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Edward Mccormack v. Joint Industry Board of the Electtrical Industry

January 30, 2012


The opinion of the court was delivered by: Johnson, Senior District Judge


Plaintiff Edward McCormack ("Plaintiff" or "McCormack") filed the instant action pursuant to both ERISA, 29 U.S.C. § 1001, et seq.; and the Americans with Disabilities Act, 42 U.S.C. § 12112, et seq. He seeks review of Defendant Joint Industry Board of the Electrical Industry's ("Defendant" or the "Board") denial of his 2008 request to apply for a disability pension. Before me is Defendant's motion for summary judgment. Based on the submissions of the parties, the oral argument held before me on January 5, 2012, and for the reasons stated below, the motion is granted.


Plaintiff is a journeyman electrician who, on July 8, 1998, sustained serious injuries when he fell four stories while attempting to enter his apartment through the window. At the time of his injury, he was unemployed, having been terminated from his job at Sacco Electric Corporation ("Sacco") in October 1997. As a member of the Local Union No. 3 of the International Brotherhood of Electrical Workers, AFLCIO (the "Union"), he was party to a collective bargaining agreement ("CBA") between the Union and various employers. The CBA established the Board, comprised of an equal number of union and employer Trustees. The Board's functions include administration of certain employee benefit plans, including a welfare plan that provides hospitalization benefits and pension plan that provides pension benefits. The Pension Trust Fund of the Pension Hospitalization and Benefit Plan of the Electrical Industry (the "Fund") is governed by a plan document (the "Plan") which gives the Board full discretionary authority to determine eligibility for benefits and to construe the Plan's terms and provisions.

On February 3, 2008, Plaintiff wrote to the Board requesting a disability pension application that he wished to have "processed retroactively to 1998." Plaintiff claimed then, and claims now, that while he was hospitalized after his July 1998 fall, he was falsely told that he was "ineligible for benefits," a statement that led him to believe that he would not qualify for a disability pension. At some point between his accident and his inquiry, Plaintiff alleges that he was again told he was ineligible and only learned in 2007 of his alleged eligibility. Plaintiff argues that these circumstances, coupled with the head trauma from which he suffered, demand that his application be deemed filed at the time of his accident, as a reasonable accommodation of his disability. However, the Plan denied Plaintiff's request in a letter dated May 6, 2008 (the "May 6 Letter").

More specifically, the letter and Plan outline several prerequisites to recovery that are relevant to the instant dispute: (1) that the participant be permanently incapacitated such that continued work in the electrical industry is no longer possible; (2) that the participant has been employed or available for employment for at least ten years prior to the application; and (3) that the application be submitted within two years of being disabled. (See Ex. D to Collack Decl.) The parties make no mention of the first factor and as a result, I will assume arguendo that Plaintiff is sufficiently incapacitated to satisfy this requirement. The second two factors are in dispute and are inextricably intertwined: to recover, Plaintiff must have been employed ten years prior to the application, and have submitted the application within two years of his disability.

Plaintiff argues that his application should be considered filed in 1998 because of additional misfortunes befalling him. Specifically, he alleges that various union employees gave him misinformation about his eligibility and, combined with the injuries to his brain, he was further prevented, discouraged and/or incapable of pursuing a disability pension until 2008. While Plaintiff claims that these post-injury events are the reasons for his ineligibility, an examination of his pre-injury communications with the union suggests otherwise.

Plaintiff's Termination from Sacco

On October 21, 1997, Plaintiff was terminated from Sacco. Sacco cited his excessive absenteeism for its decision: Plaintiff began working for Sacco on September 7, 1997, and by October 21, 1997, was absent from work 11 times. On November 18, 1997, Plaintiff acknowledged by letter that his absences were due to personal circumstances. The Board claims to have sent Plaintiff a postcard on January 20, 1998, which Plaintiff denies receiving. The Board also claims to have sent Plaintiff a letter on May 20, 1998 (the "May 20 Letter"). They May 20 Letter purports to inform Plaintiff that the Board's records indicate that he had not been available for work and warns him to notify the Board "immediately" if he wants to avoid being officially classified as "unavailable." Plaintiff denies receiving the May 20 Letter, however, he seems to rely on it in order to demonstrate that he was not out of touch. For example, in response to Defendant's 56.1 Statement, Plaintiff makes reference to the handwritten comments on the May 20 Letter. Those comments, written by a Plan employee, state:

Sent post cd on 1/20/98-member has no phone. On 2/19/98-he called-he said he never rec'd postcard but was unavail until 2/23/98-member was told to write ltr. None rec'd. do not sent out until its [sic]rec'd.

Plaintiff did not write the letter as allegedly instructed and did not otherwise respond to the May 20 Letter. Indeed, in his affidavit, Plaintiff states that I left the job at Sacco before the work was completed, and did not seek work in the months that followed . . . because I was having a drinking problem, and I might not have been able to do my work as a journeyman electrician in a way that would leave behind safe wiring. (Pl. Aff. ¶ 3 (emphasis added.).) Therefore, the parties agree that, at least for "the months that followed" Plaintiff's termination, he did not seek work.

On July 7, 1998, Plaintiff suffered severe injuries as a result of his fall, including a partially detached arm and broken back. Plaintiff claims that, while hospitalized, he received misinformation about his eligibility for unspecified "benefits." Specifically, he claims that "a social worker at Jacobi [Hospital] who contacted the union was told" that Plaintiff is not eligible for "benefits." However, because Plaintiff admits not seeking work even prior to his accident, this alleged misinformation is of no consequence.

Moreover, Plaintiff wrote to the Board on April 29, 1999, stating:

Following the loss of this job I was involved in numerous police procedures; culminating in my being evicted from my home and than [sic] breaking my back in a four story fall[.] [D]ue to these circumstances I was unavailable for work. However I am healthy now and wish only to return to work. (Collazo Decl. Ex. L (emphasis added).) ...

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