Brooks v. Ryder System, Inc.
Filing
23
MEMORANDUM AND ORDER GRANTING 17 Defendant's Motion for Summary Judgment. Plaintiff's claims are DISMISSED WITH PREJUDICE. Defendant's counterclaim for attorneys' fees and costs remains for adjudication. (Signed by Judge Ewing Werlein, Jr) Parties notified. (marflores, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NICHOLAS D. BROOKS,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
RYDER SYSTEM, INC.,
Defendant.
CIVIL ACTION NO. H-14-2153
MEMORANDUM AND ORDER
Pending is Defendant’s Motion for Summary Judgment (Document
No. 17).
After having considered the motion, response, reply, the
applicable law, and the administrative record, the Court concludes
as follows.
I. Background
Plaintiff Nicholas D. Brooks (“Plaintiff”) brings this suit
under the Employment and Retirement Income Security Act (“ERISA”),
29 U.S.C. § 1001, et seq., alleging that Defendant Ryder System,
Inc. (“Defendant” or “RSI”) wrongly denied him medical and wage
replacement benefits and failed timely to respond to his requests
for information.1
1
Document No. 1 (Compl.).
Until August 31, 2013, Plaintiff was employed as a truck
driver by Ryder Integrated Logistics, Inc. (“RIL”).2
subscriber
under
the
Texas
Workers’
RIL is a non-
Compensation
Act,
and
participates in the Ryder Texas Occupational Injury Benefit Plan
(the “Plan”) to provide medical and wage replacement benefits to
its employees.3
Defendant RSI is the plan administrator of the
Plan, Gallagher Bassett Services, Inc. (“Gallagher Bassett”) is
the claims administrator, and PartnerSource, Inc. (“PartnerSource”)
is
the
appeals
committee.4
Neither
Gallagher
Bassett
nor
PartnerSource is an affiliate or subsidiary of RIL or RSI.5
On July 26, 2013, Plaintiff slipped and fell off the end of
his flatbed trailer, injuring his lower back and thumb.6
When
emergency responders arrived, they found Plaintiff lying on the
ground unable to move, complaining of “severe lower back pain and
right thumb pain.”7
Plaintiff was taken to Sweeny Community
Hospital, where he reported severe pain and was initially unable to
2
See id. ¶ 9; Document No. 17, ex. A ¶ 6; Document No. 20 at
3
See also
2.
Document No. 17, ex. A ¶ 5; Document No. 20 at 2.
Document No. 17, ex. B (the Plan).
4
Document No. 17, ex. A ¶ 3; Document No. 20 at 2.
5
Document No. 17, ex. A ¶ 3; Document No. 20 at 2.
6
Document No. 18-3 at 3 of 25.
7
Document No. 18-2 at 10 of 22.
2
walk.8
Plaintiff was diagnosed with a dislocated thumb, which was
reduced9 and splinted, and with lumbar strain and contusion.10
X-
rays of Plaintiff’s right thumb were “unremarkable,” showing no
bone or joint abnormality, joint spaces well preserved, and normal
soft tissues.11
A CT scan of Plaintiff’s cervical spine indicated
no fracture or dislocation, disc spaces well preserved, and normal
soft tissues.12
Plaintiff was discharged later that day.13
Plaintiff was examined at Concentra Medical Centers on July 29
and August 2, 2013, producing further assessments that his thumb
had been sprained and dislocated and that his back was strained.14
Plaintiff
was
cleared
to
return
to
work
with
restrictions,
including that he could not drive company vehicles, and was
8
Document No. 18-1 at 4 of 21.
9
In the medical context, “reduction” refers to “the
replacement or realignment of a body part in normal position or
restoration of a bodily condition to normal.”
Merriam-Webster
Dictionary, http://www.merriam-webster.com/medical/reduction (last
visited August 26, 2015).
10
Document No. 18-1 at 5 of 21, 21 of 21.
11
Id. at 14 of 21.
