Fogle v. IBM Corporation et al

Filing 48

ORDER: Defendants IBM Corporation and IBM Long Term Disability Plan's Motion to Dismiss (Doc. # 32) and Defendant Metropolitan Life Insurance Company's Motion to Dismiss (Doc. # 33) are GRANTED in part and DENIED in part. Plaintiff Lee Fogle may file a second amended complaint consistent with this Order within 14 days. Signed by Judge Virginia M. Hernandez Covington on 4/15/2020. (SGM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LEE FOGLE,
Plaintiff,
v.

Case No. 8:19-cv-2896-T-33JSS

IBM CORPORATION, METROPOLITAN
LIFE INSURANCE COMPANY, and
IBM LONG TERM DISABILITY PLAN,
Defendants.
/
ORDER
This

cause

comes

before

the

Court

pursuant

to the

Motions to Dismiss the amended complaint filed on February
14, 2020, by Defendants IBM Corporation and IBM Long Term
Disability Plan (Doc. # 32) and Defendant Metropolitan Life
Insurance Company (MetLife). (Doc. # 33). Plaintiff Lee
Fogle responded in opposition to both Motions on March 4,
2020. (Doc. # 36). MetLife filed a reply on March 16, 2020.
(Doc. # 43). For the reasons explained below, the Motions
are granted in part and denied in part.
I.

Background
A.

IBM Successfully Recruits Fogle

According to the operative complaint, Fogle was “a
successful executive in the insurance industry prior to his

1

tenure of employment at IBM.” (Doc. # 26 at 2). In November
2016, while Fogle was still working at Genpact, Inc., IBM
began “aggressive[ly]” recruiting Fogle to join IBM. (Id.
at 3-4).
Fogle represents that after a “full-court, multi-month
press,” IBM convinced Fogle to leave Genpact and join IBM.
(Id. at 4-5). According to Fogle, he made this decision
after relying on representations made to him from November
2016

until

February

2017

by

an

unnamed

IBM

corporate

executive recruiter and an IBM vice president “primarily in
Tampa, Florida and New York City, New York.” (Id. at 5).
Those representations included: (1) that Fogle would be
given the “time, space, discretion and resources” to achieve
a greater foothold for IBM in the insurance industry; and
(2) he would have the authority to hire and oversee his
sales team and would be responsible for sales strategies.
(Id.). IBM also offered Fogle a signing bonus to offset the
loss

of

“hundreds

of

thousands

of

dollars

of

expected

forthcoming commissions” that Fogle would have received had
he remained at Genpact. (Id. at 6).
In February 2017, Fogle joined IBM as a Financial
Services Sector Sales Leader in the Tampa office. (Id.).
However,

“[q]uickly

after

beginning

2

employment,”

IBM

informed Fogle that he would not, in fact, be empowered to
select and hire his sales team, nor would he have the ability
to craft or oversee sales strategy within his division. (Id.
at 7). Fogle’s “efforts and ideas were largely ignored,”
while IBM failed to provide “the role and resources promised
prior to employment.” (Id.). In the first two months that
Fogle was employed by IBM, he regularly worked between 80
and 100 hours per week and, during this time, Fogle began
suffering

“physical

and

psychological

distress”

due

to

exhaustion and “the impact of IBM’s broken promises.” (Id.).
B.
On

Fogle Enters IBM’s Short-Term Disability Program
March

28,

2017,

Fogle

entered

IBM’s

Short-Term

Disability Program (STDP). (Id. at 7-8). He was enrolled in
the STDP until June 2017 and during this time he was having
symptoms “manifesting as mental health conditions.” (Id. at
8). According to Fogle, IBM did not “appropriately respect
[his] boundaries,” instead compelling Fogle to continue
working 35 to 40 hours per week while he was enrolled in the
STDP and making Fogle feel as though he had to return to
work before he was ready. (Id. at 8-9).
In

June

2017,

Fogle

returned

to

active

employment

status with IBM. (Id. at 10). At this point, Fogle was given
a “new role, title, and supervisor, which resulted in even

3

further diminished powers and authority than what IBM had
promised him.” (Id.). Fogle continued working full-time
until September 2017 despite what he calls “inconsistent and
intimidating contacts with his supervisors.” (Id.). For
example, Fogle alleges that he was sent “pretextual ‘COE’
warning letters” and was made to feel that he had “fallen
behind and needed to sprint to catch up to the rest of his
sector.” (Id.). During this time, Fogle continued to suffer
from health issues, which he claims were aggravated by IBM’s
“callous treatment” and “pressure to return to work too
soon.” (Id.).
Realizing that he had returned to work too soon, Fogle
re-enrolled in the STDP between September 2017 and early
2018. (Id. at 11). He claims that this decision was met with
“substantial consternation,” as IBM allegedly had planned
to terminate Fogle’s employment. (Id.). He alleges that
during

this

time

IBM

continued

to

“infring[e]”

on

his

disability leave with work demands and underpaid benefits
due to him under the STDP. (Id.). Fogle’s enrollment in the
STDP ended on February 2, 2018. (Id. at 12).
C.

