The opinion of the court was delivered by: Glasser, United States District Judge:
Plaintiff Stephanie Exarhakis ("Exarhakis" or "plaintiff") brings claims against her former employer, Visiting Nurse Service of New York Home Care ("VNS" or "employer") and insurance carrier First Unum Life Insurance ("Unum" or "insurer") (collectively, "defendants") for alleged violations of the Americans with Disabilities Act of 1990, §42 U.S.C. §12101 et seq. ("A.D.A."), the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794, et seq, the New York State Human Rights Law, N.Y. Executive Law § 290, et seq. ("NYSHRL"), the New York City Human Rights Law, N.Y.C. Administrative Code §8-101, et seq., ("NYCHRL"), and the Employee Retirement Income Security Act of 1994, as amended, 29 U.S.C. § 1001, et seq. ("ERISA"). Exarhakis alleges VNS unlawfully terminated her employment in violation of the A.D.A., Rehabilitation Act, NYSHRL, and NYCHRL, as well as breached its fiduciary duty to her and concealed benefits from her in violation of ERISA. She also alleges that Unum breached a contract and violated ERISA when it denied her application for long term disability benefits. Before the Court are VNS's and Unum's motions for summary judgment, as well as a motion to dismiss by Unum. In opposition, Exarhakis contends that material issues of fact preclude the granting of these motions.
For three years beginning in 1995, Stephanie Exarhakis, had been a social worker and clinical supervisor at VNS, which provides a variety of home health care and community-based services throughout the New York Metropolitan area. Ms. Exarhakis sustained serious injuries in a 1998 accident, which by all accounts dramatically and permanently changed her life. This lawsuit is set against two and a half years, from March 1999 until September 2001, in which Ms. Exarhakis worked part-time for VNS while recovering from and learning to cope with her injuries, which required extensive and painful changes to her personal and professional lives.
The relevant facts, either undisputed, or, where disputed, cast in light most favorable to the plaintiff are as follows:*fn1
Exarhakis was employed by VNS in June 1995 as a Manager of Care Management Services in the Agency's Elder Care Services program. (56.1, ¶1.) She had extensive responsibilities including the clinical supervision and oversight of support staff, development of policies, procedures, training and orientation programs, and preparation of budgets. She participated in marketing, and traveled among four company offices, community groups, and national organizations to make presentations. She had direct clinical care responsibilities for a caseload of older adults living throughout the community, and was on-call around the clock for emergencies. (See Flor. Aff., Exhibit 24 at P0167).
When she was hired, Exarhakis attended a New Employee Orientation. (Ex. Dep., 167-68). Defendant's "New Hire Orientation" procedures instructed orientation personnel to describe the benefits plans, including the VNS Long Term Disability Plan ("LTD Plan"). (Affidavit of Steven A. Rosen in Opposition to Defendants' Motions for Summary Judgment, ("Rosen Aff."), Exhibit 7 at V770). As a matter of practice, VNS asserts that it includes copies of benefits plan descriptions in its packet of materials distributed to new employees. (Armstrong Deposition, 88-90, 98; Hildebrand Deposition, 79-80; Davin Deposition, 33-34). Nonetheless, Exarhakis does not recall the mention of the LTD Plan at the orientation, nor receiving written information about it in the materials that were distributed. (Ex. Dep. at 167).
Exarhakis acknowledges that she received, filed, and maintained "annual benefits statements" from VNS, beginning with her 1996 statement, but she does not know when she received them and did not read them carefully either before or after her accident. (Ex. Dep. at 164-66, 404-05, 407). The annual statements have a section entitled "Long-Term Disability," which reads,in part, "Your Long-Term Disability (LTD) Insurance Plan with Unum Insurance Company provides you with income in the event that you become totally disabled for more than six months. LTD payments continue as long as you are totally disabled, generally up to 65." (Affidavit of Evan Gordon, ("Gor. Aff."), Exhibit C at P0838). The statements do not contain specific details about the terms of the plan, but they do provide notice that the plan exists and summarize the value of benefits available to Exarhakis in the event of a long term disability. (Id.)
In September 1998, Exarhakis was hit by a truck, sustaining serious head, eye, and pelvis injuries that kept her out of work for nearly six months. (Ex. Aff., ¶7, Ex. Dep. at 15, 20). Incapacitated in the months following her injury, Exarhakis relied upon her companion, Jane Morris, to assist her with many aspects of her recovery. (Ex. Aff., ¶8). Ms. Morris continues to be her health care proxy and has had power of attorney since shortly after the accident. (Id.)
