Labombard v. Winterbottom et al

Filing 68

MEMORANDUM-DECISION AND ORDER granting 57 Motion for Summary Judgment: The Court hereby ORDERS that Defendants' motion for summary judgment is GRANTED; and the Court further ORDERS that the Clerk of the court shall enter judgment in Defendant s' favor and close this case; and the Court further ORDERS that the Clerk of this Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 11/5/15. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CHRISTOPHER LABOMBARD,
Plaintiff,
vs.

8:14-cv-00071
(MAD/CFH)

BELINDA A. WINTERBOTTOM, Plan Administrator
for the Laborers' Pension Fund of Local Union No. 186;
LABORERS' PENSION FUND OF LOCAL UNION NO.
186,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ROEMER, WALLENS LAW FIRM
13 Columbia Circle
Albany, New York 12203
Attorneys for Plaintiff

MATTHEW J. KELLY, ESQ.

SLEVIN, HART LAW FIRM NEW YORK OFFICE
614 Hempstead Gardens Drive
West Hempstead, New York 11552
Attorneys for Defendants

OWEN MARC RUMELT, ESQ.

SLEVIN, HART LAW FIRM DISTRICT OF COLUMBIA OFFICE
1625 Massachusetts Avenue, N.W.
Suite 450
Washington, District of Columbia 20036
Attorneys for Defendants

PAUL E. KNUPP, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Christopher LaBombard ("Plaintiff") commenced this action on January 22, 2014
under the Employee Retirement Income Security Act of 1974 ("ERISA"), alleging that he was
wrongfully denied benefits under the terms of a disability benefits plan (the "Plan") by

Defendants Belinda A. Winterbottom ("Winterbottom") and Laborers' Pension Fund of Local
Union No. 186 (the "Fund"; collectively "Defendants"). See Dkt. No. 1.
Currently pending before the Court is Defendants' motion for summary judgment arguing
that the denial of Plaintiff's benefits claim was not arbitrary and capricious. Dkt. No. 57. Plaintiff
opposes this motion on the grounds that it is premature and that genuine questions of fact exist
regarding Defendants' denial of Plaintiff's disability benefits. Dkt. Nos. 61-64.

II. BACKGROUND
A.

Relevant Facts
Plaintiff was an enrolled member of Local Laborers' Union No. 186, Plattsburgh, New

York (the "Union") starting in 1988. Dkt. No. 57-13 at ¶ 18. The Fund provides pension benefits
to certain employees of the Union in accordance with the terms of the Plan in effect at the time
the employee left employment in a job classification for which the employer was required to
contribute to the Fund ("covered employment"). Id. at ¶¶ 1, 3. It is uncontested that Plaintiff was
engaged in covered employment with the Union from 1988 to 2008. See id. at ¶ 18; Dkt. No. 576 at 4.
On February 8, 2013, Plaintiff submitted an application to the Fund for a disability
pension resulting from injuries sustained in a car accident on November 13, 2012. Dkt. No. 57-6
at 2. In his application, Plaintiff stated that his last day of covered employment was November
13, 2012. Id. Plaintiff's application was denied on April 17, 2013 in a letter from Defendant
Winterbottom stating that "[a] participant must be employed or actively seeking employment that
would earn Pension or Vesting Service when the incident or illness that causes the disability
occurs. According to our records, you last worked in covered employment in 2008 and your
Social Security Award does not start until May 2013." Dkt. No. 57-7 at 2.
2

