United States District Court, D. Connecticut
R. Underhill United States District Judge
1, 2015, the plaintiff, Jeff Schuman, filed a complaint
against the defendants, Ahold USA, Inc.'s Master Welfare
Benefit Plan, the Administrative Committee of Ahold USA, Inc.
as Plan Administrator, and Aetna Life Insurance Company as
Claims Administrator, alleging that they violated the
Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1001, et
seq., by failing to provide him with all of the
disability benefits to which he was entitled. Complaint (doc.
1); Amended Complaint (doc. 32-1). On May 27, 2016, the parties
filed cross-motions for summary judgment. (docs. 36 and 37)
Schuman has also filed a motion for civil penalties, alleging
that the defendants violated ERISA, 29 U.S.C. § 1132(c),
by failing to disclose all policy documents in the timeframe
required by the statute. (doc. 62)
following reasons, I grant in part and deny in part the
defendants' motion for summary judgment; deny
Schuman's cross-motion for summary judgment; and deny
Schuman's motion for civil penalties. In addition, I
grant the defendants' alternative request and remand the
matter for further development of the record.
Standard of Review
judgment is appropriate when the record demonstrates that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff
must present affirmative evidence in order to defeat a
properly supported motion for summary judgment).
ruling on a summary judgment motion, the court must construe
the facts of record in the light most favorable to the
nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party.
Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970); see also Aldrich v. Randolph Cent.
Sch. Dist., 963 F.2d. 520, 523 (2d Cir. 1992) (court is
required to “resolve all ambiguities and draw all
inferences in favor of the nonmoving party”). When a
motion for summary judgment is properly supported by
documentary and testimonial evidence, however, the nonmoving
party may not rest upon the mere allegations or denials of
the pleadings, but must present sufficient probative evidence
to establish a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
when reasonable minds could not differ as to the import of
the evidence is summary judgment proper.” Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see
also Suburban Propane v. Proctor Gas, Inc., 953
F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits
evidence that is “merely colorable, ” or is not
“significantly probative, ” summary judgment may
be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247-48. To present a “genuine”
issue of material fact, there must be contradictory evidence
“such that a reasonable jury could return a verdict for
the non-moving party.” Id. at 248.
nonmoving party has failed to make a sufficient showing on an
essential element of his case with respect to which he has
the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a
situation, “there can be ‘no genuine issue as to
any material fact, ' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23; accord Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)
(movant's burden satisfied if he can point to an absence
of evidence to support an essential element of nonmoving
party's claim). In short, if there is no genuine issue of
material fact, summary judgment may enter. Celotex,
477 U.S. at 323.
otherwise indicated, the following facts are drawn from
statements in the parties' Local Rule 56(a)(1) Statements
to which the other side did not object. See
Defs.' L.R. 56(a)(1) Stmt. (doc. 36-6); Pl.'s L.R.
56(a)(1) Stmt. (doc. 37-2).
Schuman's Disability Benefit Plan
to becoming disabled, Jeff Schuman had worked as a pharmacist
in retail stores for thirty-five years. At the time that he
became disabled, he was employed by Ahold USA, Inc.
(“Ahold”) as a retail pharmacy manager at a Stop
& Shop Supermarket (“Stop &
Shop”).Schuman's position required frequent
walking, constant standing, and lifting up to 20 pounds. He
became disabled from that position on April 30, 2013, and has
remained unable to perform that job.
was eligible to participate in a long- and short-term
disability plan provided as part of a group insurance plan
between Aetna Life Insurance Company (“Aetna”)
and Ahold. As discussed further below, the parties adamantly
disagree about which “version” of that policy
should apply here. All of the potential policies provide for
six months of short term disability (“STD”)
benefits, followed by a period of long term disability
benefits (“LTD”). All versions of the policy then
provided an initial period in which LTD benefits would be
paid if the claimant met the “own occupation”
test, which awarded benefits:
on any day that:
You cannot perform the material duties of your own occupation
solely because of an illness, injury or disabling pregnancy
related condition; and
Your earnings are 80% or less of your adjusted predisability
See Administrative Record (“AR”) at 9,
102; ADD at 1454, 1484.
