adams, 794 F.2d at 167 (distinguishing employer’s distinct responsibilities in creation vs. administration of ERISA plan).

In this case, Sohio created and offered the ISP for certain employees who were terminated. Sohio was not obligated to provide the ISP at all. And Sohio chose to make the release clause a requirement for receipt of ISP benefits. Only after Sohio established the plan, including the release condition, does Section 1104(a)(1)(A) govern the manner in which Sohio must administer the plan.

There is no contrary authority supporting plaintiff’s argument that Section 1104(a)(1)(A) prevents Sohio from including the release condition as an eligibility requirement at the time the plan was created.8

Harlan also argues that the release condition is an exculpatory provision made unenforceable by 29 U.S.C. § 1110(a). Section 1110(a) prohibits waivers of future liability arising out of administration of the ERISA plan. The release clause in this case releases “past or present” claims. It does not require an employee to waive future claims regarding plan administration and does not violate the section.

The court concludes that the release condition was a part of the plan, and that the inclusion of such a condition does not violate ERISA. Partial summary judgment is therefore granted for defendant on these issues.

D.

Plaintiff’s Seventh and Eighth Causes of Action relate to Sohio’s MIDA and CSL programs. The parties agree that neither the MIDA nor the CSL programs are ERISA plans. Plaintiff would have been entitled to receive a lump-sum payment for future MIDA benefits and forgiveness of his CSL loan balance under the ISP if he had accepted it. Since plaintiff did not accept those benefits because he did not want to sign the release — a condition which the court has above found proper under ERISA — he has no cause of action to recover them.

E.

Sohio argues that plaintiff’s common law causes of actions — breach of contract (Second), wrongful discharge (Third) and breach of the implied covenant of good faith and fair dealing (Fourth) — are preempted by ERISA.

ERISA’s express preemption provision, Section 514(a), states that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” 29 U.S.C. § 1144(a). The U.S. Supreme Court has given the phrase “relate to” a “broad common-sense meaning, such that a state law ‘relate[s] to’ a benefit plan ‘in the normal

sense of the phrase, if it has a connection with or reference to such a plan.’ ” Pilot Life Ins. Co. v. Dedeaux, — U.S.-, 107 S.Ct. 1549, 1553, 95 L.Ed.2d 39 (1987), quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983).

In addition, the Ninth Circuit has held that ERISA preemption extends even to state common-law causes of action that “do not explicitly refer to employee benefit plans.” Scott v. Gulf Oil Corp., 754 F.2d 1499, 1504 (9th Cir.1985). Thus, many courts have found preemption where the plaintiffs claims, although formed under theories of state common-law, were really ways of restating claims for employee benefits governed by ERISA. See, e.g., Dedeaux, 107 S.Ct. at 1551-58 (plaintiff’s common-law causes of action alleging improper processing of claim for disability benefits preempted by ERISA); Blau v. Del Monte Corp., 748 F.2d 1348, 1356-57 (9th Cir.1985) (plaintiffs’ common-law causes of action alleging denial of benefits under severance allowance policy preempted by ERISA), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985).

Nevertheless, the Ninth Circuit has also recognized that “while the scope of section 514(a) is broad, it is not all-encompassing.” Martori Bros. Distrib. v. James-Massengale, 781 F.2d 1349, 1356 (9th Cir.) opinion amended, 791 F.2d 799, cert. denied, — U.S. -, 107 S.Ct. 435, 93 L.Ed.2d 385 (1986). In Martori, employers violated the Agricultural Labor Relations Act by refusing to bargain in good faith. As a remedy, the Board ordered employers to pay their employees a compensation differential which included wages and fringe benefits. The employers argued that the make-whole order related to ERISA plans the employers already had. The court rejected the preemption argument, stating:

Id. at 1356, quoting Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21, and Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985).

The Martori court set forth the following four categories of state laws that have been found to relate to ERISA plans for purposes of preemption:

Id. at 1357 (footnotes omitted). The court then concluded:

Id. at 1357-1358, quoting Scott, 754 F.2d at 1505.

