McCormack v. Joint Industry Board of the Electrical Industry et al
Filing
33
ORDER granting 21 Motion for Summary Judgment (SEE ATTACHED). The Clerk of the Court is directed to close the case. Ordered by Senior Judge Sterling Johnson, Jr on 1/30/2012. (Figeroux, Davina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------X
EDWARD MCCORMACK,
Plaintiff,
09CV930 (SJ) (CLP)
v.
MEMORANDUM
AND ORDER
JOINT INDUSTRY BOARD
OF THE ELECTTRICAL INDUSTRY,
et al.,
Defendants.
-------------------------------------------------X
APPEARANCES
AARON DAVID FRISHBERG
116 West 111th Street
New York, NY 10026
By:
Aaron David Frishberg
Attorney for Plaintiff
COHEN WEISS AND SIMON LLP
330 West 42nd Street
New York, NY 10036
By:
Peter D. DeChiara
Zachary N. Leeds
Attorneys for Defendant
JOHNSON, Senior District Judge:
Plaintiff Edward McCormack (“Plaintiff” or “McCormack”) filed the instant
action pursuant to both ERISA, 29 U.S.C. § 1001, et seq.; and the Americans with
1
Disabilities Act, 42 U.S.C. ' 12112, et seq. He seeks review of Defendant Joint
Industry Board of the Electrical Industry’s (“Defendant” or the “Board”) denial of
his 2008 request to apply for a disability pension. Before me is Defendant’s motion
for summary judgment. Based on the submissions of the parties, the oral argument
held before me on January 5, 2012, and for the reasons stated below, the motion is
granted.
BACKGROUND
Plaintiff is a journeyman electrician who, on July 8, 1998, sustained serious
injuries when he fell four stories while attempting to enter his apartment through the
window. At the time of his injury, he was unemployed, having been terminated from
his job at Sacco Electric Corporation (“Sacco”) in October 1997. As a member of
the Local Union No. 3 of the International Brotherhood of Electrical Workers, AFLCIO (the “Union”), he was party to a collective bargaining agreement (“CBA”)
between the Union and various employers.
The CBA established the Board,
comprised of an equal number of union and employer Trustees.
The Board’s
functions include administration of certain employee benefit plans, including a
welfare plan that provides hospitalization benefits and pension plan that provides
pension benefits. The Pension Trust Fund of the Pension Hospitalization and Benefit
Plan of the Electrical Industry (the “Fund”) is governed by a plan document (the
2
“Plan”) which gives the Board full discretionary authority to determine eligibility for
benefits and to construe the Plan’s terms and provisions.
On February 3, 2008, Plaintiff wrote to the Board requesting a disability
pension application that he wished to have “processed retroactively to 1998.”
Plaintiff claimed then, and claims now, that while he was hospitalized after his July
1998 fall, he was falsely told that he was “ineligible for benefits,” a statement that
led him to believe that he would not qualify for a disability pension. At some point
between his accident and his inquiry, Plaintiff alleges that he was again told he was
ineligible and only learned in 2007 of his alleged eligibility. Plaintiff argues that
these circumstances, coupled with the head trauma from which he suffered, demand
that his application be deemed filed at the time of his accident, as a reasonable
accommodation of his disability. However, the Plan denied Plaintiff’s request in a
letter dated May 6, 2008 (the “May 6 Letter”).
More specifically, the letter and Plan outline several prerequisites to recovery
that are relevant to the instant dispute: (1) that the participant be permanently
incapacitated such that continued work in the electrical industry is no longer
possible; (2) that the participant has been employed or available for employment for
at least ten years prior to the application; and (3) that the application be submitted
within two years of being disabled. (See Ex. D to Collack Decl.) The parties make
no mention of the first factor and as a result, I will assume arguendo that Plaintiff is
sufficiently incapacitated to satisfy this requirement. The second two factors are in
3
dispute and are inextricably intertwined: to recover, Plaintiff must have been
employed ten years prior to the application, and have submitted the application
within two years of his disability.
Plaintiff argues that his application should be considered filed in 1998
because of additional misfortunes befalling him. Specifically, he alleges that various
union employees gave him misinformation about his eligibility and, combined with
the injuries to his brain, he was further prevented, discouraged and/or incapable of
pursuing a disability pension until 2008. While Plaintiff claims that these post-injury
events are the reasons for his ineligibility, an examination of his pre-injury
communications with the union suggests otherwise.
