Francis v. United Parcel Service of America, Inc., No. C-3-01-235.

288 F.Supp.2d 882

Paul FRANCIS, et al., Plaintiffs, v. UNITED PARCEL SERVICE OF AMERICA, INC., et al., Defendants.

No. C-3-01-235.

United States District Court, S.D. Ohio, Western Division.

August 11, 2003.

COPYRIGHT MATERIAL OMITTED

David Michael Duwel, Dayton, OH, for Plaintiffs.

Julie M. Tomlinson, Katherine Cook Morgan, Frost, Brown, Todd, LLC, Cincinnati, OH, Winston E. Miller, Frost, Brown & Todd, Louisville, KY, for Defendants.

DECISION AND ENTRY SUSTAINING PLAINTIFFS' MOTION FOR LEAVE TO AMEND COMPLAINT (DOC. # 23) AND OVERRULING, IN PART ON THE MERITS AND IN PART WITHOUT PREJUDICE, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 21); PLAINTIFFS DIRECTED TO FILE AMENDED COMPLAINT WITHIN 20 DAYS FROM DATE

RICE, Chief Judge.

Plaintiff Paul Francis is a former employee of Defendant United Parcel Service, Inc. ("UPS"), designated in the Complaint (attached to Doc. # 1) as United Parcel Service of America, Inc. He brought the underlying action against UPS and his former supervisor, Defendant Brian J. Cusson, on the basis that he was wrongfully discharged. In doing so, he set forth several claims, all purportedly arising under the laws of the State of Ohio.¹ The Defendants removed this action from the Montgomery County Common Pleas Court (see Doc. # 1), on the basis that Count Three of the Complaint, for breach of contract, is completely preempted by the Employee Retirement and Income Security Act, 29 U.S.C. § 1001, et seq. ("ERISA"), such that this Court has jurisdiction to hear the case under 28 U.S.C. §§ 1331 & 1441. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). They now move for summary judgment. (See Doc. # 21.) In opposing summary judgment, Francis argues that his breach of contract claim does not arise under ERISA and is not preempted by ERISA. (Memo. in Opp. (Doc. # 23) at 17-20.) He also moves for leave to amend this claim (Count Three). (Id. at 20.)

I. Factual Background

For purposes of considering the Defendants' Motion for Summary Judgment, the Court will construe the facts, and all reasonable inferences drawn therefrom, in the light most favorable to Francis, who is the non-moving party.

Francis began working for UPS in 1978. (Francis Depo. at 67.) In May of 2000, he took short-term disability ("STD") leave from his supervisory position at the company's Dayton facility, pursuant to a group benefits plan ("Group Plan") funded and sponsored by UPS, and administered by a third-party, CIGNA Integrated Care ("CIGNA"). (Id. at 293; Cusson Depo. at 14; Doc. # 23 at Ex. 20, at 106.) At the time he took leave, Francis had been identified by UPS management as an employee whose work performance was in need of improvement. (Cusson Depo. at 13-14.) The cause of his need for leave was depression (Doc. # 23 at Exs. 5 & 17), for which he was being treated by a psychiatrist, Martha E. Tymeson, M.D., and a psychologist, Paul D. Entner, Ph.D. (Francis Depo. at 25-26.) At that time, Cusson was UPS's Human Resources Manager for the Kentucky District, which encompassed the Dayton facility. (Cusson Depo. at 4-5.)

On November 13, 2000, Francis was notified by CIGNA that it had determined that he was no longer disabled and that his STD benefits would be discontinued. (Doc. # 23 at Ex. 3.) The basis for its decision was its inability to obtain records from Dr. Tymeson to substantiate his disability claim. (Id.) On November 22, 2000, counsel for Francis wrote to CIGNA, requesting that it reconsider its decision, and take into account not only the records of treatment by Dr. Tymeson, but also those of Dr. Entner, before rendering a final decision. (Id. at Ex. 5.) Construing counsel's letter as an appeal, CIGNA proceeded to consider supplemental records submitted by both Dr. Tymeson and Dr. Entner. (Id. at Exs. 5, 8, 17 & 18.) Dr. Tymeson was of the opinion, as of November 14, 2000, that Francis could return to work immediately if limited to a part-time, daytime, non-managerial position, under a different supervisor than he had had at the time he began leave. (Id. at Ex. 17.) As of November 22, 2000, Dr. Entner expressed doubt as to Francis' ability to return to work, but by March 7, 2001, had indicated that he could possibly begin work by May 1, 2001. (Id. at Exs. 5 & 18.) CIGNA affirmed its decision to deny continued STD benefits on March 16, 2001, informing Francis that he could appeal the decision to UPS, per the terms set forth in the Group Plan Summary Plan Description ("SPD").² (Id. at Ex. 10.)

