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Zdzienicki v. Consolidated Edison Co. of New York


August 29, 2006


The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge


I. Introduction

From the beginning of her employment at the Consolidated Edison Company ofNew York, Inc. ("Con Edison") in 1980 through her dismissal ten years later in 1990, Maria Zdzienicki maintained that she was born on July 30, 1939. Indeed, she provided the company with sworn documents. including her Cert~ficateo f Naturalization as a Unlted States citizen, confirming that to be the case. In 2003, however, with her pension benefits about to commence, Zdzienicki infonned Con Edison that she was actually born on July 30, 1934 - five years earlier than she had previously represented a n d was therefore entitled to a commensurately larger pension. As proof, Zdzienicki submitted copies of her Polish birth certificate, Polish marriage license and Polish passport, each of which reflected 1934 as her year of birth. The administrator of Con Edison's pension plan, however. denied Zdzien~cki's request for additional benefits and explained that there was sufficient evidence in the record to conclude that she was born in 1939. not 1934, regardless of the authenticity vel non of the newly-submitted Polish documents.

Zdzienicki claims that the plan administrator's decision was arbitrary and capricious it1 violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA). The parties, relying on the facts in the administrative record and defendants' stipulation that the plan administrator did not attempt to investigate whether the new Polish documents were in fact authentic, have filed cross motions for summary judgment. Because the Court finds that the plan administralor's decision to calculate Zdzienicki's pension benefits using July 30, 1939 as her year of birth was supported by substantial evidence and was not arbitrary and capricious, defendants' motion for summary judgment is granted, plaintiffs motion for summary judgment is denied and the complaint is dismissed

II. Background

The following facts are drawn from the administrative record and are undisputed.

When Zdzienicki began working for Con Edison in the summer of 1980, she became a participant in the company's employee pension plan, which at that time calculated pension benefits based on a combination of an employee's age and years of service. (AR 230-35.)*fn1 The plan did not specify how an employee's age is to be discerned; rather, it gave discretionary authority to the "Plan Administrator" to "interpret[]" the terms of the plan, "detemiin[e] eligibility for and entitlement to benefits under the Plati' and "determin[e] any facts and resolv[e] any questions" with respect to administration of the plan. (AR 326.)

As a new employee, Zdzienicki was required upon commencing employment to submit a document establishing her date ol'birth. (AR 364, 370-71, 442.) To fulfill this requirement, Zdzienicki signed a "Certification of Date of Birth" attesting that she was born on .luly 30, 1939. (AR 370.) The certification declared: "I make this statement with the understanding that it is to be used by [Con Edison] in establishing my date of birth." (Id.) As verification of her age, Zdzienicki presented her Certificate of Naturalization, a document issued by the U.S. Departmcnt of Justice, that listed her date of birth as July 30, 1939. (AR 444-45.) Zdzienicki also signed an "Employment Authorization" form showing that same datc. (AR 387.)

During her 10-year employment at Con Edison, Zdzienicki did not attempt to alter the company's records of her date of birth. (AR 469-474.) At one point, she submitted a diploma from the Warsaw University of Technology that listed her birth date as July 30. 1939. (AR 346.)

Zdzienicki was terminated for insubordination in April 1990. (AR 453.) In July of that year, and then again in August, she was sent a package of information that explained how her pension benefits were to be calculated and infontled her that "the earliest date" on which she would receive her pension was "January 1,2004." (R 477-85.) This calculation was based on a July 30, 1939 birth date. (AR 479.) The benefits package gave Zdzienicki an option: she could sign and return a form elccting to cash out her benefits immediately or do nothing and begin receiving her deferred pension in January 2004. (Id) Zdzienicki did not respond to these mailings. (AR 486.)