12
Plaintiff’s medical record contains three reports of the CT
scan signed minutes apart, with minor differences. Id. at 15 of 21
to 17 of 21. Two of them conclude that the scan is unremarkable,
with one noting slight scoliosis, and the third notes “[m]ild
spondylotic and arthritic change are present,” indicating an
impression of “Spondylosis/osteoarthritis.” Id.
13
Id. at 21 of 21.
14
Document No. 17, ex. C at 000200 to 000202.
3
referred to an orthopedic specialist for further examination of his
thumb injury.15
On August 8, Gallagher Bassett conducted a recorded phone
interview of Plaintiff to discuss his claim, in which Plaintiff
confirmed that he knew when his next follow-up appointment was, and
Gallagher Bassett informed Plaintiff that he “must attend all your
follow up appointment[s] as scheduled” and “if you miss too many
appointments your claim can be denied.”16
In a letter dated August
16, 2013, Gallagher Bassett, the claims administrator, notified
Plaintiff that (1) he had missed his August 27, 2013 appointment
with Dr. Dean Smith, who is an orthopedic specialist, (2) his
appointment
had
been
rescheduled
to
September
16,
2013,
and
(3) “any further failure to comply with any provision of the Plan,
including the keeping of scheduled appointments with health care
providers, will result in termination of your benefits claim under
the Plan.”17
15
Id.; Document No. 18-3 at 12 of 25.
16
Document No. 17, ex. C at 000169, 000171.
17
Document No. 18-3 at 14 of 25.
If actually sent on
August 13, 2013, the warning letter obviously could not describe a
missed appointment 11 days later on August 27. A careful reading
of the submissions evidences that the warning letter was actually
sent August 29. PartnerSource noted in its January 27, 2014 denial
of benefits that:
On August 24, 2013, the Nurse Case Manager for your claim
left you a voicemail advising you that you were scheduled
to see Dr. Smith on August 27, 2013. You failed to keep
4
On August 31, RIL terminated Plaintiff’s employment.18
Prior
to his termination, he had been suspended but was receiving regular
pay continuously from the date of his injury.19
On September 16, Dr. Smith examined Plaintiff’s thumb and
recommended an MRI.20 Dr. Smith noted “[s]ignificant pain on exam,”
but that Plaintiff’s tendons appeared intact, he was “able to
initiate flexion and extension of the digits to the involved
extremity,”
and
there
was
swelling.21
no
Five
days
later,
Plaintiff’s MRI exam revealed that everything was normal except for
“[m]inimal osteoarthritis of the 1st MCP joint.”22
this appointment with Dr. Smith and instead re-scheduled
it for September 16, 2013. As a result, the Plan sent
you a warning letter on August 29, 2013 warning you that
failing to keep any future appointments could potentially
result in the denial of further benefits could be
terminated for failure to keep scheduled appointments.
Id. at 21 of 25 (emphasis added). See also Document No. 17, ex. C
at 000220 (November 12, 2013 letter from Gallagher Bassett stating
that warning letter was sent on August 29, 2013).
18
Document No. 20 at 2.
19
Document No. 17, ex. A ¶ 16; id., ex. D.
20
Document No. 17, ex. C at 000205.
21
Id.
22
Id., ex. C at 000207; see also id., ex. C at 000209 (“MRI
report: mild thumb MP arthritis and joint space narrowing, intact
ligaments.”).
5
By letter dated October 8, 2013, Gallagher Bassett, the claims
administrator, notified Plaintiff of the partial denial of his Plan
benefits,
explaining
that
treatment
of
osteoarthritis
is
not
covered under the Plan because it is a degenerative condition and
not a work-related injury.23
Plaintiff appealed the decision a
month later.24
Three days after Plaintiff’s appeal, on November 12, Gallagher
Bassett notified Plaintiff by letter that his claim was denied in
full because Plaintiff had missed two scheduled appointments.25
In
addition to the August 27 missed appointment, the letter noted that
“our records indicate that you missed your October 24, 2013
appointment with the Approved Physician.
The Nurse Case Manager
and Dr. Dean Smith’s office contacted you and left several voice
mails in regards to your missed appointment but you failed to
return their calls.”26 Plaintiff responded by letter dated December
23, 2013, recounting his injuries and treatment and requesting full
23
Document No. 18-3 at 9 of 25 to 11 of 25.
