# Petition for Writ of Certiorari — Sullivan v. Raytheon Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1118

## Text

a) Supreme Court, U.s.

FILED

01 745 no 2-200

No. ORC

In The
Supreme Court of the United States

r
v

DONALD E. SULLIVAN,

Petitioner,

RAYTHEON COMPANY, RAYTHEON
EMPLOYEES DISABILITY TRUST,
METROPOLITAN LIFE INSURANCE COMPANY,

Respondents.

4

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The First Circuit

}
Vv

PETITION FOR WRIT OF CERTIORARI

r
Vv

FREDERICK T. GOLDER

Counsel of Record
BERNSTEIN, GOLDER & Miter, P.A.
230 Broadway, Suite 104
Lynnfield, Massachusetts 01940
(781) 592-4000

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

14P°

QUESTIONS PRESENTED

Whether the First Circuit’s Decision affirming sum-
mary judgment of a state law claim for retaliatory dis-
charge on the basis of federal preemption under 29 U.S.C.
§185 was contrary to the holding of the Supreme Court in
the case of Lingle v. Norge Div. Of Magic Chef, Inc., 486 'J.S.
399 (1988).

Whether the First Circuit’s Decision regarding the
imposition of penalties of $100 per day for failure to
provide plan documents to participants upon request,
pursuant to 29 U.S.C. §1132(c), is contrary to the intent of
the statute, to decisions of other courts, and to the
Supreme Court.

Whether the First Circuit’s Decision affirming sum-
mary judgment in an age and handicap discrimination
under state law violated the holding in Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938) by failing to apply Massa-
chusetts law.

Whether the First Circuit’s Decision affirming sum-
mary judgment that a Plan Administrator’s denial of
benefits was not arbitrary and capricious denied the Peti-
tioner his Seventh Amendment rights to have issues of
fact decided by a jury relative to the imposition of penal-
ties for violating 29 U.S.C. §1132(c).

ii

PARTIES TO THE PROCEEDINGS
Petitioner

Donald E. Sullivaa.

Respondents

Raytheon Company, Raytheon Employees Disability
Trust, and Metropolitan Life Insurance Company.

iii

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ...........0....00ecc00e.
PARTIES TO THE PROCEEDING .................. ii
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CONSTITUTIONAL AND STATUTORY PROVI-
Ns a 5 obs woes vanes ace esceee eae 2
MPEP GO BOOED CADE, 0... cece cc cccccccvecs. 5
A. Ems Procbedinigs Below ...........sceccccecss 5
ae 7
C. The Opinion from the Court of Appeals ..... 12

REASONS FOR GRANTING THE WRIT ........... 14

I. The First Circuit Court Of Appeals Decision
Affirming Summary Judgment Of A State Law
Claim For Retaliatory Discharge On The Basis
Of Federal Preemption Under 29 U.S.C. §185
Was Contrary To The Holding Of The Supreme
Court In The Case Of Lingle v. Norge Div. Of
Magic Chef, Inc., 486 U.S. 399 (1988)........... 14

Il. The First Circuit Court Of Appeals Decision
Regarding The Imposition Of Penalties Pursuant To
29 U.S.C. §1132(c) Is Contrary To The Intent Of The
Law And Decisions In Other Circuits ........... 15

iv

TABLE OF CONTENTS - Continued
Page

Ill. The First Circuit’s Decision Affirming Summary
Judgment In An Age And Handicap Discrimina-
tion Under State Law Violated The Holding In
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)

By Failing To Apply Massachusetts Law ...... 19

IV. MetLife’s Denial Of Benefits Was Arbitrary And
| SPE OTEPE TTT Tey eer eee 25

CFI ¢ bc cecdcnccisnacecvacddcackinesbanees 27

APPENDIX
Appendix A™
Court of Appeals Opinion and Judgment,
Ps 33 une tacenccaselcedchcusereaeeenl App. 1

Appendix B

District Court Judgment and Memorandum and
GC: Der IN 6 sxc a 5 inaKs nuns dausncns App. 20

Vv

TABLE OF AUTHORIT'

Page
Cases
Abramian v. President & Fellows of Harvard College,
ee ee SN seth id enddeerévdiveedeorccas 19
Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d
We SO A UN hd vedo wencenes cdaeivewncnnnes fo
Attorney General v. Bailey, 386 Mass. 367 (1982)...... 13
Blare v. Husky Molding Systems, Inc., 419 Mass. 437
NED ee ti atwaserecercesvdescheriteskes cian’ 19, 22
Brown v. American Life Holdings, Inc., 64 F.Supp.2d
ee ey I I oo rc Si o's chloe ce cieewenks 16, 18
College-Town Division of Interco, Inc. v. MCAD, 400
BU COEDS hails casos hr dea tune caciavewesoes 20
Dahill v. Police Department of Boston, 434 Mass. 233
GE Massachusetts Commission Against Discrimination,
Guidelines on Handicap Discrimination (Guidelines), VII.

6 Guidelines, VII.
7 Guidelines, VIIA.
8 Dahill v. Police Department of Boston, 434 Mass. 233 (2001).

25

three years later of legislation extending protec-
tion in employment to handicapped persons are
recognition that persons who are physically or
mentally impaired are nevertheless capable of
becoming productive and successful members of
the workforce. We construe G.L. c. 151B, §4, to
give the fullest effect to that recognition.?

IV. MetLife’s Denial Of Benefits Was ne And
Capricious.

The First Circuit Court of Appeals upheld the district
court’s determination that the plan administrator’s denial
of benefits was not arbitrary and capricious. The district
court’s decision must be upheld unless “arbitrary, capri-
cious, or an abuse of discretion.” Diaz v. Seafarers Int'l
Union, 13 F.3d 454, 456 (1st. Cir. 1994). This standard
means that its decision will be upheld if it was within the
plan administrator’s authority, reasoned, and “supported
by substantial evidence in the record.” Associated Fisheries
of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997).
Substantial evidence, in turn, means evidence reasonably
sufficient to support a conclusion. Sufficiency, of course
does not disappear merely by reason of contradictory
evidence. Sprague v. Director, O.W.C.P., 688 F.2d 862,
865-66 (1st Cir. 1982).

The First Circuit Court of Appeals relies upon ambig-
uous evidence to conclude that MetLife’s decision to ter-
minate Sullivan’s disability benefits was not arbitrary and
capricious.

9 Dahill v. Police Department of Boston, 434 Mass. at 240-241.

26

In De Dios Cortes v. MetLife, Inc., the District Court for
the District of Puerto Rico determined that MetLife’s
determination that the Plaintiff was not totally disabled
was not reasonable and renders MetLife’s decision arbi-
trary and capricious. De Dios Cortes v. MetLife, Inc., 2000
WL 1724879 (D. Puerto Rico). In coming to this conclu-
sion, the Court relied upon the fact that MetLife failed to
consider two important pieces of medical evidence and
that MetLife failed to engage in independent evidence
gathering. Id. at 10. The Court stated “MetLife did not
interview Cortes, did not independently observe his
activities, and did not order an independent medical
examination. Although independent evidence-gathering
is not necessary in every case, in this case, the Court
concludes that the record does not contain substantial
evidence in the record to support a finding that Cortes is
not totally disabled.” Id.

This case is analogous to De Dios Cortes. In this case,
MetLife relied upon “ambiguous evidence regarding
whether Mr. Sullivan was in fact totally disabled.” (A.
440). Moreover, the most recent medical evaluation report
provided to MetLife was conducted on January 26, 1996,
which was almost one year and nine months prior to the
decision denying Sullivan’s benefits (A. 204). Thus the
record does not contain substantial evidence to support a
finding that Sullivan is not totally disabled within the
meaning of the plan. As a result, in this case, like in De
Dios Cortes, MetLife should have engaged in independent
evidence gathering to determine if Sullivan was totally
disabled. MetLife failed to do this. Furthermore, although
MetLife did not fail to consider medical evidence in this
case, it engaged in more egregious conduct. MetLife

iisidiieiiaiaieiaiaianemaiil

27

failed to provide Sullivan with the plan documents that
would have informed him of the proper standard for
obtaining the benefits (A. 202). Without the plan docu-
ments, Sullivan was unaware of the appropriate standard
and was unable to obtain another medical evaluation to
clear the ambiguity of the medical documents submitted
to MetLife. Therefore, MetLife’s denial of benefits was
arbitrary and capricious.