Fogle Enters IBM’s Long-Term Disability Plan

Fogle joined IBM’s Long-Term Disability Plan (the “LTD
Plan” or the “Plan”) on April 10, 2018. (Id. at 12). During

4

the time between February 2, 2018, and April 10, 2018, Fogle
claims that he was still disabled and without income or
benefits from IBM. (Id.). However, Fogle’s enrollment in the
Plan was subject to certain conditions within the Plan,
specifically, the Plan’s terms limiting its coverage for
disability due to a “mental or nervous disorder or disease”
to 24 months, retroactive to February 2, 2018. (Id.).
According

to

Fogle,

his

formal

diagnoses

include

bipolar disorder, major depressive disorder, and anxiety
disorder. (Id. at 13). IBM and MetLife have determined that
these diagnoses do not entitle Fogle to any exclusion from
the Plan’s 24-month cap. (Id.). Fogle’s enrollment in the
Plan was set to expire in February 2020 and, according to
Fogle, he remains disabled. (Id.).
D.

The Terms of the LTD Plan

The Plan designates IBM as the Plan Administrator.
(Doc. # 33-1 at 72). The Plan specifically sets forth both
IBM’s and MetLife’s fiduciary responsibilities as follows:
Named Fiduciary

Area of Fiduciary Responsibility

MetLife

Provision of full and fair review of
claim denials pursuant to Section 503
of ERISA

5

Plan Administrator

All other areas not included above

(Id. at 26). In addition, the Plan provides that “[t]he
fiduciary responsibilities of the named fiduciaries shall
be exercisable severally and not jointly, and each named
fiduciary’s responsibilities will be limited to the specific
areas indicated for such named fiduciary.” (Id.). The

Plan

gives IBM the right to amend, modify or terminate Plan terms
at its discretion, including “benefits plans, programs,
practices or policies.” (Id. at 74).
Crucial to this matter, the Plan limits benefits for
mental or nervous disorders or diseases as follows:
4.4.13.
Plan Limitations
If you are disabled due to a Mental or Nervous
Disorder or Disease, your disability benefits will
be limited to a lifetime maximum equal to the lesser
of:
• 24 months, or
• the maximum Disability Benefit Period.
Your disability benefits will be limited as
stated above for Mental or Nervous Disorder or
Disease except for:
o schizophrenia;
o dementia; or
o organic brain disease.
Mental or Nervous
medical condition
criteria set forth
the Diagnostic and

Disorder or Disease means a
which means the diagnostic
in the most recent edition of
Statistical Manual of Mental

6

Disorders as of the date your disability begins. A
condition may be classified as a Mental or Nervous
Disorder or Disease regardless of its cause.
(Id. at 33).
In the amended complaint, Fogle alleges on information
and belief that MetLife “recommended” the 24-month cap and
the applicable exceptions to IBM. (Doc. # 26 at 15). Fogle
contends that while IBM had the power to reject or revise
these recommendations, it did not do so “as other employers
have done in contracting with MetLife.” (Id.). Thus, Fogle
alleges that IBM and MetLife, “in jointly fashioning and
contracting for the Plan,” created a Plan that violated
certain

laws

of

the

United

States;

namely,

New

York

insurance laws, the Americans with Disabilities Act, and the
Rehabilitation Act of 1973. (Id. at 16-17).
E.

Fogle files the amended complaint

Based on these allegations, Fogle raises four statelaw

causes

of

misrepresentation,
intentional

action
(2)

infliction

against
breach

of

of

IBM:

(1)

fiduciary

emotional

negligent
duty,

distress,

and

(3)
(4)

negligence. (Doc. # 26 at 18-22). In addition, Fogle brings
one claim against both MetLife and IBM, for violation of
ERISA, 29 U.S.C. § 1132(a)(3) (Count V). (Id. at 23-25).
IBM and MetLife have now moved to dismiss the amended

7

complaint in its entirety, Fogle has responded, and the
Motions are ripe for review.
II.

Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), the

Court accepts as true all the allegations in the complaint
and construes them in the light most favorable to the
plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262

(11th

plaintiff

Cir.
with

2004).
all

Further,

reasonable

the

Court

inferences

favors

the

from

the

allegations in the complaint. Stephens v. Dep’t of Health &
Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough
to raise a right to relief above the speculative
level.
Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

555

(2007)

(citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986).
On a Rule 12(b)(6) motion, the court is generally
“limited to the four corners of the complaint.” Speaker v.
U.S. Dep’t of Health & Human Servs., 623 F.3d 1371, 1379

8

(11th Cir. 2010) (quoting St. George v. Pinellas Cty., 285
F.3d 1334, 1337 (11th Cir. 2002)). If the motion relies on
matters outside the pleadings, then ordinarily, the court
will convert the motion to one for summary judgment under
Rule

56.

Fed.

R.

Civ.

P.

12(d).

