Petition for Writ of Certiorari — Fleming v. Borden, Inc.
Supreme Court brief1993
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— Court, U.S
I3 - 641. ILED
~ 1 OCT 21 1993
am 1 OFFICE OF THE CLERK
IN THE SUPREME COURT FOR THE
UNITED STATES
October Term, 1993
Kathy Fleming, Petitioner,
Vv.
Borden, Inc., Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
C. Richard Kelly
Post Office Box 11648
Columbia, South Carolina 29211
(803) 252-6707
Counsel of Record
October 21, 1993
QUESTIONS PRESENTED
1. Does ~z9 U.S.C. §1140 require a
showing of intent or scienter as regards
its prohibition against discriminating
“against a participant or beneificiary
for exercising any right to which he is
entitled under" an ERISA plan or only as
regards discriminating against a plan
participant "for the purpose of
interfering with the attainment of any
right to which such participant may
become entitled", which is the language
of the second clause of the statute?
2. Does the language prohibiting
@iscrimination against an ERISA plan
participant "for the purpose of
interfering with the attainment" of
rights to which a participant may become
entitled require proof of an actual
subsequent entitlement of the rights
sought to be interfered with or can a
participant sue for damages or injuntive
relief caused by another’s discrimination
based on ae preception or possibility
which failed to materialize?
3. Does an employer’s policy of
terminating employees who exceed the
plant average of absences of two percent
a month and which makes no reasonable
exception for absences caused by health
problems or disabling conditions
inherently discriminate against
participants in the employer’s health and
disability ERISA plan?
4. Does 29 U.S.C. §1132 provide a
cause of action for injuntive relief for
violations of 29 U.S.C. §1140 even after
the plan participant was later terminated
as a result of the prior violations?
5. Was an inability to do her regular
job duties sufficient to cause the
waiting period for petitioner’s long term
ii
disability to run even if respondent gave
her light duty work to do and kept her on
the payroll?
iii
LIST OF PARTIES
The parties to the proceedings
below were the petitioner Kathy Fleming
and the respondent Borden, Inc.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..--+++++eeeeeee> ie
LIST OF PARTIES ..- ceeeeeeeeeceeces iv.
OPINIONS BELOW ...---eeeeeeereeecerces 1
JURISDICTION ...-ee eee ccsccercererecrces 2
STAUTES INVOLVED ...-+--eeeeeeeerreeees 3
STATEMENT OF THE CASE ..--e++eeeeeeeees 4
REASONS FOR GRANTING THE WRIT ....«--- 40
I. The Fourth Circuit’s
decision required petitioer to
prove scienter in her actions
under 29 U.S.C. §1132 and the
first clause of 29 U.S.C.
§1140 when the statutory
lanuage does not support such
a requirement .......-++-+--+ 40
II../The Fourth Circuit’s
decision required petitioner
to show an interference with
the attainment of an actual
ERISA plan right when the
second clause of 29 U.S.C.
§1140 only requires that she
show discrimination for the
purpose of interfering with a
possible attainment ...... 43
Baas The Fourth Circuit’s
opinion does not address the
inherently discriminatory
effect of respondent’s policy
of terminating plan
participants who exceed the
plant average of absences
while making no meaningful
exception for absences related
to the use of health or
disability plan benefits ..47
Iv. The Fourth Circuit’s
decision failed to address
petitioner’s action for
damages and injunctive relief
under 29 U.S.C. §1132 based on
an intentional interference
with her short term disability
benefits for her migraines and
on her entitlement to long
term disability benefits ..51
Vv. The Fourth Circuit’s
decision does not address
respondent’s ERISA plan’s
definition of what constitutes
"total disability" for
purposes of meeting the six
month waiting period required
to qualify for long term
disability benefits .----- 53
COMOETIETION cccccccosvevoseorerrsorers 58
APPENDIX (Opinion and Judgment of Court
of Appeals, and Memorandum Decision of
District Court) -----+srrrsesrrerre®
TABLE OF AUTHORITIES
Cases:
Conkwright v.Westinghouse Elec.
_Corp., .
933 F2d 231 (4th Cir 1991) ............ 53
Gavalik v. Coninental Can Co.
_Inc., .
812 F.2d 834 (3rd. Cir. 1987)...... 44, 48
McDonnell Douglas Corp.v. Green,
411 US 792, 93 S.Ct. 1817,
2° © fF Bei eed errr rrrrerrrrrer 48
Miscellaneous:
Vogal, Joan,"Containing Medical
and Disability Costs by Cutting
Unhealthy Employees: Does Section
510 of ERISA Provide a Remedy?",
Notre Dame Law Review, Vol. 62,
ie Se SR Wee oad so eo bec aes 49
Statutes:
29 U.S.C. §1132(a)(1)(B)...... 40, 42, 52
29 U.S.C. $1140 wccccccsccecves 40, 43, 46
IN THE SUPREME COURT FOR THE
UNITED STATES
October Term, 1993
Kathy Fleming, Petitioner,
Vv.
Borden, Inc.-, Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
The petitioner Kathy Fleming
respectfully prays that 4a writ of
certiorari issue to review the judgment
and opinion of the United States Court of
Appeals for the Fourth Circuit, entered
in the above-entitled proceeding on June
28, 1993 with petition for rehearing
denied on July 23, 1993.
OPINIONS BELOW
The opinion of the Court of Appeals
for the Fourth Ciruit was unpublished and
is reprinted in the appendix hereto at
page l.
The memorandum decision of the
United States District Court for the
District of South Carolina (Anderson,
D.J) has not been reported. It is printed
in the appendix hereto at page 5.
JURISDICTION
This case was before the District
Court for South Carolina pursuant to 29
U.S.C. §1132 and 1140, the Employment
Retirement Income Security Act of 1974
(ERISA). On July 9, 1992 the District
Court granted respondent’s motion for
summary judgment. On August 4, 1993 the
District Court denied petition’s request
for reconsideration. i at
On petitioner’s appeal, the Fourth
Circuit on June 28, 1993, entered a
judgment and opinion affirming the
Jistrict Court’s order.
<<<
The jurisdiction of this Court to
review the judgment of the Fourth Circuit
is invoked under 28 U.S.C. §1254(1)-
STATUTE INVOLVED
29 U.S.C. §1132(a)(1)(B), in
relevant part, gives ERISA plan
participants a civil action to recover
benefits due under an ERISA plan, to
enforce their rights under a plan, or to
clarify their rights to future benefits
under a plan. 29 U.S.C. §1140 makes it
unlawful for any person to discharge,
discipline, or discriminate against 4
participant for exercising any right to
which he is entitled under the provisions
of a plan, or for the purpose of
jnterferring with the attainment of any
right to which such participant may
become entitled under a plan. 29 U.S.C.
§1140 provides for enforcement of its
provisions through 29 U.S.C. §1132.
STATEMENT OF THE CASE
Petitioner was employed by
respondent as a santation worker on the
third shift from January 22, 1981 until
respondent terminated her for excessive
absences on June 25, 1986. Petitioner
contends that she was’ constructively
terminated on or around April 17, 1986
when, after her health had continued to
become progressively worse over the last
four years, respondent both refused to
put her on disabled status and gave her
work to do which was’ intolerable
considering her physical condition. She
brought suit under various state law
causes of action and, after the
respondent removed the case to federal
court, petitioner added the ERISA cause
of action which is at issue herein.