24
Id. at 16 of 25.
25
Document No. 17, ex. C at 000220.
26
Id.
6
medical and wage replacement benefits.27
Plaintiff’s appeal letter
did not address his missed appointments.
PartnerSource, the appeals committee, referred Plaintiff’s
case to a peer review, which was performed by Dr. Gary N. Pamplin.28
Dr. Pamplin reviewed Plaintiff’s medical records29 and concluded
that based on the radiographic and MRI tests, Plaintiff suffered
from degenerative joint disease, and
In the absence of discernible specific scientific
credible data to the contrary, and based on medical
probability, it is reasonable to conclude that the
natural and progressive course of this pre-existing
disease of life was neither enhanced, accelerated,
altered, or aggravated in any manner by the reported
occupational event of 7/26/13.30
Dr. Pamplin further concluded that
27
Document No. 18-3 at 17 of 25 to 18 of 25. Plaintiff’s
letter stated that “[a]fter reading the MRI Dr. Dean [Smith]
recommended surgery and when he contacted Ryder the procedure was
not approved and he stopped treatment until he could get approval,”
and that Plaintiff was still experiencing pain and was not
receiving the recommended treatment “due to Ryder’s refusal.” Id.
at 17 of 25.
This representation conflicts with Plaintiff’s
medical records, in which Dr. Smith opines that surgery is
inappropriate. See Document No. 17, ex. C at 000210 (“Surgery/MP
fusion is indicated for severe arthritic joint changes only and is
not indicated here.”).
28
Document No. 17, ex. A ¶ 22; id., ex. C at 000260 to 000266.
29
These included a record submitted by Plaintiff from Dr. John
L. Mohney, which Dr. Pamplin noted “is handwritten and has so many
illegibly handwritten entries as to make it essentially of no
medical value.” Id., ex. C. at 000264.
30
Id., ex. C at 000261 (emphasis in original).
7
There is no documentation that would support further
medical services for the lumbar-related diagnosis based
on the following discussion: There is only one clinical
note relating to complaints and treatment of the lumbar
area (strain and contusion), and this was on the reported
DOI of 7/26/13. Based on that fact, and based on medical
probability relating to the healing process of soft
tissue, and based on the absence of specific credible
scientific data to the contrary, it is reasonable to
conclude that the effects naturally flowing from the
injury-diagnosis of the lumbar area would have resolved
by September 6, 2013, based on [a table from the Official
Disability Guidelines/Treatment in Workers’ Compensation
evidence-based protocols].31
Dr. Pamplin noted the possibility of “some degree of significant
ligament injury to the metacarpal-phalangeal joint of the right
thumb,” and recommended further evaluation by a “board-certified
orthopaedic hand surgeon specialist.”32
After
reviewing
Plaintiff’s
appeal
and
medical
records,
PartnerSource on January 27, 2014, denied Plaintiff’s appeal in
full.33 PartnerSource stated that it was denying Plaintiff’s appeal
for continued medical benefits “because (1) the Plan specifically
excludes the claimed injury to your right thumb as a ‘Non-Covered
Injury;’ and (2) you failed to comply with the Plan’s requirement
to attend all scheduled appointments with your medical providers,”
and that it was denying Plaintiff’s appeal for wage replacement
benefits because Plaintiff was paid for the time period while he
31
Id., ex. C at 000262 (emphasis in original).
32
Id., ex. C at 000263.
33
Document No. 18-3 at 19 of 25 to 23 of 25.
8
was on suspension, and wage replacement benefits cease under the
Plan upon termination.34
Plaintiff filed suit against Defendant RSI under 29 U.S.C.
§ 1132(a) and (c), alleging that he is entitled under the Plan to
recover medical and wage replacement benefits, and that RSI failed
to provide him with documents and records used in deciding his
appeal within 30 days of his request as required by ERISA.35
Defendant moves for summary judgment, arguing that it properly
denied
Plaintiff
benefits
and
that
Plaintiff
never
requested
documents from Defendant.36
II. Legal Standard
ERISA confers jurisdiction on federal courts to review benefit
determinations by fiduciaries or plan administrators.37
34
Id. at 19 of 25.