Morris had numerous conversations on behalf of Exarhakis with VNS human resources personnel, regarding time off, health coverage, and benefits. (Pl.56.1 ¶¶ 13-16). In the course of these conversations, Morris received information about Exarhakis's available sick time, vacation time, and donated time, as well as leave of absence and short term disability benefits. (Rosen Aff., Exhibit 2 ("Morris Dep."), 16-21). Defendants provided leave of absence and short term disability forms, which Exarhakis completed with Morris's assistance. (56.1, ¶16). Morris recalls repeatedly asking for information related to Exarhakis's benefits eligibility, but that the LTD Plan was never mentioned to her. (Morris Dep. at 18, 24). Neither Exarhakis, nor Morris, ever specifically asked for information related to the LTD Plan, according to Exarhakis, because they didn't know such benefits existed. (Def.56.1, ¶13; Pl.56.1, ¶13). Morris never asked Exarhakis if she had any documents relating to benefits. (Morris Dep. at 24-25).
After her accident in September, 1998, Exarhakis exhausted her accumulated leave time, as well as short-term disability benefits. (Id., ¶17). In addition to the accumulated leave to which Exarhakis was entitled, VNS granted Exarhakis a discretionary leave of absence until mid-February 1999, and extended it until March 22, 1999. (56.1, ¶16, ¶19). The leave of absence allowed Exarhakis to gratuitously maintain her health coverage while she continued her out-of-work recovery. (Id., ¶19).
In January, 1999, Holly Michaels Fisher at VNS contacted Exarhakis to discuss organizational changes at VNS and the possibility of Exarhakis's returning to work.
(56.1, ¶21). Prior to Exarhakis's injury, VNS had already begun a reorganization that effected Exarhakis's job responsibilities. During the period of time Exarhakis was recovering from her accident, the reorganization continued and VNS eliminated her prior position, with some of her previous responsibilities reassigned. (Ex. Dep. at 11-14, 79-81; Pl.56.1, ¶22). In any event, had Exarhakis's position not been eliminated in the reorganization, she would not have been able to return to it following her accident because her injuries precluded her from being able to perform the duties of that position, either with or without accomodation. (Ex.Dep. at 86).
Fisher and Exarhakis discussed whether VNS could offer Exarhakis a means to return to work with the agency. (56.1, ¶26). VNS offered, and Exarhakis accepted, an opportunity to perform project-based work in the VNS CHOICE program, a managed care program for the elderly administered under the VNS umbrella. (Id., ¶26). Her supervisor would be Sandra Hallstead. (Id.). While Exarhakis formally maintained her former job title after the accident, the scope and responsibilities of the job that she returned to were significantly different, and vastly reduced, as a result of her limitations. (Compare, Ex. Dep. at 11, 14-15 with Ex. Dep. at 87-90; Compare Ex.Aff., Exhibit 1, "Performance Appraisal" dated 2/18/98 with Ex.Aff., Exhibit 1, "Performance Appraisal" dated 2/8/00, "Performance Appraisal" dated 2/8/01; See also, Florentino Affidavit, ("Fl. Aff."), Exhibit 26 ("Hearing Before the Workers Compensation Board") at 3-4.).
Exarhakis wanted to return to work at VNS, and was glad that VNS offered a flexible position so that she could continue to receive significant income and benefits. (Pl.56.1, ¶24). The new job permitted her to perform assigned projects on a part-time basis and offered her extraordinary flexibility in both scheduling her hours and the conditions under which she worked, permitting her to do much of her work from home. (Id., ¶38). For two and a half years after her return to work, VNS provided Exarhakis with flexible project-based work from the VNS CHOICE program. (Id., ¶39). Exarhakis's work was generally satisfactory, and her evaluations reflect that for the years of 1999, 2000, and 2001. (See Ex.Aff., Exhibit 1, "Performance Appraisals").
Shortly after returning to work, Exarhakis applied for Workers' Compensation benefits on the basis of her September 1998 accident. (56.1, ¶3)6. A hearing was held on April 10, 2003, and benefits were ultimately granted. (Pl.56.1, ¶37).
In July 2001, more than two years after Exarhakis returned to part-time work at VNS, VNS hired a full-time social work manager for the VNS CHOICE program because managing the program required at least one full-time person. (Def.56.1, ¶42; Pl.56.1, ¶42). Though Exarhakis had the experience and knowledge to be qualified for that position, she could not have discharged its responsibilities because of her physical limitations. (Ex. Dep., 158-159). VNS asserts that partly as a result of hiring the social work manager, and partly as a result of the natural development of the VNS CHOICE program, it no longer needed the consulting and project-based work Exarhakis had performed. (Def.56.1, ¶¶41-42). In August, 2001, Hallstead informed Exarhakis that VNS CHOICE would no longer require her services. (Id., ¶ 41, ¶45).
