Howington v. Smurfit-Stone Container Corporation/Smurfit-Stone Container Corporation Pension Plan for Hourly Employees
ORDER denying 77 Motion for Summary Judgment by James E. Howington, Jr.; granting 81 Motion for Summary Judgment by Smurfit-Stone Container Corporation/Smurfit-Stone Container Corporation Pension Plan for Hourly Employees.; denying 85 Motion for Oral Argument; denying 87 Motion to Strike. Signed by Judge Kristi K. DuBose on 9/30/2013. copies to parties. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JAMES HOWINGTON, JR.,
CORPORATION and SMURFIT-STONE
PENSION PLAN FOR HOURLY
CIVIL ACTION NO. 11-0136-KD-M
This action is before the court on the plaintiff James Howington, Jr.’s motion for
summary judgment, memorandum in support, and suggested determinations of undisputed fact
and conclusions of law; defendants Smurfit-Stone Container Enterprises, Inc.1 and Smurfit-Stone
Container Corporation Pension Plan for Hourly Employees’ (Smurfit and the Pension Plan)
response in opposition; (docs. 77-79, 84) and Smurfit’s motion for summary judgment, brief in
support, and suggested findings of undisputed facts and conclusions of law; Howington’s
response; and Smurfit’s reply (docs. 81-83, 89, 90, 91).2 3
Upon consideration and for the reasons set forth herein, Howington’s motion for
Defendants state that Smurfit is now merged with RockTenn CP, LLC, and that it
retains all the rights and obligations of Smurfit.
Howington’s motion to strike Smurfit’s motion for summary judgment (doc. 87) is
The court has determined that oral argument is not necessary to resolve the pending
motions. Therefore, Smurfit’s motion for oral argument (doc. 85) is DENIED.
summary judgment is DENIED and Smurfit’s and the Pension Plan’s motion for summary
judgment is GRANTED.
I. Findings of Fact4
Howington was an hourly employee at Smurfit’s paper mill in Brewton, Alabama and he
participated in the Pension Plan for hourly employees. (Doc. 1) Howington’s last day of work
for Smurfit was September 27, 2007. (Doc. 1) Howington left work with Smurfit early on
September 27, 2007 and claims this was because of his disability. (Doc. 1, Doc. 78, ¶ 10)
Smurfit terminated all employees as of September 27, 2007. (Doc. 83, ¶ 2) On September 28,
2007, the paper mill was sold to Georgia Pacific Corporation. (Doc. 83, ¶ 2) Georgia Pacific
hired some of Smurfit’s former employees. (Id.) Although Howington had applied to work with
Georgia Pacific, he was not hired. (Id.)
In January 2008, Howington applied for disability benefits with the Social Security
Administration. (Doc.1) He was awarded benefits on June 2, 2009. (Doc. 34-2) The
Administrative Law Judge (ALJ) found that Howington had “not engaged in substantial gainful
activity since October 28, 2007, the alleged onset date[.]” (Doc. 34-2, p. 5) The ALJ also
determined that Howington “has been under a disability as defined in the Social Security Act
since October 28, 2007, the alleged onset date of disability.” (Doc. 34-2, p. 7) Howington did
not file an appeal of this decision. (Doc. 1, Doc. 72)
After the award, Howington applied for early disability retirement through the Pension
Plan on basis that he became disabled while working for Smurfit. (Doc. 83, Exhibit A, Affidavit
On motion for summary judgment, the court must construe the record and all evidence
and factual inferences, in the light most favorable to the nonmoving party and resolve all
reasonable doubts in regard to the facts in favor of the non-movant. See Skop v. City of Atlanta,
485 F.3d 1130, 1136 (11th Cir. 2007).
of Cheryl Curik, former Manager of Retirement Plans and Compliance for Smurfit; Doc. 83,
Exhibit D, Affidavit of James Howington, Jr.). Howington did not apply for short-term
disability, which typically would be the first step a disabled Smurfit employee would take in
order to obtain up to 29 weeks of short term disability benefits, before applying for early
disability retirement and serving a waiting period. (Doc. 83, ¶ 7)
On September 1, 2009, Howington’s claim was denied in reliance on the Social Security
decision that he became disabled October 28, 2007, after he left employment with Smurfit. (Doc.
