United States District Court, S.D. New York
September 1, 2004.
ROSSI THOMAS, Plaintiff,
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM OPINION & ORDER
Pursuant to the Employee Retirement Income Security Act,
29 U.S.C. § 1001 et seq. ("ERISA"), pro se Plaintiff, Rossi
Thomas, brings this action against her former employer, Verizon
("Defendant"), claiming that her disability benefits under the
terms of the ERISA-governed Verizon Sickness and Accident
Disability Benefit Plan for New York Associates ("the Plan") were
wrongfully terminated. Pretrial discovery has been completed, and
Defendant has moved for summary judgment pursuant to Federal Rule
of Civil Procedure 56. Defendant argues that Plaintiff's failure
to exhaust administrative remedies as provided in the Plan
precludes this suit seeking only monetary damages.
The motion was referred to Magistrate Judge Theodore Katz who
issued a Report and Recommendation ("Report"), dated May 10,
2004, recommending that Defendant's motion for summary judgment
be granted and that this action be dismissed with prejudice.
Plaintiff objected under 28 U.S.C. § 636(b)(1)(c) and Federal
Rule of Civil Procedure 72. Having considered the Report and
objections, this Court adopts the Report. Defendant's motion for
summary judgment is GRANTED. I. BACKGROUND
The background of this action is provided in detail in the
Report and therefore is only briefly recounted herein. Plaintiff
began her employment with Verizon in February 1999 as an
administrative assistant. She held a sedentary position with job
duties that required her to sit at her desk, place telephone
calls, type, and perform filing tasks.
Verizon employee benefits are governed by a plan that provides
for payment of definite amounts to its employees when they are
disabled by accident or sickness. The Plan is administered by the
Aetna Life Insurance Company ("Aetna"), which has responsibility
for rendering benefit determinations for all disability claims,
as well as initially reviewing claims for benefits that the Aetna
Plan Administrator has denied. Plaintiff was eligible for Short
Term Disability benefits. However, as a beneficiary of the Plan,
she is obligated to actively assist the Aetna Plan Administrator
by providing medical information pertinent to a disability claim
and is required to submit to medical examinations requested by
the Plan Administrator. (See Affidavit of Zachary R. Osborne,
Esq. [Osborne Aff.], Ex. 3 §§ 6.8, 6.9, 7.1, 7.2.)
According to Plaintiff, she developed kidney problems,
end-stage renal failure, and valvular heart disease in April
2000. She applied for benefits, submitted sufficient
documentation as mandated by the Plan, and was initially
certified by the Plan Administrator. The Plan also requires
recertification to extend benefits. Accordingly, Plaintiff was
later regularly recertified at least eight times from July 20,
2000 to March 9, 2001; each recertification lasted approximately
one month. After each certification decision, Plaintiff and her
Verizon supervisor were provided with written notice, expressly
informing Plaintiff that she had received an extension of
disability benefits for a specific number of days but that the need for recertification
would continually be reassessed. (See, e.g., Osborne Aff., Ex.
On January 30, 2001, Aetna medical director Dr. Joel Hellman
considered all the evidence submitted on Plaintiff's behalf,
including the letters of Plaintiff's primary care physician, Dr.
Goldberg, and her nephrologist, Dr. Gruber, but found these
letters to be conclusory and lacking in objective medical
evidence. (See Osborne Aff., Ex. 1 at Event Note 82.) Dr.
Hellman also found that Plaintiff's condition had improved to the
point where she could perform her administrative functions in a
sedentary capacity. In March 2001, after considering Dr.
Hellman's review, the Plan Administrator issued a Disability
Denial Notice, terminating Plaintiff's eligibility for Short Term
Benefits under the Plan. Dr. Paul J. Healy, who replaced Dr.
Hellman as Aetna's medical director, reconsidered the denial
decision. He concluded that "in the absence of additional
objective medical information, there is not a medical basis to
support a recommendation that an impairment exists that limits
[Plaintiff's] total work capacity." (Osborne Aff., Ex. 2.)