Plaintiff appealed this denial on May 9, 2013. See Dkt. No. 57-8. Plaintiff's appeal
claimed that he was entitled to benefits because he "was a dues paying member of the [Fund] at
all times in this matter" and that he was "at all times, ready, willing and able to appear for any
jobs assigned by the Laborers' Union and was actively seeking employment [but] [n]one had been
assigned since 2008." Id. at 4. Plaintiff submitted proof of his current dues payments through
January 3, 2013 with his appeal letter. Id. at 8.
Defendant Winterbottom informed Plaintiff on August 6, 2013 that his appeal was denied
based on the absence of any evidence that [Plaintiff] was actively
seeking work during the period between his last date of covered
employment in 2008 and the date he became disabled. It is the
Trustees' understanding that [Plaintiff] was working as an operating
engineer during this time and that he was not on the Union's out of
work list when his disability began.
Dkt. No. 57-9 at 2. Working as an operating engineer is not considered covered employment for
the Laborers' Union.
At the July 26, 2013 meeting in which Plaintiff's appeal was denied, union trustee Donald
Anslow noted that he exchanged several greetings with Plaintiff from 2009-2012, observed that
Plaintiff was working as an operating engineer, and that he believed Plaintiff had held such
position since 2008. Dkt. No. 57-3 at ¶¶ 3, 5; Dkt. No. 66 at 4 ¶ 11. Plaintiff refutes this
characterization and states that he only saw Mr. Anslow on two occasions and "advised him that
[Plaintiff] was not working year round as an operating engineer." Dkt. No. 62 at ¶ 2. Mr. Anslow
is a business agent for the Union and "regularly visit[s] job sites at which Union members [are]
employed and observe[s] the work being performed at the job sites by employees in various
trades, some of whom are employed in positions covered by other labor organizations' collective
bargaining agreements." Dkt. No. 57-3 at ¶ 2.

3

Plaintiff contested the denial of his appeal in a letter to Defendant Winterbottom on
August 29, 2013. See Dkt. No. 57-10. This letter stated that "[o]bviously, if [Plaintiff] was
paying dues, he was available for work. The [Union] did not call him with any work during that
time period." Id. at 2. Plaintiff requested from Defendant Winterbottom "any proof that
[Plaintiff] was called for work and turned it down," and for "any and all written proof that
[Plaintiff] was offered work between 2008 and 2012." Id. Thereafter, Defendant Winterbottom
sent Plaintiff a letter on October 31, 2013 explaining the process for the Union's job referral
procedure. Dkt. No. 57-11 at 2-8. The October 31 letter also included medical benefits waivers
indicating that Plaintiff received health coverage through the Upstate New York Engineers Health
Fund starting in February 2009. Id. at 2, 9-26.
The Union's job referral procedure requires employees to submit a referral form in order to
be on the "out of work list" and be eligible for job referrals. Id. at 2. Plaintiff did not submit the
referral form. Id. Rather, Plaintiff claims that he was told that "the process for obtaining work
from the Laborer's Union is that you would call and just confirm you are on the out of work list.
The secretary . . . never told me I had to fill out an out of work form." Dkt. No. 62 at ¶ 3.

B.

Plan Provisions
The Restated Agreement and Declaration of Trust that established the instant benefits Plan

states that "the Trustees shall have full and exclusive authority to determine all questions of
coverage and eligibility, methods of providing or arranging for benefits and all other related
matters." Dkt. No. 57-4 at 27. In making benefits decisions, the Trustees may consider "any facts
appearing in the records of the Trustees, any instruments on file with the Trustees, with the Union
or with the Employers, any facts certified to the Trustees by the Union or the Employers, any

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facts which are of public record and any other evidence pertinent to the issue involved." Id. at 30.

The Plan states that the an employee is entitled to disability pension on
the first day of the month following his cessation of employment
upon which all of the following conditions are met:
A. he is not yet age 55;
B. his completion of the 10 years of Vesting Service;
C. he is totally disabled;
D. when the incident or illness that caused his disability
occurred, he was employed or actively seeking employment
that would earn Pension or Vesting Service hereunder; and
E. he has submitted a proper application for pension
to the Trustees.
Dkt. No. 57-5 at 20. If an employee's disability claim is denied, the Trustees must provide the
claimant with a written notice describing "[a] the specific reason(s) for the denial; [b] the specific
reference(s) to the Plan provisions on which the denial is based; [c] the way(s) in which the claim
might be perfected; and [d] a statement of the Plan appeal procedure." Id. at 40. Thereafter,
"[t]he claimant . . . may appeal the denial of a claim by: submitting a written application to the
Fund office or the Trustees . . . and, submitting such additional information and comments, in
writing, as supports his or her appeal." Id. The final determination of the appeal is made by the
Trustees. Id.