1, p. 2, ¶ 13; Doc. 78, ¶ 8) The unsigned letter from the Pension Plan explained that the letter
from the Social Security Administration stated that Howington was “deemed disabled in October
2007” and that as of that date he was not an “active employee” with Smurfit. The letter further
explained “We are bound by the terms and the conditions of the Plan, and must administer the
Plan in accordance with those terms and conditions.” (Doc. 22, p. 13) As to the appeal process,
Smurfit . . . offers an appeal process in accordance with [ERISA] to ensure that
benefits have been properly administered according to Pension Plan provisions.
You have the right to request a review of the denial of your benefits by the
Administrative Committee. You have the right to review relevant documents and
to submit issues and comments in writing. . . If you decide to appeal, please
provide any documentation that you believe supports your claim.
(Doc. 22, p. 13, Exhibit B)
On or near October 27, 2009, Howington wrote the Pension Plan explaining that he
mistakenly wrote the wrong date that he last worked for Smurfit on the application for Social
Security Disability Benefits. (Doc. 78, ¶ 9; Doc. 37, p. 4, Exhibit A) Howington enclosed with
his appeal “the sheet that I had filled out for social security with the mistake[.]” (Doc. 37, p. 4,
Exhibit A) He asked for help with this matter and asked the Pension Plan to contact him should
the Committee need more information. (Id).
At some time after July 13, 2010, Howington was notified that the Smurfit-Stone
Administrative Committee affirmed the decision on appeal. (Doc. 22, Exhibits C, p. 14, Letter
from Smurfit Stone Pension Service Center, dated July 13, 2010). In this letter, Cheryl Curik
explained that the Administrative Committee reviewed Howington’s claim, his Social Security
disability award, his personnel file, and the applicable Pension Plan document. (Id).
In December 2010, Howington’s counsel wrote the Pension Plan Service Center about
the denial (Doc. 37, p. 7-8, Exhibit B, Letter to Curik dated December 9, 2010). Counsel offered
to provide medical records in support of the onset date. Pension Plan counsel responded that the
denial would be reconsidered if Howington provided “a revised Social Security determination
stating that he was disabled on September 27, 2007.” (Doc. 22, Exhibit E, p. 16).
On January 13, 2011, Howington’s counsel responded that the time limit had passed to
amend the Social Security Administration decision and provided the full ALJ decision to Pension
Plan Counsel (doc. 37, p. 9-10). In March 2011, Pension Plan Counsel responded that benefits
were not available because “[a]ccording to the determination, Mr. Howington’s disability began
after he left [Smurfit’s] employment” and that a “condition of eligibility . . . is that a participant
be disabled while in active employment.” (Doc. 37, p. 11) Howington did not obtain a revised
decision from the SSA.
Howington filed his complaint on March 17, 2011. (Doc. 1) Smurfit answered and
moved for judgment on the pleadings and for summary judgment. (Docs. 4, 5, 14, 17, 27) The
motions were denied. (Docs. 26, 41) The non-jury trial was held on April 3, 2012, and after
consideration of the evidence, the court entered an order whereby the case was remanded to
Smurfit for further consideration and investigation as to Howington’s onset of disability. (Doc.
59) The court also held that Smurfit’s decision to deny Howington an opportunity or method to
correct his mistake through the claims procedure resulted in a denial decision that was without a
reasonable basis and therefore arbitrary and capricious. (Doc. 59)
On remand, Howington provided Smurfit with letters and medical records from his
treating physicians Dr. Robert A. DeFrancisco, Ph.D5 and Jonathan Southworth, D.O. (Doc. 78,
p. 14, 15; Doc. 72, Exhibit A). He also submitted medical treatment records from Dr. Walid W.
