Opinion
Civil Action No. 02-12290-GAO.
May 13, 2005
MEMORANDUM AND ORDER
After careful review of the parties' submissions and oral argument on the pending motion, I conclude that summary judgment ought to be granted for the defendant J.P. Morgan Investor Services ("JPMIS") on counts one and four of the amended complaint.
Counts two and three of the four-count amended complaint were previously dismissed.
I. Count One — Violation of the Employee Retirement Income Security Act ("ERISA")
In count one of the amended complaint, Dube seeks the imposition of a statutory $100 per day penalty on JPMIS for its failure to furnish him with disability plan information within thirty days after his request for the information. See 29 U.S.C. 1132(c)(1)(B). It is undisputed that sometime in mid-October 2002, Dube telephoned Lisa Lewis, a JPMIS human resources administrator, and requested copies of short-term and long-term disability plan documents. Dube again requested this information in an email to Lewis and Paula Ventura, assistant vice president of human resources, on October 21, 2002. Dube also sent a certified letter dated October 24, 2002, to Ventura requesting the same information. Lewis initially responded to these requests by leaving three telephone voice mail messages for Dube indicating that because his employment had been terminated in June 2002, he was not entitled to the disability plan information. Dube filed this action on November 25, 2002.
On December 6, 2002, JPMIS says it sent Dube the requested short-term and long-term disability plan information, but he claims he did not receive this delivery. In early December, Dube telephoned Tony Feato at the U.S. Department of Labor for assistance. On December 17, 2002, Ventura spoke with Feato by telephone regarding Dube's request and that same day Ventura sent copies of the plan documents to Feato, who in turn sent them to Dube. There is no dispute that Dube received copies of the short-term and long-term disability plan documents from Feato on December 20, 2002. Thus, Dube had received the documents requested within two months of his request, rather than within one month as required under the statute.
Dube's objection that the documents he received in December 2002 were out-dated, irrelevant, and inaccurate because a new updated summary plan description was scheduled to be released in early 2003 is without merit. The documents Dube received in December 2002 were the relevant short-term and long-term disability plan documents in existence at the time of his request.
Dube is not required to prove that JPMIS acted in bad faith or that he was prejudiced by the delay in his receiving the documents, but I consider the absence of those factors here to support a denial of the imposition of a penalty against JPMIS for the delay. See Sullivan v. Raytheon Co., 262 F.3d 41, 52 (1st Cir. 2001); Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 588 (1st Cir. 1993). The evidence suggests that Lisa Lewis believed, perhaps wrongly, that Dube was not entitled to receive the requested information because his employment had been terminated four months earlier. But her refusal to initially provide the documents to Dube was not in bad faith. The record indicates she did try to speak with him by telephone, without success. Perhaps the bureaucracy should have acted more expeditiously in corresponding with Dube, but there is not the slightest indication that he suffered any disadvantage as a consequence. Dube says he sought the requested information in October 2002 in order to appeal the earlier denial by Unum Provident of his application for disability benefits, and he was concerned at that time about meeting time limits for his appeal. Since it is clear from the record that his appeal was fully considered by Unum Provident on the merits (actually it received more consideration that the pertinent procedures called for), he has not shown any prejudice at all. In these circumstances, I exercise my discretion to decline to impose a penalty on JPMIS.See Sullivan, 262 F.3d at 52.
II. Count Four — Violation of the Family and Medical Leave Act of 1993 ("FMLA")
In count four of the amended complaint, Dube alleges that he was not given proper notice of his rights under the FMLA and that his termination was a "retaliatory and wrongful act." The undisputed facts demonstrate that prior to his period of absence, JPMIS's human resource policies had been provided to him as to all other employees via the company's intranet website. Included on the website was information concerning employees' rights and obligations under the FMLA and, in particular, a notice that "[a]ny qualifying time taken under [JPMIS] Chase policies will be concurrently designated as FMLA." Venture Aff., Ex. C, at 2. The record indicates that Dube knew about the availability of human resources materials on the intranet site, used the site himself, and had directed employees whom he supervised to look at the policies online. Dube does not dispute that JPMIS's FMLA policy was accessible online during the period from June 2001, when he returned to work after his accident, through February 18, 2002, when he stopped working. I conclude that the information provided online adequately gave notice to Dube of both JPMIS's and his own obligations under the FMLA.