Zdzienicki did, however, continue to represent that she was born in 1939. In October 1990, Zdzienicki submitted "Continuation of Health Care Coverage" ("COBRA") forms listing in three separate locations what appears to this Court to be July 30, 1939 as her birth date.*fn2 (AR 463-466.) Two weeks later, at a hearing before an administrative law judge in which she claimed that her tcm~inationw as due lo age discrimination, Zdzienicki testified under oath that she was 52 years old - a number that would mean she was born in 1938, a year earlier than she had previously represented. (AR 190,400.) In 1993, Zdzienicki submitted to Con Edison diagnostic laboratory reports concerning her health in order to secure payment under the company's retlree medical insurance program; those reports clearly listed July 30, 1939 as her birth date. (AR 396-98, 461-62.)

The administrative record includes no communications between Zdzienicki and Con Edison over the next ten years. In February 2003 l e s s than a year before the commencement of her pension payments - Con Edison generated a retirement payment report for Zdzienicki that utilized July 30. 1939 as her date of birth in calculating her benefits schedule. (AR 488-90.) Two months later, Zdzienicki sent a facsimile to James Grossi, a human resources supervisor at Con Edison, enclosing (I) a copy and English translation of a Polish document titled "Abridged Copy of Birth Certificate" showing a date of birth of "30.07.1934" - five years earlier than the date reflected in the company's records; and (2) a document titled "Translation from Polish: Abstract of a Certificate of Mamage," that did not include a reference to her date of birth. (AR 422-30.) On November 5, 2003, Grossi wrote Zdzienicki advising her that her deferred pension benefit would be "effective January 1,2004"; this meant that Con Edison would continue to consider 1939 as her year ofbirth. (AR 434-38.)

A week later, Zdzienicki's lawyer sent a letter to counsel for Con Edison requesting that Zdzienicki's pension benefits be calculated based on a July 30. 1934 birth date. (AR 336.) Included with the letter were: (1) the same copy and translation of Zdzienicki's "Abridged Copy of Birth Certificate" that had been faxed to Grossi and that showed a date of birth of July 30, 1934; (2) a copy and English translation of a Polish document titled "Abridged Transcript of Mamage Certificate" that listed July 30, 1934 as Zdzienicki's date ofbirth (this was a different document than the "Abstract of a Certificate of Mamage" that had bccn faxed to Grossi); and (3) a copy of Zdzienicki's Polish passport, which included a handwritten birth datc of July 30, 1934. (AR 337-44.)

Con Edison's counsel responded with a letter sent on November 24,2003 listing the extensive prior representations Zdzienicki had made to Con Edison concerning her age and noting that a certified copy of her "Abstract of Driving Record" on file with the New York Department of Motor Vehicles showed her birth date as July 30, 1939. (AR 350-51 .) The letter concluded: "Thus far, we have determined that your client uses July 30, 1939 as her birth date for her Certificate of Naturalization, her birth certificate equivalency at Consolidated Edison, and for her New York State Department of Motor Vehicles. Please let me know how you would like me to proceed.'' (Id.)

On February 5,2004, counsel for Zdzienicki wrote to the administrator of Con Edison's pension plan to appeal the con~pany's use of July 30. 1939 as her birth date for calculating pension benetits. (AR 354-56.) That letter did not mention the recently submitted Polish documents; rather, it focused entirrly on the purportedly "dispositive" fact that the Social Security Administration was calculating Zdzienicki's retirement and disability payments using 1934 as her year of birth. (Id.)

Three months later, on May 4. 2004, Con Edison's plan administrator denied Zdzienicki's appeal. (AR 363-368.) The administrator explained that the retirement plan was not "bound by a finding of the Social Security Administration" and that numerous documents supported the conclusion thal Zdzienicki was born on July 30: 1939, not July 30, 1934, including Zdzienicki's certification of her date of birth at the outset of her employment, her Certificate of Naturalization, her COBRA forn~sh, er New York State driver's abstract, her diploma from the Warsaw University of Technology and her employment authorization form. (Id.) He also noted that Zdzicnicki had not disputed the accuracy of her 1939 birth date in 1990, when her employment was terminated and she was told that her deferred pension would not commence until 2004. (Id.) With regard to Zdzienicki's Polish birth certificate, passport and marriage license, the administrator wrote that because Zdzienicki "did not include these documents in [her] request for an appeal nor did [she] refer to them in [her] appcal argument . . . we have not made any assumptions or conclusions regarding those documents." (Id.)