However,

there

is

an

applicable qualification to the rule. “[W]here the plaintiff
refers to certain documents in the complaint and those
documents are central to the plaintiff’s claim, then the
Court may consider the documents part of the pleadings for
purposes of Rule 12(b)(6) dismissal, and the defendant’s
attaching such documents to the motion to dismiss will not
require conversion of the motion into a motion for summary
judgment.” Brooks v. Blue Cross & Blue Shield of Fla., Inc.,
116 F.3d 1364, 1369 (11th Cir. 1997). On a motion to dismiss
pursuant to Rule 12(b)(6) “[c]ourts may consider ERISA plan
documents not attached to a complaint where a plaintiff’s
claims are ‘based on rights under plans which are controlled
by the plans’ provisions as described in the plan documents’
and where the documents are ‘incorporated through reference
to the plaintiff’s rights under the plans, and they are
central to plaintiff’s claims.’” Surgery Ctr. of Viera, LLC
v. Se. Surveying & Mapping Corp., No. 6:17-cv-754-Orl-40TBS,
2018 WL 922202, at *4 (M.D. Fla. Jan. 31, 2018), adopted by,

9

No. 6:17-cv-754-Orl-40TBS, 2018 WL 906771 (M.D. Fla. Feb.
15, 2018).
Here, the Court will properly consider the IBM LTD Plan
in considering the Defendants’ Motions to Dismiss because
the

Plan

is

identified

and

referenced

in

the

amended

complaint, it is central to Fogle’s claims, and the terms
of the Plan are not in dispute.
III. Analysis
A.

Count I: Negligent Misrepresentation

Fogle

alleges

that

IBM

made

certain

false

representations to him in order to induce him to leave his
position at Genpact and begin working for IBM, and that
Fogle relied on these statements to his detriment. (Doc. #
26 at 18). IBM argues that Fogle has failed to plead fraud
with the requisite particularity because he does not plead
the

names

of

any

misrepresentations

individuals
or

what

IBM

who
gained

made

the

from

alleged

the

alleged

fraud. (Doc. # 32 at 6-8).
For

allegations

misrepresentation,

of
a

fraud,

including

plaintiff

must

for

negligent

“state

with

particularity the circumstances constituting fraud[.]” Fed.
R. Civ. P. 9(b); Linville v. Ginn Real Estate Co., LLC, 697
F. Supp. 2d 1302, 1306 (M.D. Fla. 2010) (“Rule 9(b) applies

10

to claims for negligent misrepresentation under Florida law
because negligent misrepresentation ‘sounds in fraud.’”).
“The particularity rule serves an important purpose in fraud
actions by alerting defendants to the precise misconduct
with

which

against

they

spurious

are

charged

charges

of

and

protecting

immoral

and

defendants
fraudulent

behavior.” United States ex rel. Atkins v. McInteer, 470
F.3d 1350, 1359 (11th Cir. 2006) (internal quotation marks
omitted).
Under Rule 9(b), plaintiffs must allege (1) precisely
what statements were made in what documents or what oral
misrepresentations

were

made;

(2)

the

time,

place,

and

person responsible for the statement; (3) the content of
such statements and the manner in which these statements
misled the plaintiff; and (4) what the defendants gained by
the alleged fraud. Brooks, 116 F.3d at 1371, 1380–81. In
other

words,

to

satisfy

Rule

9(b),

a

plaintiff

must

establish the who, what, when, where, and how of the fraud.
Mizarro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir.
2008).
Here, Fogle alleges that between November 2016 and
February 2017, an unnamed “IBM corporate executive recruiter
and an IBM Vice President” began to “aggressively” recruit

11

Fogle in order to hire him away from his job at Genpact.
(Doc. # 26 at 3-6). Fogle said this recruitment took place
in Tampa, Florida, and New York City “across each of November
2016, December 2016, January 2017, and February 2017.” (Id.
at 5). Fogle alleges that these IBM recruiters made the
following alleged misrepresentations to him in order to
recruit him:
•

Fogle would be given “time, space, discretion, and
resources to lead and author sales strategies for
a particular division . . . inside IBM[.]”

•

Fogle

would

have

the

“authority

to

hire

and

oversee a sales team of his choosing to work for
and with him when he arrived at IBM.”
•

Fogle would have “responsibility for developing
and executing IBM’s sales strategies” for his
particular division.

•

Fogle would be given at least two years to “lead
and

grow

his

sectors

of

the

Cognitive

Business/Process Services division at IBM.”
•

Fogle

was

benefits

told
program

that
and

IBM
a

had

culture

employee health and wellness.

12

a

“competitive”
of

promoting

(Id.

at

5-6).

According

to

Fogle,

none

of

these

representations were true. See (Id. at 7, 10).
These allegations do not meet the requirements of Rule
9(b). For one, Fogle has not alleged who it was that made
these

representations.

While

he

has

alleged

that

the

misrepresentations were made “primarily” by an IBM corporate
executive recruiter and an IBM Vice President, IBM is a
large, global company. Without more, such as the name of
these individuals or other information that could better
identify them, such imprecise pleading is little better than
saying “IBM made these misrepresentations.” Such allegations
are too vague for Rule 9(b) purposes. See Travelers Prop.
Cas. Co. of Am. v. Charlotte Pipe & Foundry Co., No. 6:11cv-19-Orl-28GJK, 2012 WL 983783, at *6 (M.D. Fla. Mar. 22,
2012) (explaining that the allegations of misrepresentation
were

insufficient

because

the

statements

were

not

“attributed to a specific person, but instead to corporate
entities”); In re Palm Beach Fin. Partners, L.P., 488 B.R.
758, 776 (Bankr. S.D. Fla. 2013) (holding that plaintiffs
failed to satisfy Rule 9(b) in part because they had alleged
misrepresentations on the part of the company generally);
Drilling Consultants, Inc. v. First Montauk Sec. Corp., 806
F. Supp. 2d 1228, 1234-35 (M.D. Fla. 2011) (finding that