Notified by CIGNA that Francis' STD benefits had been discontinued, Cusson wrote to Francis on March 23, 2001, directing him to report to work on April 2, 2001, or face termination. (Doc. # 23 at Ex. 11.) Cusson did not address Francis' right to appeal CIGNA's decision. Cusson also did not specify a time or place for Francis to report to work, even though the position he had occupied prior to his taking leave, the previous May, had been assumed by someone else. (Id.; Cusson Depo. at 41-47.) Furthermore, Jeff Funk, the manager of the Dayton facility, had not been informed by higher management to arrange any particular job for Francis or even to expect his return to work. (Funk Depo. at 10-11, 17.)

On March 27, 2001, counsel for Francis wrote to Cusson, notifying him that Dr. Entner was not in agreement with Dr. Tymeson regarding Francis' ability to return to work by April 2. (Doc. # 23 at Ex. 12.) He stated that Dr. Entner did not think that Francis should return to work until May 1, 2001, at the earliest, and inquired into whether UPS would at least be amenable to providing the accommodations recommended by Dr. Tymeson. (Id. at Exs. 12 & 17.) He concluded his letter by opining that Francis was definitely suffering from a disability, due to his depression, and that Dr. Entner was prepared to provide any additional information UPS might request. (Id. at Ex. 12.) Cusson received this letter, but did not respond to it. (Cusson Depo. at 34.) Instead, he forwarded the letter to counsel for UPS on March 29, 2001. (Id. at 36-37.) Counsel for Francis attempted to make facsimile and voice communication with Cusson on several other occasions over the next several days, but Cusson, though he received these communications, neither responded to them nor forwarded the messages contained therein to counsel or anyone else at UPS prior to terminating Francis. (Id. at 40, 49-55.)

On April 2, 2001, Francis contacted Funk at the Dayton facility. (Funk Depo. at 6; Cusson Depo. at 19.) Several days before, Funk had been notified by his division manager, Terry Field, that Francis might be contacting him, and that if that occurred, he was to have Francis contact Cusson. (Funk Depo. at 9-10.) Funk was not told that Francis was actually expected to return to work at the Dayton facility, and he had not made any arrangements for his return. (Id. at 10-11, 17-18.) When he contacted Funk at the Dayton facility, Francis explained his situation: that he had been notified by Cusson to report for work but that he was still disputing his ability to do so, and that, in any event, Cusson had not responded to his attorney's messages, such that he was not sure how to proceed. (Francis Depo. at 335-37.) Funk took his phone number and told him not to bother to drive to Dayton, and that he (Funk) would contact Cusson and get back to Francis that day with further instructions. (Id. at 303, 336.) Francis did not hear back from Funk. (Id. at 303, 345.)

By letter dated April 3, 2001, Cusson informed Francis that his employment had been terminated because of his failure to report to work the previous day, as he had been directed to do. (Doc. # 23 at Ex. 2; Cusson Depo. at 18.) Based on CIGNA's determination that Francis was not disabled, UPS had no intention of making an accommodation for Francis' purported needs, as his counsel had requested. (Cusson Depo. at 48.) Although Francis himself never attempted to contact Cusson personally, neither did he receive any communication from Cusson other than Cusson's letter of March 23, 2001. (Francis Depo. at 340, 349-50.) As an additional matter, counsel for UPS did not respond to counsel for Francis until April 13, 2001, 10 days after Francis had been terminated. (Cusson Depo. at 49-50; Doc. # 23 at Ex. 16.)

With regard to benefits eligibility determinations, CIGNA administered the Group Plan and was responsible for preliminary determinations of eligibility. (Doc. # 23 at Ex. 20, at 106; Cusson Depo. at 25-27.) Ultimately, however, UPS was responsible for deciding any final appeal. (Doc. # 23 at Ex. 20, at 118.) In particular, the Group Plan SPD informs plan participants, such as Francis, of the following claims procedure:

You ... are entitled to a review of a denied claim. The situation should first be appealed to the highest available level with the administrator of the services (e.g., ... CIGNA ...). If you then believe further review is needed on a plan for which UPS decides appeals, you may (within 60 days of the administrator's final appeal denial) submit a written request for an appeal with the UPS Claims Review Committee at the Corporate Headquarters. All appeals to UPS must be submitted through the region Human Resources department.

UPS is not a fiduciary with respect to the benefits or programs for which it does not have the responsibility to decide appeals. * * *

(Doc. # 23 at Ex. 20, at 117.) The SPD then goes on to identify UPS as the final appellate entity for all claims arising under the Group Plan administered by CIGNA. In denying his initial appeal, CIGNA explicitly informed Francis that he had a right to further appeal, and should contact his "Region Employee Services Manager" to facilitate that process. (Doc. # 23 at Ex. 10.)

In its letter of April 13, 2001, to counsel for Francis, counsel for UPS referenced a letter which the former had sent to Cusson on April 4, 2001, which had alluded to Francis' right to appeal CIGNA's decision.³...