Friej, a neuro-psychiatrist,6 and Dr. Peter M. Szymoniak,7 an orthopedic physician. (Doc. 72,
In February 2013, Karen Poole, the Director of Benefits at RockTenn, the successor to
Smurfit, sent Howington a letter explaining that the additional information and medical history
forms had been received. Poole wrote Howington as follows:
As stated in previous communications, the Plan requires that you submit a
Social Security Disability Award that states that you were found to be disabled
while in the active employment of Smurfit-Stone. In the absence of such
documentation, you are not eligible for a disability pension under the [Pension
We are bound by the terms and conditions of the Plan, and must administer the
Plan in accordance with those terms and conditions. If you can obtain a revised
In November 2008, Dr. DeFrancisco administered a mental examination of Howington
and diagnosed pain disorder related to diabetic neuropathy and major depressive disorder. He
assessed Howington’s functional limitations as moderate to marked except one area of function
that was assessed as mildly limited. (Doc. 72, Exhibit A, pp. 20-32) Dr. DeFrancisco also states
that in 2006, he diagnosed Howington with an anxiety disorder and depressive disorder. (Id., p.
20) Dr. DeFrancisco stated that Howington left his job in October 2007 because he was unable
to work. (Id., p. 27) When asked “if you have sufficient information to form an opinion within a
reasonable degree of medical or psychological probability as to past limitations, on what date
were the limitation you found above first present?”, Dr. DeFrancisco answered “Oct ‘07”. (Id., p.
In December 2008, Dr. Friej diagnosed peripheral neuropathy, identified the functional
limitations resulting therefrom, and indicated that the limitation has been present since 2000.
(Doc. 72, Exhibit A, p. 19)
In February 2007, Dr. Szymoniak recommended “an extra-depth shoe”, gave
Howington a note exempting him from wearing steel-toed boots, and recommended a gradual
increase in the current dose of pain medication. (Doc. 72, Exhibit A, p. 33)
award letter from Social Security, RockTenn will certainly review your
eligibility for a disability pension.
(Doc. 78, p. 16)
After the denial of benefits, Howington filed a motion to reopen this action and the
motion was granted. He filed an amended complaint against Smurfit and the Pension Plan on
April 17, 2013. (Doc. 72) Smurfit and the Pension Plan filed their answers. (Doc. 73) The
parties have now filed their respective motions for summary judgment.
II. The Pension Plan and the Plan Administrator
The Pension Plan is self-funded. (Doc. 83, ¶ 1) The Pension Plan’s assets are held in a
trust that is funded by irrevocable periodic contributions. Benefits are paid by the trust. (Id.) The
manner of funding the Pension Plan does not allow for an independent medical determination by
the Plan Administrator, Smurfit. (Id., ¶ 10) Therefore, Smurfit does not have medical staff in the
benefits department and does not independently review medical records to make disability
determination, but instead relies upon and adopts the Social Security Administration’s disability
decisions. (Id., ¶¶ 1, 9)
Smurfit is the Plan Administrator and there are no third-party administrators. (Doc. 83, ¶
1) Smurfit uses the SSA’s decision, although not specifically required by the written Pension
Plan, as to the date of onset of disability to determine whether a claimant became disabled during
the claimant’s employment with Smurfit. (Id., ¶ 11)
Section 5.16 of the Pension Plan defines disability as follows:
Disability Defined. Except as otherwise provided in a Supplement, a Member
who becomes disabled while in the active employment of the Company shall be
deemed to be disabled for purposes of the Plan if through an unavoidable cause:
(a) he has been disabled by illness or injury so as to be incapable of engaging in
any occupation or employment for remuneration or profit; (b) such disability shall
have been continued for a period of at least five consecutive months, and (c) the
Member has received a federal Social Security Disability award or a premium
waiver or death benefit only continuation coverage under the Company’s life
insurance carrier. For purposes of this Section 5.16, the phrase “active
employment” means that on the date of onset of disability, the Member (i) was on
the active payroll of the Employer; and (ii) was not on a leave of absence as
defined under Article III.
