# Petition for Writ of Certiorari — Fleming v. Borden, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0612%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 510 U.S. 1024 ## Text — 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. 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 000095 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, 00006 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 60007 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 00006 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 00009 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 00010 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 O00Li 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 00012 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 00013 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 00014 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 ' 00016 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 00017 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 00018 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 ~ 00012 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0612%3A1. Public record. Not legal advice.