Gelfand v. Metropolitan Life Insurance Company et al

Filing 54

ORDER granting in part and denying in part 25 Motion for Summary Judgment; granting in part and denying in part 27 Motion for Summary Judgment (Written Opinion). IT IS HEREBY ORDERED THAT: 1. Count Two of the complaint is WITHDRAWN. 2. The motion for summary judgment of defendants Metropolitan Life Insurance Company, Citadel Broadcasting Company, and Cumulus Media, Inc. 25 is GRANTED IN PART and DENIED IN PART. a. The motion is GRANTED as to Count Three of the complaint. Count Th ree is DISMISSED WITH PREJUDICE AND ON THE MERITS. b. The motion is GRANTED as to Count One insofar as Count One asserts a claim against Citadel and Cumulus. Accordingly, Count One is DISMISSED WITH PREJUDICE AND ON THE MERITS as to defendants Cit adel and Cumulus. c. The motion is DENIED as to Count One insofar as Count One asserts a claim against MetLife. 3. The motion for summary judgment of plaintiff Michael H. Gelfand 27 is GRANTED IN PART and DENIED IN PART. a. The motion is DENI ED as to defendants Citadel Broadcasting Company and Cumulus Media, Inc. b. The motion is DENIED as to the claim asserted in Count Three against MetLife. c. The motion is GRANTED as to the claim asserted in Count One against MetLife. 4. Gelfand 's request for reasonable attorney's fees and costs is GRANTED against MetLife. Gelfand and MetLife must make submissions regarding the amount of those fees and costs as directed in the body of this order. 5. This case is REMANDED to Met Life. On remand, MetLife must reopen the administrative proceedings and determine whether Gelfand qualifies for long-term disability benefits under the Plan. LET JUDGMENT BE ENTERED ACCORDINGLY. Signed by Judge Patrick J. Schiltz on June 30, 2014. (CLG)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MICHAEL H. GELFAND,

Case No. 13-CV-1290 (PJS/JJK)

Plaintiff,
ORDER

v.
METROPOLITAN LIFE INSURANCE
COMPANY, a New York Corporation d/b/a
MetLife; CITADEL BROADCASTING
COMPANY, by way of merger, Cumulus
Broadcasting, LLC, a Nevada Limited
Liability Company; and CUMULUS MEDIA,
INC., a Delaware Corporation,
Defendants.

Benjamin Robert Garbe and Amanda R. Cefalu, ANDERSON, HELGEN, DAVIS &
NISSEN, P.A., for plaintiff.
William D. Hittler, NILAN JOHNSON LEWIS P.A., for defendants.
Plaintiff Michael H. Gelfand participated in an employee welfare benefit plan (“the
Plan”) sponsored by his employer, defendant Citadel Broadcasting Company (“Citadel”),1 and
established pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1001 et seq. Defendant Metropolitan Life Insurance Company (“MetLife”) insures the
Plan. Gelfand brings this lawsuit seeking review of MetLife’s decision to deny his claim for
long-term disability benefits under the Plan. Gelfand also seeks equitable relief from MetLife,
Citadel, and Citadel’s parent company, defendant Cumulus Media, Inc. (“Cumulus”).

1

In 2011, Citadel Broadcasting Company was purchased by Cumulus Media, Inc. and
renamed “Cumulus Broadcasting, LLC.” See Compl. ¶ 5 n.1 [ECF No. 1]. For sake of clarity,
the Court will refer to both Citadel Broadcasting Company and Cumulus Broadcasting, LLC as
“Citadel.”