Applying the standard set forth in Mar-tori to this case, plaintiff’s state law claims are preempted only if they concern matters regulated by ERISA. In determining that they do not, this court relies on the recent Ninth Circuit case Sorosky v. Burroughs Corp., 826 F.2d 794 (9th Cir.1987).

In Sorosky, plaintiff challenged his layoff and subsequent termination on the ground that he had been fired because of his age. He pleaded causes of action for breach of contract/wrongful discharge, misrepresentation, breach of the implied covenant of good faith and fair dealing,

conspiracy to interfere with a protected property interest, and discrimination based on age. Defendant removed the suit to the district court, which ultimately granted summary judgment in defendant’s favor. In affirming, reversing and remanding in part, the Ninth Circuit court analyzed plaintiff’s claims as follows:

Id. at 3165.

Similarly, plaintiff here alleges breach of contract, wrongful discharge, and breach of the implied covenant of good faith and fair dealing based on his termination. These claims include allegations separate from his allegations that he has been wrongfully denied employee benefits. These claims are therefore are not preempted by ERISA. Defendant’s motion in that regard is denied.

F.

Defendant has moved to strike plaintiff’s claim for punitive damages under ERISA, arguing that such damages are not available under the statute. Since this court is dismissing the ERISA causes of action, the request for punitive damages under those counts is also stricken. This is not a ruling on plaintiff’s alleged right to punitive damages on the non-ERISA counts. And the court need not rule on defendant’s motion to strike the jury demand on the ERISA counts.

III.

ISSUES REGARDING STATE LAW CLAIMS

A. Breach of Employment Contract

Defendant has moved for summary judgment on plaintiff’s Second Claim, for breach of an alleged employment contract. A discharged employee may state a cause of action for a discharge which is contrary to the express or implied terms of the employment contract. Koehrer v. Superior Court, 181 Cal.App.3d 1155, 1166, 226 Cal.Rptr. 820, 826 (1986); Pugh v. See’s Candies, Inc., 116 Cal.App.3d 311, 322, 171 Cal.Rptr. 917, 922 (1981). Under the Pugh analysis, it is necessary to consider whether the express or implied terms of an employment agreement rebut the presumption of “at will” status and show a promise to terminate the employee only for good cause. 116 Cal.App.3d at 325-330, 171 Cal.Rptr. at 924-928; Shapiro v. Wells Fargo Realty Advisors, 152 Cal.App.3d 467, 481, 199 Cal.Rptr. 613, 621 (1984).

The Pugh court explained that

116 Cal.App.3d at 326, 171 Cal.Rptr. 917, quoting Drzewiecki v. H & R Block, Inc., 24 Cal.App.3d 695, 703, 101 Cal.Rptr. 169, 174 (1972). Thus, an implied promise not to terminate except for good cause may be based on a variety of factors such as an “express or implied promise based on the employer’s words, conduct, custom or a combination thereof.” Koehrer, 181 Cal.App.3d at 1166, 226 Cal.Rptr. at 826; Pugh, 116 Cal.App.3d at 327, 171 Cal.Rptr. at 925-26 (proper to consider factors such as “the personnel policies or practices of

the employer, the employee’s longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged”).

The court has reviewed the record and concludes that plaintiff’s proffered evidence is sufficient to raise a genuine issue of material fact regarding rebuttal of the presumption of at-will employment, and to allow a jury to imply a promise not to terminate except for good cause.

Defendant’s arguments to the contrary address the factors identified by Pugh individually, rather than considering the totality of the employment relationship. Pugh, 116 Cal.App.3d at 326, 171 Cal.Rptr. at 925. For example, Sohio places great reliance on the fact that plaintiff’s length of service was inadequate to enable him to state a claim for breach of implied contract. While longevity is a factor to be considered, see, e.g., Newfield v. Insurance Co. of the West, 156 Cal.App.3d 440, 445, 203 Cal.Rptr. 9, 12 (1984), there is no per se rule barring short-term employees for recovery for breach of an implied contract. Khanna v. Microdata Corp., 170 Cal.App.3d 250, 262-63, 215 Cal.Rptr. 860, 867-68 (1985). Sohio also argues that Harlan may not rely on employment policies as a basis for implied term employment if he was unaware of those policies. See Hillsman v. Sutter Community Hosp., 153 Cal.App.3d 743, 753, 200 Cal.Rptr. 605, 611 (1984) (policies “may form part of an implied contract of employment if the employer and employee had a mutual understanding that the rules or procedures would apply to the employee”); Hepp v. Lockheed-California Co., 86 Cal.App.3d 714, 719, 150 Cal.Rptr. 408, 411 (1978). The court does not believe that defendant’s argument can result in a finding of no contract as a matter of law. See, e.g., Pugh, 116 Cal.App.3d at 329, 171 Cal.Rptr. at 927. Rather, the effect of Harlan’s alleged lack of awareness is simply one factor for the trier of fact to consider.