Plaintiff’s Termination from Sacco
On October 21, 1997, Plaintiff was terminated from Sacco. Sacco cited his
excessive absenteeism for its decision:
Plaintiff began working for Sacco on
September 7, 1997, and by October 21, 1997, was absent from work 11 times. On
November 18, 1997, Plaintiff acknowledged by letter that his absences were due to
personal circumstances. The Board claims to have sent Plaintiff a postcard on
January 20, 1998, which Plaintiff denies receiving. The Board also claims to have
sent Plaintiff a letter on May 20, 1998 (the “May 20 Letter”). They May 20 Letter
purports to inform Plaintiff that the Board’s records indicate that he had not been
4
available for work and warns him to notify the Board “immediately” if he wants to
avoid being officially classified as “unavailable.” Plaintiff denies receiving the May
20 Letter, however, he seems to rely on it in order to demonstrate that he was not out
of touch. For example, in response to Defendant’s 56.1 Statement, Plaintiff makes
reference to the handwritten comments on the May 20 Letter. Those comments,
written by a Plan employee, state:
Sent post cd on 1/20/98—member has no phone. On 2/19/98—he called—he
said he never rec’d postcard but was unavail until 2/23/98—member was told
to write ltr. None rec’d. do not sent out until its [sic] rec’d.
Plaintiff did not write the letter as allegedly instructed and did not otherwise
respond to the May 20 Letter. Indeed, in his affidavit, Plaintiff states that
I left the job at Sacco before the work was completed, and did not seek work
in the months that followed . . . because I was having a drinking problem, and
I might not have been able to do my work as a journeyman electrician in a
way that would leave behind safe wiring.
(Pl. Aff. ¶ 3 (emphasis added.).) Therefore, the parties agree that, at least for “the
months that followed” Plaintiff’s termination, he did not seek work.
On July 7, 1998, Plaintiff suffered severe injuries as a result of his fall,
including a partially detached arm and broken back. Plaintiff claims that, while
hospitalized, he received misinformation about his eligibility for unspecified
“benefits.” Specifically, he claims that “a social worker at Jacobi [Hospital] who
contacted the union was told” that Plaintiff is not eligible for “benefits.” However,
5
because Plaintiff admits not seeking work even prior to his accident, this alleged
misinformation is of no consequence.
Moreover, Plaintiff wrote to the Board on April 29, 1999, stating:
Following the loss of this job I was involved in numerous police procedures;
culminating in my being evicted from my home and than [sic] breaking my
back in a four story fall[.] [D]ue to these circumstances I was unavailable for
work. However I am healthy now and wish only to return to work.
(Collazo Decl. Ex. L (emphasis added).) Plaintiff attempted to return to work for
four days in 1999, but was unable to continue.
Plaintiff’s Appeal to the Board
Plaintiff appealed the Board’s decision denying him the opportunity to file
for a disability pension, and at an August 27, 2008 committee meeting, the Board
reviewed his case. The Board found, inter alia, that “Mr. McCormack [was] listed as
being unavailable for employment for personal business from January 1998 through
May 1998.” In denying the appeal, it also made note of the fact that the Pension
Department had no record of a written inquiry from Mc Cormack until 2008.
Plaintiff filed this action on January 14, 2009, seeking declaratory relief
finding that the denial of benefits was arbitrary and capricious; an injunction
requiring Defendant to deem Plaintiff qualified for a disability pension; an injunction
requiring payment of benefits for the period of July 1998 to present; and judgment in
6
favor of Plaintiff on his claim that the Board’s refusal to accommodate him by
treating the application as filed in 1998 constitutes discrimination based on his
disability. Defendants move for summary judgment.
DISCUSSION
Summary Judgment Standard
It is well-settled that a party moving for summary judgment has the burden of
establishing that there exists no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ford v. Reynolds, 316 F.3d 351,
354 (2d Cir. 2003). Material facts are those that may affect the outcome of the case.
See Anderson, 477 U.S. at 248. An issue of fact is considered “genuine” when a
reasonable finder of fact could render a verdict in favor of the non-moving party. Id.
In considering a summary judgment motion, “the court’s responsibility is not
to resolve disputed issues of fact but to assess whether there are any factual issues to
be tried, while resolving ambiguities and drawing reasonable inferences against the
moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing
Anderson, 477 U.S. at 248). If the Court recognizes any material issues of fact,
summary judgment is improper, and the motion must be denied.
Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985).
7
See Eastway
If the moving party discharges its burden of proof under Rule 56(c), the nonmoving party must then “set forth specific facts showing that there is a genuine issue
for trial.”
Fed. R. Civ. P. 56(e).
The non-moving party opposing a properly
supported motion for summary judgment “may not rest upon mere allegations or
denials of his pleading.” Anderson, 477 U.S. at 256. Indeed, “the mere existence of
some alleged factual dispute between the parties” alone will not defeat a properly
supported motion for summary judgment. Id. at 247-48. Rather, enough evidence
must favor the non-moving party’s case such that a jury could return a verdict in its
favor. Id. at 248; see also Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219,
1224 (2d Cir. 1999) (“When no rational jury could find in favor of the nonmoving
party because the evidence to support its case is so slight, there is no genuine issue of
material fact and a grant of summary judgment is proper.”).