13

plaintiff alleged fraud claims with sufficient particularity
against insurance company where the complaint specifically
identified the company’s agents who made the statements).
Furthermore, it is unclear from the amended complaint
which IBM employee made which of the statements Fogle takes
issue with or when in that applicable four-month time span
each of the misrepresentations was made.
Fogle argues that this Court should employ a relaxed
version of the Rule 9(b) particularity requirement because
IBM engaged in a lengthy, multi-act scheme. It is true that
Rule 9(b) does not require a plaintiff to allege the time
and content of every fraudulent statement in the event of a
“prolonged multi-act scheme.” United States ex rel. Clausen
v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1314 n.25 (11th
Cir. 2002). The relaxed standard permits a plaintiff to
plead the overall nature of the fraud and then to allege
with particularity certain illustrative instances of the
fraud. Burgess v. Religious Tech. Ctr., Inc., 600 F. App’x
657,

663

(11th

requirement,
allege

at

Cir.

however,

least

some

2015).
a

Even

plaintiff

particular

is

under

the

still

examples

of

relaxed

required

to

fraudulent

conduct to lay a foundation for the rest of the allegations
of fraud. Id.

14

Here, the allegations in the amended complaint fail to
meet even the relaxed standard because Fogle has provided
the Court with no illustrative examples that were pled with
the

requisite

particularity.

Accordingly,

Count

I

is

dismissed.
B.

Count II: Breach of Fiduciary Duty

Fogle claims that while he was employed by IBM and
enrolled in the STDP, IBM was his “fiduciary” because IBM
“knew or had reason to know that [Fogle] had placed his
trust and confidence in IBM with respect to [Fogle’s] need
and ability to recover and maintain his health and welfare
without disturbance or distraction during his tenure on
short-term disability.” (Doc. # 26 at 19).
IBM counters that there is generally no fiduciary duty
in the employer-employee relationship. (Doc. # 32 at 9-10).
Furthermore, IBM argues that to the extent the alleged
fiduciary

duty

exists

as

a

consequence

of

Fogle’s

participation in an ERISA plan, such claim is preempted by
ERISA. (Id. at 10 n.2, 15-17).
As an initial matter, Fogle insists that his fiduciary
duty claim pertains to IBM’s short-term disability plan, the
STDP, which is not subject to ERISA. (Doc. # 36 at 11 n.5).
For the purposes of this Order, the Court will accept that

15

contention as true and assume that the claim is not preempted
by ERISA. 1 See also (Doc. # 33-1 at 73-74).
The

Court

is

mindful

that

whether

a

fiduciary

relationship existed between the parties is typically a
question to be determined by the factfinder and is not
appropriate for adjudication at the motion-to-dismiss stage.
See Reuss v. Orlando Health, Inc., 140 F. Supp. 3d 1299,
1304 (M.D. Fla. 2015). Here, Fogle has alleged that IBM led
him

to

believe

disabled

that

employees,

it

that

held
IBM

progressive
offered

to

views
assist

toward
him

in

navigating his disability via the STDP, that Fogle placed
his trust in IBM to do so, that IBM knew or had reason to
know that Fogle had placed his trust in IBM, such that IBM
knowingly undertook a fiduciary duty toward Fogle. (Doc. #
26 at 8-9, 11); (Doc. # 36 at 11). Whether IBM owed Fogle a
fiduciary duty under these circumstances is a matter better
resolved on summary judgment.
C.

Count III: Intentional Infliction of Emotional
Distress

Fogle alleges that IBM’s actions during and after his
first

tenure

of

enrollment

1

in

the

STDP

constituted

The Court reserves the right to revisit this ruling should
additional information come to light demonstrating that the
STDP is, in fact, subject to ERISA.

16

“outrageous conduct” towards him. (Doc. # 26 at 20). He
claims that IBM, through its employees, intentionally or
recklessly caused him to suffer emotional distress, from
which

he

continues

to

suffer.

(Id.

at

20-21).

Fogle

clarifies in his response that the “outrageous conduct”
perpetrated by IBM included pressuring Fogle to return to
work while he was still disabled and then “taunting [Fogle]
that he would be fired as soon as he got better and returned
to work.” (Doc. # 36 at 12).
IBM argues that, even taking the allegations in Fogle’s
complaint as true, nothing rises to the level of “outrageous
conduct” needed to state a claim for intentional infliction
of emotional distress. (Doc. # 32 at 10-13). The Court
agrees.
Under Florida law, in order to state a cause of action
for

intentional

infliction

of

emotional

distress,

the

plaintiff must allege: 1) deliberate or reckless infliction
of mental suffering by defendant; 2) by outrageous conduct;
3) which conduct of the defendant must have caused the
suffering; and 4) the suffering must have been severe.
Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla.
1985). As stated in McCarson, the conduct by a defendant
must be so “outrageous in character, and so extreme in