This matter is before the Court on the parties’ cross-motions for summary judgment. For
the reasons explained below, the Court concludes that MetLife abused its discretion in denying
Gelfand’s claim for long-term disability benefits. Accordingly, the Court grants the bulk of
Gelfand’s motion for summary judgment with respect to MetLife and remands this case to
MetLife for further proceedings consistent with this order. But the Court grants defendants’
summary-judgment motion with respect to Citadel and Cumulus.
I. FACTS
The parties are mostly in agreement as to the relevant facts of this case, which are briefly
as follows:
Gelfand suffers from delayed sleep-phase syndrome (“DSPS”). Gelfand does not feel
tired during nighttime hours, when most people experience the need to sleep. Instead, Gelfand’s
natural sleep rhythm causes him to feel tired during the morning and early afternoon. See
Defs’ Ex. A (“Ex.”) at 521-22.2 The date of the onset of Gelfand’s DSPS is not clear, but his
condition was serious enough in 2010 that he sought treatment from Dr. John Damergis, Jr. and
Dr. Richard E. Golden. See id. at 227-29. Those doctors noted that, at that time, Gelfand’s
“typical sleep/wake cycle is to sleep from 7:00 a.m. to 4:00 p.m.” Id. at 227. Damergis and
Golden also described Gelfand’s DSPS as “severe.” Id. at 228. Other doctors have since
substantially confirmed the findings of Damergis and Golden. See, e.g., id. at 496-98 (attending
physician statement of Dr. Ronald Groat); id. at 509-16 (attending physician statement and
supporting documentation of Dr. Paul Sutter).

2

Exhibit A to defendants’ memorandum in support of their motion for summary judgment
is consecutively paginated across eight docket entries. See ECF Nos. 32-39. For all references
to this exhibit, the Court cites to the consecutive pagination at the bottom of the exhibit.
-2-

At the time of the 2010 diagnosis, Gelfand was employed by Citadel as a radio announcer
on the KQRS-FM morning show in the Twin Cities region of Minnesota. See Compl. ¶ 5 [ECF
No. 1]. Because Gelfand worked during a morning show, his job required him to be alert at
precisely the time that his DSPS was causing him to fall asleep. By December 30, 2011,
Gelfand’s DSPS had become so severe that he quit his job at Citadel. See Ex. at 482. Shortly
thereafter, Gelfand filed a claim with MetLife for long-term disability benefits pursuant to the
Plan. See id. at 538 (acknowledging receipt of Gelfand’s claim). Gelfand alleged a disability
onset date of December 31, 2011. Id. at 482.
Whether a claimant is “Disabled” under the Plan turns on the extent of the claimant’s
residual earning capacity following the onset of his illness or injury. To be eligible for long-term
disability benefits during the 24 months following the Plan’s elimination period,3 a claimant
must be unable to earn more than 80% of his predisability earnings at his “Own Occupation”
from any employer in his local economy. Ex. at 625. (Gelfand earned $66,000 per year from
Citadel at the time that his employment with Citadel ended. See id. at 187.) Claimants may also
receive long-term disability benefits after the conclusion of the 24 months following the
elimination period, but the Plan is significantly more restrictive with respect to such benefits.
First, the income threshold is reduced from 80% of predisability earnings to 60% of predisability
earnings. Id. at 625. Second, the scope of relevant employment is expanded from the claimant’s
“Own Occupation” to “any gainful occupation for which You are reasonably qualified . . . .” Id.
(emphasis added).

3

The Plan defines “Elimination Period” as “the period of Your Disability during which
We do not pay benefits.” Ex. at 625. Gelfand’s elimination period was the 180-day period that
followed the onset of his disability. Id. at 620.
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MetLife denied Gelfand’s claim for long-term disability benefits in a letter dated
August 7, 2012. See id. at 482-85. According to MetLife, Gelfand had not submitted sufficient
medical documentation to support his claim that “unpredictable sleep patterns” had prevented
him from working at his occupation, which MetLife defined as “Announcer.” Id. at 483-84.
MetLife noted in its denial letter that individuals in Gelfand’s occupation of “Announcer” were
not limited to morning work, but instead “may be hired to perform any shifts.” Id. at 484.
MetLife’s denial letter said nothing about Gelfand’s residual earning capacity after the onset of
his DSPS; it focused solely on his medical condition.
Gelfand appealed the denial of his claim for benefits to MetLife’s appeals department.
See Ex. at 220-26. In his appeals letter, Gelfand argued that MetLife had wrongly defined his
occupation as “Announcer.” Gelfand argued that his “position was that of a morning show radio
personality — not a local disc jockey who would merely plug the space between records and
commercials.” Id. at 224. Gelfand further argued that the medical evidence in the record
overwhelmingly showed that his DSPS caused him to be unable to work during the morning, and
thus argued that he was completely unable to perform his occupation of “morning show radio
personality.” Id. at 225-26.
MetLife determined on appeal that “the medical documentation does establish that
Mr. Gelfand has some restrictions and limitations that would preclude him from performing his
own job as a morning show personality from 5:00 a.m. to 9:00 a.m.” Id. at 134. Despite those
“restrictions and limitations,” however, MetLife concluded that Gelfand remained capable of
finding employment as a radio announcer earning more than 80% of his predisability income.
Id. MetLife’s sole evidence as to Gelfand’s residual earning capacity was an “Own Occupation