For the foregoing reasons, the motion for summary judgment as to the Second claim is denied.

B. Breach of Implied Covenant

Harlan also alleges that Sohio breached an implied covenant of good faith and fair dealing by terminating him, the fourth cause of action. An action for breach of such an implied covenant will lie where an employer asserts that there is good cause for discharging an employee “without a good faith belief that good cause for discharge in fact exists.” Koehrer, 181 Cal.App.3d at 1171, 226 Cal.Rptr. 820, 829. Under those circumstances, “the employer has tortiously attempted to deprive the employee of the benefits of the agreement.” Id.; see Khanna v. Microdata Corp., 170 Cal.App.3d at 262-63, 215 Cal.Rptr. at 867, (breach of implied covenant established by “bad faith action extraneous to the contract, combined with the obligor’s intent to frustrate the [employee’s] enjoyment of contract rights,” quoting Shapiro v. Wells Fargo Realty Advisors, 152 Cal.App.3d 467, 478-79, 199 Cal.Rptr. 613, 619 (1984)).

It is undisputed that plaintiff was terminated as part of a reduction-in-force (RIF). Sohio argues that a RIF is good cause per se, entitling it to summary judgment as a matter of law. However, defendant’s cited authorities do not go that far. See Gianaculas v. Trans World Airlines, Inc., 761 F.2d 1391 (9th Cir.1985); Cox v. Resilient Flooring Div. of Congoleum Corp., 638 F.Supp. 726 (C.D.Cal.1986); Malmstrom v. Kaiser Alum. & Chem. Corp., 187 Cal.App.3d 299, 231 Cal.Rptr. 820 (1986); Clutterham v. Coachmen Industries, Inc., 169 Cal.App.3d 1223, 215 Cal.Rptr. 795 (1985). This court does not believe that those authorities establish a per se rule that a RIF constitutes good cause. Rather, in each of the cases, summary judgment was granted because the RIF at issue was held to constitute good cause in that particular case.

Sohio’s evidence of the RIF does satisfy its burden of coming forward with evidence of a legitimate reason of good cause for Harlan’s termination. Clutterham, 169 Cal.App.3d at 1227, 215 Cal.Rptr. 795; Cro

sier v. United Parcel Service, Inc., 150 Cal.App.3d 1132, 1137-38, 198 Cal.Rptr. 361 (1983). To succeed on his bad faith claim, Harlan must show that the RIF argument is pretextual. Clutterham, 169 Cal.App.3d at 1227, 215 Cal.Rptr. 795; Crosier, 150 Cal.App.3d at 1138, 198 Cal.Rptr. 361. Plaintiffs proffered evidence is sufficient to raise a genuine issue of material fact that the RIF was pretextual, or that the manner in which the RIF was applied to him breached the implied covenant.

Defendant’s motion for summary judgment on the Fourth Claim is therefore denied.

C. FEHA Preemption

Defendant moves for judgment on the pleadings, Fed.R.Civ.P. 12(c), or, in the alternative, for summary judgment on the ground that plaintiff’s Second, Third and Fourth causes of action are preempted by the California Fair Employment and Housing Act (CFEHA), Cal.Govt.Code §§ 12940 et seq. Plaintiff concedes that his third claim for discharge in violation of public policy is preempted, but disputes defendant’s motion as to the Second and Fourth claims.

