Earley v. Liberty Life Assurance Company of Boston et al

Filing 18

ORDER granting in part and denying in part 15 motion to dismiss: 1) granting Motion to Dismiss with prejudice as to state law claims recharacterized as ERISA claim; 2) dismissing without prejudice Plaintiff's claims based on worker's co mpensation and unemployment compensation; deferring ruling on ADA claim, and directing Plaintiff to file a copy of Plaintiff's timely charge of discrimination and Notice of Right to Sue within fourteen days. Signed by Judge Elizabeth A. Kovachevich on 11/7/2013. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JAMES M. EARLEY,
Plaintiff,
v.

CASE NO. 8:13-CV-1099-T-17TGW

LIBERTY LIFE ASSURANCE

COMPANY OF BOSTON,
etal.,
Defendants.

ORDER

This cause is before the Court on:

Dkt. 14

Construed Amended Complaint

Dkt. 15

Motion to Dismiss, Motion for More Definite Statement

Dkt. 16

Order to Show Cause

Dkt. 17

Response to Order to Show Cause

This case was removed from Pinellas County Circuit Court based on federal
question jurisdiction. (Dkt. 1).

The Court granted leave to Plaintiff to file an amended complaint which complies
with the Federal Rules of Civil Procedure. (Dkts. 9, 13). The Court directed Plaintiff to

identify each claim, identify the party or parties to whom it is directed, identify the basis
of the Court's jurisdiction, provide a succinct factual basis for each claim, and identify
the relief sought. Plaintiff was directed to comply with Fed. R. Civ. P. 8(a) and 10(b).

The Court understands Plaintiffs Construed Amended Complaint to include

claims against Liberty Life Assurance Company of Boston, Lowes Home Centers, Inc.
and Sedgwick CMS. The Group Disability Policy is attached to the Complaint. (Dkt. 2).

Case No. 8:13-CV-1099-T-17TGW

Plaintiff has attached a document describing the subject policy from Lowe's Employees
Handbook to the Construed Amended Complaint (Dkt. 14, pp. 3-15).

I. Standard of Review

A. Fed. R. Civ. P. 12(b)(6)

"Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short

and plain statement of the claim showing that the pleader is entitled to relief." "[DJetailed
factual allegations" are not required, Bell Atlantic v. Twomblv. 550 U.S. 544, 555 (2007),
but the Rule does call for sufficient factual matter, accepted as true, to "state a claim to

relief that is plausible on its face," \±, at 570. Aclaim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged, id,, at 556. Two working principles
underlie Twomblv. First, the tenet that a court must accept a complaint's allegations as

true is inapplicable to threadbare recitals of a cause of action's elements, supported by
mere conclusory statements, id,, at 555. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense, id,, at 556. A court considering a motion to dismiss
may begin by identifying allegations that, because they are mere conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the complaint's
framework, they must be supported by factual allegations. When there are

well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v.

Iqbal. 129 S.Ct. 1937, 1955-1956 (2009)(quoting Bell Atlantic v. Twomblv, 550 U.S. 544
(2007).

B. Pro Se Plaintiff

Case No. 8:13-CV-1099-T-17TGW

"Pro se pleadings are held to a less stringent standard than pleadings drafted by

attorneys and will, therefore, be liberally construed." Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir.1998) (per curiam). Pro se litigants are required to

comply with procedural rules. Albra v. Advan. Inc.. 490 F.3d 826, 829 (11* Cir. 2007).
II. Discussion

In filing Plaintiff's Construed Amended Complaint, Plaintiff Earley did not comply
with the Court's previous Orders, and did not comply with the Federal Rules of Civil
Procedure. Since Plaintiff is either unwilling or unable to comply with the Court's
Orders, the Court will not grant further leave to amend the Complaint. The Court will

construe Plaintiffs allegations liberally in an attempt to determine what claims that
Plaintiff is asserting.

A. Fraud

Plaintiffs first claim is a claim for fraud, fraudulent inducement to enter into

contract, and/or conspiracy as to Defendants Liberty Life Insurance Company and
Lowe's Home Center's, Inc. (Dkt. 14, par. 1). Plaintiff alleges that the descriptive
literature in the Lowe's Employee Handbook promises a certain Financial Benefit.