(Doc. 28-3, p. 33, Pension Plan p. 23)
Article XI of the Plan provides for “Administration of the Plan” and Section 11.1
provides for an Administrative Committee of at least three members to serve as the Plan
Administrator. Article XI sets forth, in part, as follows:
Section 11.2 Committee’s Powers. The Committee shall have such powers as
may be necessary to discharge its duties hereunder, including, but not limited to,
the following powers, rights, discretion and duties:
11.2(a) Interpretation of Plan and Trust Fund The Committee shall have the
power, right and duty to construe and interpret the Plan and Trust Fund provisions
in its discretion and to determine all questions . . . including . . . eligibility for
Plan benefits and the rights of Employees . . . to benefits under the Plan . . .
11.2(c) Benefit Determinations. The Committee shall have the power, right and
duty to make determinations as to the rights of Employees, Members,
Beneficiaries and other persons to benefits under the Plan and to afford any
Member or Beneficiary dissatisfied with such determination with rights pursuant
to a claims procedure adopted by the Committee.
(Doc. 83-1, p. 46)
As to the Claims Procedure, the Pension Plan sets forth in relevant part, as follows:
11.5(a) Each person eligible for a benefit under the Plan will make a claim for his
or her benefit by submitting an appropriate form to the Committee. Each such
person will also furnish the Committee with such documents, evidence, data, or
information in support of his or her claim as the Committee considers necessary
(Doc. 83-1, p. 48) The Pension Plan also provides for a review if the claim is denied (Id.).
In reviewing a denied claim the reviewer shall take into consideration all
comments, documents, records, and other information submitted by the claimant
in support of the claim, without regard to whether such information was submitted
or considered in the initial benefit determination.
(Id., p. 49 at § 11.5(d))
III. Conclusions of law
A. Summary judgment standard
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). If a party asserts “that a fact cannot be or is genuinely disputed”, the party must
(A) cit[e] to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) show that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1)(A)(B).
The party seeking summary judgment bears “the initial burden to show the district court,
by reference to materials on file, that there are no genuine issues of material fact that should be
decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The party
seeking summary judgment “always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Clark, 929 F.2d at 608 (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986)).
Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant
to show the existence of a genuine issue of material fact. Id. “In reviewing whether the
nonmoving party has met its burden, the court must stop short of weighing the evidence and
making credibility determination of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (citing Anderson v. Liberty Lobby,
477 U.S. 242, 255, 106 S.Ct. 2505 (1986)); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159,
90 S.Ct. 1598, 1608-1609 (1970). However, “[a] moving party is entitled to summary judgment
if the nonmoving party has ‘failed to make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.’” In re Walker, 48 F. 3d 1161, 1163 (11th
Cir. 1995) (quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552).
Overall, the court must “resolve all issues of material fact in favor of the [non-movant],
and then determine the legal question of whether the [movant] is entitled to judgment as a matter
of law under that version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004)
(citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003)).
However, the mere existence of any factual dispute will not automatically necessitate
denial of a motion for summary judgment; rather, only factual disputes that are material preclude
entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358
F.3d 804, 809 (11th Cir. 2004). “An issue of fact is material if it is a legal element of the claim
under the applicable substantive law which might affect the outcome of the case. It is genuine if
the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.”
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation omitted).
Also, “what is considered to be ‘facts’ at the summary judgment stage may not turn out to be the
actual facts if the case goes to trial, but those are the facts at this stage of the proceeding for
summary judgment purposes.” Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996).
B. The ERISA standard of review
“ERISA does not set out standards under which district courts must review an
administrator's decision to deny benefits.” Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d
1352, 1355 (11th Cir. 2008) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109,
109 S.Ct. 948, 953, 103 L.Ed.2d 80 (1989)). The Court of Appeals for the Eleventh Circuit
developed a six-step review process which was modified in response to the decision in
Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S. Ct. 2343 (2008). After Glenn, this
circuit no longer requires district courts to apply a heightened standard of review to a conflicted
plan administrator’s decision (the sixth step). Doyle, 542 F. 3d at 1360. 8
Eliminating the heightened standard of review in the sixth step, the review process
proceeds as follows:
(1) Apply the de novo standard to determine whether the claim administrator's
benefits-denial decision is “wrong” (i.e., the court disagrees with the
administrator's decision); if it is not, end inquiry and affirm the decision.