CONCLUSION

For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the United States
Court of Appeals for the First Circuit.

Respectfully submitted,

FREDERICK T. GOLDER

BERNSTEIN, GOLDER & MiILLer, P.A.
230 Broadway, Suite 104
Lynnfield, MA 01940

(781) 592-4000

Counsel for Petitioner

App. 1

APPENDIX A

United States Court of Appeals
For the First Circuit

No. 00-2551
DONALD E. SULLIVAN,
Plaintiff, Appellant,
v.

RAYTHEON COMPANY,
RAYTHEON DISABILITY TRUST, AND
METROPOLITAN LIFE INSURANCE COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED
STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before

Torruella and Lipez, Circuit Judges,
and Stearns, District Judge.*

Frederick T. Golder, with whom Bernstein, Golder &
Miller, P.A., was on brief for appellant.

Stephen S. Churchill, with whom James F. Kavanaugh,
Jr. and Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP
were on brief for appellees.

1 Of the District of Massachusetts, sitting by designation.

App. 2

August 29. 2001

LIPEZ, Circuit Judge. Donald Sullivan appeals from the
judgment of the district court granting summary judg-
ment in favor of his employer, Raytheon, on claims of
employment discrimination and violations of the
Employee Retired Income Security Act (ERISA). Sullivan
alleges that Raytheon discriminated against him on the
basis of disability and age in refusing to reinstate him to
his position at Raytheon. Sullivan also argues that
Raytheon’s failure to reinstate him constituted discrimi-
natory retaliation for Sullivan’s application for workers’
compensation benefits and his filing a charge with the
Massachusetts Commission Against Discrimination
(MCAD). In addition, Sullivan asserts that Raytheon and
the claims administrator of Raytheon’s long term disabil-
ity benefits plan, Metropolitan Life Insurance Company
(MetLife), wrongly denied his application for disability
benefits and violated ERISA in not furnishing him docu-
ments about Raytheon’s disability plan. Finding no error
in the determinations of the district court, we affirm.

I. Background

Sullivan began his employment as a security guard
with Raytheon in 1965. Between 1971 and 1990, he suf-
fered seven industrial accidents that caused injuries to his
neck, lower back, and legs. Sullivan sought medical treat-
ment for some of these injuries and occasionally missed
work. Shortly after Sullivan’s seventh accident in 1990,
his absenteeism from work increased. After giving him a
written warning in June 1990 and imposing a suspension
for abuse of Raytheon’s sick leave policy in September

App. 3

1991, Raytheon terminated Sullivan’s employment on
March 31, 1992.

Sullivan filed a grievance pursuant to the collective
bargaining agreement between Raytheon and his union,
the Raytheon Guards Association (the Union), challeng-
ing his termination. After a hearing on August 10, 1995,
the arbitrator found that Sullivan had been terminated
without just cause. However, noting that “on a current
and prospective basis, [Sullivan] is not able to work,” the
arbitrator ordered Sullivan reinstated retroactive to
March 31, 1992 on “inactive employment status” so that
Sullivan could apply for disability benefits under
Raytheon’s long term disability plan (the LTD plan).
Shortly after the arbitrator’s decision, Sullivan wrote to
Raytheon and requested information about the long-term
disability plan so that he could apply for benefits.

Under Raytheon’s LTD plan, benefits are payable for
twenty-four months for an employee who is “fully dis-
abled”; they are payable indefinitely for an employee
who is “totally disabled.” In statements provided to plan
participants, employees are informed that they are fully
disabled if “because of a sickness or an injury you cannot
do your job.” An employee is totally disabled if “because
of sickness or injury: (a) you can not do your job; and (b)
you can not do any other job for which you are fit by
your education, your training, or your experience.” Sul-
livan submitted an application for long-term disability
benefits in November 1995. MetLife, the claims adminis-
trator responsible for determining a participant's eligi-
bility under the plan, denied his claim in March 1996.
Metlife stated that there was “inadequate evidence of a

App. 4

disabling condition that would prevent him from per-
forming his occupation as a Guard from April 1, 1992
through the present.” In addition, MetLife concluded that
Sullivan’s application for benefits was untimely. Sullivan
appealed the denial of benefits to MetLife.

Sullivan also applied for workers’ compensation ben-
efits. On August 4, 1994, an administrative law judge for
the Massachusetts Department of Industrial Accidents
(DIA) found that Sullivan was partially disabled as of
March 22, 1992, and totally disabled as of October 12,
1994. Sullivan received workers’ compensation benefits
until 1998, when he exhausted his entitlement to them.

Sullivan requested reinstatement to Raytheon by let-
ter dated June 18, 1996. In that letter, he stated that either
he was totally disabled, in which case he should receive
long-term disability benefits, or he was not disabled, in
which case he sought reinstatement to a position with or
without reasonable accommodation. By letter dated July
10, 1996, Raytheon advised Sullivan that it would not
consider reinstating him until after MetLife considered
Sullivan’s appeal from its denial of his claim for benefits.
Sullivan filed a charge of discrimination with the MCAD
on October 9, 1996.

On October 17, 1997, MetLife determined that Sul-
livan was fully disabled for the first twenty-four months
of his disability through April 30, 1994 because he was

1 It is not clear from the record when Sullivan applied for
workers, compensation. Because the decision awarding him
benefits states that Sullivan’s claim was conferenced on July 18,
1994, we assume that his application was dated prior to that
time.

App. 5

not capable of performing his job as a security guard, and
thus entitled to benefits during that time.? In this respect,
MetLife’s decision of October 1997 differed from its
denial of benefits in March 1996. However, MetLife
affirmed its previous determination that Sullivan was not
totally disabled because he was not disabled from all
occupations for which he was fit by his training or experi-
ence. Accordingly, MetLife terminated his benefits. Sul-
livan’s appeal of that determination to MetLife was
denied.

Sullivan filed suit in Massachusetts Superior Court
on November 3, 1998. His three-count complaint included
the following claims: (1) ‘that Raytheon discriminated
against him on the basis of disability and age and
engaged in discriminatory retaliation in violation of
Mass. Gen. Laws ch. 151B; (2) that Raytheon retaliated
against him for filing a worker’s compensation claim in
violation of Mass. Gen. Laws ch. 152, § 75B; and (3) that
Raytheon violated his rights under the Employees Retire-
ment Income Security Act (ERISA), 29 U.S.C. § 1140.
Raytheon removed the case to federal district court.

In October 1999, the district court granted Raytheon’s
motion to dismiss the retaliation claims in count one and
two. Because the parties submitted evidence outside the
pleadings in arguing this motion, we treat the district

2 Although MetLife stated in its letter of October 1997 that
it was “reinstating” Sullivan’s claim to benefits through April
30, 1994 because he was fully disabled, he did not actually
receive any benefits under the plan because his social security
benefits and workers, compensation benefits reduced his
benefits under the plan to zero.

App. 6

court’s ruling as one on summary judgment. See Davis v.
Lucent Tech., Inc., 251 F.3d 227, 231 (1st Cir. 2001). The
district court granted summary judgment in favor of
Raytheon on the remaining counts in October 2000. Sul-
livan appeals these rulings.