35
See 29
Document No. 1.
36
Document No. 17. Defendant also filed a counterclaim to
recover its attorneys’ fees and costs pursuant to 29 U.S.C.
§ 1132(g).
Document No. 8 at 6.
Neither party has moved for
summary judgment on Defendant’s counterclaim.
37
The Plan contains a venue provision stating that “any action
challenging a Plan decision, or any other ERISA right of action,
must be brought in the United States District Court for the
Northern District of Texas, Dallas Division.” Document No. 17, ex.
B at 000029. Defendant has not challenged venue in this Court, and
any such objection is waived. See FED. R. CIV. P. 12(h) (defense of
improper venue waived if not included in responsive pleading).
9
U.S.C. § 1132(a)(1)(B).
general
decisions
when
A plan claims administrator makes two
deciding
whether
to
pay
benefits:
(1) finding the facts underlying the claim and (2) determining
“whether those facts constitute a claim to be honored under the
terms of the plan.”
Schadler v. Anthem Life Ins. Co., 147 F.3d
388, 394 (5th Cir. 1998) (quoting Pierre v. Conn. Gen. Life Ins.
Co./Life Ins. Co. of N. Am., 932 F.2d 1552, 1557 (5th Cir. 1991))
(emphasis in original).
The administrator’s first decision, its
fact finding, is always reviewed for abuse of discretion.
Wade v.
Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d
533, 537 (5th Cir. 2007), abrogated on other grounds by Hardt v.
Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010).
The
second determination, the administrator’s interpretation of the
plan, is typically reviewed de novo, “[b]ut where, as here, a plan
expressly confers discretion on the plan administrator to construe
the plan’s terms, the administrator’s construction is reviewed for
abuse of discretion.”
Id. at 537-38 (internal footnote omitted);
see also Firestone Tire & Rubber Co. v. Bruch, 109 S. Ct. 948, 95657 (1989).
Because the Plan confers discretionary authority upon
10
Gallagher Bassett and PartnerSource,38 their determinations are
appropriately reviewed for an abuse of discretion.
When
reviewing
the
administrator’s
second
decision--
interpretation and application of the plan language--for an abuse
of discretion, the Fifth Circuit applies a two-step inquiry. Stone
v. UNOCAL Termination Allowance Plan, 570 F.3d 252, 257 (5th Cir.
2009).
First, the court examines whether the determination was
legally correct; if so, there can be no abuse of discretion.
Id.
If not legally correct, then the court proceeds to step two to
decide whether the determination was an abuse of discretion.
Id.
An abuse of discretion occurs when “the decision is not based
on evidence, even if disputable, that clearly supports the basis
for its denial.”
Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d
240, 246 (5th Cir. 2009) (internal quotation marks and citation
omitted).
Such an abuse occurs “only where the plan administrator
acted arbitrarily or capriciously,” and “[a] decision is arbitrary
only if made without a rational connection between the known facts
and the decision or between the found facts and the evidence.” Id.
(citing Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168
38
See Document No. 17, ex. B at 000044 to 000045 (“Subject to
the Plan claims procedures, the Claims Administrator and Appeals
Committee shall have discretionary and final authority to interpret
and implement the provisions of the Plan, including, but not
limited to, making all factual and legal determinations, correcting
any defect, reconciling any inconsistency and supplying any
omission, and making any and all determinations that may impact a
claim for benefits hereunder.”).
11
F.3d
211,
214-15
(5th
Cir.
1999))
(internal
quotation
marks
omitted). The decision need only “fall somewhere on a continuum of
reasonableness--even if on the low end.”
Corry v. Liberty Life
Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007) (quoting
Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir.
1999) (en banc), overruled on other grounds by Metro. Life Ins.
Co. v. Glenn, 128 S. Ct. 2343 (2008)).
The district court, in
reviewing the administrator’s decision, should consider only the
evidence that was before the administrator, assuming that both
parties had the opportunity to present facts to the administrator.