C.

Procedural History
Magistrate Judge Hummel issued a Decision and Order on March 18, 2015 ordering that

Defendants' denial of Plaintiff's disability benefits application be reviewed under the arbitrary and
capricious standard. Dkt. No. 51 at 5-8. The Court reviewed this Decision and Order and agrees
with Magistrate Judge Hummel that the arbitrary and capricious standard applies to this case.
Magistrate Judge Hummel also denied Defendants' motion to stay discovery. Id. at 14.
5

Specifically, the Decision and Order granted Plaintiff limited discovery including "document
requests and a deposition of a representative to assess [Defendant] Winterbottom's role in his
benefits determination and whether there existed a conflict of interest." Id. at 12. Further,
"[P]laintiff [was] permitted discovery limited to document requests to determine 'what records the
Fund relied upon in reaching its decision, whether that record is complete, or whether it had other
records available to it from co-defendant Union.'" Id. at 14 (quoting Dkt. No. 44 at 9).
III. DISCUSSION
A.

Standard of Review
1. Summary Judgment Standard
A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting FED. R. CIV. P. 56(c), (e)). Further, "disputes
over irrelevant facts must not be allowed to obscure the lack of a material dispute[.]" Burlington
Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 923 (2d Cir. 1985).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
6

motion or fails to dispute the movant's statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See Giannullo v. City of New York, 322
F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the
motion for summary judgment "would derogate the truth-finding functions of the judicial process
by substituting convenience for facts").

2. Rule 56(d)
The Second Circuit has stated:
[a] party resisting summary judgment on the ground that it needs
additional discovery in order to defeat the motion must submit an
affidavit pursuant to Federal Rule of Civil Procedure 56(d)
(formerly Rule 56(f)), showing: "(1) what facts are sought and how
they are to be obtained, (2) how those facts are reasonably expected
to create a genuine issue of material fact, (3) what effort affiant has
made to obtain them, and (4) why the affiant was unsuccessful in
those efforts."
Lunts v. Rochester City Sch. Dist., 515 Fed. Appx. 11, 13 (2d Cir. 2013) (quoting Meloff v. N.Y.
Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995)). Pursuant to Rule 56(d), if a party opposing a
motion for summary judgment "shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3)
issue any other appropriate order.” FED. R. CIV. P. 56(d).
Rule 56(d) "is a safeguard against premature grants of summary judgment and should be
applied with a spirit of liberality." Holmes v. Lorch, 329 F. Supp. 2d 516, 529 (S.D.N.Y. 2004)
(quotation omitted); see also Delphi–Delco Elecs. Sys. v. M/V NEDLLOYD EUROPA, 324 F.
Supp. 2d 403, 417–18 (S.D.N.Y. 2004). This is especially true where a party has not had an
7

opportunity to conduct full discovery. The nonmoving party should not be "railroaded" into his
offer of proof in opposition to summary judgment. Delphi–Delco Elecs. Sys., 324 F. Supp. 2d at
421 (citation omitted). The nonmoving party must have had the opportunity to discover
information that is essential to his opposition to the motion for summary judgment. See id.
(citation omitted); see also Anderson, 477 U.S. at 250. Since Rule 56(d) "is an important
safeguard against improvident or premature motions for summary judgment, courts generally
avoid overly technical rulings under this subdivision and apply it with a spirit of liberality."
Delphi–Delco Elecs. Sys., 324 F. Supp. 2d at 417-18 (citations omitted). "Thus, while failure to
file an affidavit meeting the foregoing requirements is sufficient grounds to reject a claim that the
opportunity for discovery was inadequate, it is not automatically fatal to such a request." Id.
(citations omitted); cf. Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994) ("A
reference to Rule 56[d] and to the need for additional discovery in a memorandum of law in
opposition to a motion for summary judgment is not an adequate substitute for a Rule 56[d]
affidavit").
Rule 56(d) "will not be liberally applied to aid parties who have been lazy or dilatory."
Allstate Ins. Co. v. Administratia Asigurarilor De Stat, 948 F. Supp. 285, 294 (S.D.N.Y. 1996)
(quoting 10A Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil
2d § 2740, 535 (2d ed. 1983)). Thus, requests for additional discovery
by a party who has diligently used the time available . . . should be
given more favorable consideration than claims by one who has
allowed months to pass unused. . . . A party who both fails to use
the time available and takes no steps to seek more time until after a
summary judgment motion has been filed need not be allowed more
time for discovery absent a strong showing of need.
Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 927-28 (2d Cir.
1985).
8