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Analysis and Labor Market Analysis” prepared by Vocational Rehabilitation Consultant
Susan M. Sineni. Id. at 187-191. In her report, Sineni concluded that “[g]iven Mr. Gelfand has
worked as a Radio Announcer for 25 years, it is reasonable that he would qualify for earnings at
the 90th percentile and be able to negotiate this wage and higher given his experience and
notoriety.” Id. at 190. Purporting to cite wage data from the Bureau of Labor Statistics’s
Occupational Employment Statistics (“OES”), Sineni placed Gelfand’s reasonable future
earnings at $100,000 per year — that is, $34,000 per year more than Gelfand had earned
working at Citadel. Id.
Following MetLife’s denial of his appeal, Gelfand filed a three-count complaint against
MetLife, Citadel, and Cumulus. Gelfand has since withdrawn Count Two. See ECF No. 45 at 34. In Count One, Gelfand seeks to recover long-term disability benefits under the Plan for the
24 months following the Plan’s elimination period. And in Count Three, Gelfand seeks
equitable relief pursuant to 29 U.S.C. § 1132(a)(2) for breach of fiduciary duties.
II. ANALYSIS
A. Summary Judgment
Summary judgment is warranted “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). A dispute over a fact is “material” only if its resolution might affect the outcome
of the lawsuit under the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute over a fact is “genuine” only if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in [its] favor.” Id. at 255.

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B. Citadel and Cumulus
The entire thrust of Gelfand’s complaint is that MetLife erred in denying his claim for
long-term disability benefits. For reasons that escape the Court, however, Gelfand names
Citadel and Cumulus as defendants along with MetLife. The complaint does not describe what
role (if any) either Citadel or Cumulus played in the denial of Gelfand’s claim. Indeed, none of
the three counts of the complaint even mentions Citadel or Cumulus. See Compl. ¶¶ 39-58. And
the remainder of the complaint says nothing about Citadel or Cumulus, except to note that
Gelfand had been employed by Citadel, that Citadel sponsored the Plan, and that Cumulus
became the parent company of Citadel in 2011. See id. ¶¶ 3, 5, 8, 9, 18. From the face of the
complaint, then, it is difficult to understand why Citadel or Cumulus were sued.
In his briefing, Gelfand concedes that Citadel and Cumulus are not proper defendants to
Count One of his complaint. See ECF No. 45 at 2-3. As noted, Count Two of the complaint has
been withdrawn. Thus, Gelfand continues to pursue only Count Three — which alleges breach
of fiduciary duties — against Citadel and Cumulus. But Gelfand cannot recover under Count
Three against either Citadel or Cumulus for several reasons:
First, as just mentioned, Count Three does not say a word about Citadel or Cumulus.
Conversely, Count Three does allege that “[t]he administrative record demonstrates that MetLife
was and is a fiduciary of the Plan and was acting in its capacity as a fiduciary in denying LTD
benefits to Plaintiff,” that “MetLife’s denial of LTD benefits constituted a failure to act with the
appropriate care, skill, prudence, and diligence under the circumstances,” and that “MetLife, in
denying Plaintiff LTD benefits under the Plan, breached its responsibilities, obligations, and/or
duties as a fiduciary of the Plan . . . .” Compl. ¶¶ 57-58. In short, Count Three is clearly