Plaintiff alleges a discrepancy as to the amount of coverage available between

provisions in the descriptive literature in Lowe's Employees Handbook and the terms of
the subject policy.

Plaintiff further alleges that Defendant Lowe's did not provide a

copy of the policy to Plaintiff, and Defendant Liberty Life provide a copy of the policy to
Plaintiff after Plaintiff made a claim.

As to Short Term Disability, the policy provides that a weekly benefit will not be

payable for a Covered Person who becomes disabled due to a work-related Injury or
Sickness for which benefits are paid or payable under any Worker's Compensation law.

Case No. 8:13-CV-1099-T-17TGW

(Dkt. 2, p. 40). The literature in Lowe's Employees Handbook states that the Short
Term Disability Plan Option will not pay for any disability due to an occupational injury
for which [the Covered Person] receives or is entitled to receive benefits under workers'
compensation law. (Dkt. 14, p. 5). It is undisputed that Plaintiff received worker's
compensation benefits in connection with Plaintiff's knee injury.

With respect to Long Term Disability, the policy defines "Disability" or "Disabled":
i. If the Covered Person is eligible for the 24 Month Own Occupation

benefit, "Disability" or "Disabled" means that during the Elimination Period
and the next 24 months of Disability, the Covered Person, as a result of

Injury or Sickness, is unable to perform the Material and Substantial
Duties of his Own Occupation; and

ii. thereafter, the Covered Person is unable to perform, with reasonable

continuity, the Material and Substantial Duties of Any Occupation.

The Lowe's Employees Handbook provides:

Definition of Disability

If, during the elimination period (90 days) and for the subsequent 24
months, as a result of a Sickness or injury, you are unable to perform the
material and substantial duties of your own occupation on a full-time or
part-time basis, you are considered disabled or partially disabled. After
LTD benefits have been paid for 24 months, you must be unable to
perform the material and substantial duties of any occupation to be
considered disabled. You are considered partially disabled if you can

perform on or more, but not all, of the duties for your job or all of any other
job, and are earning between 20% and 80% of your pre-disability
earnings.

The Maximum Benefit periods in the policy and the descriptive literature appear

identical. (Dkt. 2-1, p. 9, Dkt. 14, p. 10). The alleged false promise is unclear to the
Court.

Case No. 8:13-CV-1099-T-17TGW

A welfare plan requires (1) a "plan, fund, or program" (2) established or
maintained (3) by an employer or by an employee organization, or by both, (4) for the
purpose of providing.... disability [or] death benefits (5) to participants or their

beneficiaries. See Donovan v. Dillingham. 688 F.2d 1367, 1371 (11* Cir. 1982).
The Group Disability policy itself (Dkt. 2, pp. 5-51) states that the policy is subject to the
Employment Retirement Income Security Act of 1974 (ERISA).
The Court has determined that Plaintiff's state law claim is preempted by ERISA.

(Dkt. 9, p. 2; Dkt. 13, p. 2). There is a relevant ERISA plan, Plaintiff has standing to sue
under the plan as a plan beneficiary, Defendants Lowe's and Liberty Life are ERISA
entities, and the Construed Amended Complaint seeks compensatory relief akin to that
available under 29 U.S.C. Sec. 1132(a). Plaintiff seeks 5310,000 in benefits, attorney's
fees, and damages. (Dkt 14, p. 2).

Common law causes of action for breach of contract, negligence, conspiracy

and/or fraud are preempted by ERISA. Swerhun v. The Guardian Life Insurance

Company of America, 979 F.2d 195 (11* Cir. 1992); Butero v. Roval Maccabees Life
Insurance Company. 174 F.3d 1207 (11* Cir. 1999).
In the Construed Amended Complaint, Plaintiff does not allege that Plaintiff met

the definition of disability under the subject policy, and that Plaintiff's claim for disability
benefits was wrongfully denied.