Counsel for Zdzicnicki responded to this denial with a letter asking the plan administrator to treat the Polish documents as "part of the record" and to "reconsider your refusal to change Maria Zdzienicki's date of birth to July 30, 1934." (AR 404.) The plan administrator denied that request by letter dated June 17, 2004. (AR 420-21 .) The letter listed the extensive evidence in the record that Zdzienicki had submitted over more than a decade providing July 30, 1939 as her date of birth and concluded that in light of that evidence and "[ulpon review" of the Polish documents, "we confirm our denial of [Zdzienicki's] appeal to change her birth date." (Id.)

After receiving this final denial, Zdzienicki filed the complaint in this action. During discovery proceedings, defendants stipulated at a conference before Magistrate Judge Theodore Katz that while the plan administrator "clearly looked at" the Polish documents, he "felt no necd to determine whether they were actually authentic because [he] had a right to rely on all [of Zdzienicki's] earlier statements." (Tr. dated Aug. 1,2005 ("Aug. I Tr.") at 17, 19-20, Ex. A to Decl. of Debra L. Raskin dated Sept. 30, 2005.)

As noted above, plaintiff has now moved for sumnlary judgment on the basis of this stipulation. She asserts that the adn~inistrator'sd ecision not to investigate the authenticity of the potentially dispositive Polish documents was arbitrary and capricious in violation of ERISA, which requires a full and fair review of all documents in the record regardless of when they were submitted. Defcndants contend that the plan administrator's decision to rely on Zdzienicki's earlier documents was reasonable and supported by substantial evidence and thus was not arbitrary and capricious. Accordingly, defendants assert that they are cntitled to judgment as a matter of law.*fn3

III. Discussion

A. Summary Judgment Standard

Summary judgment is appropriate only if the evidencc shows that thcre is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Qlotex Cow. v. C m , 477 U.S. 317,322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Allen v. Counhlin, 64 F.3d 77, 79 (2d Cir. 1995); LaFond v. Gen. Physics Sews. Corn., 50 F.3d 165, 171 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); see also LaFond, 50 F.3d at 171. However, the party opposing summary judgment "may not rely on mere conclusory allegations or speculation, but instead must offer some hard evidence" in support of its factual assertions, D'Amico v. City of New &&. 132 F.3d 145, 149 (2d Cir. 1998), such that "'there is sufficient evidencc favoring the nonmoving party for a jury to return a verdict for that party."' Golden Pacific Bancow v. F.D.LC., 375 F.3d 196,200 (2d Cir. 2004) (quoting Anderson Lobby. Inc., 477 U.S. 242,249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

Where, as here, both parties have moved for summary judgment, the same legal standards apply. See Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). "[Elach party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Id. (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir. 1981)). B. Evaluation of Zdzienicki's ERISA Claim

Zdzienicki's sole federal claim is for denial of enhanced pension benefits pursuant to ERISA. 29 U.S.C. § 1131(a)(l)(B).*fn4 (Compl. 1/71 27-32.) As plaintiff concedes, because Con Edison's pension plan explicitly grants the plan administrator discretionary authority to determine eligibility for benefits and to decide any facts and resolve any questions with respect to administration of the plan, the Court reviews the denial of benefits for abuse of discretion and can reverse such a decision only if it is "arbitrary and capricious." See Firestone Tire &Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989); Zervos v. Verizon mark, Inc., 277 F.3d 635, 650 (2d Cir. 2002).