17

degree, as to go beyond all possible bounds of decency and
to be regarded as atrocious, and utterly intolerable in a
civilized community.” Id. at 278-79.
“‘Federal courts interpreting Florida law have allowed
claims for intentional infliction of emotional distress in
the

workplace

to

go

forward,

where

the

claims

involve

persistent verbal abuse coupled with repeated offensive
physical contact.’” Artubel v. Colonial Bank Grp., Inc., No.
8:08-cv-179-T-23MAP, 2008 WL 3411785, at *12 (M.D. Fla. Aug.
8, 2008); Lopez v. Ingram Micro, Inc., No. 04-cv-95, 1997
WL 401585, *9 (S.D. Fla. Mar. 18, 1997) (noting that the
cases where a plaintiff has successfully alleged a claim for
intentional

infliction

of

emotional

allegations

of

“relentless

physical,

distress
as

well

included
as

verbal

harassment”). Claims of intentional infliction of emotional
distress related to employment discrimination cases have
been “consistently rejected as failing to meet the threshold
burden.” Martz v. Munro Regional Med. Ctr., Inc., No. 5:06cv-422-Oc-10GRJ, 2007 WL 2044247, at *3 (M.D. Fla. July 10,
2007) (citing Florida case law for the proposition that
“mere insults, indignities, threats, or false accusations”
will not result in liability).
This case does not involve allegations of relentless

18

verbal and offensive physical contact. Rather, Fogle alleges
that his co-workers at IBM made him feel that he must return
to work before he was ready, continue to perform work for
IBM while on short-term disability leave, and that he was
taunted by co-workers both during his leave and upon his
return. See (Doc. # 26 at 8-12). While regrettable, this
does not rise to the level of “outrageous conduct” that is
so “extreme in degree, as to go beyond all possible bounds
of decency,” as required to state a claim for intentional
infliction of emotional distress under Florida law. See
McCarson, 467 So. 2d at 278.
Fogle argues in his response that a lesser level of
outrageous conduct suffices to state a claim where the
perpetrators know the victim to be disabled or particularly
vulnerable, citing Doe v. Board of County Commissioners, 815
F. Supp. 1448 (S.D. Fla. 1992). (Doc. # 36 at 12-15). It is
worth noting that this Court was unable to locate any other
cases that have followed the reasoning of Doe and allowed a
claim for intentional infliction of emotional distress to
move forward under this theory. Moreover, the allegations
in the amended complaint do not rise to the level of the
relentless harassment and “malicious pestering” present in
Doe. Rather, Fogle alleges that he “felt compelled” to

19

participate

in

work

exchanges

while

on

short-term

disability, IBM supervisors “express[ed] skepticism about
[Fogle’s] disabling mental/neurological conditions,” that
he “felt pressured” to return to work prematurely because
IBM

kept

him

abreast

of

news

of

layoffs

and

flagging

revenues, he was provided a diminished role upon his return
to IBM, he received pretextual warning letters, and he was
involved

in

incidents

where

IBM

peremptorily

cancelled

meetings. (Doc. # 26 at 8-10). This simply does not rise to
the level of outrageous conduct under Florida law, even
assuming that a lower threshold for such claims exists when
the victim suffers from a mental disability.
Accordingly, Count III is dismissed.
D.
Fogle

Count IV: Negligence
alleges

that

IBM

owed

him

multiple

duties,

including a duty of care as his employer, duties regarding
training,

reporting,

and

discipline

of

employees,

and

fiduciary duties. (Doc. # 26 at 21). Further, according to
Fogle, IBM breached these duties, which breach was the
direct and proximate cause of his damages. (Id. at 22).
IBM argues that Florida law does not recognize Fogle’s
negligence claim. (Doc. # 32 at 13-15). It argues that the
duties Fogle alleges IBM owed him are to “operate its

20

business in the manner [Fogle] believes appropriate,” but
no such duty exists under Florida common law. (Id. at 1415). Even viewing Fogle’s claims “charitably” as a general
description of workplace discrimination, Florida does not
recognize

a

common-law

claim

for

negligent

failure

to

maintain a discrimination-free workplace. (Id. at 15).
“Under Florida law, it is well settled that to state a
claim for negligence a plaintiff must allege the existence
of a duty, breach of that duty, causation, and damages.
principle

of

‘duty’

is

linked

to

the

concept

The
of

foreseeability and may arise from four general sources: (1)
legislative enactments or administration regulations; (2)
judicial interpretations of such enactments or regulations;
(3) other judicial precedent; and (4) a duty arising from
the general facts of the case.” Doe v. Faerber, 446 F. Supp.
2d

1311,

1318–19

(M.D.

Fla.

2006)

(internal

citations

omitted). Establishing the existence of a duty arising from
the general facts of a case encompasses “that class of cases
in which the duty arises because of a foreseeable zone of
risk arising from the acts of the defendant.” McCain v. Fla.
Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 1992).
Fogle argues that IBM owed him a duty under this
foreseeable

zone

of

risk

21

theory,

as

well

as

the

“undertaker’s doctrine,” which provides that whenever a
party undertakes to provide a service to others, that person
assumes the duty to act carefully and not place others in
harm’s way. (Doc. # 36 at 15). He also argues that he may
demonstrate that IBM owed him a duty where he can adequately
allege other tortious conduct on the part of IBM. (Id.).
As to the zone of foreseeable risk, Fogle has not
directed this Court to any case law in which that doctrine
was applied to the actions of an employer vis-à-vis its
short-term disability plan. Rather, the Court reads Fogle’s
argument that IBM had a duty to administer the SDTP in a
“reasonably careful manner” as a variant of the undertaker’s
doctrine. In support of that doctrine, Fogle points this
Court to Hogan v. Provident Life & Accident Insurance Co.,
665 F. Supp. 2d 1273 (M.D. Fla. 2009). There, the court held
that an insured had stated a negligence claim against the
holding company of his long-term disability insurer where
the