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directed at MetLife’s alleged breach of fiduciary duties, and not an alleged breach by any other
defendant.
Second, Gelfand has not alleged — either in his complaint, or in his briefing, or
anywhere else — how Cumulus could be deemed to be his fiduciary. Cumulus obviously could
not have breached a fiduciary duty to Gelfand if Cumulus did not have a fiduciary duty to
Gelfand.
Third, although Citadel arguably did act as Gelfand’s fiduciary (in its capacity as Plan
administrator), “section 1132(a)(2) ‘does not provide a remedy for individual injuries distinct
from plan injuries.’” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 593 (8th Cir. 2009)
(quoting LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 256 (2008)). Gelfand is not
alleging any injury to the Plan. Rather, Gelfand argues that defendants injured him when they
erroneously denied his individual claim for benefits. His claim for relief against Citadel is
therefore not cognizable under § 1132(a)(2).
Finally, Gelfand has not explained how Citadel breached its duty as a fiduciary. It does
not appear that Citadel played any role in denying Gelfand’s claim; to the contrary, the program
director at KQRS-FM — a Citadel employee — wrote a letter to MetLife that supported
Gelfand’s claim for disability benefits. See Ex. at 254-55. The Court therefore does not
understand what Citadel did that, in Gelfand’s view, breached a fiduciary duty. Without some
explanation from Gelfand, the Court cannot find that Citadel acted in breach of a fiduciary duty.
For these reasons, defendants’ motion for summary judgment as to Citadel and Cumulus
is granted, and Gelfand’s motion for summary judgment as to Citadel and Cumulus is denied.

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C. MetLife’s Alleged Breach of Fiduciary Duties
Gelfand’s claim that MetLife breached its fiduciary duties fails for many of the same
reasons. As just explained, relief can be afforded under § 1132(a)(2) only for harms “that
sweep[] beyond [the claimant’s] own injury.” Braden, 588 F.3d at 593. Gelfand is not alleging
any injuries to the Plan; he alleges only that he was injured by MetLife’s denial of his individual
claim for benefits. Such a claim is not cognizable under § 1132(a)(2). Id.
In addition, Gelfand’s breach-of-fiduciary-duties claim against MetLife — like his claim
against Citadel and Cumulus — is woefully underdeveloped. Gelfand is unclear as to how
MetLife breached any fiduciary duty owed to him, except insofar as it denied his claim for
disability benefits. Likewise, Gelfand is unclear as to what injunctive relief he seeks as a result
of MetLife’s alleged breach of fiduciary duties, except that he asks the Court to “require that
MetLife comply with ERISA when processing long-term disability benefit claims.” ECF No. 40
at 35. But MetLife is already required to comply with ERISA regardless of whether this Court
orders it to do so or not. “Injunctions simply requiring a defendant to obey the law are generally
too vague to satisfy Rule 65(d)” of the Federal Rules of Civil Procedure. Vallario v. Vandehey,
554 F.3d 1259, 1268 (10th Cir. 2009) (quotations omitted). Accordingly, MetLife’s motion for
summary judgment is granted with respect to Gelfand’s claim for breach of fiduciary duties, and
Gelfand’s motion for summary judgment is denied with respect to the same claim.
D. Claim for Benefits
1. Standard of Review
Under the Plan, “the Plan administrator and other Plan fiduciaries shall have
discretionary authority to interpret the terms of the Plan and to determine eligibility for and

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entitlement to Plan benefits in accordance with the terms of the Plan.” Ex. at 705. “Any
interpretation or determination made pursuant to such discretionary authority shall be given full
force and effect, unless it can be shown that the interpretation or determination was arbitrary and
capricious.” Id.; accord Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008) (reasserting that
“[w]here the plan provides . . . the administrator or fiduciary discretionary authority to determine
eligibility for benefits, trust principles make a deferential standard of review appropriate”
(quotations, citations, and emphases omitted)). Citing this Plan language, MetLife argues that its
decision must be reviewed under the abuse-of-discretion standard — i.e., that its decision to
deny Gelfand’s claim for benefits must be upheld unless it was arbitrary and capricious. “Under
an abuse of discretion standard,” a fiduciary’s decision “‘will not be disturbed if reasonable.’”
Govrik v. Unum Life Ins. Co. of Am., 702 F.3d 1103, 1108 (8th Cir. 2013) (quoting Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989)). Reasonableness is measured “‘by
whether substantial evidence exists to support the decision . . . .’” Id. at 1108-09 (quoting
Wakkinen v. UNUM Life Ins. Co. of Am., 531 F.3d 575, 583 (8th Cir. 2008)).
Gelfand argues, however, that the Court should review MetLife’s decision de novo.
Gelfand notes that the Plan grants discretionary authority only to “the Plan administrator and
other Plan fiduciaries . . . .” Ex. at 705. Citadel, not MetLife, is named as the Plan
administrator. Id. at 700. Moreover, the Plan does not define the term “Plan fiduciar[y].”
Because MetLife is neither a Plan administrator nor defined as a Plan fiduciary, argues Gelfand,
MetLife is not granted discretion under the Plan. (This argument is, of course, inconsistent with
Gelfand’s argument — addressed above — that MetLife is a fiduciary and breached fiduciary
duties to him.)