Petitioner alleged that respondent
(1) wrongfully cut off her short tern
disability payments in October 1985 and
forced her back to work while she was
still disabled which constituted
discrimination against her based on her
exercising her ERISA plan rights and
thereby interfered with her attainment of
her plan rights (2) used her absences
caused by her disabling condition to
discipline and ultimately discharge her
for exercising her rights under the plan
and thereby interferred with her
attainment of rights under the plan (3)
refused to give her light duty work, as
its policies called for after a job
related injury, but instead required her
to continue her regular job duties
contrary to its own plant physicians’
orders (4) terminated her as she was
about to qualify for long term total
disability benefits when she refused to
return to her regular job duties against
the physicians’ instructions (5) used
unannounced and undocumented policies as
its justification for terminating
petitioner.
The decision of the Fourth Circuit
gave two reasons for the dismissal of
petitioner’s case on summary judgment,
holding that petitioner (1) failed to
establish her disability through medical
opinions during the relevant time period
and (2) failed to provide any evidence of
a causal link between her discharge and
her membership in respondent’s benefits
plan. There were a number of factual and
legal issues which the courts below had
to decide in order to arrive at these
ultimate conclusions. Taking these in
their logical order, petitioner will
attempt to show why the courts below must
have erred in their analysis of these
issues SO aS to nave arrived at the wrong
result.
1. FACTUAL BACKGROUND
Respondent alleges that petitioner
was firea for excessive absenteeism,
stating in the affidavit of its plant
personnel manager , Bob Owens, which was
signed june 1, 1992 and submitted in
support of Borden’sS motion for summary
judgment heard June 12, 1992:
dealing with Kathy Fleming’sS
attendance problems, the plant
average was between 1.5 and
percent... --She was on two
medical leaves of absence in
1985, one for an operation on
ner thumb, ana the other for
migraine headaches - These were
not counted against her
attendance record. We will nold
an employee’sS 1ob for up to
ix months of medical leave.
(App- 340-41, emphasis added )
IBEST AVAILABLE COPY
When specifically deposed on the
issue on March 27, 1990, and asked the
question, "The employee can’t say ‘I was
on medical leave of absence’ can they? I
mean that has to be approved, doesn’t
it?", Mr. Owens answered, "What we’ve
said is medical leave of absence is a
doctor saying that they should not work
And we would grant, based on the
doctor’s statement, medical leave of
absence" (App 547 L.2; also see, 500
L.14-17, 495 L.7-23, 512 Leiw-3).
(a) MIGRAINE RELATED DISABILITIES
Any and all of petitioner’s absences
in 1985 were covered by the two warnings
which she received that year and were
related to the medical leaves of absence
to which Mr. Owens refers. The warning,
dated June 29, 1985 states:
Since 1 January 1985 Kathy has
been absent a total of 68 days
due to personal medical
problems. Fifty of these days
were medical leave of absence.
Eighteen days have been without
medical leave although a
349, emphasis added).
It is clear that respondent did not
grant petitioner medical leave for the
eighteen absences, but instead counted
the absences against her despite the fact
that petitioner provided respondent with
doctor’s statements in accordance with
respondent’s announanced policies.
Furthermore, it is clear that respondent
knew that these eighteen absences were
not caused by petitioner’s neglect of her
responsibilities or even the occasional
sick day, but were part of petitioner’s
disability with migraines, dizziness,
blurred vision, etc. for which respondent
paid petitioner disability payments from
July 9, 1985 through November 15, 1985.
The proof of respondent’s knowledge is
found in the warning given petitioner in
9
December 1985, which states "On June 29,
1985 Kathy was given a warning [the first
of those at issue in this case] on
excessive absences. At this [sic] time
she was given a medical leave to get her
health problems corrected" (App. 350,
351). Thus, respondent admits that at the
same time that it gave petitioner the
warning in June about her absences it
advised her to apply for disability,
(App.773 L.9-776 L.10) thereby counting
absences, which its personnel manager
knew were caused by petitioner’s
disability, toward petitioner’s
discipline and eventual termination.
Respondent’s short-term disability
plan pays benefits "from the eighth day
of disability or the first day you are
under a physician’s care if this is
later." (App. 380). Eight absences out of
a 250 day work year gives an average
10
absentee rate of 3.2 percent, well in
excess of the percentage rate respondent
used to terminate employees. While the
small amount of money for disability
benefits for the absences covered by the
June warning is not significant, the fact
that these absences were counted against
petitioner is significant, especially as
it becomes clear that respondent repeats
this pattern repeats up through April
1986 when it constructively terminated
petitioner as discussed below.
Petitioner’s neurologist’s notes for
August 14 and September 17, 1985
described petitioner’s disability as
follows:
Her headaches were,
essentially, stereotyped ....
When the headache is severe,
she will have blurring of her
vision and on occasion has had
her vision dimmed to the point
where it was difficult for her
to see. She will have nausea,
but does not actually vomit
with the headache. The headache
11
occurs 3 or 4 times a week and
may last 1 - 2 days (App 157-
58).
ee = @&
4 days ago she began to have,
daily, more severe headaches
with nausea and blurred vision.
IMPRESSION: migraine,
inadequately controlled
(App.160)
Respondent’s Benefits Claims
Department’s notes reveal that it later
unilaterally cut off petitioner’s
disability payments (1) after it received
an unsubstantiated rumor, with which
petitioner was never confronted, that
"10-18 per Bob [Owens] people said they
have seen Ms. Fleming showing houses (her
father is a realtor)" and (2) after it
was unable to find another neurologist to
do an independant medical examination on
petitioner (App.162-5). The denouement
came on October gas 1985 when
respondent’s notes reveal, "10-31 Ee
[employee] called about a check .... She
12
SS |
said she may have to take legal action. I
told her to do what she had to do, but I
wouldn’t pay benefits until we review
report of IME doctor" (App 165). The
impasse was resolved by Mr. Owens
telephoning petitioner and convincing her
to come back to work by telling her that
her job status would be threatened if she
did not, apparently referring to
respondent’s policy of only holding a job
for someone on disability for six months
(App.931 L.14).
Respondent and petitioner knew that
at the time of petitioner’s return that
her neurologist had noted that the
migraines were still “inadequately
controlled" (App.160) and that
respondent’s ERISA Plan provided that,
"If the same or related disability
reoccurs within 90 days after you have
returned to work, Short-term Disability
13
benefits will be paid as if the
disability had been continuous" (App.
381). Nevertheless, when petitioner
missed two days and had to leave early
two days right before the Christmas
holidays due to the same migraine related
symptoms, rather than give petitioner
disability pay, respondent gave her the
warning quoted above, sent by certified
letter dated December 27, 1985 (App.35l1).
On December 30, 1985, within one or two
days of receiving this letter, petitioner
was seen by the opthomologist who had
treated her for an eye injury incurred at
work in July 1984, a few months before
the time appellant reported that her
problems with migraines had _ begun
(App.145-9, 157). The opthomologist
described petitioner’s symptoms as "LE
[left eye] vision is blurry, swells and
is red" and he scheduled her for a CT
14
scan. After getting the CT scan back and
seeing petitioner on January 17, 1986,
the opthomologist gave a dignosis of
"pain, decreased vision, double vision
left eye" and referred petitioner back to
the neurologist who was treating her
migraines (App 173-5).