holding

company’s

employees

adjusted,

reviewed,

evaluated, handled, and approved or denied his disability
insurance benefits. Id. at 1284-85. The court determined
that the plaintiff had plausibly alleged that the company
breached the “undertaker’s doctrine” duty-of-care by failing
to

evaluate

the

totality

of

22

the

plaintiff’s

medical

condition, set goals for claims termination that ignored the
merits

of

the

plaintiff’s

claims,

and

terminated

his

benefits solely for financial reasons. Id.
This stands to reason – the holding company in Hogan
had undertaken the responsibility to evaluate and adjudicate
insureds’ claims. It follows that they had a duty to do so
fairly and in a way that was not harmful to the insured
individuals.

Here,

IBM

offered

a

short-term

disability

benefits plan to its employees, the STDP. The Court agrees
with Fogle that, having offered this benefit, IBM was under
a duty to administer the plan fairly and in a way that would
not harm the people participating in the plan.
However, unlike the plaintiff in Hogan, many of the
actions

Fogle

complains

of

happened

outside

of

IBM’s

administration of the STDP. For example, Fogle alleges that
IBM “did not appropriately respect boundaries” by making
Fogle feel as though he had to continue to work during his
tenure in the STDP, IBM employees made comments “expressing
[their]

skepticism

about

[Fogle’s]

disabling

mental/neurological conditions,” put pressure on Fogle to
return to work too soon, cancelled meetings without telling
him, and threatened to fire Fogle as soon as he returned to
work. (Doc. # 26 at 8-11). These might have taken place

23

while Fogle was enrolled in the STDP and been related to his
enrollment therein, but these actions have nothing to do
with the way IBM ran the short-term disability program.
Rather, these allegations are more akin to allegations that
IBM

discriminated

against

Fogle

on

the

basis

of

his

disability. But “Florida does not recognize a common law
claim for negligent failure to maintain a workplace free of
discrimination.” Ayubo v. City of Edgewater, No. 6:08-cv1197-Orl-31GJK, 2009 WL 113381, at *3 (M.D. Fla. Jan. 16,
2009).
There are other allegations, however, that IBM failed
to provide Fogle with “mental health-specific resources for
navigating

enrollment

in

the

[STDP]”

and

that

he

was

underpaid benefits due to him under the STDP. (Doc. # 26 at
11). Because such allegations could plausibly come under the
umbrella

of

IBM’s

duty

of

care

with

respect

to

its

administration and management of the STDP, these allegations
could plausibly state a claim for negligence against IBM. 2

2

As to the “special avenue” claimed by Fogle, the Court
notes that the case Fogle relies upon in inapposite.
In
that case, the plaintiff brought claims of negligent
retention and negligent supervision, which both sound in
negligence. Werner v. Level 10 Mktg., Inc., No. 5:10-CV258-OC-10KRS, 2011 WL 13295745, at *4 (M.D. Fla. Jan. 24,
2011). The Werner court went on to explain that “the
underlying wrong allegedly committed by an employee in a

24

Accordingly,

Count

IV

is

dismissed

in

part,

in

accordance with this Order.
E.

Count V:

ERISA Violation

Fogle alleges Count V against both IBM and MetLife.
(Doc. # 26 at 23-25). He claims that IBM and MetLife are
Plan fiduciaries, as that term is defined under ERISA. (Id.
at 23-24). He alleges that IBM’s and MetLife’s “conduct
relating to Plan design, management, administration, and
scope,

as

applied

to

bipolar

disorder,

or,

in

the

alternative, biologically based mental illness” violates
multiple provisions of ERISA. (Id. at 24). Thus, Fogle seeks
an order reforming the Plan to exclude bipolar disorder or,
in the alternative, all biologically-based mental illnesses,
from the Plan’s 24-month benefits limitation for “mental or
nervous

disorder

or

disease.”

(Id.).

He

also

seeks

restitution in the form of a surcharge or other credit for
all ERISA benefits that are owed to him to make him whole.
(Id. at 24, 25).
IBM argues that Fogle’s claim is not one for violation
of the Plan’s terms. (Doc. # 32 at 17). Thus, to state a

negligent supervision or negligent retention claim must be
based on an injury resulting from a tort which is recognized
under common law.” Id. Fogle is not bringing a negligent
supervision or negligent retention claim here.