end of the period in which the “own occupation”
test applied, LTD benefits would pay for an additional period
if the claimant met the “reasonable occupation”
test, meaning he could not perform the material duties of any
reasonable occupation “solely because of” his
disability. See AR at 9, 102; ADD at 1454, 1484. A
“reasonable occupation” is defined in all of the
[a]ny gainful activity:
For which you are or may reasonably become, fitted by
education, training, or experience; and Which results in, or
can be expected to result in, an income of more than 60% of
your adjusted predisability earnings.
See AR at 23, 119; ADD at 1471, 1499.
Versions of the Certificate
different LTD certificates are discussed in the parties'
briefing. Although the defendants object to the terminology,
they have adopted Schuman's labeling of the certificates
as Versions One, Two, Three, and Four. I will do the same.
dispute over which version of the certificate applies
apparently did not arise until July 2014. Prior to that date,
Schuman had been informed multiple times by Aetna
representatives that the “own occupation” test
would only last for a twelve-month period. For instance, in a
September 4, 2013 letter, Kimberly Nee, a representative of
Aetna, sent Schuman a letter stating that Schuman would
receive LTD benefits for twelve months under the “own
occupation” test, after which time the
“reasonable occupation” test would apply. AR at
815. In a September 13, 2013 letter, Nee informed Schuman
that he was “eligible to receive monthly benefits
effective 10/27/2013, and continuing for up to twelve months
as long as you remain totally disabled from your own
occupation.” AR at 819. Nee also indicated on September
16, September 26, and December 12, 2013 that the “own
occupation” test would be applied only for the first
twelve-month period. In a letter dated March 27, 2014, Nee once
again informed Schuman that his benefits under the “own
occupation” test would end on October 26, 2014, twelve
months after the beginning of his LTD period. Schuman did not
question or object to Nee's repeated statements that the
“own occupation” test would only apply for twelve
months until July 2014, and indeed appears to have asked
several questions about the “reasonable
occupation” test in 2013. See AR at 203 (note
on September 26, 2013 stating that “EE also asked about
RW of 60% after a year of benefits”); AR at 555 (note
between July 17 and July 21, 2014 stating that “EE
asked about the change in disability in Oct[ober] and how
this [apparently indicating a recent surgery] affects
Version One, AR at 1-31
asserts in an undated declaration submitted with his attempt
to reopen his appeal that he downloaded a copy of Version One
before May 2013. AR at 1033. In a Declaration dated February
25, 2016, Schuman asserts that he received Version One
“through my company's intranet site or by mail,
before I left . . . in May 2013.” ADD at 1510 (doc. No
35). Kimberly Cline, an Ahold employee, also sent Schuman a
copy of Version One on July 30, 2014 in response to his
request to receive a copy of his policy.
One states that the “own occupation” test applies
for a twenty-four-month period. AR at 9. The eligible class
identified in Version One is defined as follows: You are in
an eligible class if:
You are a regular full-time active executive or salary
employees [sic], as defined by your employer.
AR at 6. The defendants assert that Version One does not
apply to Schuman because it applies only to employees at the
Carlisle unit of Ahold or Ahold Financial Services. They have
not, however, shown that Version One actually includes that
limitation in its text; rather, they have asserted that
limitation in an interrogatory response. Defs' LR
56(a)(1) Stmt. at ¶ 78.
Version Two, AR at 94-124
Two apparently was not provided to Schuman until it was
produced as part of the Administrative Record. See
Defs.' Sum. J. Br. at 2 n.1. It includes an “own
occupation” test of twelve months. AR at 102. Version
Two has an effective date of January 1, 2012, and an issue
date of January 11, 2012. AR at 96. It was
“signed” by Mark Bertolini as CEO. Id.