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The Court disagrees. Notwithstanding the Plan’s failure to define “fiduciary,” MetLife is
clearly a fiduciary pursuant to ERISA. Under ERISA, “a person is a fiduciary with respect to a
plan to the extent . . . he exercises any discretionary authority or discretionary control respecting
management of such plan or exercises any authority or control respecting management or
disposition of its assets . . . .” 29 U.S.C. § 1002(21). It was MetLife that determined that
Gelfand was not disabled and therefore not entitled to benefits under the Plan. See Ex. at 484
(letter from MetLife long-term disability claims specialist informing Gelfand that “we have
determined that your medical condition is not of a severity to preclude you from performing your
job . . . .”; id. at 130 (appeals letter noting that “MetLife has reviewed [Gelfand’s] claim for
Long Term Disability (LTD) benefits” and that MetLife was denying Gelfand’s appeal). In fact,
there is no evidence in the record that anyone except MetLife made any discretionary decisions
with respect to Gelfand’s claim. Because MetLife made discretionary decisions with respect to
Gelfand’s claim, MetLife is a Plan fiduciary under ERISA. And because the Plan grants
discretionary authority to Plan fiduciaries, the Court will review MetLife’s denial of Gelfand’s
benefits claim for abuse of discretion.
2. MetLife’s Denial of Benefits
The Court now turns to the crux of this lawsuit: Did MetLife abuse its discretion when it
determined that Gelfand was not disabled for purposes of the Plan?
As explained above, for a claimant to be found disabled under the Plan, he must prove
two things: (1) that he suffered from sickness or an accidental injury; and (2) that because of the
sickness or accidental injury, he was unable to earn more than 80% of his predisability earnings
at his “Own Occupation” from any employer in his local economy. See Ex. at 625. The first

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prong is essentially a medical question; the second prong is essentially an economic question.
Gelfand has the burden of submitting sufficient medical and economic evidence to prove that he
is disabled under the Plan.
There is little disagreement between the parties about the first prong of the Plan’s
definition of “disabled.” The parties do not dispute that Gelfand suffers from DSPS. Nor do the
parties dispute that Gelfand is unable to work during morning hours due to his DSPS. Finally,
the parties do not dispute that Gelfand is able to work during afternoon and evening hours. This
is the rare ERISA case in which there is no real dispute about the claimant’s medical condition.
The parties do disagree about the second prong of the Plan’s definition of “disabled” —
specifically, they dispute whether Gelfand was able to earn more than 80% of his predisability
earnings in the Twin Cities area at his “Own Occupation” of radio announcer.4 Again, this
question is essentially economic; answering this question requires an analysis of what income
Gelfand could expect to earn as a radio announcer despite being unable to work during
mornings.
Unfortunately, although there is an abundance of medical evidence in the administrative
record, there is almost no economic evidence. The focus of the parties at the beginning of the
administrative process was on Gelfand’s medical condition. The parties seem to have treated the

