Damiano v. Inst. for in Vitro Scis.

294 F.Supp.3d 439

Michele DAMIANO, Plaintiff,

v.INSTITUTE FOR IN VITRO SCIENCES, et al., Defendant(s).

Civil Action No. PX–16–920

United States District Court, D. Maryland.

Signed March 13, 2018

Denise M. Clark, Clark Law Group, PLLC, Washington, DC, for Plaintiff.

Theodore P. Stein, Offit Kurman, P.A., Bethesda, MD, for Institute for In Vitro Sciences.

Leslie Paul Machado, LeClair Ryan PC, Alexandria, VA, for Paychex Insurance Agency, Inc.

MEMORANDUM OPINION

Paula Xinis, United States District Judge

Pending in this action is a motion for summary judgment filed by Defendant Institute for In Vitro Sciences (IIVS). ECF No. 37. The issues are fully briefed, and the Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the following reasons, IIVS' motion is GRANTED.

I. BACKGROUND

Unless otherwise noted, the following facts are undisputed. Damiano was employed by IIVS as an Accounting Assistant/HR Coordinator from February 3, 2014, until her termination on September 9, 2015. ECF No. 1 at 3–4. IIVS maintained a group health plan, which included Group Long–Term ("LTD") and Short–Term Disability Insurance Plans ("STD," and collectively, "Disability Plans") for the benefit of its employees. Id. Paychex Insurance Agency, Inc. ("Paychex") administered the insurance benefits of the Disability Plans. The Disability Plans are governed by the Employee Retirement Security Act of 1974 (ERISA). Id.

On September 9, 2015, IIVS presented Damiano with a letter terminating her employment effective immediately and setting out the terms of the termination ("Termination Letter"). ECF No. 1 at 4. The Termination Letter stated that the severance package included "[c]ontinuation of current health and disability insurance benefits paid in full by IIVS, through October 31, 2015." ECF No. 15–3 at 5; see also ECF No. 1 at 4. IIVS' officers arranged the continuation of all benefits as "a gesture in recognition of [Damiano's] time with us." Dep. of Erin Hill ("Hill Dep."), ECF No. 42–1 at 38; see also Dep. of Rodger D. Curren ("Curren Dep."), ECF No. 42–2 at 18 (stating that the severance package "included the healthcare benefits and disability benefits because we thought that ... would recognize the good service."). Prior to firing Damiano, IIVS consulted with the service provider of IIVS' insurance benefits, Paychex, to confirm that coverage could be continued as described in the Termination Letter. See Hill Dep., ECF No. 42–1 at 39–42; Curren Dep., ECF No. 42–2 at 20–21.

On October 3, 2015, Damiano was hospitalized and underwent emergency brain surgery. ECF Nos. 1 at ¶ 26 & 37–3 at 56. On October 8, 2015, Damiano received COBRA¹ correspondence notifying her that her insurance coverage under the IIVS plan would end on October 31, 2015, as stated in the Termination Letter. ECF No. 15–2 at 5. Damiano, assuming that the Termination Letter and October 8 correspondence concerning insurance coverage were correct, contacted IIVS through counsel on October 23, 2015, to seek STD and LTD benefits. See ECF Nos. 42–8 & 37–3 at 135. IIVS told Damiano's counsel that, contrary to the terms of the Termination Letter and the October 8 letter, Damiano would not be eligible for disability benefits. ECF Nos. 42–8 & 37–3 at 135.

Shortly thereafter, Damiano received a second COBRA notice, dated October 23, 2015, notifying her that "coverage under the Plan will end on September 9, 2015," the date of Damiano's termination, 44 days earlier than she was led to believe. See ECF No. 37–3 at 97. Damiano completed, signed, and returned a COBRA Election/Waiver form on October 26, 2015. ECF No. 37–3 at 107–10. The form did not include a place to sign up for COBRA continuation coverage for disability benefits. Id.

Damiano submitted an application for LTD benefits from Humana on February 12, 2016. See Damiano Dep. at 67–76. After Humana requested additional information from her attending physicians and employer to complete the LTD application, Damiano did not pursue her application any further because she "realized that [she] was ... no longer employed with IIVS" and "just held on to the documents because [she] wasn't able to send them to the company." See Damiano Dep. at 76. She did not return the application, speak with her physicians regarding the application, or have any further contact with Humana or IIVS about disability benefits. Damiano Dep. at 75–78, 81–83, 96–103. Damiano received unemployment benefits from the State of Maryland on April 23, 2016, through September 2016. Damiano Dep. at 103–04, 193–195. In late October of 2016, Damiano began looking for new employment. Damiano Dep. at 104.