The defendants assert that Version Two is the only
“version” of the Certificate that applies to
Schuman. They point to the “eligible class”
definition, which is as follows:
You are in an eligible class if:
You are a regular full-time Executive, salaried, Non-Union
Hourly, and Union 99 Associates[sic] employed by Stop and
Shop, Giant of Maryland, and American Sales Company employees
[sic], as defined by your employer.
AR at 99. Schuman asserts that he was not a Stop & Shop
employee, but rather an employee of Ahold, and accordingly is
not a member of the eligible class.
Version Three, ADD at 1446-76
received Version Three in the following manner: when Cline
sent Schuman Version One, which has a twenty-four-month
“own occupation” test period, she also provided
him with a summary plan description (“SPD”) dated
January 1, 2011, stating that the “own
occupation” test only applied for twelve months.
Schuman pointed out the inconsistency. Traci McAllen, a
manager of Benefits Administration at Ahold, was notified and
emailed Ronald Mattson, Aetna's Group Insurance Account
Executive responsible for the Ahold account, about the
inconsistency. Mattson responded on August 1, 2014, stating:
This should absolutely read 12 months Own Occupation.
It's been that way for years on the Stop & Shop /
Giant of Maryland plans. I'm having the policy updated
We updated the policy in 2012 to make sure we had clean
documents across the board, and someone missed this very
My apologies. I have reviewed the entire document and am
making another change to the Eligibility statement to make
sure it indicates Nonunion hourly associates.
[Mattson included a copy of what appears to be the eligible
class definition in Version One.]
The Giant-Carlyle policy correctly indicates 24 months Own
ADD at 1525. Later that day, Mattson provided McAllen with
Version Three. Id. On August 25, 2014, McAllen sent
Version Three to Schuman, stating in her transmittal email
that the correct time for the “own occupation”
test was twelve months. McAllen described the twenty-four
month “own occupation” period as “an
administrative error.” ADD at 1504.
Three contains the same eligible class definition as Version
Two, ADD at 1451; however, it also contains an inconsistency.
It states that the “own occupation” test applies
for twenty-four months, but that the “reasonable
occupation” test applies after the first twelve months.
ADD at 1454.
Version Four, ADD at 1477-1503
was provided with Version Four apparently after he identified
the inconsistency in Version Three in a call to Robert Watts,
Director of Benefits at Ahold, on August 25, 2014. ADD at
1509. Watts attached Version Four along with an email to
Schuman on August 29, 2014, stating, in relevant part:
We understand that Aetna, the Company's LTD insurer and
claims administrator, provided to you a Certificate that
contained an administrative error in that it mistakenly set
forth a period of 24 months for the test of disability. The
correct time period under the LTD Plan is 12 months. I have
enclosed a corrected Certificate [Version Four] which, as you
will see, includes the 12-month time period.
ADD at 1509.
Four states that the “own occupation” test
applies for twelve months, and after those twelve months, the
“reasonable occupation” test applies. ADD at
1484. Version Four states on its cover page that it was
“Prepared Exclusively for Stop and Shop / Giant of
Maryland, ” but does not mention those entities in its
eligible class definition, which is as follows:
You are in an eligible class if:
You are a regular full-time employee, as defined by your
ADD at 1481. Version Four has an effective date of January 1,
2010, and an issue date of September 13, 2012. ADD at 1479.
It was “signed” by Ronald A. Williams as CEO, but
Williams ceased to hold that position in 2010.
Schuman's Disability Claim
around June 16, 2011, Schuman commenced a short term
disability (STD) claim and was absent from work while he
underwent surgery to address pain in his right foot. He
returned to work without restrictions on January 30, 2012. On
or around March 28, 2013, Schuman commenced a second STD
claim and was absent from work starting on April 30, 2013 to
have the hardware installed during the 2011 surgery removed.
The parties agree that Schuman received the requested STD
benefits, including during the period from April 30, 2013
through October 28, 2013.
treatments did not resolve Schuman's pain, however, and
Schuman's treating doctor determined that he was only
capable of sedentary work. On August 29, 2013, Schuman
informed an Aetna representative that he would not be able to
return to his position. The parties agree that Schuman's
disability has continued to render him incapable of holding
that position until the present.