3. Arbitrary and Capricious Standard Under ERISA
In Firestone Tire & Rubber Co. v. Bruch, the Supreme Court held that "a denial of
benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit
plan gives the administrator . . . discretionary authority to determine eligibility for benefits or to
construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Moreover, to avoid de novo review, a plan must "give some unambiguous indication that
discretion has been conferred." Shapiro v. New York Univ., 640 F. Supp. 2d 411, 419 (S.D.N.Y.
2009) (citing Kosakow v. New Rochelle Radiology Assoc., P.C., 274 F.3d 706, 739 (2d Cir.
2001)). Finally, if a plan administrator has the responsibility of both evaluating and paying
benefit claims, it "creates the kind of conflict of interest that courts must take into account and
weigh as a factor in determining whether there was an abuse of discretion, but does not make de
novo review appropriate." Giles v. AT&T, Inc., No. 6:09-CV-293, 2012 WL 398990, *9
(N.D.N.Y. Feb. 7, 2012) (quoting Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82-83 (2d Cir.
2009)) (other citation omitted).
When discretionary authority has been granted and de novo review is not appropriate,
"[t]he court may reverse only if [the plan administrator's] decision was arbitrary and capricious[.]"
Miller v. United Welfare Fund, 72 F.3d 1066, 1070 (2d Cir. 1995). A plan administrator's
decision is arbitrary and capricious when it is "without reason, unsupported by substantial
evidence, or erroneous as a matter of law." Id. (citation omitted). In determining whether a plan
administrator's decision is supported by "substantial evidence," courts consider whether there was
"such evidence that a reasonable mind might accept as adequate to support the conclusion reached
by the [administrator.]" Giles, 2012 WL 398990, at *9 (quoting Celardo v. GNY Auto. Dealers
Health & Welfare Tr., 318 F.3d 142, 146 (2d Cir. 2003)). Although there must be more than a
9

"scintilla" of evidence to support the plan administrator's decision, the amount of evidence
required to be considered adequate does not rise to the level of preponderance. See Miller, 72
F.3d at 1072. "This scope of review is narrow, thus [courts] are not free to substitute [their] own
judgment for that of the [plan administrator] as if [they] were considering the issue of eligibility
anew." Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995) (citation omitted).
Ultimately "a district court's review under the arbitrary and capricious standard is limited to the
administrative record." Miller, 72 F.3d at 1071.

B.

Rule 56(d) Request for Additional Discovery
Plaintiff's opposition to the instant motion argues that he "is unable to fully contest the

issues brought up in this matter because [he] has not had the opportunity to have that limited
discovery [granted by Magistrate Judge Hummel's March 18, 2015 order]." Dkt. No. 63 at ¶ 5.
Plaintiff's only support for this contention is that he "will seek to have depositions of those people
who have made declarations in this case, Belinda A. Winterbottom and Donald Anslow, as well
as people the [P]laintiff communicated with at the Union office." Id. Plaintiff argues that the
instant motion contravenes Magistrate Judge Hummel's grant of limited discovery and that the
"Court should summarily deny the motion and direct that the [D]efendants comply with the
provisions of the Order of the Magistrate." Dkt. No. 64 at 1. Plaintiff's opposition makes no
mention of Rule 56(d), nor has he submitted the required affidavits explaining his need for
additional discovery. See generally Dkt. Nos. 62-64. While this failure alone is sufficient to deny
Plaintiff's objection to the instant motion, see Paddington Partners v. Bouchard, 34 F.3d 1132,
1137 (2d Cir. 1994), further deficiencies in Plaintiff's request for additional discovery support the
Court considering Defendants' motion for summary judgment without further delay.

