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September 1, 2004.

ROSSI THOMAS, Plaintiff,
VERIZON, Defendant.

The opinion of the court was delivered by: RICHARD CASEY, District Judge


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. 6, D00030-D00041.)

  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 ...

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