(2) If the administrator's decision in fact is “de novo wrong,” then determine
whether he was vested with discretion in reviewing claims; if not, then end the
judicial inquiry and reverse the decision.
(3) If the administrator's decision is “de novo wrong” and he was vested with
discretion in reviewing claims, then determine whether “reasonable” grounds
supported it (hence, review his decision under the more deferential arbitrary and
(4) If no reasonable grounds exist, then end the inquiry and reverse the
administrator's decision; if reasonable grounds do exist, then determine if he
operated under a conflict of interest.
Now, “the existence of a conflict of interest should merely be a factor for the district
court to take into account when determining whether an administrator's decision was arbitrary
and capricious.” Doyle, 542 F. 3d at 1360. Thus, while this court “must take into account an
administrative conflict when determining whether an administrator's decision was arbitrary and
capricious, the burden remains on the plaintiff to show the decision was arbitrary; it is not the
defendant's burden to prove its decision was not tainted by self-interest.” Id.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict, the conflict should merely be a factor for the court to take
into account when determining whether an administrator's decision was arbitrary
Blankenship v. Metropolitan Life Ins. Co., 644 F. 3d 1350, 1355 (11th Cir. 2011) cert. denied,
132 S. Ct. 849 (2011) (amending the sixth step).
Smurfit is unambiguously and expressly vested with discretion to administer the Pension
Plan. See Kirwan v. Marriott Corp., 10 F.3d 784, 789 (11th Cir.1994). Therefore, assuming for
purpose of this order, that Smurfit’s decision is “de novo wrong”, the court must apply the
deferential arbitrary and capricious standard and determine whether Smurfit had “a reasonable
basis for the decision, based upon the facts as known to [Smurfit] at the time the decision was
made.” Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir. 1989);
Blankenship, 644 F. 3d at 1355; Firestone Tire & Rubber, Co., 489 U.S. at 111, 109 S. Ct. 948;
Hunt v. Hawthorne Assocs., Inc., 119 F.3d 888, 912 (11th Cir.1997) (“We have interpreted
Firestone to mandate an arbitrary and capricious standard of review, which is often used
interchangeably with an abuse of discretion standard, if the administrator has discretionary
authority to make eligibility determinations or to construe disputed terms of the plan.”) (citing
Jett, 890 F.2d at 1139). Since Smurfit was given discretion to construe the terms of the Pension
Plan and to make eligibility determinations, its decision “will not be disturbed if reasonable.”
Conkright v. Frommert, 130 S. Ct. 1640, 1651 (2010) (quoting Firestone, 489 U.S. at 111, 109 S.
Ct. 948). Also, the Smurfit Pension Plan benefits are paid from the separately funded irrevocable
trust fund; therefore, Smurfit does not have a conflict of interest. Doyle, 542 F. 3d at 1360. Thus,
the analysis begins at step three and ends at step four.
However, under this framework, Howington bears the burden of proving that he is
disabled and that Smurfit’s decision is wrong. Herring v. Aetna Life Ins. Co., 517 Fed.Appx.
897, 899 (11th Cir. 2013) (citing Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1247
(11th Cir. 2008)). To meet this burden, he must show that Smurfit’s decision to deny his early
disability retirement benefits was “arbitrary and capricious; that is, [without] reasonable
grounds” in support. Id. at 899.
This matter is again before the court on the parties’ motions for summary judgment after
remand to Smurfit for further consideration of Howington’s ERISA claim to disability benefits.