4

Gelfand argues that his “Own Occupation” was not radio announcer, but “morning radio
talk show personality.” ECF No. 40 at 3. The Court disagrees. The Plan defines “Own
Occupation” as “the essential functions You regularly perform that provide Your primary source
of earned income.” Ex. at 626 (emphasis added). The “essential functions” of Gelfand’s job as a
radio announcer are the same whether he is on the air in the morning, afternoon, or evening —
just as the essential functions of a firefighter or flight attendant are the same whether the person
works in the morning, afternoon, or evening. Gelfand has conceded that he could have worked
as a radio announcer (albeit not in the morning) after filing his claim. Based on that concession,
the Court finds that Gelfand was capable of performing his “Own Occupation.”
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economic considerations as an afterthought; in fact, MetLife’s initial denial letter said not a word
about Gelfand’s earning capacity, but instead focused entirely on whether the medical evidence
in the record established that Gelfand could not work as an announcer. See Ex. at 482-85.
Understandably, given that MetLife cited only medical evidence in denying Gelfand’s claim,
almost all of the evidence that Gelfand submitted in appealing that denial was medical evidence.
That evidence apparently persuaded MetLife that it had erred in denying Gelfand’s claim on the
basis of medical considerations.
But rather than return the matter to the claims specialist so that she could solicit and
evaluate evidence about Gelfand’s earning capacity,5 MetLife instead upheld the denial of
benefits based on the facially implausible conclusion that, as a result of a disability that
prevented him from working during morning drive-time hours, Gelfand could expect to earn
over 50 percent more than he had earned as an announcer on a highly rated morning radio
program in the Twin Cities area. The only basis for this decision — that is, MetLife’s decision
that Gelfand was not disabled because he could earn more than 80% of his predisability income
— was the “Own Occupation Analysis and Labor Market Analysis” prepared by Sineni. See Ex.

5

Under 29 C.F.R. § 2560.503-1(g), an adverse-benefit notification must include, among
other things, “[t]he specific reason or reasons for the adverse determination” and “[a] description
of any additional material or information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary. . . .” MetLife did not inform
Gelfand in its initial denial-of-benefits letter that a reason for denying his claim was his residual
earning capacity, and it did not alert Gelfand that additional economic evidence would be needed
on appeal to perfect his claim. Thus, not until MetLife’s appeals process had concluded did
Gelfand learn that MetLife’s denial was based on a finding about his earning capacity. This
precluded Gelfand from receiving the “full and fair review” owed to him by MetLife under
ERISA. See 29 U.S.C. § 1133(2); 29 C.F.R. § 2560.503-1(h)(1); DuMond v. Centex Corp., 172
F.3d 618, 622 (8th Cir. 1999) (“The purpose of this requirement is to provide claimants with
enough information to prepare adequately for further administrative review . . . .”).
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at 187-191; Tr. at 19 [ECF No. 53]. In that report, Sineni purports to rely on 2011 OES data in
concluding that due to Gelfand’s “experience and notoriety,” he could expect to earn $8,333.87
per month after the onset of his disability. Ex. at 190. This works out to roughly $100,000 per
year — which, again, is $34,000 more than the $66,000 annual salary that Gelfand earned while
working at Citadel. See id. at 187. Sineni’s conclusion contradicted the only other economic
evidence in the administrative record about Gelfand’s earning capacity — a letter from KQRSFM’s program director, who explained (in essence) that Gelfand could not expect to earn the
amount of income that he had earned from Citadel if he could not work during morning drivetime. See id. at 255 (“To approximate Gelfand’s position or salary, he would need to be part of a
morning radio show.”).
For the reasons that follow, the Court concludes that Sineni’s report does not constitute
“substantial evidence” as to Gelfand’s residual earning capacity, and therefore concludes that
MetLife abused its discretion by relying solely on that report in concluding that Gelfand’s
residual earning capacity precluded a finding that he was disabled.
First, Sineni misunderstands the OES data on which she relies.6 Although she claims in
her report that she is looking only at wage data for radio announcers in the Twin Cities metro
area, see id. at 190, Sineni in fact relied upon OES data that combines wage data for both radio
announcers and television announcers in the Twin Cities metro area. There has never been a
suggestion — from MetLife, from Gelfand, or from anyone else — that Gelfand is qualified to