Upon the request of Plaintiff's union representative, the Plan
Administrator scheduled an independent medical examination to
resolve Plaintiff's disability status. The examination was to be
conducted by a third-party physician who was unaffiliated with
Verizon, Aetna, or Plaintiff. An examination was scheduled, but
Plaintiff stated in her deposition that she refused to attend the
exam and would not consent to an examination by a physician she
did not know. (See Osborne Aff., Ex. 7, Deposition of Rossi
Thomas at 115:11-17.) Plaintiff's refusal to attend the
independent medical examination terminated the review process,
and thus, Plaintiff's claim remain denied. Plaintiff never appealed any denial of her benefits to either Aetna or Verizon,
despite the mandatory claims procedures set forth in the Plan.
(See Osborne Aff., Ex. 3 § 3.3.)
On August 10, 2001, Plaintiff's employment was terminated
because she failed to respond to written requests sent to her by
her Verizon supervisor to either return to work or justify her
absence. (See Osborne Aff., Ex. 6, D00053.) In January 2002,
she filed a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC"). The EEOC declined to issue a
right-to-sue letter because the agency determined that it lacked
jurisdiction over the allegation of discrimination. (See
Osborne Aff., Ex. 13.) Plaintiff then filed the instant action
against Verizon, originally alleging that she was denied
disability benefits in violation of the Americans with
Disabilities Act, but her complaint was later amended to proceed
solely under ERISA.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary
judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Summary judgment should only be granted if
"the nonmoving party `has failed to make a sufficient showing on
an essential element of [its] case with respect to which [it] has
the burden of proof.'" Berger v. United States, 87 F.3d 60, 65
(2d Cir. 1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986)). When viewing the evidence, the Court must assess the
record in the light most favorable to the nonmovant, resolve all ambiguities and draw all reasonable inferences in its favor. See
Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174,
177 (2d Cir. 1990).
Issues of fact are genuine when a "reasonable jury could return
a verdict for the nonmoving party," and such contested facts are
material to the outcome of the particular litigation if
substantive law at issue so renders them. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). "If, as to the issue on
which summary judgment is sought, there is any evidence in the
record from any source from which a reasonable inference could be
drawn in favor of the nonmoving party, summary judgment is
improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d
Cir. 1994). Only when it is apparent that no rational trier of
fact "could find in favor of the nonmoving party because the
evidence to support its case is so slight" should a court grant
summary judgment." Gallo v. Prudential Residential Servs., LP,
22 F.3d 1219, 1223-24 (2d Cir. 1994).
B. Exhaustion of Administrative Remedies
Defendant contends that this action must be dismissed because
Plaintiff failed to exhaust her administrative remedies in two
respects: (1) by failing to submit to an independent medical
examination to allow the Plan Administrator to conduct a review
of the denial of her claim, and (2) by failing to appeal the
denial of her claim pursuant to procedures set forth in the Plan.
To exhaust ERISA benefits claims, claimants must pursue all
administrative remedies provided by their plan, which includes
carrier review (in this case, Aetna), in the event benefits are
denied. See 29 U.S.C. § 1132(a)(1)(B); Chapman v. Choicecare
Long Island Term Disability Plan, 288 F.3d 506, 511 (2d Cir.
2002). The doctrine of exhaustion of administrative remedies
rests on the principle that "no one is entitled to judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted." Kennedy v.
Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir.
1993) (internal quotations omitted).
In the ERISA context, the Second Circuit has recognized a
"firmly established policy favoring exhaustion of administrative
remedies in ERISA cases." Id. at 594 (quoting Alfarone v.
Bernie Wolff Constr. Corp., 788 F.2d 76, 79 (2d Cir. 1986)
(internal quotation marks omitted)); see also De Pace v.