II. Claims of Discrimination

Sullivan argues that the district court erred in grant-
ing summary judgment in favor of Raytheon on his
claims of disability and age discrimination and retalia-
tion. We review the district court’s entry of summary
judgment de novo, viewing the record in the light most
favorable to Sullivan. See Santiacro-Ramos v. Centennial
P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000).

“Summary judgment is appropriate only if ‘there is
no genuine issue as to any material fact’ and ‘the moving
party is entitled to judgment as a matter of law.’” Id.
(quoting Fed. R. Civ. P. 56 (c)).

A. Disability Discrimination

To establish a prima facie case of disability discrimi-
nation under chapter 151B of Massachusetts law, Sullivan
must demonstrate that he is a “qualified handicapped
person.” See August v. Offices Unlimited, Inc., 981 F.2d 576,
580 (1st Cir. 1992); Labonte v. Hutchins & Wheeler, 678
N.E.2d 853, 859 (Mass. 1997). Chapter 151B defines this
term as “a handicapped person who is capable of per-
forming the essential functions of a particular job, or who
would be capable of performing the essential functions of
a particular job with reasonable accommodation to his

App. 7

handicap.” Mass. Gen. Laws ch. 151B, § 1(16). Thus,
Sullivan must demonstrate that he is capable of perform-
ing, with or without reasonable accommodation, the
essential functions of the position of security guard at
Raytheon.

As the district court noted in its written memoran-
dum and order, Sullivan has “continually and consis-
tently claimed that he was totally disabled.” In a 1994
deposition, Sullivan stated that he believed he was totally
disabled from March 1992 (when Raytheon terminated
his employment) to the present time. In another deposi-
tion six years later, Sullivan stated that his condition had
stayed the same or worsened since his 1994 deposition.
Sullivan also represented that he was disabled in applica-
tions for social security disability insurance and workers’
compensation benefits. Additionally, he stated on his tax
returns for the years 1995 through 1998 that his occupa-
tion was “disabled.”

These claims of disability do not necessarily preclude
Sullivan’s ability to argue now that he is capable of
performing his job with reasonable accommodation. See
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797
(1999) (holding that pursuit of benefits under Social Secu-
rity Disability insurance (SSDI) “does not automatically
estop the recipient from pursuing an ADA claim”). How-
ever, to defeat Raytheon’s motion for summary judgment,
Sullivan must explain why the representations of total
disability he has made in the past are consistent with his
current claim that he could perform the essential func-
tions of a security guard at Raytheon with reasonable
accommodation. See id. at 798 (“To survive a defendant's
motion for summary judgment, [the plaintiff] must

App. 8

explain why that SSDI contention is consistent with her
ADA claim that she could ‘perform the essential func-
tions’ of her previous job, at least with ‘reasonable
accommodation.’ ”). Sullivan has offered no evidence to
explain this discrepancy. Accordingly, Sullivan has not
demonstrated that he is a “qualified handicapped per-
son” for purposes of chapter 151B, and summary judg-
ment in favor of Raytheon was proper. See August, 981
F.2d at 584 (“Having conceded that he was totally dis-
abled at all relevant times, [the plaintiff] cannot now
establish that he was a ‘qualified handicapped person’
and thus cannot make the prima facie case required to
prevail on his claim under Mass. Gen. L. ch. 151B, § 4
(16).” Compare D’Aprile v. Fleet Servs. Corp., 92 F.3d 1, 5
(1st Cir. 1996) (rejecting the reasoning of August where
the plaintiff “never claimed to have been totally disabled
during the time she requested her accommodation, and
demonstrated her ability to work with the accommoda-
tion she requested”).

Sullivan also contends that the district court erred in
granting summary judgment because Raytheon did not
engage in “an interactive process” with Sullivan to deter-
mine an appropriate accommodation that would allow
him to return to his position as a security guard. As
Raytheon points out, the ADA’s interpretive regulations
“may require an employer ‘to initiate an informal, inter-
active process’ with the individual seeking accommoda-
tion.” Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 19
(Ist Cir. 1998) (quoting 29 C.F.R. § 1630.2 (0)(3)). How-
ever, there is no such requirement under Massachusetts
law in chapter 151B. Moreover, even if Raytheon were
required to have engaged Sullivan in such an interactive

App. 9

process, we found in Soto-Ocasio that an interactive pro-
cess is not necessary where, as here, no reasonable trier of
fact could have found that the employee was capable of
performing the job, with or without reasonable accom-
modation, for which he was seeking reinstatement. See id.
Because Sullivan has presented no evidence to indicate
that he was capable of returning to work as a security
guard, even with a reasonable accommodation, Raytheon
was not required to engage with him in an interactive
process.

B. Age Discrimination

Sullivan also appeals the district court’s entry of
summary judgment in favor of Raytheon on his claim of
age discrimination under Mass. Gen. Laws ch. 151B, § 4
(1B).% Sullivan alleged in his complaint that he was more
~ than forty years old at the time Raytheon refused to
reinstate him and that Raytheon “hired younger persons
to fill positions for which Sullivan was qualified to fill.”
To establish a prima facie case of discrimination under
this statute, Sullivan must prove “by a preponderance of
the evidence that (1) he was a member of the protected
class; (2) he was qualified for the position in question; (3)
he was denied the position; and (4) his employer sought

3 Chapter 151B, § 4 (1B) provides that it is unlawful “[flor
an employer in the private sector, by himself or his agent,
because of the age of any individual, to refuse to hire or employ
or to bar or to discharge from employment such individual, or to
discriminate against such individual in compensation or in
terms, conditions or privileges of employment, unless based
upon a bona fide occupational qualification.”

App. 10:

to fill the position by hiring a younger individual with
qualifications similar to those of the plaintiff.” Lehman v.
Prudential Ins. Co. of Am., 74 F.3d 323, 327-28 (Ist Cir. 1996)
(footnote omitted) As we have explained in our discus-
sion of his claim for disability discrimination, Sullivan
failed to show that he was qualified for the position he
sought at Raytheon. Accordingly, he cannot establish a
prima facie case of age discrimination, and the district
court properly entered judgment in favor of Raytheon.

C. Discriminatory Retaliation

1. Retaliation for filing a charge of discrimi-
nation

Sullivan further claims that Raytheon violated his
rights under chapter 151B, § 4 (4)* by engaging in retalia-
tory discrimination in not reinstating him after he filed a
charge of discrimination with the MCAD. To establish a
prima facie case for retaliation, Sullivan had to show that:
(1) he engaged in conduct protected under Massachusetts
or federal law; (2) he “suffered an adverse employment
action”; and (3) “a causal connection existed between the
protected conduct and the adverse action.” McMillan v.
Mass. Soc’y for the Prevention of Cruelty to Animals, 140
F.3d 288, 309 (1st Cir. 1998). Sullivan’s claim falters on the
third prong of this test. He has not demonstrated a causal
connection between his protected conduct - filing a

4 Chapter 151, § 4(4) makes it illegal for an employer “to
discharge, expel or otherwise discriminate against any person
because he has .. . filed a complaint.”

App. 11

charge of discrimination with the Massachusetts Commis-
sion Against Discrimination in October 1996 - and
Raytheon’s refusal to reinstate him to his position as a
security guard in July 1996. Indeed, Sullivan concedes
this chronology in the facts section of his brief when he
states: “When Sullivan was not given disability benefits,
and was not reinstated to a suitable position at Raytheon,
he filed a Charge of Discrimination with the Massa-
chusetts commission against Discrimination on October 9,
1996.” Because Sullivan’s protected action - filing a
charge of discrimination - occurred after the adverse
employment action, we affirm the district court’s entry of
summary judgment in favor of Raytheon on the retalia-
tion claim.