6

This data can be accessed at Bureau of Labor Statistics Occupational Employment
Statistics OES Data, http://www.bls.gov/oes/special.requests/oesm11ma.zip (last visited June 30,
2014). The data relevant to Gelfand’s claim can be found in row 20147 of the file named
“MSA_M2011_dl_2_KS_NY.xls.” A copy of the relevant data is on file with the Court.
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work as a television announcer. It is possible — indeed, it seems likely — that television
announcers earn considerably more on average than radio announcers. If that is true, then wage
data that combines the salaries of radio announcers and television announcers would overstate
what a radio announcer could expect to earn. Sineni does not even mention that she relied upon
combined wage data for radio announcers and television announcers, much less explain why this
data accurately represents what Gelfand could expect to earn in the Twin Cities market despite
his lack of qualifications to work as a television announcer.
Second, Sineni concludes that “it is reasonable that [Gelfand] would qualify for earnings
at the 90th percentile” for radio announcers. Id. According to the OES data cited by Sineni,
radio and television announcers in the 90th percentile in the Twin Cities metro area can expect to
earn approximately $100,000 per year. (Sineni references the substantially equivalent figure of
$8,333.87 per month. Id.) The sole reason Sineni gives for concluding that Gelfand could
expect to be paid more than 90 percent of radio and television announcers in the market is his
“experience and notoriety.” Id.
This is problematic for at least two reasons. First, Sineni does not provide any reason to
believe that “experience and notoriety” determine what radio announcers can expect to earn. It
is not at all obvious that a radio announcer’s earnings can be expected to increase uniformly over
time. It would instead seem possible that an announcer with little experience but high ratings
would earn more than an announcer with lots of experience but low ratings. Second, although
Sineni at least provides a basis for her conclusion that Gelfand has “experience” as a radio
announcer, see id. (“Mr. Gelfand has worked as a Radio Announcer for 25 years”), she provides
no basis for her conclusion that Gelfand enjoys some level of “notoriety,” nor does she discuss

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whether any “notoriety” enjoyed (or suffered) by Gelfand is likely to translate into a lucrative
position.
Sineni’s unsupported and largely unexplained conclusion that Gelfand could earn wages
in the 90th percentile for radio and television announcers was crucial to MetLife’s decision that
Gelfand was not disabled. According to the OES wage data relied on by Sineni, the wages of
radio and television announcers are highly skewed towards the top earners. Thus, Gelfand
would not qualify as disabled if he could expect earnings in the 90th percentile ($100,000 per
year), but he would qualify as disabled if he could expect earnings in the 75th percentile
($47,300 per year). Accordingly, even accepting Sineni’s flawed assumptions (1) that the
expected wages of radio announcers and television announcers are equivalent and (2) that
“experience and notoriety” drive what radio announcers can expect to earn, Gelfand still would
qualify as disabled if Sineni’s conclusion that Gelfand could earn at the 90th percentile level was
just slightly off. Yet Sineni provides no explanation for her conclusion that Gelfand’s
“experience and notoriety” would enable him to earn at the 90th percentile — as opposed to the
80th or 70th or 60th percentiles. For all that the record shows, Sineni (and therefore MetLife)
pulled the 90th-percentile figure out of thin air.
Third, Sineni never grapples with the central complaint raised by Gelfand — that radio
announcers working during morning drive-time (when radio audiences peak) earn substantially
more than radio announcers working at other times. It is not enough for MetLife to say that
Gelfand could work in the afternoons and evenings. MetLife also needs an evidentiary basis for
its conclusion that Gelfand could earn more than 80% of his predisability income — income that
he earned while working on a highly rated morning drive-time program — while working in the

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afternoons or evenings. Even if everything else claimed by Sineni in her report was true,
Gelfand might nevertheless be disabled under the plan if most of the jobs that pay enough to be
“disqualifying” require work in the morning.7
For these reasons, the Court concludes that MetLife abused its discretion when it
concluded — based solely on Sineni’s obviously flawed analysis — that Gelfand was not
disabled because he could earn more than 80 percent of his predisability income. Because the
record contains almost no other evidence about Gelfand’s residual earning capacity, the Court
remands this matter to MetLife for further proceedings.8 On remand, Gelfand should be given an
opportunity to respond to Sineni’s report and to submit evidence about his earning capacity.
MetLife should then consider Gelfand’s submissions and decide whether he has met his burden
of proving that he was disabled during the 24 months following the elimination period.