25

claim, Fogle must allege that a Plan provision violates
ERISA. (Id.). But, according to IBM and MetLife, none of the
ERISA

provisions

that

Fogle

relies

on

in

the

amended

complaint provide benefits to Fogle beyond the 24-month
limitation in the Plan, nor do they prohibit the Plan from
including that limitation. (Id. at 18; Doc # 33 at 9-10).
For its part, MetLife moves to dismiss Count V – the
sole count against it – with prejudice for failure to state
a claim. (Doc. # 33). MetLife’s argument has two prongs.
First, it argues that its “limited fiduciary status” did not
give rise to a duty because MetLife had no fiduciary role
in connection with the drafting of the Plan terms. (Id. at
6-9). MetLife points to the fact that the Plan specifically
limits

its

fiduciary

responsibility

and

discretionary

authority to the review of claim denials. (Id. at 6). Second,
even if MetLife had any such fiduciary duty, Fogle has failed
to allege that MetLife violated any substantive provision
of ERISA or any terms of the Plan, for the reasons described
above. (Id. at 9-14).
Count V arises under 29 U.S.C. § 1132(a)(3), which
provides in pertinent part that a civil action may be
brought:
by a participant, beneficiary, or fiduciary (A) to

26

enjoin any act or practice which violates any
provision of this subchapter or the terms of the
plan, or (B) to obtain other appropriate equitable
relief (i) to redress such violations or (ii) to
enforce any provisions of this subchapter or the
terms of the plan.
29 U.S.C. § 1132(a)(3).
Fogle claims that the Defendants’ conduct violates the
following provisions of ERISA: 29 U.S.C. §§ 1001b(c)(3),
1104(a), and 1144(d). (Doc. # 26 at 24). Fogle clarifies in
his

response

that

he

is

seeking

relief

under

both

a

fiduciary-duty theory of relief and for violations of ERISA
that

are

independent

of

Defendants’

status

as

ERISA

fiduciaries. (Doc. # 36 at 18); see also (Doc. # 26 at 24).
Specifically,

Fogle

claims

Defendants

violated

Section

1144(d) by designing and implementing a plan that runs
counter

to

New

York

state

law,

the

Americans

with

Disabilities Act, and the Rehabilitation Act of 1973. (Doc.
# 26 at 16-17).
1.

Section 1144(d) claim

Section 1144(d) provides that the ERISA statute shall
not

be

“construed

to

alter,

amend,

modify,

invalidate,

impair, or supersede any law of the United States.” 29 U.S.C.
§ 1144(d). Section 1144(a) provides that ERISA preempts
state laws as they “relate” to any employee benefit plan

27

described in ERISA. Id. § 1144(a). The Supreme Court has
interpreted Section 1144(d) to mean that a New York state
anti-discrimination law was not preempted with respect to
ERISA benefit plans insofar as it prohibited practices that
were unlawful under federal law.

Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 88, 108 (1983). This is because state
laws like that one play a significant role in enforcement
of Title VII, such that preemption of the state law would
“modify” or “impair” federal law. Id. at 100-02. Thus,
courts have interpreted Section 1144(d) as an exception to
the general ERISA preemption rule. See Id.; see also Morton
v. Nexagen Networks, Inc., No. 8:18-CV-386-T-24-MAP, 2018
WL 1899038, at *4–5 (M.D. Fla. Apr. 20, 2018) (denying motion
to

dismiss

where

Section

1144(d)’s

exception

saved

plaintiff’s age discrimination claim from express preemption
under ERISA).
Fogle has not directed the Court to any legal authority
stating that Section 1144(d) provides a free-standing cause
of action under ERISA. What’s more, Fogle is not bringing a
claim

under

New

York

state

law,

the

ADA,

or

the

Rehabilitation Act. Thus, Section 1144(d) does not support
Fogle’s ERISA claim.

28

2.

Fiduciary Duty claims

Fogle also argues that he is raising an ERISA claim for
violation

of

Section

fiduciary

duties.

1104(a),

See

Chao

v.

which

deals

Wagner,

No.

with

ERISA

CIV.A.1:07-

CV1259JOF, 2009 WL 102220, at *2 (N.D. Ga. Jan. 13, 2009)
(finding

the

well-pleaded

allegations

in

the

complaint

stated a cause of action for breach of fiduciary duties
under Section 1104(a)). Fiduciary duties imposed by ERISA
include “proper management, administration, and investment
of fund assets, the maintenance of proper records, the
disclosure of specified information, and the avoidance of
conflicts of interest.” Ehlen Floor Covering, Inc. v. Lamb,
660 F.3d 1283, 1287 (11th Cir. 2011).
To plead a claim for breach of fiduciary duty under
ERISA, a plaintiff must allege that the defendant was a
fiduciary with respect to a plan and that the defendant
breached

a

duty

that

related

to

matters

under

the

defendant’s discretion and control. Cotton v. Mass. Mut.
Life

Ins.

Co.,

402

F.3d

1267,

1277

(11th

Cir.

2005).

Pursuant to ERISA, a defendant is a “fiduciary” of a plan
“to the extent (i) he exercises any discretionary authority
or discretionary control respecting management of such plan
or exercises any authority or control respecting management