As to the duty to provide information, the subject policy provides:

Employee's Certificate

Liberty will provide a Certificate to the Sponsor for delivery to Covered
Persons.

It will state:

Case No. 8:13-CV-1099-T-17TGW

1. the name of the insurance company and policy number;

2. a description of the insurance provided;
3. The method used to determine the amount of benefits'
4. to whom benefits are payable;

5. limitations or reductions that may apply;
6. the circumstances under which insurance terminates; and

7. the rights of the Covered Person upon termination of this policy.
If the terms of a Certificate and this policy differ, this policy will govern.
(Dkt. 2, p. 45).

29 U.S.C. Sec. 1021 provides that a plan Administrator shall cause a summary

plan description to be furnished to plan beneficiaries, in accordance with 29 U.S.C. Sec.
1022. In the Construed Amended Complaint, Plaintiffalleges that Defendant Lowe's

provided online literature describing the policy through the Lowe's Employees
Handbook. The information provided by Defendant Lowe's to Plaintiff via the

Employees Handbook notifies Plaintiff of Plaintiff's rights and responsibilities under the
plan. Defendant Lowe's has complied with the applicable statutory provision.
29 U.S.C. Sec. 1132(c)(1) provides for penalties that may assessed for the
Administrator's refusal to provide requested information. However, in the Construed

Amended Complaint, Plaintiff alleges that Defendant Liberty Life, the Administrator,
gave Plaintiff a copy of the insurance policy after Plaintiff made a claim. (Dkt. 14, p. 1).
Plaintiff's allegations do not establish a statutory violation based on the alleged refusal
to provide information Plaintiff requested. Plaintiffdoes not allege that Defendant
Liberty Life refused to provide requested information.
After consideration, the Court grants Defendant's Motion to Dismiss as to the
ERISA claim, without leave to amend.

Case No. 8:13-CV-1099-T-17TGW

B. Worker's Compensation Claim

Plaintiffalleges his work claim was underpaid, and the Administrative Judge
should have made some additional inquiry before signing off on Plaintiff's claim. (Dkt.

14, par. 2). The Court understands this claim to be directed to Sedgewick CMS, the
worker's compensation carrier for Lowe's Home Centers, Inc., or to Defendant Lowe's.
Florida Statute 440.01 et seg. is the exclusive remedy for worker's compensation

claims; the statutory framework controls all aspects of claim procedures and benefit
dispute resolution, and affords review of orders of judges of compensation claims by a
state appeal court (F.S. 440.271). This Court does not have jurisdiction as to any
challenge to the resolution of Plaintiff's worker's compensation claim, and dismisses
this claim without prejudice for lack of subject matter jurisdiction.
C. Unemployment Claim

Plaintiff alleges that the State of Florida will not pay Plaintiff unemployment
benefits to which Plaintiff is entitled due to Plaintiffs knee injury.

Florida Statute 443.011, et seq. provides a statutory framework which controls

every aspect of claim procedures and benefit dispute resolution, including judicial
review of agency determinations on claims for unemployment compensation.
Florida Statute 443.012 provides that Orders of the Florida Reemployment

Assistance Appeals Commission (formerly Unemployment Appeals Commission)
relating to reemployment assistance are subject to review only by notice of appeal to
the district courts of appeal in the manner provided in F.S. 443.151 (4)(e):

Case No. 8:13-CV-1099-T-17TGW

(e) Judicial review.-Orders of the commission entered pursuant to
paragraph (c) of this subsection shall be subject to review only by petition
for writ of certiorari to the district court of appeal in the appellate district in
which the issues involved were decided by an appeals referee and the
division shall be made a party respondent to every such proceeding.

The factual basis for Plaintiff's allegation of entitlement to unemployment

compensation remains unclear. However, after review of the applicable statutes, the
Court concludes that the Court does not have jurisdiction to review any agency

determination of Plaintiff's unemployment claim. The Court therefore dismisses this
claim without prejudice for lack of subject matter jurisdiction.

D. ADA Claim

Plaintiff alleges that Defendant Lowe's should have accommodated Plaintiff by
reassigning Plaintiff to another position within Lowe's after Plaintiff's knee injury, and
should not have terminated Plaintiff.