E. Attorney’s Fees
Gelfand seeks an award of attorney’s fees as the prevailing party in this case. See 29
U.S.C. § 1132(g)(1) (permitting a court to award attorney’s fees under ERISA). The Court finds

7

The Court also notes that, according to the OES wage data relied upon by Sineni, only
430 people work as radio and television announcers in the Twin Cities metro area. Accordingly,
only 43 radio and television announcers in the Twin Cities metro area earn an income in the 90th
percentile. Sineni thus concludes that Gelfand could expect to be one of only 43 announcers to
earn such a lucrative income despite not being a television announcer and despite not being able
to work during morning drive-time on the radio. It is very difficult to believe that this is true.
8

Gelfand asks that the Court grant his claim for benefits rather than remand to MetLife
for further proceedings. But just as there is insufficient economic evidence in the administrative
record to conclude that Gelfand is not disabled, there is also insufficient economic evidence in
the record to conclude that Gelfand is disabled. Remand is necessary to further develop the
record as to Gelfand’s residual earning capacity at the time that his employment with Citadel
ended.
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that such an award is warranted under the relevant factors, which include (1) the opposing
party’s degree of bad faith; (2) the opposing party’s ability to pay; (3) deterrence; (4) the
significance of the legal question; and (5) the relative merits of the parties’ positions. Nichols v.
Unicare Life & Health Ins., 739 F.3d 1176, 1184 (8th Cir. 2014) (citing Lawrence v.
Westerhaus, 749 F.2d 494, 496 (8th Cir. 1984)). MetLife’s decision to deny Gelfand’s claim for
long-term disability benefits was based on facially implausible conclusions that were, in turn,
based on obviously flawed data and analysis. ERISA does not demand much of an insurer in
MetLife’s position — basically, that it act reasonably and treat the claimant fairly — but
MetLife fell far short of that standard. An award of attorney’s fees will deter MetLife from such
abuses of discretion in the future.
That said, the Court’s award of attorney’s fees is limited in two important respects. First,
Gelfand is not entitled to attorney’s fees for the time that his attorneys devoted to pursuing
claims against Citadel and Cumulus. Second, Gelfand is not entitled to attorney’s fees for the
time that his attorneys devoted to pursuing claims and arguments against MetLife that were not
successful, such as the claim for breach of fiduciary duty and the argument that MetLife’s
decision should be reviewed de novo. MetLife should not have to pay Gelfand’s attorneys for
pursuing meritless claims or losing arguments.
The Court therefore directs Gelfand to file an affidavit and appropriate supporting
materials regarding the reasonable attorney’s fees and expenses that he incurred in establishing
that MetLife abused its discretion in denying his claim for benefits (as alleged in Count One of
the complaint). Gelfand must file and serve that affidavit and those supporting materials no later
than July 18, 2014. MetLife may file and serve a response no later than August 1, 2014.

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ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

Count Two of the complaint is WITHDRAWN.

2.

The motion for summary judgment of defendants Metropolitan Life Insurance
Company, Citadel Broadcasting Company, and Cumulus Media, Inc. [ECF
No. 25] is GRANTED IN PART and DENIED IN PART.
a.

The motion is GRANTED as to Count Three of the complaint. Count
Three is DISMISSED WITH PREJUDICE AND ON THE MERITS.

b.

The motion is GRANTED as to Count One insofar as Count One asserts a
claim against Citadel and Cumulus. Accordingly, Count One is
DISMISSED WITH PREJUDICE AND ON THE MERITS as to
defendants Citadel and Cumulus.

c.

The motion is DENIED as to Count One insofar as Count One asserts a
claim against MetLife.

3.

The motion for summary judgment of plaintiff Michael H. Gelfand [ECF No. 27]
is GRANTED IN PART and DENIED IN PART.
a.

The motion is DENIED as to defendants Citadel Broadcasting Company
and Cumulus Media, Inc.

b.

The motion is DENIED as to the claim asserted in Count Three against
MetLife.

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c.

The motion is GRANTED as to the claim asserted in Count One against
MetLife.

4.

Gelfand’s request for reasonable attorney’s fees and costs is GRANTED against
MetLife. Gelfand and MetLife must make submissions regarding the amount of
those fees and costs as directed in the body of this order.

5.

This case is REMANDED to MetLife. On remand, MetLife must reopen the
administrative proceedings and determine whether Gelfand qualifies for longterm disability benefits under the Plan.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 30, 2014

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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