The consultations between the
opthomologist, Dr. Nicholson, and the
neurologist, Dr. Nichols, as well as the
Similarity of the symptoms they describe,
indicate that petitioner’s absences in
December 1985 should have been considered
under the provision of respondent’s
benefits plan which provided that when,
"the same or a related disability
reoccurs within ninety days after you
returned to work, Short-term Disability
will be paid as if the disability had
been continuous" (App. 381). Again
respondent knew that it was disciplining
15
appellant for absences caused by her
disabling condition. This is shown by the
fact that Mr. Owens, upon having the
opthomologist’s bill submitted as a
workers’ compensation claim, wrote
respondent’s carrier:
This employee states that Dr.
Nicholson [the opthomologist]
sent her for this CT scan for
the alleged injury that
happened 19 months ago. This
employee has had extensive
medical history recently
concerning headaches which has
been covered under her group
health (App 199).
Petitioner provided doctor’s
excuses from her neurologist for four
more abences caused by migraines on
February 26, March 16, and April 29 and
30, 1986 (App.215, 256). Petitioner’s
supervisor’s notes for the period March 8
to April 30, 1986 show respondent
calculating "7.9% [abences due to]
headaches" for that time (App. 258).
16
aeesinieiniaeiiiieeal
Counting the eighteen days petitioner was
out with this disability in the Spring of
1985, the one hundred and thirty-two days
petitioner was out on short-term
disability during the Summer and Fall of
1985, the four days she missed in
December 1985, and the four days
petitioner was out due to her migraines
in 1986, the total comes to one hundred
and fifty-eight (158) days of cumulative
disability for the same problem within a
twelve month period, with recurrances
always being within ninety days of one
another.
Respondent’s benefits plans provide
for short term benefits to end after one
nhnundred and eighty-nine days of
disability in a one year period, stating:
If a disability lasts longer
than 27 weeks, LTD [Long-term
Benefit] Plan benefits can
provide monthly income
beginning the 28th week and
continuing for as long as you
17
remain totally and continuously
disabled. Both occupational and
non-occupational disablities
are covered by the LTD plan."
(App 389, emphasis added).
(b) ARM RELATED DISABILITIES
On January 30, 1986, petitioner was
climbing on a packaging machine in order
to clean it and fell. She caught her full
weight with her right hand, the same hand
on which she had had the ligament
replacement surgery which had caused her
to take the medical leave of absence in
early 1985 to which Mr. Owens’ affidavit
quoted above refers. Petitioner worked on
the sanitation crew from eleven at night
until seven in the morning. After trying
to continue to work, she eventually went
to a hospital emergency room_at around
4:00 A.M. January 31, 1986, where the
plant doctor put her arm in a splint and
Sling and directed that petitioner be
given light duty work and not use her
18
right arm (App.184-90). Other than a
couple of limited attempts by petitioner
to use her injured arm while at work,
which only caused her injury to get
worse, the plant doctors never changed
their instructions that peticioner was
not to use her right arm.
Petitioner’s condition, however,
got continually worse. Petitioner had
returned to work the day after the
injury, but on February 9, 1986 she had
to leave work to go to the emergency room
due to continuing problems with her arn.
The plant physician took her out of work
until February 12, 1985 (App.190, 194).
On February 17, 1986, the plant
physician’s notes indicate ."fiberglass
cast placed" (App.190). On February 19,
1986, the same day that Mr. Owens wrote
respondent’s workers’ compensation
carrier asking it to disallow the claim
19
for petitioner’s opthomologist’s bill,
Mr. Owens wrote petitioner’s supervisor
John Rogers:
2-19-86 - John Rogers: I talked
to Dr. Tesseneer [one of the
plant’s designated workers
compensation physician] today
and he is the one who put the
cast on Kathy. He is treating
her for Tendinitis and expects
at this point to keep the cast
on for a couple of weeks ....
Based on 3 days absent for flu-
-one on Sunday to see doctor
about the arm, one day after
being scheduled to see doctor
for arm, this leaves 1 day and
a partial plus 1 late to work
with. Let’s hold off on the
write-up at this point. But
let’s review each absence.
To which absence Mr. Owens refers as
being left unexplained, it is hard to
decipher. Based on the warning which
respondent gave petitioner on March 12,
1986, the third warning which respondent
relies on as justification for
terminating petitioner, and by looking at
petitioner’s attendance chart (App. 354,
347), one can infer that the one absence
20
to which Mr. Owens apparently refers is
January 17, 1986, when petitioner saw her
opthomologist for her migraine related
symptoms and for which she provided a
doctor’s excuse (App.174, 176). The one
day late, January 23, 1986, is admittedly
the only day petitioner had been late in
her five years at Borden (App.544 L.12-
549 L.7, 1129 L.15-1130 L.16). Her only
partial workdays were when she left work
to go to the emergency room.
Petitioner provided a doctor’s
excuse for being out from February 13 to
is, 1986, the flu days Mr. Owens’
memorandum mentions, and Mr. Owens
concedes in deposition that someone in a
food processing plant should not work if
she has an infectious disease (App.198,
526 L.11-529 L.17, 540 L.14). Petitioner
was absent the night of February 21-22,
1986 and the plant physician’s notes show
21
that, when he saw her the morning of
February 22, 1986, she was’ suffering
"hypothenar muscle cramping" in her
injured hand (App. 190). This was also
the time respondent began to keep notes
on petitioner, the first of which simply
noted "2-21 swollen thumb" (App 203),
showing that respondent knew that this
absence was related to petitioner’s
injured arm. The next supervisor’s note
says, "3-5 Dr. had removed half of [the
fiberglass] cast [which had extended to
her biceps]. The other half was loose on
her arm. Was to see Dr. on 3-6 at 8:45 to
have new case put on." (App 203). The
physician’s notes confirm this as the
reason for petitioner’s absence on March
5, 1986 (App. 202). Respondent’s next
note reads "i-6/7 at i:30 <Aa..
[petitioner] said she had stomach ache
and was throwing up and had to go home"
22
(App. 203). Petitioner provided a
doctor’s excuse for being out March 6-8,
1986 with, what was then believed to be,
another infectious disease (App 208). A
later note from a "clin. pharmacist",
however, states petitioner’s medications
for her arm injury could cause drowziness
and “stomach distress" (App.221).
2. RESPONDENT’S POLICIES
Except for one day late and three
days out with flu and three days out with
stomach problems, every absence which
respondent counts against petitioner from
January 1,1985 up to the third warning
for absences which respondent gave
petitioner on March 12, 1986 was
connected to petitioner’s migraines or
arm injury as shown either by a
physician’s excuse or ae physician’s
office notes, such that respondent could
easily have obtained a more detailed
23
explanation of the absence from a
physician had it desired or requested
such. Despite this, on March 12, 1986
respondent sent petitioner a certified
letter which listed some of the absences
discussed above and told her "When
queried about the reasons for your
consistant [sic] lateness’ and
absenteeism, you were unable to offer any
reasonable excuse which would be
accepted" (App. 209). This obviously
contradictes the medical leave policy
which Mr. Owens described in his
deposition as set out herein above. This
also contradictes the handbook given
petitioner at the time she was hired. The
handbook sets out respondent’s specific
policies regarding attendance as follows:
ATTENDANCE - An UNEXCUSED
ABSENCE occurs when an employee
fails to notify their
supervisor of absence prior to
scheduled shift starting time
and/or permission is not
24
————————eee_eKeaQvVte
granted by the supervisor.