See Meditrust, 168 F.3d at 215.
III. Analysis
A.
Timeliness of Plaintiff’s Response
As an initial matter, Defendant argues in its reply that the
Court should deem its motion for summary judgment unopposed because
Plaintiff did not file his response until 18 days after the
deadline for responding, and neither sought leave to file the
response late nor provided any explanation for his failure to meet
the deadline.39
its
See Local Rule 7.4.
disapprobation
for
Plaintiff’s
39
Although the Court expresses
conduct
in
the
foregoing
Document No. 19 at 1-2.
Defendant filed its motion on
May 29, 2015, so Plaintiff’s response was due on June 19.
Plaintiff did not respond until July 7.
12
respects, in this instance the Court was unable earlier to consider
Defendant’s motion and, because it is generally preferable to
decide cases on the merits, the Court has considered Plaintiff’s
late-filed response.
B.
Plan Coverage for Treatment of Plaintiff’s Thumb
The
Plan
covers
medical
treatment
of
injuries
that
are
“incurred in, and directly and solely result from, the Course and
Scope of Employment.”40
The Plan expressly excludes coverage of
osteoarthritis and degenerative joint disease:
Types of Non-Covered Injuries.
Any provision of this
Plan to the contrary notwithstanding, the term Injury
shall not include:
(1) any strain, degeneration, damage or harm to, or
disease or condition of, the eye or musculoskeletal
structure or other body part resulting from use of a
video display terminal or keyboard, poor or inappropriate
posture, the natural results of aging, osteoarthritis,
arthritis, or degenerative process (including, but not
limited to, degenerative joint disease, degenerative disc
disease, degenerative spondylosis/spondylolisthesis and
spinal stenosis), or other circumstances prescribed by
the Claims Administrator which do not directly and solely
result from the Participant’s Course and Scope of
Employment.41
In finally denying Plaintiff medical benefits related to
treatment of his thumb, PartnerSource relied on the MRI exam of
40
Document No. 17, ex. B at 000017.
41
Id., ex. B at 000018.
13
Plaintiff’s thumb, which revealed minimal osteoarthritis and no
other discernible injury; Dr. Smith’s conclusion that Plaintiff was
experiencing early signs of degenerative joint disease; and Dr.
Pamplin’s conclusion that “the natural and progressive course of
this
pre-existing
disease
of
life
was
neither
enhanced,
accelerated, altered, or aggravated in any manner by the reported
occupational
event
particularly
in
of
the
7/26/13.”42
absence
of
This
specific
medical
medical
evidence,
evidence
demonstrating any enduring non-degenerative injury, establishes
that Defendant’s denial of benefits for Plaintiff’s thumb was not
arbitrary and capricious. See Corry, 499 F.3d at 398 (“Substantial
evidence [sufficient to establish no abuse of discretion] is more
than a scintilla, less than a preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”) (citation omitted). Accordingly, Defendant did not
abuse its discretion in determining that Plaintiff’s thumb pain was
caused by a degenerative condition which was not a covered injury
under the Plan.
C.
Denial of Benefits for Failure to Attend Scheduled Appointments
The Plan provides that
42
Document No. 18-3 at 20 of 25 to 21 of 25.
14
[t]he Claims Administrator may deny a claim for, or
suspend or terminate the payment of, Plan benefits
otherwise due a Participant if:
. . .
(h) the Participant fails to keep, or is late for, a
scheduled appointment with a health care provider.
Except in extraordinary circumstances as determined by
the Claims Administrator, a first missed appointment
shall result in a warning and/or suspension of benefits
and a second missed appointment shall result in a
termination of benefits.43
It is undisputed that Plaintiff missed scheduled medical appointments on August 27, 2013 and October 24, 2013, and that Plaintiff
received a written warning after the first missed appointment
informing him that further missed appointments “will result in a
termination of your benefits claim under the Plan.”44
Plaintiff argues, however, that he never received the phone
calls
regarding
his
scheduled
appointments
because
Gallagher
Bassett was using his former work cell phone number to contact him,
and that therefore “[t]he plan administrator abused its discretion
in finding that Brooks was noncompliant in keeping his medical
appointments when he was not being properly informed of the
scheduled
appointments.”45
Nevertheless,
when
43
was
Document No. 17, ex. B at 000042 to 000043.