The CFEHA mandates equal employment opportunity, declaring that it is the public policy of the state to “protect and safeguard the right and opportunity of all persons to seek, obtain and hold” employment without discrimination, including discrimination on the basis of age. Cal.Govt. Code § 12920. The CFEHA preempts any common law causes of action for age discrimination. Strauss v. A.L. Randall Co., 144 Cal.App.3d 514, 518-20, 194 Cal.Rptr. 520, 523-24 (1983). Common law claims are preempted only to the extent that they are based on discrimination within the purview of the Act. Hudson v. Moore Business Forms, Inc., 609 F.Supp. 467, 474-75 (N.D.Cal.1985). The Act does not preempt common law claims which are not based on discrimination. Id.

In this case, Harlan’s Second claim (breach of contract) and Fourth claim (breach of implied covenant) are not based solely on age discrimination. First Amended Complaint, ¶¶ 11-15, 19-22. Although these claims are based “in part” on age discrimination, plaintiff alleges other conduct which could constitute a breach of contract or a breach of the implied covenant. And plaintiff’s proffered evidence shows that Sohio could have breached the employment contract or the implied covenant for reasons unrelated to age discrimination.

Accordingly, the motions for judgment on the pleadings and for summary judgment on the Second and Fourth claims are denied. The motion for judgment on the pleadings as to the Third claim is granted.

IV.

RETALIATION CLAIM

Defendant moves for summary judgment on the Fifth claim, which alleges that certain adverse employment actions were taken in retaliation for plaintiff’s filing an EEOC charge.9 Defendant contends that it is entitled to summary judgment because Harlan has suffered no compensa-ble damages as a result of the allegedly retaliatory actions.10

Sohio’s argument is based on a narrow reading of the complaint; that is, that Harlan only claims that he lost ISP benefits and that his last paycheck was delayed as a result of the alleged retaliation. The Fifth claim does allege that Sohio retaliated against Harlan by denying him the benefits of the severance package and withholding his last paycheck. First Amended Complaint, ¶ 25. However, the complaint also

makes reference to plaintiff’s second EEOC charge, which states that plaintiff was denied various other benefits. Id., ¶ 28 and Exh. B thereto. The Fifth claim appears to incorporate the EEOC charge and the broader damages allegedly caused by Sohio’s retaliation.

In response to this motion, plaintiff has presented evidence of damages including the lost opportunity to be considered for other jobs at Sohio and a bonus for 1985. From this evidence, a jury could find that the retaliation caused him damage. Accordingly, the motion for summary judgment on the Fifth claim is denied.

V.

COUNTERCLAIM

Sohio has counterclaimed against plaintiff for the unpaid balance of the CSL loan. As there is no disputed issue of material fact as to the amount due on Harlan’s CSL loan, defendant’s motion for partial summary judgment is hereby granted. If defendant prevails on its counterclaim, it is entitled to recover $9,566.67.

VI.

LABOR COMMISSIONER APPEAL

In action No. C-86-4072 defendant has appealed and removed to this court the decision of the California Labor Commissioner imposing penalties under Cal.Labor Code § 203 for Sohio’s alleged failure to pay Harlan wages due him on his termination.

Defendant has moved for summary judgment, arguing that there is no issue of material fact that Sohio’s failure to pay Harlan’s wages on time was due to an administrative failure, rather than willfulness. In response to the motion, plaintiff relies on the fact that a Sohio employee in San Francisco sent the check back to So-hio’s headquarters with the notation: “Not entitled to above check, according to John Schilling, did not sign severance agreement.” A jury could infer from this document, which is essentially the same evidence relied upon by the state Administrative Law Judge, that Sohio’s conduct was willful under Section 203. Because of this disputed material fact, defendant’s motion for summary judgment is denied.11

VII.

For the reasons discussed above, IT IS ORDERED as follows:

2. Plaintiff’s claims for punitive damages on his ERISA causes of action are stricken.

3. If plaintiff is liable to defendant on defendant’s counterclaim, the amount is $9,566.67, plus accrued interest.

4. The motions of plaintiff and defendant are otherwise denied.

5. This case is hereby referred to the Magistrates for purposes of convening a settlement conference.

IT IS SO ORDERED.