Disciplinary procedures for
unexcused absences are a5
follows: One occurrance is
considered equal to one day of
absence and will require 4a
written reprimand. Four
reprimands for unexcused
absence within a 12 month
period will be cause for
termination (App.138)
Absences which were unexcused under
the handbook policy were marked on
petitioner’s attendance chart as an "L"
(App.348). She had none prior to April
17, 1986. Petitioner’s supervisor’s
admitted that she always came to them and
obtained permission to leave early, as
the handbook required, when she would
leave because her arm was hurting her.
Petitioner nevertheless received a
reprimand, dated June 12, 1986, for
unexcused absences. AS discussed below,
however, this was after respondent had
constructively terminated petitioner.
Respondent contends, however, that it did
25
not terminate petitioner pursuant to the
handbook policy, but that it terminated
petitioner pursuant to a sentence found
in a Plant Rules Book which it admits it
casually handed to employees a year and a
half after petitioner was hired and
received the handbook which she stated
she had read and studied at the time. The
sentence relied upon by respondent reads,
"Excessive absences for any reason are
subject to termination" (App.359), which
makes no grammatical sense as it
literally means that “absences will be
terminated". Respondent admits that it
made no effort to bring this significant
change in policy to its _ employee’s
attention, despite having contracted with
them in its handbook that "your
supervisor will regularly keep you up to
date on important matters" and "As your
representative, he or she has the
26
responsibility to keep you informed of
company matters that are of interest to
you" (App.135, 126). There is no evidence
that the Plant Rules Book policies on
attendance were brought to petitioner’s
attention or were ever cited as the
authority for the warnings that
respondent was giving petitioner. The
alleged details of the policy, such as
the alleged "plant average absences" rule
to which Mr. Owens refers in his
affidavit, petitioner’s supervisors admit
were never announced to employees or
documented in any way. Also, as
respondent must admit, this was never
revealed in discovery in the case despite
petitioner’s having asked questions
directly on the point (App.556 L.1-10,
63-72). The plant manager deposed that he
and the personnel manager would just look
at each individual absence and decide how
27
to treat it, but the two also deposed to
a number of supposed unannounced and
undocumented exceptions whereby absences
for such things as military duty or jury
duty were not counted towards excessive
absences (App. 919 L.1-922 L17, 1066
L.10-17).
3. CONSTRUCTIVE TERMINATION
In April, respondent’s notes show it
insisting that petitioner (1) clean the
conveyors high above the plant floor,
(App 831 L 24 -833 L 8,227-9,566 L 1-569
L 17,579 L 8-581 L 10,800-801 L 17, 1039
L 5,1113 L 20-1119 L 10,1178 L 10,1255 L
25) (2) scrape the goo-like, cooked-on
oil off the oil-holding tanks, (App 593 L
8- 594 L 17,1110 L 20-1113 L 22,1163 L
12-1170 L 12-1184 L 19) and (3) clean the
trash-can-sized waste-food buckets using
high- pressure water which was so hot one
of petitioner’s supervisors admitted
28
being scalded by it (App 581 L 11-582 L
23,1154 L 13-1163,1123 L 5=-1127,1120 L
11). This was dangerous, (App 1029 L 21-
1031 L 4) painful, and not in line with
what the doctors had instructed. At one
point in April 1986 respondent tried to
tell petitioner that the doctors had
released her for regular duty (App
251,1289 L 20-1290 L 4), which was
completely unverified, (App 251,595 L 13-
24) not that it much mattered as the
conveyors, Oil-holding tanks, and buckets
were regular duty jobs anyway (App 1177 L
19,1253 L 9 = 1254 L 16,1259 L 2-1269 L
6). Petitioner continued to try to work
as requested, but she refused to allow
respondent to further endanger her life
or torture her.
The week ending March 22, 1986,
petitioner-—worked 51.4 hours in six days.
Her evaluation for April 3, 1986 told her
29
that, "She is not liked by most members
[of the sanitation crew] as they feel
they have to do extra work because she
does not carry her part of the work"
(App.223, 698 L.20-706 L.2, 771 L.21-772
L.13). In the extensive notes kept by her
supervisors in their efforts to terminate
her, there are no allegations that
petitioner did not do the work assigned
her. The resentment of petitioner’s
fellow workers was caused by her light
duty assignments. Petitioner’s supervisor
testified that when petitioner’s absences
began causing him problems with his own
responsibilties such that he asked for a
extra temporary employee, he was told by
the personnel manager, Bob Owens, that,
as long as petitioner was on the payroll,
petitioner’s supervisor could not have
more help and that the supervisor should
"build a case and get rid of her" (App.
30
1261 L.7-1263 L.13, 533 L.2-536 L.4, 553
L.19-555 L.25, 936 L19-939 L.5, 1027
L.23-1029 L.2, 1272 L.27-1274 L.8).
Respondent’s plant manager, who set the
tone for the plant he was over,
testified, "Do I want impaired people
working in that plant? No, I don’t"
_ (App.927 L.24).
One of petitioner’s physicians
approved her use of her injured arm to
lift up to twenty-five pounds. Shortly
thereafter, on March 31, 1986, petitioner
reinjured her arm trying to lift a
kerosene can and went to the hospital
where she was given medication which made
her feel too light headed tc work
(App.214, 217-9). When the plant
physician saw her, he prescribed a series
of TENS units and instructed that she not
try any climbing or lifting (App.224-6,
231). Petitioner’s physicians diagnosed
31
her as having bursitis and they began
giving her injections which made her
foggy. At this same time, petitioner’s
supervisiors were trying to make her work
on overhead conveyors which could only be
reached by a twelve-foot vertical ladder
which had smooth, rounded metal rungs and
lead to a catwalk high above the plant
floor as shown by photographs in the
record (App.227-31, 260). The plant
manager considered this too dangerous to
allow petitioner’s photographer and
lawyer, who had no disabilities, to
attempt during discovery.
Petitioner was out April 10, 1986
due to the injection she received for the
bursitis which she had developed. She was
out April 11, 1986 because respondent was
trying to make her work at the dangerous
heights of the conveyors. She provided a
doctor’s excuse which her supervisor
32
described as saying "she was ‘out of work
‘due to arm’(note attached). I asked her
how long she would be out since the note
did not say" (App.229). Petitioner
returned to work with a note from the
plant physician instructing that she be
given lighter duties. Respondent’s
reaction was to make her scrape the
cooked-on oil, which petitioner’s
supervisor described as a "gue", off the
oil-holding tanks in the plant’s
basement, a job which her supervisior
admitted was usually done with caustic
chemicals “using no manhours" (App.236,
248-9). Petitioner went to the emergency
room on April 19, 1986 and brought a
disability certificate from the plant
physician, but respondent nevertheless
counted the absence as unexcused. Her
supervisiors told petitioner that it
would do her no good to bring a
33
physician’s statement after she was out
because by then the paperwork counting
her absences against her was already in.
(App.237-42, 346, 221, 586 L.16-591 L.13,
1272 L.4-12, 1306 L.19-22). On April 22,
1986, petitioner saw the doctor who had
operated on her wrist, but he “explained
to her that an independant evaluation
would no way [sic] relate to her present
work status, as this is under the care of
Dr. Tesseneer [the plant physcian]."
(App. 244, 260). On April 26, 1986
respondent tried to tell petitioner that
her doctors had released her for regular
duty which was untrue. For petitioner to
have tried to do the lifting and climbing
which regular duty required would have
been dangerous for her in her condition
(App.251).
It was obviously of no use for
petitioner to try to provide doctors’
34
excuses any more as respondent had told
her such were not "excuses which would be
accepted" and her private physician had
told her that his opinion, for which she
paid $168.00 would "no way relate to her
situation at work" as that was under the
control of the plant physicians, and, as
of April 19, 1986, it was of no use for
petitioner to bring a physician’s
statement from the plant physicians.