29

or disposition of its assets . . . or (iii) he has any
discretionary authority or discretionary responsibility in
the administration of such plan.” 29 U.S.C. § 1002(21)(A).
“In every case charging breach of ERISA fiduciary duty,
then, the threshold question is not whether the actions of
some

person

adversely

employed

affected

a

to

provide

plan

services

beneficiary’s

under

a

plan

interest,

but

whether that person was acting as a fiduciary (that is, was
performing a fiduciary function) when taking the action
subject to complaint.” Pegram v. Herdrich, 530 U.S. 211, 226
(2000); see also Herman v. NationsBank Tr. Co., 126 F.3d
1354, 1365 (11th Cir. 1997) (“If a person does not have
discretion or exercise authority or control in a given
situation,

he

does

not

meet

the

definition

of

a

fiduciary.”).
Here, Fogle alleges that MetLife and IBM breached their
fiduciary duties in two respects: Plan design and Plan
administration. (Doc. # 26 at 24; Doc. # 36 at 17).
The Court will discuss Plan design first. Fogle argues
that MetLife “formulated and recommended to IBM a particular
design

for

the

[LTD

“subjecting

some

but

Plan
not

that

all

of

violated

ERISA]”

by

a

cluster

of

single

biologically based mental illnesses to a benefits cutoff

30

date.” (Doc. # 36 at 17). Thus, Fogle claims that the
exclusion of certain disorders, like schizophrenia, but not
others, like bipolar disorder, from the benefits cut-off
date was arbitrary and capricious. (Id. at 17-18).
“[I]t is well-established that an employer’s decisions
regarding

whether,

how

much,

and

to

whom

to

provide

benefits, known generally as ‘plan design’ decisions, do not
fall within the scope of the defined functions of an ERISA
fiduciary, and thus that an employer can make such decisions
without being subject to liability for breach of fiduciary
duty under ERISA.” Burns v. Rice, 39 F. Supp. 2d 1350, 1356
(M.D. Fla. 1998) (citing Lockheed Corp. v. Spink, 517 U.S.
882, 890, 891 (1996)). Here, Fogle essentially dislikes how
the Plan was constructed to include bipolar disorder within
the 24-month lifetime maximum benefit for mental or nervous
disorders

or

substantive

diseases.
entitlement

But

“ERISA

to

does

not

create

employer-provided

any

health

benefits or any other kind of welfare benefits.” CurtissWright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995).
Rather,

ERISA

gives

employers

“large

leeway

to

design

disability and other welfare plans as they see fit.” Black
& Decker Disability Plan v. Nord, 538 U.S. 822, 823 (2003).
As a corollary to this idea, ERISA generally precludes

31

courts from changing a plan’s terms. “The statutory language
speaks of ‘enforcing’ the ‘terms of the plan,’ not of
changing them.” CIGNA Corp. v. Amara, 563 U.S. 421, 435-36
(2011) (emphasis in original; brackets omitted).
Thus, to the extent Fogle seeks to bring a claim against
MetLife or IBM for breach of fiduciary duty with respect to
the

initial

design

of

the

Plan,

such

a

claim

must

be

dismissed. See Lockheed Corp., 517 U.S. at 887 (“Nothing in
ERISA
plans.

requires
Nor

employers

does

ERISA

to

establish

mandate

what

employee
kind

of

benefit
benefits

employers must provide if they choose to have such a plan.”).
Fogle also claims that MetLife and IBM worked together
to jointly implement and administer the Plan which “is
comprised

of

terms

that

have

discriminated

against

and

caused damage to [Fogle], whose disability is among those
arbitrarily tethered to a 24 month benefits cutoff date
while similar disorders, such as schizophrenia, are not.”
(Doc. # 36 at 17). While administration of an ERISA plan is
a recognized fiduciary duty, see Ehlen Floor Covering, 660
F.3d at 1287, Fogle’s amended complaint as currently drafted
contains no allegations that IBM or MetLife violated their
duties with respect to administration of the plan. See
Varity Corp. v. Howe, 516 U.S. 489, 502 (1996) (“The ordinary

32

trust law understanding of fiduciary ‘administration’ of a
trust is that to act as an administrator is to perform the
duties imposed, or exercise the powers conferred, by the
trust documents.”). Rather, the allegations make plain that
IBM and MetLife administered the Plan in accordance with its
terms by enforcing the 24-month cap on non-excluded mental
or nervous diseases and disorders. While Fogle does not like
this limitation within the Plan, there is currently no
allegation within the amended complaint that IBM or MetLife
acted arbitrarily or capriciously in administering the terms
of the Plan.
However, as Fogle will be allowed leave to file an
amended complaint, he may use this opportunity to clarify
his allegations regarding whether and to what extent IBM
and/or MetLife breached their fiduciary duties under ERISA
with respect to their administration or management of the
Plan. Accordingly, Count V is dismissed.
IV.

Conclusion
Generally,

leave

to

amend

should

be

freely

given,

unless amendment would be futile. Foman v. Davis, 371 U.S.
178, 182 (1962); Hall v. United Ins. Co. of Am., 367 F.3d
1255, 1262 (11th Cir. 2004). Here, it is appropriate to
allow Fogle leave to amend in accordance with this Order.

33

Fogle is cautioned that, if he chooses not to allege an
ERISA violation in his second amended complaint, he must
include allegations supporting this Court’s exercise of
diversity jurisdiction.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants IBM Corporation and IBM Long Term Disability
Plan’s Motion to Dismiss (Doc. # 32) and Defendant
Metropolitan Life Insurance Company’s Motion to Dismiss
(Doc. # 33) are GRANTED in part and DENIED in part.

(2)

Plaintiff Lee Fogle may file a second amended complaint
consistent with this Order within 14 days.
DONE and ORDERED in Chambers, in Tampa, Florida, this

15th day of April, 2020.

34