10

Magistrate Judge Hummel's order granting limited discovery did not set any required time
for such discovery, nor did it explicitly preclude either party from moving for summary judgment
prior to completion of such discovery. See Dkt. No. 51 at 10-14. Further, Magistrate Judge
Hummel was informed of Defendants' intention to move for summary judgment on May 20, 2015
and did not indicate that such motion was inappropriate at that time. See generally Dkt. Nos. 53,
56. Therefore, the instant motion does not contravene Magistrate Judge Hummel's March 18,
2015 limited discovery order.
Plaintiff made no attempt at discovery during the more than two month period between
being granted limited discovery and the filing of the instant motion. Despite being informed on
May 20, 2015 of Defendants' intention to move for summary judgment, Plaintiff still did not make
any discovery requests nor did he ask the Court for additional time to complete such discovery
prior to Defendants' filing of the instant motion. Significantly, Plaintiff does not discuss why he
was unable to conduct any discovery or why he failed to seek additional time for discovery after
receiving notice of Defendants' intention to move for summary judgment. See Dkt. Nos. 53-56;
see also Allstate Ins. Co. v. Administratia Asigurarilor De Stat, 948 F. Supp. 285, 295 (S.D.N.Y.
1996) (denying a party's objection to summary judgment under Rule 56(d) because the party
failed to file an affidavit in support of its objection, did not explain why it had not commenced
discovery, and failed to utilize available discovery even after having actual notice of the
opposition's intention to move for summary judgment).
Defendants' supporting papers to the instant motion adequately address any alleged need
for Plaintiff's additional discovery. Plaintiff was granted limited discovery pertaining to
Defendant Winterbottom's potential conflict of interest and to determine which records the Fund
relied upon in denying Plaintiff's benefits application. Dkt. No. 51 at 12, 14. Plaintiff claims that
11

Defendants were acting under a conflict of interest because Defendant Winterbottom "not only
made the initial decision on Plaintiff's pension application, but also appears to have reviewed her
own decision on appeal." Dkt. No. 44 at 9. However, Defendant Winterbottom's declaration
clarifies that "[a]s benefit claim appeals are determined solely by the Board of Trustees[,] I played
no role in the decision on [Plaintiff's] appeal." Dkt. No. 57-2 at ¶ 19. Plaintiff's other ground for
additional discovery1 was because "it is unclear what records the Fund relied upon in reaching its
decision, whether that record is complete or whether it had other records available to it from codefendant Union." Dkt. No. 44 at 9. Defendants have presented all documents that the Trustees
considered on Plaintiff's appeal. Dkt. No. 57-2 at ¶ 24; Dkt. No. 57-12. These documents,
combined with trustee Donald Anslow's testimony, constitute the entire administrative record for
Plaintiff's appeal. Dkt. No. 57-2 at ¶ 24; Dkt. No. 57-3 at ¶¶ 5, 6; Dkt. No. 66 at 4, ¶ 11. Plaintiff
makes no argument that Defendants' proof on these issues is insufficient. While he states that he
intends to depose Ms. Winterbottom and Mr. Anslow, Plaintiff provides no explanation of what
specific facts he expects to discover nor "how those facts are reasonably expected to create a
genuine issue of material fact[.]" Meloff v. N.Y. Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995)
(citation omitted); Dkt. No. 63 at ¶ 5. For the foregoing reasons, the Court denies Plaintiff's
request to deny Defendants' motion pending additional discovery.

C.

The Denial of Plaintiff's Disability Application
1. Plaintiff's Initial Benefits Application

These two specific reasons that Plaintiff requested additional discovery were presented in
his opposition to Defendants' previous motion to stay discovery, which Magistrate Judge Hummel
has already considered. No new arguments for additional discovery were made in Plaintiff's
opposition to the instant motion.
1