Also, petitioner’s supervisor’s notes
state that both respondent and petitioner
"Knew that she would to be evaluated by
another Dr. [Dr. Royals]" who was in a
different town and she had to be
scheduled and test results obtained
before her condition could be further
diagnoised (App. 251,264,267-74).
Petitioner could only wait and try to do
her best in the face of an impossible
Situation (App.251). Respondent had, in
Jo
effect, cut petitioner off from obtaining
any more physician’s statements which
might further restrict her work
assignments or document the assignment’s
effects on her, while at the same time it
was giving her work which was intolerable
in her condition.
On June 23, 1986, after receiving a
copy of Dr. Royals’ report in which he
saw one line which seemed to say what he
wanted to hear, Mr. Owens, the personnel
manager, called petitioner and told her,
again falsely, that she had been released
for regular duty work. When petitioner
refused this dangerous directive, Mr.
Owens did not call Dr. Royals or Dr.
Tesseneer, both of whose later statements
deny such an interpretation (App. 283,
286, 294-6), but called respondent’s
corporate headquarters and, after
explaining the situation, recieved
36
' permission to terminate petitioner. The
personnel manager denied making such a
call to corporate headquarters, but the
plant manager revealed it in a later
deposition (App.597 L.4-598 L.5,1004
L.18).
From January 30, 1986, the time
when petitioner slipped and fell at work,
until June 25, 1986, when she was fired,
respondent’s plant physicians instructed
that petitioner’s arm be keep in slings,
casts, braces, and TENS units and, except
for short trial-periods, they instructed
that she was not to use the arm at all.
During this time petitioner was never
able to the essential duties of her
regular job, which consisted of climbing
on and around equipment and machinary,
some of which was ten to twenty feet
above the hard concrete floor of the
plant and all of which was slippery from
37
the cooking oil which prevaded the snack
food plant. Anyone doing the regular
duties of the sanitation crew needed the
use of both arms. The diagnosis which the
physicians made available to respondent
included "(1) chronic ligamentous sprain,
right wrist (possible torn triangular
fibro-cartilage) (2) carpal tunnel
syndrome, right hand" (App.267-9) and (3)
"acute bursitis" in her arm and shoulder
(App.231, 260-1). The physician entrusted
with her primary care, Dr. Tesseneer,
noted "discussed poss. of chronicity of
pain" and "said probably have prob. rest
of life" (App 280). While the opinions
below hold that in June one of
petitioner’s doctors opined that. she
could return to her regular duties at the
plant, the physician, Dr. Royals, gave an
affidavit for this case which states
that:
38
a
He cannot say that Ms. Fleming
did not have an injury to her
wrist and he did not attempt
to make any determination as
to whether she could resume
her normal duties at work as
he did not know what her
duties were nor had he been
asked to make such a
determination" (App. 296).
Dr. Tesseneer’s letter to
respondent dated June 26, 1986 clearly
shows that after seeing Dr. Royal’s
report, Dr. Tesseneer still instructed
that petitioner not use her arm (App. 283)
and respondent took the position in
petitioner’s Employment Security
Commission hearing that petitioner did
not qualify for unemployment because her
arm prevented her from doing the regular
duties of her job.
39
REASONS FOR GRANTING THE WRIT
I
The Fourth Circuit’s decision required
petitioer to prove scienter in her
actions under 29 U.S.C. §1132 and the
first clause of 29 U.S.C. §1140 when the
statutory lanuage does not support such a
requirement.
The decisions below overlook the
legal standard set out by 29 U.S.C. 1140
which reads in pertinant part:
It shall be unlawful for any
person to discharge, fine,
suspend, expel, discipline, or
discriminate against a
participant...for exercising
any right to which he is
entitled under the provisions
of an employee benefit
plan...or for the purpose of
attainment of any right to
which such participant may
become entitled..
While the statute itself uses language
requiring scienter or intent only in the
language prohibiting interference with
40
the attainment of benefits, the opinion
- below and the opinions of other circuits
have applied such a requirement to actual
interference with plan benefits so as to
eliminate, through ERISA’s broad pre-
emptive language, any possible cause of
action for negligently or even recklessly
depriving a person of his or her plan
benefits. In this case, the opinions
below adopted a scienter standard and,
therefore, did not address facts which
showed that petitioner’s supervisors
negligently and recklessly interfered
with her ERISA plan benefits.
The statute at issue is a
discrimination statute which is enforced
in much the same way as_ statutes
prohibiting discrimination based on race,
religion, gender, age, et cetera. There
are, however, few reported cases
interpreting the substantive application
41
of this statute. Because of the
importance of ERISA benefits to most
working Americans and their families and
because of the ‘unparalleled pre-emption
of State remedies for interference with
ERISA benefits, this Court’ should
consider granting a writ of certiorari in
this case.
29 U.S.C. §1132(a)(1)(B), in
relevant part, gives ERISA plan
participants a civil action (1) to
recover benefits due under an ERISA plan,
(2) te enforce their rights under a plan,
or (3) to clarify their rights to future
benefits under a plan. This cause of
action is in the nature of one sounding
in contract and the intent to breach the
agreement should have no bearing on the
remedy for such a breach.
42
ienieeemememeneieenieaeial
II
The Fourth cCurcuit’s decision required
petitioner to show an interference with
the attainment of an actual ERISA plan
right when the second clause of 29 U.S.C.
§1140 only requires that she _ show
discrimination for the purpose of
interfering with a possible attainment.
Contrary to the holding of the
decisons below, petitioner did establish
her disability during the relevant time
period through medical opinions. The
legal standard, however, does not
consider whether petitioner could, in
fact, have used her benefits had there
been no discrimination, discipline, or
discharge for the purpose of interfering
with her rights. The legal standard which
should apply in this case is whether
petitioner was damaged, or even in
jeopardy of being damaged so as_ to
43
justify injunctive relief, due to
respondent’s attempts to interfere with a
right to which she "may" become entitled.
If an employer fired an employee because
he believed she has cancer and because he
wants to avoid costs to his self-insured
health, disability, and life insurance
benefits, he has violated the statute
quoted above and the employee is entitled
to reinstatement, injunctive relief and
damages, even if it turns out that the
diagnosis of cancer was a mistake. The
issue as to petitioner’s discrimination
case, therefore, is not what her health
was, but what respondent believed it was
or was likely to become.
In Gavalik v. Coninental Can Co.
Inc., 812 F.2d 834,842(3rd. Cir. 1987)
the trial court hed found that
Continental had developed a program "to
avoid future vesting of break-in-service
44
i
pension benefits" by not re-calling or
re-hiring those persons with a break-in-
service who had not vested, and that
Continental’s actions regarding certain
plants and lines "were motivated in part
by the desire to prevent employees from
etteining eligibility [for vested
pensions]...and in part by the declining
business conditions...", but the district
court concluded "that Continental’s
actions did not violate §510 of ERISA."
The circuit court reversed this decision
citing authority, at page 851, that a
plaintiff does not have to show that
discrimination was the sole reason for
the adverse action. The Gavalik court
goes on, at page 852, to point out that
it does not matter whether the
ijiscrimination actually succeeds or even
if the employee "would actually have
received the benefits," if the defendant
45
intended to discriminate, 1% -3e
responsible for the harm done.