Furthermore, the record indicates that after Dube stopped working in February 2002, he received a letter from JPMIS's "accessHR" department, dated March 6, 2002, providing information on disability leave and the FMLA and attaching claim forms. The letter indicated that his leave was being preliminarily designated as FMLA leave and would be subtracted from his total FMLA leave time available. This preliminary designation was contingent upon (i.) a later determination of FMLA eligibility based on a medical certification Dube was required to provide to JPMIS and (ii.) Liberty Mutual's approval. The March 6 letter required Dube to provide completed documentation of his medical condition within fifteen days. This is consistent with FMLA regulations. See 29 C.F.R. § 825.305(b) (2004) (Under the FMLA, "the employee must provide the requested certification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request)"). Dube's claim in count four that from February 19, 2002 through June 5, 2002 JPMIS failed to explain or provide any information concerning his rights under the FMLA is without support in the summary judgment record.
Not only was Dube given proper notice of his rights and obligations under the FMLA, but he actually received over twelve weeks of job-protected leave, most of which was paid. The FMLA allows an employee to take up to twelve weeks of job-protected, unpaid leave if a serious health condition makes him unable to perform the functions of his job. 29 U.S.C. § 2612. Despite JPMIS's requests to Dube for documentation supporting the need for leave due to his health condition, JPMIS did not receive sufficient information to make a determination about whether Dube's leave qualified as FMLA leave until April 8, 2002 at the earliest when Dube submitted a disability claim form signed by David Neumeyer, M.D. Even though Dr. Neumeyer stated that Dube could return to work on a part-time basis for four hours per day beginning April 8, 2002, Dube returned to work for only about an hour on April 8 and then chose to go home and extend his leave of absence.
When JPMIS finally received information from Dube regarding his medical condition, JPMIS was entitled to count his entire absence since February 19, 2002 as FMLA leave. See 29 C.F.R. § 825.208(d) (2004) ("If the employer learns that leave is for an FMLA purpose after leave has begun . . . the entire or some portion of the paid leave period may be retroactively counted as FMLA leave, to the extent that the leave period qualified as FMLA leave."); see also § 825.208(e)(2). Dube was ultimately given a total of fifteen weeks of leave before being terminated. Even if I were to consider March 6, 2002 as the date Dube's FMLA leave began, such leave would have expired on May 29, 2002. Dube's termination for failure to return to work occurred as of June 5, 2002. As a matter of law, Dube was not deprived of the benefits guaranteed under the FMLA, nor was his termination retaliatory. See Santos v. Shields Health Group, 996 F. Supp. 87, 93-94 (D. Mass. 1998) (plaintiff who received fifteen weeks of leave was not injured by any insufficiency in notifying her of her rights and obligations under the FMLA); Johnson v. Morehouse College, Inc., 199 F. Supp.2d 1345, 1360-61 (N.D. Ga. 2002) (discharge of employee who refused to come back to work after expiration of FMLA leave period was not retaliatory).
Dube's contention that his FMLA leave was given a start date of April 9, 2002 is unsupported by the record. Assuming, arguendo, that the unauthenticated hearsay statements in Exhibit G to Dube's opposition (Bates stamped "DEF00125") are admissible, the document states that beginning April 9, 2002 Dube's leave was to be without pay; not that Dube's FMLA leave began on April 9, 2002.
III. Conclusion
For the foregoing reasons, the defendant's motion for summary judgment is GRANTED and the action is dismissed with prejudice.
It is SO ORDERED.