2. Retaliation for filing for workers’ compen-
sation

Sullivan also claims that the district court should not
have dismissed his claim under Mass. Gen. Laws ch. 152,
§ 75B.° Section 75B “bars discrimination against qualified
handicapped workers exercising their rights under the
workers’ compensation law, which includes procedures
for filing claims for injuries, receiving payments, and
determining re-employment.” Fant v. New England Power
Serv. Co., 239 F.3d 8, 13 (1st Cir. 2001). The district court
found that this state law claim was preempted under

° Chapter 152, § 75B provides in pertinent part. - “No
employer or duly authorized agent of an employer shall
discharge, refuse to hire or in any other manner discriminate
against an employee because the employee has exercised a right
afforded by this chapter.” Mass. Gen. Laws ch. 152, § 75B(2).

App. 12

section 301 of the Labor Management Relations Act
(LMRA), 29 U.S.C. § 185.6 We agree.

“Section 301 [of the LMRA] completely preempts a
state law claim, ‘if the resolution of [the] state-law claim
depends upon the meaning of a collective bargaining
agreement. Magerer v. John Sexton & Co., 912 F.2d 525, 528
(1st Cir. 1990) (alteration in original) (quoting Lingle v.
Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06
(1988)). With respect to the Massachusetts workers’ com-
pensation statute, “the protections of § 75B are subordi-
nate to the terms of any collective bargaining agreement”
between Sullivan’s union and Raytheon. Fant, 239 F.3d at
14. See also Magerer, 912 F.2d at 529 (“[S]uch claims [under
section 75B] are, by the express terms of the statute,
subject to the terms of any applicable collective bargain-
ing agreement.”). The statute provides: “In the event that
any right set forth in this section is inconsistent with an
applicable collective bargaining agreement, such agree-
ment shall prevail.” Mass. Gen. Laws ch. 152, § 75B(3).
We have said that this language

makes clear that to the extent that the collective
bargaining agreement provides standards to
govern the conduct underlying plaintiff's retal-
iatory discharge claim, the claim will be gov-
erned by the standards of the agreement, rather
than by the standards of ch. 152 § 75B. And to
that extent, claims under section 75B will

6 Section 301 of the LMRA establishes federal jurisdiction
for [s]uits for violation of contracts between an employer and a
labor organization representing employees in an industry
affecting commerce.” 29 U.S.C. § 185(a).

App. 13

require interpretation of the agreement and,
therefore, will be preempted by Section 301.

Magerer, 912 F.2d at 529. We need not find explicitly that
the collective bargaining agreement at issue here is incon-
sistent with section 75B to find Sullivan’s claim under
that statute preempted. See Fant, 239 F.3d at 16. In similar
circumstances, we have found claims under section 75B
preempted “not because the collective bargaining agree-
ment is inconsistent with the state claims asserted, but
because it may be so and requires interpretation.” Martin
v. Shaw's Supermarkets, Inc., 105 F.3d 40, 44 (1st Cir. 1997);
see also Fant, 239 F.3d at 16 (finding retaliation claim
brought under section 75B preempted by the LMRA).

Here, the collective bargaining agreement between
Raytheon and the Union contained a management rights
clause providing that “the management and control of the
Company’s business and operations, working force and
plant, as well as the direction, supervision and assign-
ment of duties of the Guards, is vested exclusively in the
management of the Company.” This broad grant of super-
visory discretion to Raytheon could conflict with the
provisions of section 75B that place limits on Raytheon’s
ability to refuse to reinstate employees after they have
filed a claim for workers’ compensation benefits. Because
we would have to interpret the agreement to determine
whether this clause conflicts with section 75B Sullivan’s
claim is preempted. See Martin, 105 F.3d at 43-44 (finding
claim under chapter 75B preempted because of a poten-
tial conflict with the management rights clause of the
collective bargaining agreement); Magerer, 912 F. 2d at 530

App. 14

(finding that management rights clause “could be con-
strued to govern the conduct underlying plaintiff’s retal-
iatory discharge claim”). Therefore, the district court
correctly concluded that Sullivan’s section 75B claim was
preempted by § 301 of the LMRA.

We have recognized that this outcome - finding a
claim under chapter 75B preempted because of a potential
conflict with the management rights clause in a collective
bargaining agreement - seems “faintly troubling.” Martin,
105 F.3d at 44. However, the union may bargain to avoid
this outcome in the future:

If all else fails, the union is free to negotiate
language that eliminates this issue the next time
it renews its labor agreement. . . . All that it
would take to prevent preemption is an explicit
provision stating that nothing in the agreement
is intended to create management rights incon-
sistent with any workers’ rights under sections
75A and 75B. |

Id. Moreover, even if we found that Sullivan’s claim
under chapter 75B was not preempted, no rational fact-
finder could infer a discriminatory animus on Raytheon’s
part because Raytheon refused to reinstate him more than
two years after Sullivan filed for workers’ compensation.
See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir.
1991) (finding that period of nine months “suggests the
absence of a causal connection between the statutorily
protected conduct and the adverse employment action”).

App. 15

III. Termination of Benefits

The district court granted summary judgment in
favor of Raytheon, MetLife, and the Trust with respect to
Sullivan’s claim that MetLife’s termination of his disabil-
ity benefits was arbitrary and capricious. The parties
agree that MetLife had discretion to determine Sullivan's
eligibility for benefits. Where a benefits plan grants dis-
cretionary authority to the plan administrator, we review
the administrator’s decisions to determine whether they
are arbitrary and capricious. See Pari-Fasano v. ITT Hart-
ford Life & Accident Ins. Co., 230 F.3d 415, 418 (1st Cir.
2000); Terry v. Bayer Corp., 145 F. 3d 28, 40 (1st Cir. 1998).
“This standard means that [the administrator’s] decision
will be upheld if it was within [the administrator’s]
authority, reasoned, and supported by substantial evi-
dence in the record.” Doyle v. Paul Revere Life Ins. Co. 144
F. 3d 181, 184 (1st Cir. 1998) (quoting Associated Fisheries of
Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997)).
Substantial evidence exists if it is “reasonably sufficient
to support a conclusion.” Id.

There is evidence in the record that is reasonably
sufficient to support MetLife’s conclusion that Sullivan
was not disabled from all occupations for which he was
fit to perform by his training and experience. Network
Medical Review completed a review of Sullivan’s claim
file in September 1996. Based on Sullivan’s copious medi-
cal records, NMR concluded: “The medical evidence, both
subjective and objective, would support a sedentary work
environment for Mr. Sullivan... . [A] sedentary work
environment would not significantly exacerbate this
claimant’s discomfort or pain, and would not cause fur-
ther worsening of his medical conditions.” MetLife asked

App. 16

NMR to review Sullivan’s file again after providing NMR
with two additional medical reports” of his capabilities.
In its second report dated October 23, 1996, NMR stated:
“Our initial assessment concluded that Mr. Sullivan’s
physical restrictions prevented him from performing his
own occupation, but not from performing any occupa-
tion. The new information does not provide evidence that
would alter this conclusion.”

The evaluation of Sullivan’s own physician reflects a
similar assessment of his capabilities. In January 1996, Dr.
Maureen Norman completed an evaluation of his condi-
tion at MetLife’s request. While Dr. Norman indicated on
her report form that Sullivan was disabled from his own
occupation as a security guard, she also indicated that she
could not determine whether he was totally disabled
from any occupation. Dr. Norman also reported that Sul-
livan was a candidate for “vocational rehabilitation
(retraining for a different occupation)” and physical reha-
bilitation.

In trying to prove that he is totally disabled within
the meaning of the LTD plan, Sullivan relies on the medi-
cal opinion of Dr. George Hazel, a physician asked to
evaluate him in October, 1994 for the DIA in connection
with his claim for workers’ compensation. In that report,
Dr. Hazel stated that “at the present time [Sullivan] is
medically disabled and that the disability is permanent
and the level of activity [of] the patient is significantly
restricted.” However, Dr. Hazel also noted that Sullivan

7 MetLife provided NMR with the reports of Dr. Maureen
Norman and Dr. George Hazel for this second review. We
discuss both of these reports below.