Title I of the ADA prohibits discrimination against disabled individuals in regard to
the terms, conditions and privileges of their employment. 42 U.S.C. § 12112(a). To

plead employment discrimination under the ADA, a plaintiff must allege that: (1) he has
a disability, (2) he is a qualified individual, and (3) the defendant unlawfully
discriminated against him because of the disability. D'Angelo v. Conagra Foods. Inc.,
422 F.3d 1220, 1226 (11th Cir. 2005). Plaintiff has not included these allegations in
the Construed Amended Complaint.

An individual may be considered disabled under the ADA in one of three ways:

(1) he has a physical or mental impairment that substantially limits one or more of his
major life activities; (2) there is a record of such an impairment; or (3) he was regarded
as having such an impairment. 42 U.S.C. § 12102(1). Major life activities include,
among other things, concentrating, thinking, communicating, and working. 42 U.S.C. §

Case No. 8:13-CV-1099-T-17TGW

12102(2)(A). From the allegations included in Plaintiff's Construed Amended
Complaint, the Court infers that: 1) Plaintiff was subjected to unlawful discrimination
because of his disability when Defendant Lowe's did not reasonably accommodate
Plaintiff's disability and terminated Plaintiff's employment; 2) at the time of Plaintiff's
termination, Plaintiff's knee injury would not have prevented Plaintiff from performing
other available positions at Lowe's; 2) at the time of Plaintiff's termination, there was a
record of Plaintiff's physical impairment that substantially limited one or more of
Plaintiff's major life activities; or 3) Plaintiff was regarded as having an impairment that

substantially limited one or more of Plaintiff's major life activities.
Before filing an ADA complaint, a plaintiff must exhaust administrative remedies

provided by the ADA. Wilkerson v. Grinnell Corp.. 270 F.3d 1314, 1317 (11* Cir.
2001). The administrative remedies of Title VII are incorporated by reference into the
ADA. See 42 U.S.C. Sec. 12117.

As a prerequisite to filing suit, a plaintiff must file a timely Charge of
Discrimination with the Equal Employment Opportunity Commission (EEOC). 42 U.S.C.
Sec. 2000e-5(b) and (e)(1). To be timely filed, the Charge of Discrimination must be
filed within 180 days after the alleged discriminatory employment practice took place.
The ADA complaint must be filed within 90 days of receipt of a Notice of Right to Sue
from the EEOC. 42 U.S.C. Sec. 2000e-5(f)(1). If a plaintiff has not complied with the

administrative prerequisites, the Court must dismiss the plaintiff's complaint.

After consideration, the Court directs Plaintiff to provide a copy of Plaintiff's

timely Charge of Discrimination and Notice of Right to Sue by filing a response to this
Order within fourteen days. The Court will defer ruling as to Plaintiff's ADA claim.

Case No. 8:13-CV-1099-T-17TGW
E. Mediation

In the Response to Order to Show Cause, Plaintiff states that Plaintiff is awaiting

a response from the Court as to court-ordered mediation. The Court directed Plaintiff to
file an Amended Complaint; the document filed on August 29, 2013 is the Construed

Amended Complaint, not a motion. Plaintiff's failure to comply with the Court's Orders
has delayed this case. In the event that the Construed Amended Complaint survives
Defendant's Motion to Dismiss, a case management order will be entered after a case

management report is filed; the standard case management order includes mediation.
Accordingly, it is

ORDERED that: 1) Defendant's Motion to Dismiss is granted as to the ERISA

claim, with prejudice and without leave to amend; 2) Plaintiff's claims which are based
on worker's compensation and unemployment compensation are dismissed without
prejudice for lack of subject matter jurisdiction; 3) the Court defers ruling as to
Plaintiff's ADA claim for fourteen days, and Plaintiff is directed to file a copy of Plaintiff's

timely charge of discrimination and Notice of Right to Sue within fourteen days.

DONE and ORDERED in Chambers, in Tampa, Florida on this

7th day of November, 2013.

Copies to:
All parties and counsel of record

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