Matsushita Elec. Corp. of Am., 257 F. Supp. 2d 543, 558
(E.D.N.Y. 2003) (holding that exhaustion requirement is a
jurisdictional prerequisite to a suit for benefits under ERISA);
Sanfilippo v. Provident Life & Cas. Ins. Co.,
178 F. Supp. 2d 450, 457 (S.D.N.Y. 2002) ("It is well settled that timely
exhaustion of [ERISA] plan remedies is a prerequisite to suit in
federal court and that, absent appropriate equitable
considerations, court action is barred absent such exhaustion.");
Midpoint Serv. Provider, Inc. v. Conn. Gen. Life Ins. Co.,
152 F. Supp. 2d 306, 310 (S.D.N.Y. 2001) (holding that failure to
administratively exhaust ERISA claim is jurisdictional
As the Second Circuit in Kennedy stated:
The primary purposes of the exhaustion requirement
are to: (1) uphold Congress' desire that ERISA
trustees be responsible for their actions, not the
federal courts; (2) provide a sufficiently clear
record of administrative action if litigation should
ensue; and (3) assure that any judicial review of
fiduciary action (or inaction) is made under the
arbitrary and capricious standard, not de novo.
989 F.2d at 594 (quoting Denton v. First Nat'l Bank of Waco,
765 F.2d 1295
, 1300 (5th Cir. 1985) (internal quotation marks
omitted)). Furthermore, exhaustion is "intended to help reduce
the number of frivolous lawsuits under ERISA; to promote the
consistent treatment of claims for benefits; to provide a
nonadversarial method of claims settlement; and to minimize the costs of claims settlement for all
concerned." Id. (quoting Amato v. Bernard, 618 F.2d 559
(9th Cir. 1980) (internal quotation marks omitted)).
Generally, the decision to require exhaustion of remedies where
a statutory violation of ERISA is alleged is within the
discretion of the district court. See Lindemann v. Mobil Oil
Corp., 79 F.3d. 647, 650 (7th Cir. 1996). Courts will waive the
exhaustion requirement if the Plaintiff makes a "clear and
positive showing" that pursuing available administrative remedies
would be futile. See Kennedy, 989 F.2d at 594; see also
Jones v. Unum Life Ins. Co. of Am., 223 F.3d 130, 140 (2d Cir.
2000) (holding that absent a clear and positive showing that
seeking review by the carrier would be futile, remedy had to be
exhausted prior to the institution of litigation). When
administrative remedies have not been exhausted and such failure
has not been justified by a clear and positive showing of
futility, the claim must be dismissed. See Benaim v. HSBC Bank
USA, 94 F. Supp. 2d 518, 519 (S.D.N.Y. 2000); see also
Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 133 (2d Cir.
2001) (per curiam) (affirming dismissal for failure to exhaust);
Kennedy, 989 F.2d at 595-96 (affirming dismissal of ERISA claim
for failure to exhaust); Diagnostic Med. Assocs. M.D., P.C. v.
New York City Dist. Council of Carpenters Welfare Fund, No. 01
Civ. 6437 (BSJ), 2004 WL 439512, at **1-2 (S.D.N.Y. Mar. 9, 2004)
(dismissing ERISA case for failure to exhaust); Greifenberger v.
Hartford Life Ins. Co., No. 03 Civ. 3238 (SAS), 2003 WL
22990093, at **4-5 (S.D.N.Y. Dec. 18, 2003) (same).
In this case, it is undisputed that Plaintiff has not exhausted
the available administrative remedies pursuant to the Plan in two
ways: (1) by refusing to attend or reschedule the independent
medical examination as required by Section 7 of the Plan, and (2) by failing to exhaust the mandatory claims appeals procedures
set forth in the Plan. First, Plaintiff refused to submit to or
reschedule the examination, thus thwarting any further review of
her claim. Courts have held that such refusal results, in effect,
in a failure to exhaust administrative remedies. See Hunter v.