App. 17

had “numerous unassociated somatic complaints which
makes evaluation difficult.” For this reason, NMR
declined to find, based on Dr. Hazel’s evaluation, that
Sullivan was totally disabled under the LTD plan. In
reviewing Dr. Hazel’s report, NMR also noted that some
of the symptoms described by Dr. Hazel were dependent
on subjective factors such as Sullivan’s willingness to
cooperate with the exam.

Based on this evidence, we cannot conclude that
MetLife’s decision to terminate Sullivan’s disability bene-
fits was arbitrary and capricious. The reports from NMR,
while acknowledging that Sullivan’s work environment
should be structured to avoid aggravating his disability,
indicate that Sullivan is capable of working in some occu-
pation for which he is trained. See Doyle, 144 F.3d at 186
(affirming denial of long-term benefits where the evi-
dence indicated the plaintiff “was not ‘totally disabled
from any occupation’ because he retained a ‘sedentary’
work capacity and a potential for further rehabilitation”).
Moreover, the report most favorable to Sullivan’s claim of
total disability, Dr. Hazel’s assessment, evaluated his
capacity in the context of his claim for workers’ compen-
sation benefits and did not consider whether Sullivan
was totally disabled from every occupation for which he
was fit by training or experiences.8 Therefore, MetLife’s

§ Putting the shortcomings of Dr. Hazel’s evaluation aside,
his conclusion that Sullivan’s disability is permanent does not
compel a finding that MetLife’s termination of Sullivan’s
benefits was arbitrary and Capricious. As we have said,
sufficiency of the evidence to support MetLife’s determination
“does not disappear merely by reason of contradictory
evidence.” Doyle, 144 F.3d at 184.

App. 18

decision to terminate Sullivan’s disability benefits under
the LTD plan was not arbitrary and capricious.

IV. Penalties for Failure to Provide Plan Documents

Finally, Sullivan appeals the district court’s decision
not to impose penalties against MetLife pursuant to 29
U.S.C. § 1132(c)(1)? for failing to provide documents
about the long term disability plan. The district court
noted that there was disputed evidence about whether
Sullivan did or did not receive the documents, but found
that “whether or not he had the plan documents, Sullivan
exercised his rights under the plan and provided the type
of [medical] information that was required for a decision
to be made.” Because MetLife “carefully analyzed the
medical evidence and relied on it,” the district court
concluded that Sullivan had not been prejudiced even if
Raytheon had not furnished the documents he requested.
We review the court’s determination for abuse of discre-
tion. See Rodriguez-Abreu v. Chase Manhattan Bank, N.A.,
986 F.2d 580, 588 (1st Cir. 1993).

As the district court found, Sullivan has offered no
evidence that MetLife acted in bad faith in not providing

9 29 U.S.C. § 1132 (c) (1) provides in pertinent part: “Any
administrator . . . who fails or refuses to comply with a request
for any information which such administrator is required by
this subchapter to furnish to a participant or beneficiary...may
in the court’s discretion be personally liable to such participant
or beneficiary in the amount of up to $100 a day from the date of
such failure or refusal, and the court may in its discretion order
such other relief as it deems proper.” :

App. 19

him with the documents in a more timely fashion. Addi-
tionally, Sullivan has not demonstrated that he was preju-
diced by any delay in receiving the documents. We agree
with Sullivan that showings of bad faith and prejudice
are not necessary for a court to award penalties under
§ 1132 (c) (1). See id. at 588(“[P]rejudice and bad faith are
not prerequisites for imposition of penalties.”). However,
the district court did not require Sullivan to prove that
Raytheon acted in bad faith or that he was prejudiced.
Instead, the court appropriately cited the absence of those
factors among the reasons for its decision not to award
penalties. Accordingly, we find no abuse of discretion in
the district court’s ruling. See id. at 588-89 (finding no
abuse of discretion where the district court considered
the absence of prejudice and bad faith in declining to
award penalties).

Affirmed.

App. 20

APPENDIX B

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DONALD E. SULLIVAN,
Plaintiff,
C.A. No.

* 98-12395-MLW

RAYTHEON COMPANY,
RAYTHEON EMPLOYEES
DISABILITY TRUST,
METROPOLITAN LIFE
INSURANCE COMPANY,
Defendants.

ee ee ee ee

MEMORANDUM AND ORDER
WOLF, D.]J. December 26, 2000

This memorandum is based upon the transcript of
the decision rendered orally on October 17, 2000, allow-
ing the defendants’ motions for summary judgment. This
memorandum adds citations, deletes some colloquy, clari-
fies some language, and provides more details concerning
one of the decisions at issue.!

1 The court notes that the Court of Appeals for the First
Circuit addressed a similar issue shortly after the instant case
was decided. In Pari-Fasano v. ITT Hartford Life and Accident Ins.
Co., 230 F.3d 415 (1st. Cir. 2000) (decided October 24, 2000), the
court held that the termination of the plaintiff’s long-term
disability benefits was not an abuse of discretion despite the fact
that the plaintiff had been collecting Social Security disability
benefits based on the same disability for which she was
claiming benefits from the defendant.

App. 21

I. SUMMARY

For the reasons described below, I am allowing the
motions for summary judgment of defendants Raytheon
Company, Raytheon Employees Disability Trust and Met-
ropolitan Life Insurance Company. As I will explain, with
regard to the plaintiff Donald E. Sullivan’s Employee
Retirement Income Security Act (“ERISA”) claims, the
record demonstrates that the defendant did not act in an
arbitrary and capricious manner in denying Sullivan’s
application for benefits.

Similarly, although there is a dispute with regard to
whether Sullivan timely received plan documents and I
must credit his version of events for present purposes,
that dispute is not material. With regard to Sullivan’s
claim that he has been discriminated against based on a
disability, the motion for summary judgment is being
denied because Sullivan has consistently maintained that
he is totally disabled and thus unable to perform the
duties of a Raytheon security guard or any other
Raytheon job, even with reasonable accommodations.

Finally, I find the defendants are entitled to summary
judgment on Sullivan’s claim that he was discriminated
against based on his age because he has not provided any
evidence to support his contention that Raytheon’s stated
reason for his termination, excessive absenteeism, was
pretext for its alleged real motive, discrimination based
on age.

App. 22

Il. THE APPLICABLE STANDARD

Federal Rule of Civil Procedure 56 establishes the
standard for motions for summary judgment, which are
to [sic] granted if no material facts are genuinely in
dispute and the moving party is entitled to judgment as a
matter of law. The facts must be viewed in the light most
favorable to the plaintiff. Woods v. Friction Materials, Inc.,
30 F. 3d 255, 259 (1st Cir. 1994). However, “when a party
fails to make a showing sufficient to establish the exis-
tence of an element essential to that party’s case, and on
which that party bears the burden of proof at trial, there
can no longer be a genuine issue as to any material
fact... and’the moving party is entitled to judgment as a
matter of law.” Smith v. Stratus Computers, Inc., 40 F.3d 11,
12 (1st Cir. 1994), cert. denied, 514 U-S. 1108 (1995) (cita-
tion omitted). The applicable law defines what facts are
material. Anderson v. Liberty Lobby, 477 U.S. 242, 247-48
(1986). Facts are genuinely in dispute if there is sufficient
evidence for a reasonable fact-finder to find in favor of
the plaintiff. Id.; see also Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); Oliver v. Digital
Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988).