44
Plaintiff
See Document No. 18-3 at 14 of 25.
45
Document No. 18 at 5 (emphasis in original).
Defendant
argues that Gallagher Bassett in fact had Plaintiff’s correct phone
number and spoke with him on the phone, citing Plaintiff’s
deposition testimony. Document No. 19 at 5. Although Plaintiff
15
notified of the termination of his benefits on the basis of his
missed appointments, he did not make this argument as part of his
appeal.
“Assuming that both parties were given an opportunity to
present
facts
to
the
determinations
is
confined
administrator.”
23,
2013
letter
administrator,
to
the
our
record
Meditrust, 168 F.3d at 215.
to
PartnerSource
provided
review
of
available
factual
to
the
Plaintiff’s December
“pertinent
medical
records” but made no reference whatever to his missed appointments
and offered no excuse for such.46
There is no evidence in the
record that Plaintiff ever provided to PartnerSource as part of his
appeal any evidence or argument regarding the allegedly wrong phone
number
or
any
appointments,
other
excuse
for
despite
having
had
having
the
missed
opportunity
two
to
medical
do
so.
Accordingly, PartnerSource did not abuse its discretion in finding
on the record before it that Plaintiff had missed two appointments
and that his medical benefits should therefore be terminated based
on the Plan’s requirements.
testified in his deposition that Gallagher Bassett’s representative
had called him, he immediately stated that in fact Plaintiff had
made the phone call. See Document No. 19, ex. A at 240:15-24 (“Q.
He called you on the phone and took your statement; right? A. Yes,
sir. Q. Did he call you on your cell phone? A. You asked me what
are you doing is you’re asking did he call me on my cell phone.
No, he did not call me on my cell phone. Q. What number did he
call you at? A. He didn’t call me on my cell phone, sir. I called
him.”).
Viewing the evidence in the light most favorable to
Plaintiff, a fact issue exists as to whether Gallagher Bassett had
Plaintiff’s correct phone number.
46
Document No. 18-3 at 17 of 25 to 18 of 25.
16
D.
Denial of Wage Replacement Benefits
The
Plan
provides
that
wage
replacement
benefits
“shall
continue until the earliest of . . . (4) termination of both the
Participant’s status as a Covered Employee and all other employment
of the Participant with an Employer,” subject to certain exceptions
that are inapplicable here.47 “‘Covered Employee’ means an Employee
whose employment with the Employer is principally located within
the State of Texas.”48
It is undisputed that RIL terminated Plaintiff on August 31,
2013.49
The uncontroverted summary judgment evidence is that
Plaintiff received his regular wages from the time of his injury
through his termination, while he was suspended.50
argues,
however,
that
“[t]he
plan
administrator
Plaintiff
abused
its
discretion in denying wage replacement benefits after August 31,
2013” because RIL had wrongfully terminated Plaintiff.51
has
filed
a
separate
suit
in
this
Court
Plaintiff
challenging
his
47
Document No. 17, ex. B at 000035 (emphasis in original).
48
Id., ex. B at 000014.
49
Document No. 20 at 2.
50
Document No. 17, ex. A ¶ 16; id., ex. D. This is identified
as a contested issue in the parties’ Joint Pretrial Report,
Document No. 20 at 3, but Plaintiff produces no evidence to raise
a fact issue that he was not fully paid up to the date of his
termination.
51
Document No. 18 at 5.
17
termination,52 and argues that if he was wrongfully terminated, “he
would be entitled to wage replacement after August 31, 2013.”53
Plaintiff has not cited to any Plan provision or any legal
authority
replacement
to
wrongful.
establish
benefits
that
under
he
the
would
Plan
if
be
entitled
his
to
termination
wage
was
Instead, under the plain language of the Plan quoted
above, Plaintiff’s entitlement to wage replacement benefits only
lasted until termination of his employment. Accordingly, Defendant
correctly interpreted the Plan and did not abuse its discretion
when it denied Plaintiff’s claim for wage replacement benefits
following his termination on August 31, 2013.