12

The relevant information in Plaintiff's initial disability benefits application included a
form on which he stated that his last day of active covered employment was November 13, 2012,
a pension plan calculation worksheet, a list of Plaintiff's employment hours in covered
employment from 1988 until 2008, and a letter from the Social Security Administration stating
that Plaintiff was entitled to social security benefits beginning in May 2013. Dkt. No. 57-6 at 2-4,
6.
Despite Plaintiff's application claiming that his last day of covered employment was
November 13, 2012, Defendant Winterbottom determined that Plaintiff "last worked in covered
employment in 2008[.]" Dkt. No. 57-7 at 2. This determination was based upon the records
submitted with Plaintiff's application that showed he had not engaged in work that was credited
toward his covered employment pension since 2008. Id. at 3. Further, Plaintiff has since
acknowledged that he was last employed in covered employment in 2008. Dkt. No. 57-13 at ¶¶
18, 19; Dkt. No. 61 at ¶¶ 18, 19. In the absence of any other documentation submitted by
Plaintiff, Defendant Winterbottom denied his application because "[a] participant must be
employed or actively seeking [covered] employment . . . when the incident or illness that causes
the disability occurs." Dkt. No. 57-7 at 2.
Defendant Winterbottom's denial of Plaintiff's application was supported by substantial
evidence by relying on the Fund's records of Plaintiff's covered employment status. Id. at 3.
Further, the decision was not clearly erroneous or contrary to the plain language of the Plan that
requires applicants to show that they were "employed or actively seeking employment that would
earn Pension or Vesting Service" at the time their disability began. Dkt. No. 57-5 at 20; see Miles
v. Principal Life Ins. Co., 720 F.3d 472, 486 (2d Cir. 2013) (quotation omitted) ("[W]here the
administrator imposes a standard not required by the plan's provisions, or interprets the plan in a
13

manner inconsistent with its plain words, its actions may well be found to be arbitrary and
capricious"). Consistent with the Plan provisions, Defendant Winterbottom's April 17, 2013
denial letter included the basis for denying Plaintiff's application and outlined the process for him
to seek an appeal of this determination. Dkt. No. 57-7 at 2. Therefore, Defendant Winterbottom's
denial of Plaintiff's initial disability application was not arbitrary and capricious.

2. Plaintiff's Appeal
The complete record before the Trustees when they denied Plaintiff's appeal at their July
26, 2013 meeting included several documents, Plaintiff's statements in his appeal letter, and the
testimony of trustee Donald Anslow. See Dkt. No. 57-12; Dkt. No. 57-2 at ¶ 24. The relevant
documents included Plaintiff's original disability benefits application, a list of Plaintiff's
employment hours in covered employment from 1988 until 2008, a letter from Aprell Goodwyn
stating that Plaintiff "left covered employment in 2008," Plaintiff's initial denial letter for his
disability benefits application, Plaintiff's appeal letter, and a receipt of Plaintiff's up to date union
dues as of January 3, 2013. Dkt. No. 57-12 at 4, 6, 12, 13, 17, 21. Plaintiff stated in his appeal
letter that he "was a dues paying member of the Laborers' Pension Fund at all times in this
matter[,]" and that he "was at all times, ready, willing and able to appear for any jobs assigned by
the Laborers' Union and was actively seeking employment." Id. at 17. During the appeal hearing,
Mr. Anslow "noted [his] personal observations of [Plaintiff] working as an operating engineer and
[his] belief that [Plaintiff] had maintained regular full-time employment as an operating engineer
since ending Covered Employment as a laborer in 2008." Dkt. No. 57-3 at ¶ 5. Mr. Anslow also
noted that he was not "aware of [Plaintiff] ever having contacted the Union to ask for a referral[,]"
and that "to the best of [his] knowledge, [Plaintiff] had never complied with the Union's