Damiano filed this suit on March 28, 2016, alleging claims against IIVS and Paychex for breach of fiduciary duty under ERISA § 502(a)(3), statutory remedies for violation of COBRA, and breach of contract. ECF No. 1. IIVS and Paychex filed a joint motion to dismiss, ECF No. 15, which was granted as to the breach of contract claims as preempted by ERISA, and denied as to all other counts. ECF No. 21. On July 26, 2017, the parties stipulated to dismissal of the COBRA and unpaid dental benefits claims against IIVS and all claims against Paychex, which this Court granted, ECF Nos. 35 & 36. As a result, only Damiano's ERISA breach of fiduciary duty claim against IIVS remains.

IIVS argues that summary judgment in its favor is warranted because Damiano has failed to generate sufficient evidence that its misrepresentations were material or that the misrepresentations caused her "actual harm." ECF No. 37. In the alternative, IIVS argues that Damiano cannot show that she was disabled within the terms of the disability policy, did not exhaust her claims, and because her claim is barred by judicial estoppel. Id. ; see also ECF No. 43. The Court addresses each argument in turn.

II. STANDARD OF REVIEW

"The court shall grant summary judgment if the movant shows 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) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing predecessor to current Rule 56(a) ). The party moving for summary judgment bears the burden of demonstrating the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the non-moving party, summary judgment must be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The facts, and all inferences drawn from the facts, must be viewed in the light most favorable to the non-moving party. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Iko v. Shreve , 535 F.3d 225, 230 (4th Cir. 2008). The opposing party cannot rest on the mere allegations or denials of her pleading but instead must, by affidavit or other evidentiary showing, point to facts that give rise to a material issue in dispute. Fed. R. Civ. P. 56(c)(1) ; Anderson , 477 U.S. at 252, 106 S.Ct. 2505.

III. ANALYSIS

a. Judicial Estoppel

IIVS contends that Damiano's claims are barred by judicial estoppel because of representations that she made to obtain unemployment benefits from the State of Maryland. See ECF Nos. 37–1 at 12–13 & 37–3 at 114. To receive unemployment benefits, an applicant must represent that she is able to work and will continue to look for a job during the period for which benefits are paid. See ECF No. 37–3 at 114; see also Damiano Dep. at 104. Damiano received unemployment from April 2016 through September 2016. ECF No. 37–3 at 114–15; Damiano Dep. at 103–04, 193–94. Thus, IIVS contends, Damiano cannot argue that she was disabled and "unable to work" because this position is inconsistent with the position taken to her benefit in the earlier unemployment proceeding. ECF No. 37–1 at 12; see also Lowery v. Stovall , 92 F.3d 219, 223–24 (4th Cir. 1996).

This argument is without merit. Judicial estoppel precludes a party from asserting a position in one court that is inconsistent with a prior position successfully asserted in another court. The doctrine is principally designed to "prevent such attempted abuse of the judicial system." Lowery , 92 F.3d at 223. Damiano submitted her unemployment prior to her emergency brain surgery which rendered her disabled. See ECF No. 37–1 at 12–13. Her unemployment benefits were not paid until several months thereafter. See ECF Nos. 37–3 at 114; Damiano Dep. at 103–04, 193–94. At summary judgment, when viewing all facts in the light most favorable to Damiano, the Court cannot infer that her pre-surgery claim for unemployment renders her unable to claim she was disabled in this case. More critically, IIVS does not argue that Damiano previously made a differing representation to a court during a prior judicial proceeding. See Lowery , 92 F.3d at 224 ("[T]he prior position must have been accepted by the court .") (emphasis added). Judicial estoppel, accordingly, cannot bar Damiano's ERISA claims.

b. Exhaustion of Administrative Remedies

IIVS also argues that Damiano's claim for breach of fiduciary duty is barred for failure to exhaust administrative remedies under the pertinent employee benefit plan. See ECF No. 37–1 at 11–12; Makar v. Health Care Corp. , 872 F.2d 80, 82 (4th Cir. 1989). Damiano's claim is premised on affirmative misrepresentations by IIVS regarding benefits, and in this way, her cause of action is not a "mere recasting of a claim for benefits." Smith v. Sydnor , 184 F.3d 356, 363 (4th Cir. 1999). Accordingly, administrative exhaustion is not required, and IIVS' argument in this regard also fails. Id. at 362–64 (4th Cir. 1999) ; see also Barnett v. Perry , No. CCB-11-122, 2011 WL 5825987, at *3–*5 (D. Md. Nov. 16, 2011).

c. Adequacy of Evidence on Breach of Fiduciary Count

Turning to the merits of Damiano's breach of fiduciary duty count, for...