E.
Plaintiff’s Request for Records
Finally, Plaintiff argues that he is entitled to recover
penalties under 29 U.S.C. § 1132(c)(1), which provides:
Any administrator . . . who fails or refuses to comply
with a request for any information which such
administrator is required by this subchapter to furnish
to a participant or beneficiary (unless such failure or
refusal results from matters reasonably beyond the
control of the administrator) by mailing the material
requested to the last known address of the requesting
participant or beneficiary within 30 days after such
request may in the court’s discretion be personally
liable to such participant or beneficiary in the amount
of up to $100 a day from the date of such failure or
52
Brooks v. Ryder Integrated Logistics, Inc., Case No. 4:14cv-1584 (Judge Bennett presiding).
53
Document No. 18 at 5.
18
refusal, and the court may in its discretion order such
other relief as it deems proper.
Plaintiff
argues
that
he
“sent
a
request
for
all
documents
considered in his appeal by letter dated February 10, 2014 and sent
by certified mail on February 14, 2014 to Partner Source,” which
was the appeals committee, but that “[a]fter receiving the request
for the administrative record, Partner Source failed to submit the
records until contacted by the U.S. Department of Labor.”54
Defendant disputes that Plaintiff ever sent such a request to
PartnerSource.55 This dispute is immaterial, however, because--even
if
so--the
uncontroverted
summary
judgment
evidence
is
that
PartnerSource never transmitted Plaintiff’s request for documents
to Defendant itself.56
Moreover, Plaintiff does not allege--much
less produce evidence--that he ever sent any request for documents
54
Document No. 18 at 3. Plaintiff states that he received the
record from the Department of Labor on June 25, 2014. Id. at 6.
55
PartnerSource has no record of having received any materials
from Plaintiff in February, March, April, or May of 2014. Document
No. 17, ex. E ¶ 10. Plaintiff produces as evidence of his request
(1) a handwritten note dated February 10, 2014 and addressed to
PartnerSource, requesting all documents relevant to his claim for
benefits, and (2) a tracking report from USPS indicating that an
unidentified item was delivered to a location in Dallas, Texas.
Document No. 18-3 at 24 of 25 to 25 of 25. Defendant argues that
“the circumstances surrounding this letter are highly dubious, to
say the very least,” noting that the letter is handwritten, while
every other correspondence from Plaintiff is typed; the letter has
no item number to match it with the tracking report; and “the date
appears to be written in darker ink than the remainder of the
letter.” Document No. 17 at 23 n.7.
56
Document No. 17, ex. E ¶ 10.
19
to Defendant RSI.
Defendant
could
Plaintiff cites to no authority suggesting that
be
held
liable
under
Section
1132(c)(1)
for
“fail[ing] or refus[ing] to comply with a request” when it never
received such a request.57
Accordingly, Defendant is entitled to
summary judgment on Plaintiff’s claim for statutory penalties
against Defendant under 29 U.S.C. § 1132(c)(1).
IV. Order
Based on the foregoing, it is
ORDERED that Defendant’s Motion for Summary Judgment (Document
No. 17) is GRANTED, and Plaintiff’s claims are dismissed with
prejudice.
Defendant’s counterclaim for attorneys’ fees and costs
remains for adjudication.
The Clerk will enter this Order, providing a correct copy to
all counsel of record.
SIGNED in Houston, Texas, on this 30th day of September, 2015.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
57
The uncontroverted summary judgment evidence is that
Defendant first received actual notice that Plaintiff was seeking
documents when it was contacted by a Department of Labor
representative on May 28, 2014. Id., ex. E ¶ 12. Defendant began
gathering and sending documents to the Department of Labor
representative, and Plaintiff acknowledges that he himself received
the records on June 25, less than 30 days after Defendant became
aware that he was seeking documents. Document No. 18 at 6.
20
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