In employing the arbitrary and capricious standard, "the scope of judicial review is narrow." Celardo v. GNY Automobile Dealers Health & Welfare Tn~st3, 18 F.3d 142, 146 (2d Cir. 2003). A court may overturn a plan administrator's discretionary decision to deny benefits "only if the decision was 'without reason, unsupported by substantial evidence or erroneous as a matter of law."' Id. (quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995)) "Substantial evidence is 'such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [administrator and] . . . requires more than a scintilla but less than a preponderance." Celardo, 31 8 F.3d at 146 (quoting Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995)).

The United States Court of Appeals for the Second Circuit has repeatedly stressed that 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." m, 52 F.3d at 442; Celardo, 3 18 F.3d at 146. In addition, "a district court's review under the arbitrary and capricious standard is limited to the administrative record." Miller, 72 F.3d at 1071.

Given this "highly deferential" standard of review, see Celardo, 318 F.3d at 146, the Court finds that the plan administrator's decision to calculate Zdzienicki's pension benefits using July 30: 1939 as her date of birth was not arbitrary and capricious and therefore did not violate ERISA. The decision was supported by voluminous documentary evidence, including Zdzienicki's sworn statement at the outset of her employment, her United States government issued Certificate of Naturalization, her New York State driver's abstract, her diploma from the Warsaw University of Technology, her 1990 COBRA forms,*fn5 her employment authorization form and her 1993 medical lahoratory reports. Also supporting the decision was the [act that Zdzienicki did not attempt to "correct" Con Edison's records of her date of birth until April 2003, when her pension payments were about to begin t h i s was 23 years after she first attested to the company that she was born on July 30, 1939. It would not have been unreasonable for the plan administrator to conclude that if Zdzienicki were truly born in 1934, she would have informed the company of that fact in 1990, when it twice sent her fonns showing that her pension benefits would be calculated using 1939 as her year of birth, or at least in 1999, when, had Zdzienicki been born in 1934, she would have turned 65 and thus would have been cntitled to pension payments at that time. Thus. "a reasonable mind" could view the evidence in the administrative record "as adequate to support the conclusion" that Zdzienicki was born on July 30, 1939. See Celardo, 318 F.3d at 146.

Zdzienicki's tack in this Court is a narrow one: she urges that regardless of the earlier documents she submitted, it was arbitrary and capricious for the plan administrator not to attempt to authenticate the copies of the Polish birth certificate, marriage license and passport because those docun~entsa, ccording to Zdzienicki, constitute definitive evidence of her true age. As support for this contention, Zdzienicki cltes language from Cutienola v. New York Tele. Co.. No. 83 Civ. 2082, 1984 WL 1324 (S.D.N.Y. Dec. 11, 1984), noting that "It has been held that complete disregard of vcry persuasive evidence tending to support [entitlement to a benefi t], notwithstanding substantial evidence supporting denial of benefits, constitutes arbitrary and capricious action." Id. at *5 (citing Bews v. Mullins, 499 F. Supp. 916, 920 (S.D.W.V. 1980)). That case, however, is dis~inguishablef rom the facts here.

Specifically, the court in Cutiaola emphasized that the "complete disregard" standard was "absolute [in] nature" such that the plaintiff in that case, who was seeking disability benefits, could prevail at trial only if he could show that the defendants were "totally unaware" of the evidence in question at the time they denied his claim and thus can be determined to have not considered the evidence at all. Id. At issue were two pieces of evidence: a decision by the Worker's Compensation Board in the plaintiffs favor and the fact that the plaintiff had been awarded Social Security benefits for his alleged disability. Id. at *4-5. The court found that the "absolute disregard" standard did not apply to the Worker's Compensation decision because the parties stipulated that the defendants "knew" of the decision when denying the plaintiffs claim. -Id. at *5. The court nevertheless denicd defendants' motion for summary judgment because whether the defendants were indeed "totally unaware" of the social security award was a disputed issue of material fact. Id. at *5-6.