In Gavalik at page 856, the court
cites the "board, remedial objectives of
§510," for the proposition that an
employer’s act "need not achieve the
employer’s illicit goals [as required in
most discrimination cases]" (emphasis
added), and held:
Because the district court
construed §510 (29 U,8s.C.
§1140]) as requiring actual
deprivation of rights, it
$ @ktis@A «4 S °@
consider...deliberate steps
undertaken for the purpose of
interfering with...pension
eligibility. When so
understood, it is clear that
the district court’s own
findings are evidence of
appellants’ satisfaction of
their burden to establish by a
preponderance of the evidence
that the plan was infested
with discriminatory intent
sufficient to constitute a
violation of ERISA."
The court, therefore, held that _
regardless of any resulting harm, the
46
plaintiffs were entitled to the
injunctive relief requested. Petitioner
would argue the same applies to her
request for injunctive relief.
III
The Fourth Ciruit’s opinion does not
address the inherently discriminatory
effect of respondent’s policy of
terminating plan participants who exceed
the plant average of absences and makes
no meaningful exception for absences
related to the use of health or
disability plan benefits.
The decision overlooks’ the
inherently discriminatory effect of
respondent’s policy of termimating
employees who exceed the plant average of
absences without considering the
connection between the absences and the
employee’s potential disability. See,
47
=
Gavalik v.Continental Can Co., 812 F2d
834 (3rd Cir. 1987).
The court in Gavalik analyzes the
McDonnel]_ Douglas Corp.v. Green, 411 US
792, 93 S.Ct. 1817, 36 [Ed 2d 668 (1973)
"shifting burdens" mechanism and, at
page 853, the Gavalik court holds it
inapplicable where the plaintiff’s case
consists of “direct ‘smoking-gun’
evidence that the employer acted with
discriminatory motivation" stating that
where "direct evidence is available,
problems of proof are no different than
in other civil cases." Petitioner
contends that respondent’s policy of
terminating employees who exceed the
plant average for absences is an inherent
and direct pattern and practice of
discrimination against employees who have
rights under respondent’s health and
disability benefits plans and who begin
48
gg
to use those rights. In Gavalik,
Continental Can had a computer system
called the Bell System which was designed
to (1) identify employees whose pensions
had not vested, (2) lay them off, (3)
alert management if one of these
employees was to be recalled, and (4)
adjust production so as to avoid the need
for such recalls. Continental used the
system for "liability avoidance." While
the system used by respondent is not as
refined and exact as the one used by
Continental, it has the same predictable
and impermissible effect.
In her article, "Containing Medical
and Disability Costs by Cutting Unhealthy
Employees: Does Section 510 of ERISA
Provide a Remedy?", Notre Dame Law
Review, Vol. 62, No. 5 (1987), Joan Vogel
has a section beginning on page 1029
49
entitled "Targeting Medical Risks" which
reads:
This section will explore four
general ways that the employer
might seek to lower its
insurance costs. (1) by
dismissing sick and injured
employees;...and (4) by
establishing rules _ on
absenteeism which result in
discharging employees before
they qualify for benefits.
keke
If employees can lose their
jobs just because they need
their insurance or if they can
be fired because they pose
risks of insurance claims in
the future, few could afford
the care they need, and the
many safeguards in ERISA would
be vitiated.
In a sub-section entitled
"Absenteeism and Leave Policies" at page
1040, Professor Vogel writes:
Absentee policies can take a
number of forms.First, some
employers only excuse absences
if the employee’s illness
falls under an approved list.
kekex
50
address petitione
Other employers limit even the
number of excused absences so
that a victim of heart disease
or cancer could be terminated
before becoming eligible for
disability benefits or leave.
kek
The employer might also
severely limit the number of
days off and, perhaps, provide
no sickness and accident
insurance policy to cover the
employee before he or she
would be eligible for long
term disability benefits.
kekk
Here the employer would argue
that the intention is not
deprivation of benefits but
deterrence of excess
absenteeism, 4a legitimate
concern. Yet there are ways
of promoting that interest-
such as Dy requiring 4a
doctor’s certificate or 4
physical exam to show that the
medical condition is genuine-
that do not deprive employees
of benefits when they need
then.
iv
The Fourth Circuit’s decision fail
ed to
r’s action for damages
and injunctive relief under 29 U.S.C.
51
§1132 based on an intentional
interference with her short term
disability benefits for her migraines and
on her entitlement to long term
disability benefits.
Petitioner plead respondent’s
promises regarding benefits and that she
"is entitled to all the remedies allowed
under 29 U.S.C. 1132 [the codification of
§502] including...recovery of benefits
due her under these plans"(App 21-4,30).
She requested as relief an order
determining "her rights under defendant’s
plan" (App 34-5). As the Court noted in
Conkwright v.Westinghouse Elec. Corp.,
933 F2d 231, at 237 (4th Cir 1991) "§§502
and 510 together protect the panoply of
rights at risk in the...[benefits]
context". Petitioner was fired before she
met respondent’s qualifications to file a
Claim. All of respondent’s materials told
52
|
petitioner that her rights to benefits
terminated when she was terminated (App
395,385,386,987 L 22). In its order
signed July 3, 1990, the District Court
held that petitioner’s suit was notice
enough of her claim (SuppApp). Despite
its fiduciary duties (App 1367 L 14,1411
L 2), respondent has made no attempt to
evaluate the merits of petitioner’s claim.
Vv
The Fourth Circuit’s decision does not
address respondent’s ERISA plan’s
definition of what constitutes "total
disability" for purposes of meeting the
six month waiting period required to
qualify for long term disability benefits.
The decisions below found no
evidence of petitioner’s being disabled or
qualifying for disability, but this
overlooks the legal standard for
53
disability set out in respondent’s ERISA
documents, which read in pertinent part:
The Term Totally Disabled or
Total Disability means,
(a) during the Waiting Period
plus the first twenty-four
months of absence from work due
to disability thereafter, (i)
(b) after the Waiting Period
plus the first twenty-four
months of absence from work due
to disability thereafter,(i)
the complete inability of a
Covered Employee to engage in
any and every duty for which
the Covered Employee is or
becomes reasonably qualified by
training, education or
experience.
As can be seen, the definition of
the "total disability" required to
qualify for long term disability is the
same for the six-month waiting period
required before long-term disability
begins and for the first twenty-four
months that the employee receives
54
disability benefits. If one looks at the
documents which respondent gave petitioner
to rely upon, the standard was stated as
"Once LTD Plan benefits start, they will
continue for the next two years if you
are not able to perform the essential
duties of your job" (App.391). The
decisions below held that petitioner
was not disabled as no doctor diagnosed
her as disabled or recommended that she
stop working due to her arm injury. The
first of these holdings is contrary to the
evidence and the second overlooks the
evidence that short-term disability
benefits were not available for job-
related injuries (App.380).
Respondent’s management testified
that with job-related injuries they would
make the employee continue to come in to
work and would give her light duty work
which was as easy as necessary (App.925
55
~~
L.17-8, 926, 1119 L.11-7, 927 L.24).
Thus, the fact that petitioner continued
to try to work has no relationship to
whether she was disabled from doing the
essential duties of her job. A _ better
indicator is respondent’s actions when
petitioner’s hand was previously operated
on for a non-job-related injury. Then
respondent continued her short-term
disability payments based on her doctor’s
statement that "she still had some
limitation of motion of the thumb and
still had some tenderness [and therefore]
she is not yet able to return to her
regular work" (App.151,501,124,502 L.4).