Ill. THE FACTS

The relevant background facts viewed in the light
most favorable to the plaintiff include the following. The
plaintiff, Donald Sullivan, was born on December 25,
1935. He began his employment as a security guard with
Raytheon in 1965. Sullivan was a participant of the
Raytheon Company Long Term Disability Plan (the “LTD
plan”)

App. 23

Pursuant to the LTD plan, benefits are payable dur-
ing the first 24 months of disability to an employee who
is “fully disabled.” They are payable after that to an
employee who is “totally disabled.” Fully disabled is
defined to mean that “because of a sickness or an injury
you cannot do your job.” Totally disabled is defined to
mean that “because of a sickness or an injury: (a) you
cannot do your job; and (b) you cannot do any other job
for which you are fit by your education, your training or
your experience.”

Raytheon is the designated plan administrator and is
responsible for the general administration of the LTD
plan. MetLife is the claims administrator and is responsi-
ble for determining a participant's eligibility for benefits.

Sullivan sustained his first industrial accident at
Raytheon in 1971 or 1972 when he tripped and fell. He
sustained his second industrial accident in 1978 when he
slipped on grease and injured his neck, shoulder, elbow,
knee, hip, and back, resulting in Sullivan being out of
work for several months. When he returned to work in
1978, he continued to receive medical treatments while
performing his regular duties. In 1984, Sullivan sustained
a third industrial accident, injuring his shoulder, neck,
back, and knee, and was out on worker’s compensation
for about a year. Sullivan returned to work in 1985,
performing all of his regular duties, except driving, due
to his neck.

Sullivan sustained his fourth industrial accident on
March 24, 1988. He did not miss significant time from
work, but he did receive medical treatment. On March 27,
1988, Sullivan sustained a fifth industrial accident and

App. 24

was out of work on worker’s compensation for one year.
He returned in May, 1989 with certain restrictions
because of his industrial accidents.

According to Sullivan, “[t]he reasonable accommoda-
tions required for him were that there would be no pro-
longed standing or sitting, no extensive walking, no
lifting, bending, and remaining out of cold and damp
environments.” Complaint {15. Sullivan alleges that he
was forced to work beyond his limitations and, as a
result, missed time from work because of his impairments
and pain. He sustained a sixth industrial accident in
December, 1989, and a seventh in 1990. After these acci-
dents, his impairments became even more severe and, as
a result of the impairments and increased pain, his
absentee rate increased.

In the spring of 1989, Sullivan was assigned as a
security guard at the Gore. Building, an assignment
within his physical capabilities. On June 28, 1990, he was
given a written warning for “sick leave abuse.” On Sep-
tember 16, 1991, he was given a 30-day suspension for
excessive absenteeism. On March 31, 1992, Raytheon dis-
charged Sullivan for excessive absenteeism, the pattern of
the absences, and abusing sick leave.

Prior to July 18, 1994, Sullivan filed a claim with the
Department of Industrial Accidents (“DIA”) for worker’s
compensation benefits. On August 4, 1994, the adminis-
trative judge of the DIA ordered that benefits be paid to
him. The DIA administrative judge subsequently found
that Sullivan was partially disabled from March 22, 1992
to October 11, 1994, and that he was totally disabled after
October 12, 1994.

App. 25

Sullivan was a member of a labor union, the
Raytheon Guards Association, and subject to a collective
bargaining agreement with Raytheon. When he was dis-
charged on March 31, 1992, he filed a grievance with the
union to determine whether Raytheon had just cause for
the discharge. After an arbitration proceeding, on August
10, 1995, the arbitrator found that Sullivan’s discharge
was “not for proper or just cause” and ordered him
reinstated retroactive to March 31, 1992.

Pursuant to the arbitrator’s August 10, 1995 decision,
Sullivan wrote to James Kavanaugh, counsel for
Raytheon, and requested information in order to file an
application for disability and benefits. According to Sul-
livan, he received no written response, but he was
instructed by counsel to obtain the information directly
from Raytheon.? Sullivan subsequently requested the nec-
essary information from Raytheon.

Sullivan received and filled out an application for
disability benefits and forwarded the application to
Raytheon on November 10, 1995. MetLife denied the dis-
ability benefits to Sullivan on March 15, 1996, determin-
ing that he was not disabled under the terms of the LTD
plan and that the claim was untimely. MetLife also
informed Sullivan that he could request a review of its
decision within 60 days.

? Raytheon asserts that Sullivan had previously received
the documents that he requested. However, for the purposes of
deciding the motion for summary judgment, the court must
credit Sullivan’s version of this dispute.

App. 26

_ Sullivan wrote to Raytheon and requested that he
\ either be given disability benefits or, if he was not consid-
ered disabled, that he be placed in a suitable position at
Raytheon. He was instructed to file an appeal from the
March 15, 1996 determination denying disability benefits,
and he did so. When he was not paid disability benefits
or reinstated to a suitable position, Sullivan filed a charge
of discrimination with the Massachusetts Commission
Against Discrimination (“MCAD”) on October 9, 1996.
On September 3, 1997, Sullivan sent a letter to Raytheon
stating that, since he had not heard from Raytheon within
120 days of his appeal of the March 15, 1996 benefits
denial, “it*would appear that the appeal is deemed
denied.” Sullivan asked Raytheon to provide whatever
documents were necessary to appeal the “decision
deemed denied.”

On October 17, 1997, MetLife affirmed its March 15,
1996 decision to terminate benefits. In the October 17,
1997 decision, MetLife carefully explained its analysis of
the evidence submitted by five experts, including Sul-
livan’s treating physician Dr. Maureen Norman, and all
the other information received. MetLife concluded that
Sullivan was then totally disabled from performing his
occupation, but capable of performing sedentary work.
Thus, based exclusively on its evaluation of the medical
evidence, MetLife reinstated Sullivan’s claim through
April 30, 1994, and upheld its original decision to termi-
nate benefits after that date. In its October 17, 1997 deci-
sion, MetLife neither mentioned the timing of Sullivan’s
application nor suggested that it was being denied
because it was untimely.

Peper cies 22014 ee ema ee eee, enone

App. 27

On October 22, 1997, Sullivan appealed the October
17, 1997 decision and requested that the trust provide the
plan documents. On October 28, 1997, MetLife advised
Sullivan that no further appeals were available. On
November 7, 1997, Sullivan again requested the appropri-
ate plan documents so that he could file an appeal, but no
response was made to that request. On December 11,1997,
Sullivan requested the plan documents again, and again
received no response.

Sullivan’s complaint asserts the following claims
against Raytheon: Count 1, a violation of Mass. Gen.
Laws ch. 151B, because of alleged discrimination based
on age and handicap and retaliation; Count 2, a violation
of Mass. Gen. Laws ch. 152, § 75B; and Count 3, a viola-
tion of ERISA, 29 U.S.C. § 1140. He seeks to be reinstated

to a suitable position at Raytheon and requests that he be
: Provided with a reasonable accommodation. He also
seeks all back pay from March 31, 1992 until he was
reinstated, as well as damages for emotional distress,
compensatory damages, reasonable attorneys’ fees and
costs.

IV. ANALYSIS

With regard to the motion for summary judgment on
Count 3, the ERISA claim, the Parties agree that the court
must decide if the administrator’s decision was arbitrary
and capricious. This agreement is correct. In Chandler v.
Raytheon Employees Disability Trust, 53 F.Supp. 2d 84, 90
(D.Mass. 1999), aff’d, 229 F.3d 1133, 2000 WL 800788, **1
(1st Cir. 2000), both Judge Patti Saris of this District Court
and the Court of Appeals for the First Circuit found that

App. 28

the Raytheon plan at issue here gave the administrator
sufficient discretion to require application of the arbitrary
and capricious standard.

The arbitrary and capricious standard means that the
plan administrator’s decision must be upheld if it was
supported by substantial evidence in the record. See Doyle
v. Paul Revere Life Insurance Company, 144 F.3d 181, 184
(1st Cir. 1998). Substantial evidence means evidence rea-
sonably sufficient to support a conclusion. Id.

