The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
On February 18, 2005 plaintiff Maritza Burgie commenced this action against defendants Euro Brokers, Inc. ("Euro Brokers") and First Unum Life Insurance Company ("Unum") alleging that Euro Brokers terminated her employment in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §2617(a),*fn1 the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §1001 et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12101, et seq. and that Unum failed to process forms and materials submitted by plaintiff, denied her benefits under her disability policy and terminated her policy in violation of ERISA, the ADA and in breach of its contract with her. Now before this Court are defendant Unum's (1) motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure plaintiff's breach of contract and ADA claims and (2) its motion for summary judgment on all claims alleged against it pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant Unum's motions are granted, with leave to the plaintiff to amend her ADA claim.
The following facts are drawn from plaintiff's Second Amended Complaint, and the submissions of plaintiff and defendant Unum in connection with these motions. In connection with the motion to dismiss, the plaintiff's allegations in her Complaint are taken as true and every reasonable inference drawn in her favor. As relates to the motion for summary judgment, disputes are noted.
In September 2001 plaintiff was one of more than 500 employees of defendant Euro Brokers, had worked for Euro Brokers for more than twelve years as a Benefits Specialist in the Human Resources Department and qualified as a participant in Euro Brokers' long term disability plan.
On September 11, 2001 plaintiff was on her way to work in the Euro Brokers office located in Tower Two of the World Trade Center when the Tower was attacked by terrorists. She observed her co-workers enter elevators to ascend to their office in an elevator. She was thereafter propelled from the building by the initial explosion. She observed another woman crushed to death by debris. A subsequent explosion propelled the plaintiff to the floor of a subway terminal. A Good Samaritan thereafter carried her to her husband's place of business.
Plaintiff alleges in her Complaint that she suffered both mental and physical injuries in the attacks and, with the consent of her employer, took time off to recover. Defendant denies that she suffered from physical, as opposed to mental, injuries. During her leave, plaintiff and her husband informed her employer of her condition, whereabouts, and her intention to return to work. Thereafter, in November 2001, according to the plaintiff, her supervisors insisted that she return to work before she was medically able to do so.
On her return, Euro Brokers placed plaintiff, along with other employees, in an office overlooking barges carrying debris from the World Trade Center site. Plaintiff claims that her request for another location or "reasonable accomodation" of her disability was improperly denied by Euro Brokers, despite its accomodation of other employees by allowing them to work at home.
On the weekend following Thanksgiving of 2001, plaintiff suffered a nervous breakdown from the stress of the attacks and her return to work. She sought medical treatment and was diagnosed as suffering from "anxiety, post traumatic stress disorder and other sequelae."
On November 23, 2001, plaintiff began an extended medical leave. According to plaintiff, she requested the leave under FMLA, 29 U.S.C. §2601, et seq., together with disability benefits. In response to Euro Brokers' request she provided a certification from her private physician in support of her request for medical leave. The certification stated that plaintiff's serious health condition commenced on September 11, 2001, that the probable duration was unknown, and that medical leave was appropriate since plaintiff was unable to perform the functions of her job.
On February 25, 2002, Human Resources Director Eileen McMahon sent a letter to plaintiff stating that she would be deemed terminated because she did not return calls, contact the office or advise of her projected return date. Plaintiff states that plaintiff, her husband and her physician maintained continuous contact with Euro Brokers and advised it of her intention to return to work.
On March 7, 2002 plaintiff was terminated in a letter signed by Roger E. Schwed, the Executive Vice President and General Counsel of Euro Brokers, delivered to her by Fed Ex.
In September 2002 plaintiff filed a claim with defendant Unum for disability benefits. In order to process the claim Unum requested certain paperwork from Euro Brokers which Euro Brokers did not supply. After informing plaintiff on October 11, 2002 that her claim could not be processed without the employer paperwork, and receiving no response from her or her employer, Unum informed plaintiff on October 22, 2002 that it was closing her claim and that she had thirty days to ask that it be reopened. Plaintiff did not respond and Unum closed the claim without rendering a decision on the merits. Plaintiff took no further action with respect to her claim until she commenced this litigation in February, 2005.
After this action was filed Unum obtained the employer paperwork required, determined that plaintiff was entitled to disability benefits for the period from November 27, 2001 to September 17, 2002, and, on October 24, 2005, paid her $1,801.56, the amount it deemed owed to her under the plan. Unum advised plaintiff that it would consider her eligibility for additional benefits after September 17, 2002 if she submitted medical records concerning that period. Thereafter, Unum obtained records from plaintiff's therapist for the post September 11 period, determined that plaintiff was eligible to receive additional benefits, and paid her $4,588.20 on March 9, 2006. According to Unum, this is the maximum amount plaintiff may recover under the plan because of the nature of her disability.
Unum originally filed its motion to dismiss on December 28, 2005 and this Court heard argument on April 18, 2006. At that time, decision was reserved on the motion to dismiss the breach of contract and ADA claims. The motion to dismiss plaintiff's ERISA claims was converted to a motion for summary judgment*fn2 with regards to the question of whether the plaintiff has been paid the maximum benefits to which she is entitled under the plan. The parties were given until ...