Smurfit previously, and again, denied disability benefits to Howington because the onset date of
disability, as determined by the Social Security Administration, was October 28, 2007 and
Howington’s last day of employment with Smurfit was September 27, 2007. As explained in
the court’s prior order (Doc. 59), the Pension Plan requires that in order to qualify for disability
benefits, Howington must, inter alia, have been actively employed when he became disabled and
have received a federal Social Security Disability award. The Pension Plan does not require that
the onset date be determined by the SSA. However, Smurfit relies on the SSA determination to
establish the onset date.
At the trial held prior to remand (Doc. 66), Howington presented evidence that he had
received an SSD award, but had mistakenly indicated in the Social Security application that his
last day employed with Smurfit was October 28, 2007. 9 Based on this incorrect representation,
the SSA found that October 28, 2007, was Howington’s last date of substantial gainful
employment. Howington argued that his onset date of disability was also based on this
Smurfit agrees this date was incorrect.
Smurfit’s position at trial was not to quarrel with Howington’s allegation of clerical error,
but rather to hold firm that they will only look to the SSD award determination for an onset
date.10 Smurfit explained that it does not have medical staff to evaluate medical records, thus it
will not consider any evidence of an onset date that may differ from the SSD award.
After fully considering the evidence of record, this court determined that the case should
be remanded for additional review by Smurfit, because Smurfit had not fulfilled its fiduciary
duty to fully investigate Howington’s claim. However, despite the court’s determination that it
was arbitrary and capricious for Smurfit not to conduct some investigation into Howington’s
claim of clerical mistake, Smurfit has again refused to conduct any investigation. Instead,
Smurfit responded to the court’s order of remand by simply saying we do not, and will not,
process claims in that manner.
On summary judgment, Smurfit has reiterated as its primary argument its disagreement
with the court’s prior determination. However, Smurfit has also, presumably without a medical
team of advisors, evaluated the evidence submitted by Howington in support of his claimed onset
date. Thus, although Smurfit has failed in its fiduciary duty to administratively consider whether
the onset date was a clerical error,11 Smurfit has pointed to “reasonable grounds” in its summary
judgment motion to support the denial of benefits. Blankenship, 644 F. 3d at 1355. Specifically,
Smurfit points to medical evidence showing an onset date of October 200712 and the failure of
Smurfit’s Pension Plan provides for an appeal process and invites the claimant to
provide documentation that supports his claim.
Howington “is precluded from bringing a breach of fiduciary duty claim in
conjunction with a wrongful denial of benefits claim.” Capone v. Aetna Life Ins. Co., 592 F.3d
1189, 1199 (11th Cir. 2010). However, Smurfit’s “responsibilities as a fiduciary illustrates the
proper standard of investigation.” (Id.) (internal citation omitted).
Dr. DeFrancisco’s report of November 18, 2008, indicates that Howington had
Howington to claim short term disability on September 27, 2007, before he left his employment
at Smurfit.13 Id. at 1354 (“Review of the plan administrator's denial of benefits is limited to
consideration of the material available to the administrator at the time it made its decision.”)
(citing Jett, 890 F.2d at 1140). The court agrees that this evidence, although not cited or relied
upon by Smurfit in its administrative denial, provides a rational basis to determine that the onset
date of disability did not coincide with Howington’s active employment with Smurfit.
In accordance with the foregoing, Smurfit’s and the Pension Plan’s motion for summary
judgment is GRANTED and Howington’s motion for summary judgment is DENIED.
DONE and ORDERED this 30th day of September 2013.
s / Kristi K DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
limitations as of “Oct. ‘07”, with a notation of “left work”. Dr. Szymoniak did not find
Howington unable to work, but instead recommended an exemption from wearing steel-toed
boots. Dr. Freij found functional limitations that had been present since 2000. Thus, Howington
worked for seven years with these limitations.
At trial, the evidence established that Howington had notice that he would no longer
be employed as of September 28, 2007. He testified that about two weeks before the change in
ownership, he attended a job fair and applied for work with Georgia Pacific. He testified that
“someone” from Georgia Pacific called him because he could read that information on his caller
identification, but he did not return the call. (Doc. 66, p. 5-6, trial transcript)
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