In this district, Local Rule 56.1 assists in identifying the existence of any
triable issues by requiring the moving party to submit a Statement of Material Facts
that it contends are not in dispute. The non-moving party then must, pursuant to
Local Rule 56.1(b), set forth the material facts that it believes are in dispute and
warrant a trial. In this case, each of the parties has submitted a Statement of Material
Facts pursuant to Local Rule 56.1. However, Plaintiff's Rule 56.1(b) Statement of
Material Facts fails to controvert Defendant's Rule 56.1 Statement in the manner
prescribed by the Rule. Specifically, while Plaintiff’s statement contains numbered
paragraphs that purportedly respond to each offered by the Board, the responses are
8
often in the form of argument. (See, e.g., ¶19 (disputing that McCormack was
unavailable for work but not disputing Defendant’s assertion that McCormack wrote
same in his April 29, 1999 letter); ¶23 (purportedly disputing the Board’s
characterization of Plaintiff’s letter but in fact only rehashing the unquoted portions
of the letter).) Additionally, Plaintiff’s statement is deficient in that he does not
separately list in additional paragraphs the facts he claims are in dispute, as required
by Local Rule 56.1(b). Plaintiff’s statement also fails to comply with Local Rule
56.1(d), which requires each statement or counterstatement to be accompanied by a
citation to evidence which would be admissible and which supports the statement.
While most statements contain a citation to the record, some citations, when
examined, inadequately support the view advanced by Plaintiff. Although it is not
required to do so, this Court can attempt to wade through Plaintiff's Rule 56.1(b)
Statement in an effort to do what Plaintiff should have done: determine which facts
set forth by Defendant in its Rule 56.1(a) statement are controverted by Plaintiff. See
Bagdasarian v. O'Neill, 00 CIV 0258, 2002 WL 1628722, at *2 (W.D.N.Y. July 17,
2002); see also Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir.2001)
(finding that “a district court has broad discretion to determine whether to overlook a
party's failure to comply with local court rules” and declining to admit those portions
of defendant's Local Rule 56.1 statement that, although not contested by plaintiff,
were unsupported by deposition testimony). Therefore, those facts that Plaintiff does
9
not properly dispute that are supported by the record will be deemed admitted for the
purpose of this motion.
Standard of Review in ERISA Actions
Because the Plan confers upon the board the discretionary authority to
determine eligibility, the administrator’s ultimate conclusion cannot be disturbed
unless it is “arbitrary and capricious.” Pagan v. NYNEX Pension Plan, 52 F.3d 438,
441 (2d Cir 1995); see also Pepe v. Newspaper and Mail Deliveries'-Publishers'
Pension Fund, 559 F.3d 140, 146 (2d Cir. 2009) (“Since the terms of the Plan grant
the [administrator] discretionary authority to interpret the Plan, the standard
governing the district court's review, and accordingly our review here, is the
arbitrary-and-capricious standard.”); Kruk v. Metropolitan Life Insurance Co., 3:07–
CV–01533, 2009 WL 1481543, *2 n. 1 (D. Conn. May 26, 2009) (“The term
‘arbitrary and capricious' is used interchangeably with the phrase ‘abuse of
discretion,’ and either describes the deferential standard applied when an ERISA
plan reserves discretion.”) (internal citations omitted)). Given these limitations,
Plaintiff’s contentions need not detain us much further.
While the parties quibble over which versions of the Plan and which
amendments thereto can be fairly applied to Plaintiff, I assume arguendo that the
June 11, 1998 Plan description annexed to the Collock Declaration at Exhibit D
applies in this case. The prerequisites to recovery stated in this plan that are relevant
10
to this dispute are all factors considered by the Board in denying Plaintiff’s appeal
and are all factors contained in all subsequent plans. Therefore, Plaintiff’s request to
treat his application as filed in 1998 is moot, as such a modification would not have
affected his eligibility given his inability to establish that he was continuously
available for work in the ten years prior to 1998. For the same reasons, Plaintiff’s
argument that any plan subsequent to his accident stripped him of vested rights is
without merit, for the fact remains that even on the date of his injuries, he was not
qualified to receive a disability pension.
As stated, supra, at all relevant times from Plaintiff’s 1997 employment with
Sacco through his 1998 injury, he was required to be continually employed or
available for work in order to qualify; he was not. The Board considered this factor
in denying his appeal, and I find that its decision was neither arbitrary nor capricious.
That Plaintiff may have been misinformed or too incapacitated to proceed with the
application in a timely manner does not change the fact that, were he properly
informed and capable, his application would have been denied for failure to be
employable in the ten years immediately prior. Even if I understood the Board’s
denial to be arbitrary and capricious and granted Plaintiff a 10 year extension as a
“reasonable accommodation,” I could not save his case. Therefore, I find that the
Board’s decision to deny his appeal-- given its unsuccessful attempts at contacting
him during a period in which he was supposed to be available for work, along with
11
his own written admissions that personal problems pre-dating the accident rendered
him unavailable for work-- must stand.
I have considered Plaintiff’s remaining arguments and find them to be
without merit.
Defendant’s motion for summary judgment is granted. The Clerk of the
Court is directed to close the case.
SO ORDERED.
Dated: January 30, 2012
Brooklyn, New York
_______________/s____________________
Sterling Johnson, Jr., U.S.D.J.
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?