Long-term disability applies to work
related injuries after the employee has
been given light duty work for a six-
month waiting period (App.389). When the
injury is not work related, Mr. Owens
explained "If the doctors are saying she
56
is unable to do her regular job, then...I
file a [disability] claim" (App.498 L.19-
24). Just as respondent will hold a job
for six months while an employee is on
short-term disability if the disability
is not job-related, respondent will make
light duty work available for the six-
month waiting period before long-term
disability benefits begin if the injury
is work related. The failure of the
courts below to recognize the criteria
applied to the waiting period when an
employee is on light-duty work has
resulted in the improper result which has
been reached in this case.
As to the decisions’ other point,
petitioner obviously had medical evidence
of her disability with migraines and
related symptoms and obviously was within
weeks of qualifying for long term
disability because of the migraines as of
57
April 17, 1986. The decisions below
overlook this and overlook evidence that
petitioner was in fact disabled by her
arm from January 30, 1986 to June 25,
1986, when she was officially terminated,
and that she continued to be disabled
thereafter.
CONCLUSION
Petitioner’s short term disability
benefits for her disability caused by
migraines, etc. were illegally terminated
by respondent in 1985. Respondent
disciplined and discriminated against
petitioner with warnings that were later
used to terminate her because she was
absent due to migraines covered by
respondent’s ERISA plans. The opinions
below fail to address this at all.
Respondent’s own plant doctors’ opinions
can only be read as an opinion that
petitioner could not do the _ essenial
58
’
duties of her job as she was never able
to use her right hand at work after
January 30, 1986. By the time she was
fired on June 25, 1986, petitioner was
approaching the sixth month of the
waiting period required before long-term
disability would begin. That petitioner
would have qualified for long-term
disability is Clear; that respondent had
doctors’ reports and its management could
see for themselves that petitioner was
likely to use her benefits, is beyond
dispute.
The decision of the Fourth Circuit
required petitioner to meet a scienter
Standard which the Statutory lanuage does
not require. tft did not consider
petitioner’s Claims for the loss of her
benefits or for injuntive relief. It
required petitioner to Prove that
respondent’s purposeful discrimination
59
interferred with the actual attainment of
a benefit, rather than merely proving
damages as a result of an intent to
discriminate. These are substantial
errors of law which have deprived
petitioner of her rights under the
applicable statutes.
For these reasons as_ discussed
above, this petition for certiorari
should be granted.
Respectfully submitted,
C. Richard Kelly
Post Office Box 11648
Columbia, S. C. 29211
(803) 252-6707
Counsel of Record
60
APPENDIX
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_,
KATHY FLEMING,
Plaintiff-Appelilant,
v. > No. 92-2009
BorDEN, INCORPORATED,
Defendant-Appellee.
4
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CA-89-2839-7)
Argued: June 8, 1993
Decided: June 28, 1993
Before PHILLIPS, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Charles Richard Kelly, Columbia, South Carolina,
Appellant. Melegia Lee Daniels, Jr.. DANIELS & BRA
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
LO.P. 36.5 and 36.6.
00001
Se |
2 FLEMING v. Borpben, Inc.
OPINION
granuing summary Judgment to Borden. Incorporated, on Fleming’s
Claim under the Employee Retirement Income Security Act
fi
Fleming began work on the Sanitation crew at Borden’s snack food
factory in Spartanburg, South Carolina in 1981. Various non-
occupational health problems forced her to take S¢veral extended
doctors opined that she Could return to her regular duties at the plant,
Fleming received a final waming. She failed to work a full shift the
NeXt two nights. On June 25, having missed at least sixty days of
work in 1986, Fleming was terminated by Borden due to excessive
absences.
FLEMING V. BORDEN, INC. iE
hen allowed Fleming to amend her complaint to add an ERISA
-laim, namely that Borden had discharged her in order to prevent her
om qualifying for long-term disability benefits under appellee’s ben-
‘fits plan, in violation of ERISA section 510, 29 U.S.C. § 1140.* The
jistrict court remanded the state law claims to state court. Upon their
jisposition, Borden moved for summary judgment on Fleming's
SRISA claim.
The district court granted the motion. Applying the framework set
forth in Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231 (4th
Cir. 1991), the court held that Fleming had failed to establish a prima
facie case of discriminatory discharge under section 510. While Flem-
ing claimed to have been nearing the twenty-seven week disability
threshold required for elibility for long-term benefits at the time she
was terminated, the district court noted that she never actually estab-
lished, through medical opinion or otherwise, that she was in fact dis-
abled at any time between her injury on January 30, 1986, and her
dismissal five months later. Thus, far from approaching eligibility for
long-term benefits, Fleming had not even satisfied the prerequisite
necessary to start the disability clock running. Moreover, the district
~ourt concluded that there was no evidence that the supervisors who
fired Fleming had ever even considered the possibility that she might
be proceeding toward eligibility for long-term disability benefits at
the time they discharged her. Since Fleming was unable to produce
any evidence of a causal connection between her membership in the
nenefits plan and her discharge, an essential element of her ERISA
-laim, the district court held that Borden was entitled to judgment
We have read the briefs, heard oral argument, and given full con-
sideration to Fleming’s contentions. Finding no error in the thorough
spinion of the court below, Fleming v. Borden, Inc., No. 89-2839-7
(D.S.C. July 9, 1992), and agreeing that appellant failed to establish
her disability through medical opinion during the relevant time
period, or to provide any evidence of a causal link between her dis-
*"It shall be unlawful for any person to discharge . . . a participant . ..
for the purpose of interfering with the attainment of any right to which
such participant may become entitled under the [employer's benefits|
plan." 29 U.S.C. § 1140.
000035
4 FLEMING Vv. Borpen, INc.
charge and her membership in the Borden benefits plan, we affirm on
the reasoning of the district court.
AFFIRMED
00004
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
KATHY FLEMING,
Plaintiff,
vs. C. A. No. 7:89-2839-3
BORDEN, INC.,
Defendant.
MEMORANDUM OF DECISION AND ORDER
This matter comes before the Court on
defendant’s Motion for Summary Judgment.
Plaintiff’s Complaint, as amended, alleged
numerous violations of state law, based on
both contract and tort theories, as well
as a federal claim alleging discriminatory
discharge, in violation of Section 510 of
the Employee Retirement Income Security
Act (ERISA), 29 U.S.C. Section 1140.
Plaintiff’s state law claims were remanded
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to state court and resolved there. This
Court will not consider them further. For
the reasons stated below, the Court grants
summary judgment °§ to defendant on
plaintiff’s ERISA claim.
FACTUAL BACKGROUND
Plaintiff was employed at defendant’s
snack food plant in 1981. In 1985, she
took extended leaves of absence, one for
an operation on her thumb and one for
migraine headaches. She drew short-term
disability benefits each time. She was
also absent from work on several other
days in 1985 for various reasons. She was
given two warnings in 1985 for excessive
absences. Her leaves of absence were not
counted toward her absence record. On
January 30, 1986, plaintiff suffered an
injury to her wrist at work. She returned
to work the next day on light duty and,
despite her injury, was able to work her
regular hours until the middle of April,
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1986. She saw several doctors concerning
her injury. None expressed an opinion
that she should not be working, although
she was restricted to duties which did not
involve use of her right arm. During
March, she was given a third warning for
excessive absenteeism for absences
unrelated to her injury.