Also in August 2001, Exarhakis requested from VNS, in writing, written information about her benefits. In the same month, she received a copy of her benefits' summary plan description ("SPD") which included information about the LTD Plan. (Ex. Aff., ¶18; Fl. Aff., Exhibit 20 (PX 44)).
Hallstead advised Exarhakis in early September 2001 that she had no additional project work for Exarhakis, and that Exarhakis should communicate with human resources to determine if another area in VNS might have work that matched her interests and skills and could be performed within her physical limitations. (Def.56.1, ¶45; Pl.56.1, ¶58-60; Rosen Aff., Exhibit 4 (Pl. Exhibit 28)). Exarhakis acknowledges Hallstead said this, but contends that the reasons given to her by Hallstead for the elimination of her position were pretextual, and that Hallstead stopped giving her work because she no longer wanted to accommodate her disabilities. (Pl.56.1, ¶45). As evidence for this allegation, Exarhakis points to a number of actions Hallstead took during the summer of 2001: Hallstead asked her about her medical limitations, expressed new concerns about her work schedule, only reluctantly listed plaintiff's contact information in VNS publications, and denied Exarhakis authorization to contact regional employees in pursuit of what Exarhakis deemed to be her job responsibilities. (Pl.56.1, ¶4). As a result of Hallstead's conversations with Exarhakis, Exarhakis had a series of conversations with human resources personnel between August and October 2001 to explain her physical limitations and requisite accomodations, and to determine whether additional work, or a different position, existed that Exarhakis could perform. (Def.56.1, ¶¶47-49, 53, 54; Pl.56.1, ¶54). After reviewing all available positions at VNS with human resources personnel, Exarhakis and VNS were unable to identify a position that plaintiff could perform, with or without accommodations, because of her numerous physical limitations. (56.1, ¶55-57). Plaintiff did not apply for any posted position. (Id. ¶57). Nonetheless, plaintiff maintains that VNS could have continued to assign her comparable work either from the VNS CHOICE program, or from elsewhere in the agency to maintain her employment. (Pl.56.1, ¶41).
Also in September 2001, Exarhakis requested assistance from VNS in applying for LTD benefits in the event the parties were unable to identify additional work for her. (Fl. Aff, Exhibit 20 (DX 23)). She applied for the LTD benefits on October 21, 2001, contending that her "condition prevents performance of her occupation." Her application was denied for failure to file within the required limitations period. (56.1, ¶64).
Exarhakis also applied for Social Security Disability Insurance benefits (SSDI) in October, 2001. (56.1, ¶65). In this application, she stated under oath, inter alia, that she gets back pain if she sits, stands, or walks too long; has double vision, and that her vision causes photosensitivity and poor balance; cannot read "at will," but needs to schedule her reading time because it leads to vision problems; has concentration and memory difficulties; requires some oversight by others to follow written and spoken instructions; endures pain as a result of usual activities; does not leave home except on a limited basis, and then only during non-rush hours or uncongested times; cannot go out alone; cannot really engage in social activities on her own, or make standing commitments; and cannot do many activities for more than 10-15 minutes at a time.
(Def.56.1, ¶66). The physician statement accompanying the SSDI application stated that Exarhakis required 10-20 minutes of rest after each 10-20 minutes of reading or using computers. (56.1, ¶67). Plaintiff was eventually approved for SSDI benefits and found to be fully disabled as of October 2, 2001. (Id., ¶68)
Meanwhile, though Hallstead had stopped assigning work to Exarhakis from the VNS CHOICE program in September, 2001, VNS did not terminate Exarhakis. While she explored other available job possibilities with human resources personnel and prepared her benefits applications, VNS allowed her to remain active on the payroll until November 15, 2001, with full medical benefits, and required her to do no work in exchange. From November 15, 2001 through December 18, 2001, VNS paid Plaintiff's accrued leave as salary, rather than in a lump sum, allowing plaintiff to maintain full benefits through December 18, 2001. (56.1, ¶¶ 59-60). When Exarhakis's accrued payout concluded on December 18, 2001, VNS gratuitously provided her with 10.25 weeks of severance pay, and paid that severance as salary continuance through March 8, 2002 so that she could remain on the payroll and continue to receive her full benefit coverage during the severance period. (Id., ¶70).
When Exarhakis's severance period expired in March 2002, she was terminated by VNS. Plaintiff filed her EEOC charge on October 17, 2002. (Id., ¶73). The EEOC issued a right to sue letter on November 29, 2002, and she timely filed this complaint. There is nothing in the record reflecting any determination made by the EEOC.