Here, the record is clear that Con Edison's plan administrator knew about the "Abridged Copy of Birth Certificate," "Abridged Transcript of Marriage Certificate" and Polish passport because the paflies stipulated that he "looked at" those documents and the administrative record shows that he "review[ed]" them. (See AR 363-68,420-21; Aug. 1 Tr. at 17.) Thus, it cannot be said that the plan administrator acted in "complete disregard" of the evidence in the record. Cutignola, 1984 WL 1324, at *5.

Zdzicnicki also relies on Tholke v. Unisvs Corn., No. 01 Civ. 5495, 2002 WL 575650, at *4 (S.D.N.Y. Apr. 16, 2002), in which the district court found that a review committee's decision upholding a claim denial did not constitute a "full and fair review" of the evidence as required by ERISA in part because the committee failed to investigate significant discrepancies in the record. In m, however, the district court was especially concerned with the fact that the review committee did not look at any of the underlying documents and provided no explanation for its decision, thus acting as a mere "rubber stamp" for the decision below. m, 2002 WL 575650, at *4. Here, on the other hand, Con Edison's plan administrator examined all of the evidence in the record, including - albeit in cursory fashion - the Polish documents. (aAR 363-68, 420-21; Aug. I Tr. at 17.) He also provided detailed, reasoned explanations lor his decisions. (AR 363-68, 420-21 .)

Moreover, the fact that the plan administrator chose not to investigate the authenticity of the Polish docun~entsw as inconsequential given the considerable evidence already in the record establishing Zdzienicki's age. Put another way, even if the plan administrator had somehow contacted Polish authorities and discovered that the Polish documents were indeed authentic - and nevertheless still denied Zdzienicki's request for additional benefits based on the other evidence in the record - that decision would have been supported by substantial evidence.

That is because the law is clear that a plan administrator's "exercise of discretion involves the freedom to decide what evidence to credit or to discredit," Mehai v. Bldg. Serv. 32B-J Health Fund, No. 04 Civ. 7613,2005 WL 2030283, at *2 (S.D.N.Y. Aug. 23- 2005), and "the mere existence of conflicting evidence does not render [an administralor's] decision arbitrary or capricious," Rosario v. Local 32B-32J, No. 00 Civ. 7557, 2001 WL 930234, at *4 (S.D.N.Y. Aug. 16, 2001). Had the Polish documents been deemcd "authentic," the plan administrator would have been faced with two conflicting sets of authentic government documents: aNew York State driver's abstract and a U.S. Certificate of Naturalization that provided one date of birth*fn6 and a Polish passport and "abridged" copies of a Polish birth certificate and marriage license that provided a different date. The decision to credit the first sct of documents, especially in light of when they were submitted and thc other corroborating evidence over a substantial period of time in thc administrative record, cannot be said to have been "without reason, unsupported by substantial cvidence or crroneous as a matter of law." m, 52 F.3d at 442 (2d Cir. 1995); see also O'Shea v. First Manhattan Co. Thrift Plan & Trust, 55 F.3d 109, 112 (2d Cir. 1995) (where both the plan administrator and a rejected claimant "offer rational, though conflicting, interpretations of plan provisions, the [administrator's] interpretation must be allowed to control"); Blangy v. Richardson, No. 7134, 1971 WL 3828 (S.D. Ohio June 7, 1971) (in a case involving "a mass of conflicting oral and documentary evidence pertaining to [the plaintiffs] date of birth." the defendant did not abuse his discretion in choosing one date to rely upon "even if the cour! would have reached a different decision had we heard the case de novo"). Accordingly, the plan administrator's decision was not arbitrary and capricious and Zdzienicki's claim pursuant to ERISA must fail.

IV. Conclusion

Because the plan administrator's decision to calculate Zdzienicki's pension benefits using July 30, 1939 as her date of birth was supported by substantial evidence and was not arbitrary and capricious, Zdzien~cki's claim for denial of benefits pursuant to ERISA fails as a matter of law. Defendants' motion for summary judgment is therefore granted, plaintiffs motion for summary judgment is denied and the Clerk of Court is directed to enter judgment dismissing the complaint.

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