After the middle of April, plaintiff
never worked a full shift. She would come
in, work for a short while, and leave,
complaining of her arm hurting. She was
informed by her superiors that her leaving
would be considered an unexcused absence
unless she brought a note from the doctor
saying she couldn’t or shouldn’t be
working. Plaintiff contends that she was
not able to stay at work during this time
because she was given jobs which required
her to use her right arm and/or made her
right arm hurt. While plaintiff did see
several doctors between the middle of
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April and her discharge, none of them ever
expressed an opinion that she should not
be working. Plaintiff eel given another
written warning, specifically about her
problems with unexcused absences, on June
12, 1986.
In late June, defendant received a
notice from an orthopedic specialist to
whom plaintiff had been referred to the
effect that he felt she could return to
her normal duties. Plaintiff was informed
of this. When she did not work a full
shift the next two nights, she was
terminated for excessive absenteeism on
June 25, 1986.
ERISA CLAIM
Under Section 510 of ERISA, it is
unlawful to discharge an employee for the
purpose of interfering with the attainment
of any right to which they may become
entitled under an employer’s benefit plan.
Plaintiff contends that the true reason
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for her discharge was to get rid of her
before she qualified for long-term
disability under the defendant’s plan.
The Fourth Circuit has determined
that a plaintiff must show specific intent
by a defendant to violate Section 510 in
order to recover. Conkwright v.
Westinghouse Electric Corp., 933 F.2d 231
(4th Cir. 1991). This may be accomplished
through direct evidence of discrimination
or the use of the prima facie case
analysis used in race and age
discrimination cases. Plaintiff has no
direct evidence of discrimination. For a
Section 510 action, the prima facie case
consists of four elements:
e Membership in a benefit plan;
2. Job performance at a level that
meets the employer’s legitimate
expectations;
P An adverse employment decision;
and
4. Some evidence which establishes
a causal connection between the
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a
employment decision and
membership in the benefit plan.
Viewing the evidence and any
reasonable inferences from the evidence in
the light most favorable to plaintiff, as
the court must do on a summary judgment
motion, plaintiff has produced no evidence
which is sufficient to supply a causal
connection between her discharge and the
long-term disability plan.
Plaintiff argues that she was well on
her way to qualifying for long-term
disability when she was discharged, and
this supplies the necessary causal
connection. Under defendant’s plan, an
employee must be disabled for six months
in order to qualify for long-term
disability. There is a dispute between
the parties concerning the standard used
by the plan to determine eligibility for
long-term disability. Plaintiff alleges
that the following language should be used
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to determine eligibility:
Once Long Term Disability
Plan benefits start, they
will continue:
* for the next two years
if you are not able to
perform the essential
duties of your job, and...
Plaintiff argues that she could not
perform the essential elements of her job
from the date of her injury in January
until her discharge in June, a period of
five months. The language cited by
plaintiff, however, applies only after an
employee has qualified for long-term
benefits. This language is the standard
used to determine continuation of benefits
for up to a two-year period following the
six-month waiting period. Defendant
points to language in the plan which
requires total and continuous disability
for the six-month waiting period in order
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to qualify for long-term disability
benefits.
It is not necessary, however, for the
Court to resolve this question, since it
is clear that a medical Opinion is
required under the plan to qualify for
disability. Plaintiff has presented no
expert medical opinion which would satisfy
either the requirement that she was unable
to perform her essential job duties during
this period or that she was totally and
continuously disabled. In fact, the
uncontroverted evidence is that she worked
her regular schedule for two and on-half
months of the five-month period she
claims. For the other half of this
period, even though she left work on a
regular basis, the opinion of the medical
experts who treated her was that she was
able to work. Clearly, plaintiff’s claims
of pain caused by her job duties would not
have been sufficient, by themselves, to
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qualify her for disability benefits.
Moreover, even had she presented medical
evidence of disability, in order to supply
the required causal connection, she would
have to show that defendant was aware of
and concerned about her growing
eligibility for long-term disability. She
has provided no evidence from which this
Court could coriclude defendant even
considered the question of whether she was
proceeding toward eligibility. The agents
of defendant who discharged her denied any
knowledge of her eligibility. There is no
evidence of any communications between
them and the administrator of the long-
term benefits plan in Columbus, Ohio,
relative to her eligibility.
Plaintiff contends that defendant
would save money by discharging her prior
to her becoming eligible for benefits.
While the only evidence in the record
seems to indicate the long-term benefits
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were funded by employee contributions, the
fact that defendant might save money by
discharging plaintiff, even if true, by
itself, is not sufficient to Supply a
Causal connection. Conkwright , Supra at
239. See Dister vy. Continental Group.
inc., 859 F.2d 1108, 1113 (2d Cir. 1988).
If that were true, any actions by an
employer that resulted in cost savings
would be evidence of discrimination.
Finally, plaintiff argues that
defendant’s attendance policy inherently
discriminates against persons who seek to
qualify for disability. This Court need
not determine if an attendance policy
which is inherently discriminatory
Supplies the requisite specific intent
required under Section 510, for in no way
can the instant Policy be considered
inherently discriminatory towards
employees who may be eligible for
disability payments. The attendance
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policy at issue allows for necessary
absences. If an employee exceeds the
plant’s average absenteeism rate, they are
given several opportunities to improve
before discharge occurs. The policy gives
due regard for those people who may suffer
from disabling medical conditions by
providing for leaves of absence, which are
not counted against an employee’s
attendance record. Plaintiff contends she
was fired for her attendance before she
could qualify for long-term disability.
Yet, her absence record for one and one-
half years, not just six months, was
considered in discharging her. The reason
her absences were counted against her was
because she never secured a medical
opinion which would have qualified her for
a leave of absence, not because of an
inherently discriminatory policy. This
case is not at all like Gavalik v.
Continental Can Co., 812 F.2d 834 (3d Cir.
000109
1987), as plaintiff suggests.
Since plaintiff has no €vidence which
would tend to prove a causal connection
between her discharge and her membership
in the disability plan, summary judgment
is proper. Even if plaintiff could
present a prima facie case, her excessive
absenteeism under defendant’s policy
provides a legitimate, non-discriminatory
reason for her dismissal. Plaintiff has
presented no evidence from which the Court
could reasonably conclude that this reason
was a pretext for benefits discrimination.
In response to a well-supported motion for
summary judgment, "a plaintiff must adduce
facts, which if taken as true, could
enable a jury to identify unlawful intent
from the various other reasons why an
employer might have terminated plaintiff
-" Conkwright, supra at 239. This the
plaintiff has not done. Her failure
mandates entry of summary judgment in
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favor of defendant.
IT IS THEREFORE ORDERED that
defendant’s Motion for Summary Judgment be
granted, and plaintiff’s Complaint be
dismissed with prejudice in its entirety.
IT IS SO ORDERED.
(s) G. Ross Anderson, Jr.
United States District Judge
Anderson, South Carolina
July, 1992
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED July 23, 1993
No. 92-2009
CA-89-2839-7
KATHY FLEMING
Plaintiff-Appellant
Vv.
BORDEN, INCORPORATED
Defendant-Appellant
On Petition for Rehearing with Suggestion
for Rehearing In Banc
The applicant’s petition for rehearing
and suggestion for rehearing in banc were
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submitted to this Court. As no member of
this Court or the panel requested a poll
on the suggestion for rehearing in banc,
and
As the panel considered the petition
for rehearing and is of the opinion that
it should be denied,
IT IS ORDERED that the petition for
rehearing and suggestion for rehearing in
banc are denied.
For the Court,
/s/_ Bert M. Montague
CLERK
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