Metro. Life Ins. Co., 251 F. Supp.2d 111-12 (D.D.C. 2003)
("This appeal process, however, has not been completed because
plaintiff refused to have an independent medical
examination. . . . This amounts to a failure to exhaust.");
Zalka v. Unum Life Ins. Co. of Am., 65 F. Supp. 2d 1369, 1371
(S.D. Fla. 1998) ("By refusing to submit to the independent
medical examination and immediately filing suit, however,
Plaintiff precludes Defendant from completing its administrative
review of her claim. Plaintiff has thus not exhausted her
administrative remedies."); cf. Acierno v. First Unum Life
Ins. Co., No. 98 CV 3885 SJ, 2002 WL 1208616, at *2 (E.D.N.Y.
Mar. 31, 2002) (dismissing ERISA claim where claimant refused to
submit to second independent medical examination by physician
chosen by plan administrator; "It is well-established that an
insured's refusal to submit to an independent medical
examination, without reasonable excuse, bars the insured from
receiving the benefits under the policy contract.")
Additionally, it is further undisputed that Plaintiff never
appealed the denial of her benefits to either Aetna or Verizon as
stipulated by the mandatory appeal process in the Plan. The Plan
requires that an employee whose claim for benefits has been
denied must submit a written request for review of the decision.
(See Osborne Aff., Ex. 3 § 3.3.1.) Furthermore, if benefits are
denied upon initial review and the Plaintiff seeks further review
of a denied decision, the employee must appeal and seek review
from the Final Appeals Administrator, that is, the Verizon Claims
Review Committee. (See Osborne Aff., § 3.3.2.) Plaintiff failed to file an appeal at either
level. Instead, Plaintiff contends that she spoke with her union
representative and the Associate Director of Labor Relations for
Verizon (see Pl.'s Admissions and Denials ¶¶ 4, 45), but those
actions are insufficient as neither of these individuals have the
authority to render appeal decisions. Nor did Plaintiff's
attempts to circumvent the mandatory appeal process by filing
with the National Labor Relations Board and the EEOC prove
sufficient to appeal the denial of her benefits claim. As the
letter from the EEOC states that the EEOC lacks jurisdiction over
the claim (Osborne Aff., Ex. 13), Plaintiff's filing with the
EEOC was improper and thus failed to act as sufficient appeal for
her denied benefits claim. Furthermore, the EEOC's refusal to
issue a right-to-sue letter precludes developing a sufficiently
clear administrative record (in this case, any record) for
Lastly, not only did the Plaintiff consciously ignore the
remedies available to her under the Plan, she has not
demonstrated in a "clear and positive" manner that exhausting
administrative remedies would be futile. Her refusal to submit to
the independent medical examination does not demonstrate futility
but merely that Plaintiff harbors a strong preference for her own
physician. Because the examination never occurred, the Court
cannot draw any conclusions on its adequacy. Moreover, Plaintiff
has failed to give any explanation why the administrative appeal
process as stipulated in the Plan would be an inadequate and
futile remedy. Therefore, the Court will not disregard the
requirement that she exhaust administrative remedies.
C. Plaintiff's Request Unavailable Remedies
Defendant also argues that Plaintiff's claim fails as a matter
of law because the remedies she seeks are unavailable under
ERISA. Defendant is correct in its argument that the relief Plaintiff seeks in this action, namely damages
for emotional distress and pain and suffering, as well as
punitive damages, is unavailable in an ERISA suit. See Mass.
Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985)
("Congress did not provide, and did not intend the judiciary to
imply, a cause of action for extra-contractual damages caused by
improper or untimely processing of benefit claims."). Instead,
the remedies available to Plaintiff are limited to (1) recovery
of benefits due under the terms of her plan; (2) enforcement of
her rights under the terms of the plan; and (3) clarification of
her rights to future benefits under the terms of the plan. See
ERISA, 29 U.S.C. § 1132(a)(1)(b). Plaintiff does not seek such
remedies. As a result, Plaintiff's claim fails as a matter of law
because the remedies she seeks are unavailable under ERISA.
Because Plaintiff failed to exhaust administrative remedies
under the Plan prior to filing suit, Defendant's summary judgment
motion is GRANTED. The Clerk of the Court is directed to close
the case and remove it from the Court's active docket.
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