The defendants have identified the following evi-
dence supporting their decision that Sullivan was not
disabled from all occupations outside of work at
Raytheon. First, Network Medical Review (“NMR”) con-
ducted an independent medical review, which found that
Sullivan was disabled from his job as a guard, but was
not disabled from all occupations. Claim File of Metro-
politan Insurance Company (“MetLife Claim File”) at
063-068. Next, on January 29, 1996, at MetLife’s request,
Sullivan’s longstanding treating physician, Dr. Norman,
completed a Statement of Attending Physician. Id. at
473-474, 477-479. Dr. Norman found that Sullivan was
totally disabled from his own occupation, but she
expressly found that she could not determine whether he
was disabled from any occupation. Id. at 479. She further
stated that he was a suitable candidate for “vocational
rehabilitation (retraining for a different occupation)”. Id.
MetLife’s third reason for its determination that Sullivan
was not totally disabled was the lack of objective evi-
dence regarding the actual extent of Sullivan’s functional
limitations. Id. at 027-028.

App. 29

This evidence is analogous to the evidence held to be
sufficient to grant summary judgment for the defendants
in Chandler. See 53 F. Supp. 2d at 86-91. In Chandler, as in
the instant case, the parties disputed whether the plaintiff
was totally disabled as defined in Raytheon’s long-term
disability plan. MetLife relied on the following evidence
to support its determination that Chandler was not, in
fact, “totally disabled.” MetLife’s doctor opined that
Chandler, who was employed at Raytheon as a missile
test operator, could do any kind of work that did not
require heavy lifting or repeated bending over. Id. at 86.
In addition, a vocational assessor concluded that
Chandler had transferable skills for sedentary and light
duty occupations. Id.

The evidence supporting MetLife’s decision to termi-
nate benefits for Sullivan appears to be stronger than the
evidence relied on by MetLife in Chandlex. During its
evaluation of both Chandler and Sullivan, MetLife relied
heavily, it appears, on assessments by an NMR doctor
who reviewed records of the claimant's treating physi-
cian. Here, however, Sullivan’s own doctor provided
ambiguous evidence regarding whether Sullivan was in
fact totally disabled. In contrast, in Chandler, three differ-
ent treating physicians unanimously maintained that the
claimant was totally disabled. Id. at 87. Thus, as MetLife’s
decision to terminate Chandler’s benefits was not arbi-
trary and capricious, the decision to terminate Sullivan’s
benefits was not arbitrary and capricious either.

Sullivan argues that he has presented a genuine dis-
pute concerning a material fact regarding whether the
defendants abused their discretion and acted in an arbi-
trary and capricious manner. Essentially, he makes two

App. 30

arguments. First, he claims that, despite his repeated
requests, Sullivan was never provided a copy of the Plan.
Second, he asserts that the decision to deny him benefits
was based on outdated information that was furnished in
1994.

Sullivan provides no case law to support his conten-
tion that the failure to provide him with copies of the
LTD plan makes the decision to deny him benefits arbi-
trary and capricious. In fact, the information Sullivan had
at his disposal is not relevant to the decision-making
process of the plan administrators, as long as he had an
adequate opportunity to provide the type of information
necessary for a decision to be made properly. See Medi-
trust Financial Services Corp. v. The Sterling Chemicals, Inc.,
168 F.3d 211, 215 (Sth Cir. 1999) (citing Wildbur v. Arco
Chemical Co., 974 F. 2d 631, 639 (5th Cir. 1992)). Since
courts may consider only the evidence available to the
plan administrator at the time the final decision was
made in reviewing whether that decision was arbitrary
and capricious, Sullivan’s first argument is unavailing.
See Chandler, 53 F.Supp. 2d at 85, n.1, (citing Miller v.
Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991)).

Sullivan was not prejudiced if, as he asserts and I
assume for present purposes, he did not have some or all
of the plan documents. He nevertheless provided the
right kind of information, including information from his
attending physician, addressing the relevant questions.

Sullivan also provides no case law to support his
argument that reliance on outdated medical assessments
makes a termination assessment arbitrary and capricious.

App. 31

However, even assuming, without finding, this conten-
tion is correct as a matter of law, the undisputed facts in
this case indicate that MetLife did not solely rely on
outdated medical assessments. Rather, the evidence indi-
cates that when Sullivan’s claim for disability benefits
was denied initially on March 15, 1996 and subsequently,
on October 17, 1997, MetLife had information that sup-
plemented the information submitted in 1994 that Sul-
livan now claims was stale.

More specifically, MetLife had information from Sul-
livan’s treating physician, Dr. Norman, that was com-
pleted at MetLife’s request on January 29, 1996.
Defendants’ [First] Statement of Material Facts, {15. Dr.
Norman’s most recent examination of Sullivan prior to
the issuance of that report occurred on January 26, 1996.
Id. Sullivan admits that this report was completed and
that Doctor Norman examined him on Januaty 26, 1996.
Piaintiff’s [First] Response to Defendants’ Statement of
Material Facts, {15. Thus, MetLife had reasonably up-to-
date information when it made its original decision in
March, 1996.

Defendants are also entitled to summary judgment
on Sullivan’s claim that the alleged failure to provide him
plan information entitles him to a penalty of $100 a day.
This issue arises under 29 U.S.C. § 1132(c)(1), which
states, in relevant part:

Any administrator . . . who fails or refuses to
comply with a request for any information
which such administrator is required by this
subchapter to furnish to a participant or a bene-
ficiary (unless such failure or refusal results
from matters reasonably beyond the control of

App. 32

the administrator) by mailing the material
requested to the last known address of the
requesting participant or beneficiary within 30
days after such request may in the court’s dis-
cretion be personally liable to such participant
or beneficiary in the amount of up to $100 a day
from the date of such failure or refusal, and the
court may in its discretion order such other
relief as it deems proper... .

In this case, the evidence places in dispute whether the
plaintiff received the plan documents that he requested.
For present purposes, I must assume that he did not.
However, that dispute is not material. The penalty pro-
vided by the statute is discretionary, not mandatory.
There is no evidence, let alone proof, in this case that if
Raytheon did not provide the documents, it was acting in
bad faith. More significantly, there is no evidence that the
plaintiff was prejudiced in the ultimate outcome of his
request for disability benefits.

Sullivan’s application was denied on March 15, 1996
because the medical evidence did not support his claim
and because the application was characterized as
untimely. As described earlier, MetLife was acting within
its discretion in finding the medical evidence inadequate.
Therefore, even if it also relied on any untimeliness of the
application which was caused by a failure to provide
Sullivan plan documents, he was not prejudiced. See, e.g.,
In re Public Service Co. of New Hampshire, 879 F.2d 987, 989
(1st Cir. 1989). (As long as there is one correct ground for
a decision, it must be affirmed on appeal).

More significantly, in response to Sullivan’s appeal,
MetLife carefully analyzed the medical evidence and

App. 33

relied on it exclusively in its October 17, 1997 final deci-
sion denying Sullivan’s request for benefits. Sullivan was,
therefore, not prejudiced even if, contrary to this court's
conclusion, the March 15, 1996 decision was affected by
the alleged fact that he was not furnished documents that
he requested.

In essence, whether or not he had the plan docu-
ments, Sullivan exercised his rights under the plan and
provided the type of information that was required for a
decision to be made. The administrator in a legitimate
exercise of its discretion found that information was not
sufficient to justify the award of the benefits that Sullivan
was seeking.

The court would not in these circumstances exercise
its discretion to award a penalty, even if plaintiff’s ver-
sion of events were proven true at a trial, Thus, the
factual dispute concerning whether Sullivan received the
documents that he requested is not material. See
Rodriguez-Abreau v. Chase Manhattan Bank, 986 F.2d 580,
588 (1st Cir. 1993).

The motion for summary judgment concerning Count
1, which alleges discrimination based on disability in
violation of Mass. Gen. Laws ch. 151B, § 4, subdiv. 16,
(and also perhaps Mass. Gen. Laws ch. 152) is also mer-
itorious.