September 2013,  close to the end of Schuman's
six-month STD benefit period, his claim was referred for a
determination whether he was eligible for LTD benefits.
Throughout the relevant period, the parties agree that
Schuman's treating physician, Dr. Aronow, consistently
determined that Schuman was capable of performing sedentary
work. See, e.g., Defs' LR 56(a)(1) Stmt. at
¶ 30 (citing AR at 651, 827-28, 1232, 1260-61, 1299,
1314-15). The parties also agree that Schuman met the
“own occupation” test of disability throughout
the relevant period. The following facts thus describe
Aetna's assessment of Schuman in preparation for the
application of the “reasonable occupation” test.
September 25, 2013, Joseph Thompson of Coventry Health Care
provided an “Aetna Vocational Assessment” to
Diane Winiarski, an Aetna employee listed as the “Claim
Owner.” AR at 822-25. The report indicated that Schuman
had several transferable skills, but that transferability was
“limited” because “his vocational
background is concentrated in one specific occupation.”
It identified three “job goals” in occupations
that would not have met Schuman's reasonable wage
requirements: peer reviewer, claims examiner, and
September 26, 2013, Winiarski completed an in-house
transferrable skills assessment and identified the additional
occupation of “Quality-Control Coordinator,
Pharmaceuticals.” AR at 499. Winiarski's notes
indicate that she asked Thompson “to assess if this
occupation exist [sic] in EE's locale as CT does have
numerous pharmaceutical companies.” Id. On
October 18, 2013, Winiarski's notes indicate that she
received an email from Thompson regarding additional labor
market research. She indicated that the documentation he
provided “appears to note the existence of auditor
positions of a sedentary nature consistent with the
educational achievement, it is not known whether they would
meet the reasonable wage.” AR at 504. She further
stated that she had sent a follow-up email to Thompson to
discuss the results because she was
concerned that vendor may not have understood task
assignment. Need labor market research to to [sic] determine
if the labor market would support the alt. occ. identified in
[her previous analysis], Quality Control Coordinator. Need
direct ER [employer] contacts to verify the position[s]
exist, hiring trends, wags [sic], and would consider the clmt
for employment based on his education and work experience.
November 18, 2013, Winiarski received a draft Labor Market
Survey Report from Thompson. Her notes indicate that she
asked Thompson to make various edits to the report regarding
“ER [employer] contacts and typos.” AR at 511.
She stated that she wanted to clarify whether Thompson had
been able to reach specific employers and asked him to remove
from his report occupations that did not meet the reasonable
wage requirement. She also noted that Schuman had been
apprised of the process for completing a Labor Market Survey
and would be informed that Thompson was adding additional
employer contacts to the report. On November 26, 2013,
Winiarski's notes indicate that Schuman was informed
about the results of the final Labor Market Survey Report and
that he discussed them with her. AR at 516. Her notes
indicate that, as per policy, Schuman was not provided with a
copy of the report.
about December 18, 2013, Schuman registered for two courses
at a community college as part of Aetna's vocational
rehabilitation program. In a January 3, 2014 letter, Kimberly
Nee, a representative of Aetna, informed Schuman that he had
been approved for a Rehabilitation Program, with Lori
Karickhoff serving as his vocational rehabilitation
counselor. AR at 870. In a January 2, 2014 note, Karickhoff
observed that Schuman would need additional computer training
in order to be considered a qualified candidate for the
alternative occupations under consideration. AR at 537.
2, 9, 10, 11, 12, 13, and July 10, 2014, Schuman informed
Karickhoff that he was not qualified for or had been rejected
from the positions she was sending his way. His primary
concern was that many of the positions required a Pharm. D.
degree, which he did not have and which would require several
years of supplemental education and training at considerable
expense. On June 11, 2014, Sarah Coughlin of Ability Services
Network provided Karickhoff with ...