14

procedures for obtaining employment as a laborer, since he had not completed and submitted the
Union's referral form[.]" Id. at ¶ 6.
The Trustees fully considered everything that Plaintiff submitted in support of his appeal
and found that the limited evidence did not prove that he was actively seeking work in covered
employment. Id. at ¶ 9. The Trustees' decision to disregard certain evidence presented by
Plaintiff was not without reason. See Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir.
1995) ("[W]e may overturn a decision to deny benefits only if it was without reason, unsupported
by substantial evidence or erroneous as a matter of law") (quotation omitted). The Trustees "did
not consider it relevant that [Plaintiff] maintained his Union membership while working in noncovered employment" because it is "common for Union members to maintain their membership
during periods of non-employment . . . to avoid paying the Union's mandatory $500 initiation fee
if they later seek covered employment as a laborer." Dkt. No. 57-3 at ¶ 8. Further, Plaintiff's
statement that he was "willing and able to appear for any jobs assigned by the Laborers' Union
and was actively seeking employment" was insufficient, without any further evidence, to prove
that he was actively seeking work in covered employment at the time he became disabled. Id. at ¶
7; see Roganti v. Metro. Life Ins. Co., 786 F.3d 201, 212 (2d Cir. 2015) (citing Juliano v. Health
Maint. Org., 221 F.3d 279, 287-88 (2d Cir. 2000)) (explaining that an ERISA claimant bears the
burden of establishing his entitlement to benefits).
After the Trustees determined that Plaintiff failed to carry his burden to submit "such
additional information and comments, in writing, as supports his [] appeal[,]" they reasonably
relied upon the statements of Mr. Anslow at the meeting to deny Plaintiff's appeal. Dkt. No. 57-5
at 40. Relying on such testimony by a fellow trustee is not improper in a hearing on disability
benefits. See VanWright v. First Unum Life Ins. Co., 740 F. Supp. 2d 397, 404 (S.D.N.Y. 2010)
15

("An ERISA plan administrator is not a court and is not bound by the rules of evidence")
(quotation omitted); see also Dkt. No. 57-4 at 30 (Trustees may consider "any other evidence
pertinent to the issue involved"). Mr. Anslow's statements that Plaintiff was engaged in other
work and not seeking covered employment, coupled with Plaintiff's absence from the Union's out
of work referral list, illustrates that the Trustees' denial of Plaintiff's appeal was based upon
substantial evidence.
Plaintiff's contention that he merely needed to call and confirm that he was on the out of
work list, rather than submitting actual paperwork, is irrelevant because review of this decision is
limited to the administrative record. See Dkt. No. 62 at ¶ 3; see also Miller v. United Welfare
Fund, 72 F.3d 1066, 1071 (2d Cir. 1995). This argument should have been raised to the Trustees
on Plaintiff's appeal so that it could have been included in the administrative record. Further,
Plaintiff's assertion that Mr. Anslow's statement to the Trustees was false has no bearing on the
instant determination. See Dkt. No. 62 at ¶ 2. Mr. Anslow's description of Plaintiff's working
status at the appeal hearing was based upon his observations made while performing his duties as
a business agent. Dkt. No. 57-3 at ¶¶ 2, 5, 6. Plaintiff acknowledges that he saw Mr. Anslow on
at least one occasion while working as an operating engineer. Dkt. No. 62 at ¶ 2. Moreover, the
Trustees had no reason to distrust Mr. Anslow's statements during the hearing on Plaintiff's
appeal. Therefore, the Court cannot conclude that Mr. Anslow's representations at the appeal
meeting were so flawed as to make the Trustees' decision arbitrary and capricious. See Magee v.
Metro. Life Ins. Co., 632 F. Supp. 2d 308, 320 (S.D.N.Y. 2009) (holding that a decision is
arbitrary and capricious if administrators relied on evidence that they knew or should have known
was flawed) (citing Buffonage v. Prudential Ins. Co. of Am., 426 F.3d 20, 30 (1st Cir. 2005)).
Lastly, Plaintiff's contention that "there is no basis for turning down this appeal" unless
16

Defendants produced "proof that [Plaintiff] was called for work and turned it down" is misplaced
as the burden to produce evidence establishing his entitlement to benefits is on Plaintiff and not
Defendants. See Roganti, 786 F.3d at 212. Thus, Defendants' denial of Plaintiff's disability
benefit appeal was not arbitrary and capricious and the Court grants Defendants' motion for
summary judgment.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above stated reasons, the Court hereby
ORDERS that Defendants' motion for summary judgment is GRANTED; and the Court
further
ORDERS that the Clerk of the court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of this Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: November 5, 2015
Albany, New York

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