The statute that is of primary importance is Mass.
Gen. Laws ch. 151B, § 4. It makes it unlawful:

[flor any employer . . . to dismiss from employ-
ment or refuse to hire or rehire or otherwise
discriminate against because of his handicap

App. 34

any person alleging to be a qualified hand-
icapped person capable of performing essential
functions of the position involved with a reason-
able accommodation unless the employer can
demonstrate that the accommodation required
to be made to the physical or mental limitations
of the person would impose an undue hardship
on the employer’s business. _

Under the statute, the term “qualified handicapped
person” means “a handicapped person who’s capable of
performing the essential functions of a particular job or
would be capable of performing the essential functions of
a particular job with a reasonable accommodation to his
handicap.” Mass. Gen. Laws ch. 151B, § 1 subdiv. 16.

To state a claim for handicap discrimination, the
plaintiff must assert that he was handicapped at the
relevant time; that he was qualified to perform the essen-
tial functions of a job, notwithstanding his handicap; that
he was terminated because of his handicap; and that after
his termination, either a nonhandicapped person was
hired or the position remained vacant. See Larosa v. United
Parcel Service, Inc., 23 F. Supp. 2d 136, 145 (D. Mass. 1998);
Reidy v. Travelers Ins. Co., 928 F.Supp. 98, 109 (D.Mass.
1996}, a**'d, 107 F.3d I (1st Cir. 1997).

The Court of Appeals for the First Circuit has found
that a handicapped employee seeking reinstatement must
show that at the time he sought reinstatement he was
qualified for the job or qualified for the job if reasonable
accommodations were made. August v. Offices Unlimited,
Inc., 981 P. 2d 576, 583-84 (1st Cir. 1992). In August, a
furniture salesman who claimed his clinical depression
rendered him disabled at all times relevant to the dispute

App. 35

with his employer could not establish that he was quali-
fied for the position when he sought reinstatement. Id. at
583. Therefore, the Court of Appeals for the First Circuit
affirmed the trial court’s granting summary judgment in
favor of the employer. Id. at 584. At no time did the
salesman renounce statements on his insurance forms
that he was totally disabled. Id. at 583.

In the instant case, as in August, the plaintiff has
continually and consistently claimed that he was totally
disabled. For example, in a 1994 deposition, Sullivan
stated that he believed that from March, 1992 until the
date of the deposition, he was totally disabled. May 11,
1994 Deposition of Donald Sullivan at 139-140. Six years
later, he testified that his condition had stayed the same
or worsened since 1992. April 20, 2000 Deposition of
Donald Sullivan at 14-15. Sullivan has identified no evi-
dence in the record indicating that he renounted or con-
tradicted this position.

Moreover, Sullivan’s treating physician and, appar-
ently, sole expert witness, Dr. Norman, found that Sul-
livan was “totally disabled” from his present occupation,
“never” able to resume work activities and, most signifi-
cantly, that he was not a “suitable candidate” for
Raytheon’s modified work program. MetLife Claim File
at 479.

The plaintiff, in a belated opposition filed the day
before the October 17, 2000 hearing, argues that the rela-
tively recent Supreme Court decision in Cleveland v. Policy
Management, 526 U.S. 795 (1999), supports his position
that his claim of total disability is not fatal to his allega-
tion of discrimination based on a handicap. In Cleveland,

App. 36

the Supreme Court allowed a claimant to offer an expla-
nation for discrepancies between testimony from an ear-
lier Social Security Insurance (“SSDI”) application, and a
subsequent Americans with Disability Act (“ADA”)
claim. Thus, in contrast to August, Cleveland holds that a
claimant’s earlier assertions of total disability are not
automatically fatal to a claim of handicap discrimination.
Id. at 797. Rather, the court should provide an ADA
claimant the opportunity to explain why that SSDI con-
tention of disability is consistent with his claim that he
could perform the essential functions of his job, at least
with reasonable accommodation. Id. at 798.

However, Cleveland does not govern the instant case
because it addresses representations made during two
different proceedings. Id. at 798-99. Nothing in Cleveland
indicates a willingness by the Supreme Court to permit a
plaintiff to maintain simultaneously during a single pro-
ceeding, such as this case, that he was totally disabled for
the purposes of one claim, but that he was able with
reasonable accommodations to perform a job for the pur-
poses of another. As the Court of Appeals for the Seventh
Circuit noted in Feldman v. American Memorial Life Insur-
ance Company, 196 F.3d 783, 791 (7th Cir. 1999), “[W]e
cannot permit litigants to adopt an alternate story each
time it advantages them to change the facts.”

The instant case is distinguishable from Cleveland for
another reason. In Cleveland, the Supreme Court devoted
considerable attention to the conflicting purposes of the
ADA and SSDI proceedings. Cleveland, 526 U.S. at 802-05.
The Court pointed out that unlike the ADA, “when the
SSA determines an individual is disabled for SSDI pur-
poses, it does not take the possibility of ‘reasonable

App. 37
accommodation’ into account, nor need an applicant refer
to the possibility of reasonable accommodation when she
applies for SSDI.” Id. at 803. The parties have not
addressed directly whether the possibility of reasonable
accommodations was taken into account during MetLife’s
claim evaluation process. However, the claim form ques-
tion regarding modified work assignments indicates that
the possibility of reasonable accommodation is consid-
ered. MetLife Claim File at 479.

It is not clear whether a person seeking total disabil-
ity under the Raytheon LTD plan explicitly or implicitly
maintains that no reasonable accommodation is possible.
In any event, however, the holding in Cleveland appears
narrowly tailored to the estoppel effect of statements
made during SSDI proceedings on later claims pursuant
to the ADA. Id. at 805-07. As the court in Feldman noted,
however, “[j]udicial estoppel of an ADA cleim . . . is
distinguishable from summary judgment against the
plaintiff when factual assertions essential to the claim are
undermined by the plaintiff’s previous sworn state-
ments.” Feldman, 196 F.3d at 791. Therefore, Cleveland is
instructive, but not dispositive, for the instant case.

Finally, with regard to the claim of discrimination
based on 20 age in violation of Mass. Gen. Laws ch. 151B,
the motion for summary judgment is also meritorious. A
plaintiff claiming age discrimination under Mass. Gen.
Laws ch. 151B must offer evidence that he was at least 40
years old; that he met his employer’s legitimate job
expectations; he was fired; and his employer did not treat
age neutrally in making the decision to fire him. Brennan
v. GTE Government Systems Corp., 150 F. 3d 21, 26 (1st Cir.
1998).

App. 38

In essence, to survive a motion for summary judg-
ment a plaintiff must meet the standards recently articu-
lated by the Massachusetts Supreme Judicial Court in
Abramian v. President and Fellows of Harvard College and
Others, 432 Mass. 107, 118 (2000). Essentially, the plaintiff
must offer evidence that would be sufficient, if believed,
to prove that the stated reasons for his termination, in
this case excessive absenteeism, was a pretext for age
discrimination. Id.

The plaintiff alleges that the stated reason for his
termination was pretextual. However, he offers no direct
or indirect evidence of pretext, let alone a pretext for
discrimination based on age. For example, there is no
evidence that the defendant hired a younger person to fill
his job; there is no evidence that other older people were
generally terminated and replaced by younger people;
and there is no statistical evidence at all.

Thus, this is a case in which the standards of Abra-
mian v. Harvard College have not been met. Therefore, the
motion for summary judgment with regard to the age
discrimination Claim must be granted as well.

V. ORDER

For the foregoing reasons, it is hereby ORDERED that
defendants’ first motion for partial summary judgment
(Docket No. 23) and second motion for partial summary
judgment (Docket No. 33) are each ALLOWED.

UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0772%3A1. Public record. Not legal advice.