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Grabowski v. Qbe Americas, Inc.

United States District Court, E.D. Michigan, Southern Division

March 22, 2017

CYNTHIA GRABOWSKI, Plaintiff,
v.
QBE AMERICAS, INC., and QBE HOLDINGS, INC. REGULAR OR LIMITED TERM MEMBERS GROUP MEMBER BASIC LIFE INSURANCE PLAN, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT [#28]

          HON. DENISE PAGE HOOD JUDGE

         I. BACKGROUND

         This lawsuit was originally filed on June 26, 2015 by Plaintiff Cynthia Grabowski (“Grabowski”), individually and as the Personal Representative of the Estate of Terence G. Grabowski. (Doc # 1) On July 13, 2016, Grabowski filed an Amended Complaint against Defendants QBE Americas, Inc. and QBE Holdings, Inc. Regular or Limited Term Members Group Member Basic Life Insurance Plan alleging four counts: Violation of the Americans with Disabilities Act (“ADA”) (Count I), Breach of Fiduciary Duty under the Employee Retirement Income Security Act (“ERISA”) (Count II), Wrongful Termination under ERISA (Count III), and Wrongful Refusal to Pay Life Insurance under ERISA (Count IV). (Doc # 21) On November 10, 2016, Defendants filed a Motion to Dismiss or in the Alternative Motion for Summary Judgment. (Doc # 28) A Response and Reply have been filed. (Doc # 39; Doc # 42) The Court held a hearing on January 25, 2017. Grabowski filed additional exhibits for her Response on February 2, 2017. (Doc # 43)

         Decedent Terence Grabowski was a senior claims adjuster for QBE Americas, Inc. since June 2011. In March 2014, he was placed on a Work Performance Plan. (Doc # 28-3) As of May 29, 2014, Terence Grabowski and his supervisor had met six times to discuss his progress. (Doc # 39-5) His supervisor indicated in an e-mail that he saw noticeable improvement and believed that Terence Grabowski had things under control and understood expectations. Id.

         In July 2014, Terence Grabowski made QBE aware that he was seeking medical treatment after beginning to experience short-term memory loss. He requested leave as a reasonable accommodation to attend to medical appointments to have his condition diagnosed. (Doc # 39-6; Doc # 39-9) In response, QBE requested that his doctor fill out a form furnished by QBE titled, “Request for Information: Americans with Disabilities Act.” (Doc # 34-1) This form, dated July 25, 2014, states as follows:

Terence has brought it to our attention that he has been seeing a doctor for memory issues/episodes of forgetfulness. Terence has been missing important deadlines, has issues with paying attention to detail, has not been maintaining his claims files appropriately and is often not responsive to requests from his manager. We are concerned for his well-being while at work. We have observed that his performance level is not where it needs to be. Terence is a Senior Claims Specialist - Property and performs most of his work in his cubicle at his desk on the phone and on a computer. Given the above information, we need to determine any reasonable accommodations that we can make to restore him to an acceptable level of performance.

Id. at 679.

         In August 2014, his doctor completed the form noting that Terence Grabowski was being referred to a neurologist for further evaluation and diagnosis. Id. The doctor noted a possible need for medication pending further evaluation. Id. at 680. In response to the question “What is the nature of the employee's condition to the extent that such condition may affect the employee's ability to perform the functions of his job?, ” the doctor responded: “minimal; but beginning to be an issue progressing.” Id. The doctor opined that Grabowski was not limited in any major life activities other than working. Id. QBE included a suggested list of accommodations for Terence Grabowski on the form, and asked his doctor to comment on them:

Suggested Terence make a ‘To Do' checklist at the beginning of each work day to list all of the tasks that need to be completed that day.
Suggested Terence restructure his day into segments (for example, setting specific times to answer emails, make follow-up phone calls, check file notes, etc)
Provided information on the suggested prioritization of work tasks and important deadlines that need to be met
Suggested Terence add calendar reminders on his Outlook at the beginning of each work day to ensure he goes through the status of each claim or other task he is handling

Id. at 681. The doctor agreed with the suggested list of accommodations and opined that Terence Grabowski could perform all of his essential job responsibilities without any other accommodations. Id. Grabowski asserts that this form was returned to QBE in August 2014. On August 12, 2014, Terence Grabowski informed QBE via e-mail that his appointment with the neurologist was scheduled for September 29, 2014. (Doc # 39-8)

         Terence Grabowski was terminated on September 11, 2014, which Defendants allege was for performance issues. He was 63 years old at the time. Grabowski claims that he was never given the option to take a leave of absence until his medical condition could be determined. In October 2014, a neurologist diagnosed Terence Grabowski with early onset Alzheimer's Dementia, and he was started on medication. (Doc # 39-10; Doc # 39-9, Pg ID 787) Grabowski claims that, after applying to dozens of companies with no response, Terence Grabowski talked to QBE about short-term and long-term disability but was told that he was not eligible because he was no longer an employee.

         In December 2014, Terence Grabowski filed a charge of discrimination with the EEOC, stating as follows.

On March 25, 2014, I was placed on a Management Plan. On July 25, 2014, I advised my employer of my medical condition and requested leave as a reasonable accommodation. On this same date the HR manager emailed me a “Request for Information: Americans with Disabilities Act” to have completed by my physician. On August 12, 2014 my physician provided my employer with documentation in response to my request for a reasonable accommodation. My requests were denied. There is an accommodation that would allow me to continue employment and not an undue hardship for the employer. On September 11, 2014, I was terminated.

         (Doc # 39-6, Pg ID 771) Terence Grabowski also submitted a Supplemental Questionnaire to the EEOC, dated December 10, 2014, indicating that he could not perform the major duties of the claims adjuster position with or without an accommodation, and that he did not ask for an accommodation. (Doc # 29-4) On April 2, 2015, the EEOC issued a Dismissal and Notice of Rights. (Doc # 28-9)

         In April 2015, Terence Grabowski filed for Social Security Disability. (Doc # 39-14) His request was denied because his condition was not severe enough to keep him from working. Id. at 805. In May 2015, Terence Grabowski submitted a claim for short-term and long-term disability benefits through QBE. He also submitted documentation from his neurologist, dated May 22, 2015, stating that he was terminated before the neurologist was able to first see him in September 2014. (Doc # 29-2) The neurologist did not support Terence Grabowski returning to work at that time even with accommodations. Id. at 336.

         Terence Grabowski died on May 23, 2015 from a heart attack. (Doc # 39-15) After filing this litigation in June 2015, Grabowski was notified that the claim for long-term disability benefits was approved. (Doc # 39-17) Cynthia Grabowski subsequently filed a claim for life insurance proceeds through QBE, but the claim was denied and the denial affirmed through administrative appeals. (Doc # 39-18; Doc # 39-19; Doc # 39-20) The Principal determined that Terence Grabowski was not eligible for life insurance coverage because: (1) he did not become Totally Disabled prior to attaining the age of 60, as required by the Policy; and (2) he did not convert his group life insurance policy to an individual policy after he was terminated. (Doc # 29-5, Pg ID 397)

         II. ANALYSIS

         A. Standard of Review

         The parties cite both Rule 12(b)(6) and Rule 56 of the Federal Rules of Civil Procedures. The parties also rely on several exhibits not attached to the Complaint.

         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for a motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). This type of motion tests the legal sufficiency of the plaintiff's complaint. Davey v. Tomlinson, 627 F.Supp. 1458, 1463 (E.D. Mich. 1986). When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). A court, however, need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby Cnty., 220 F.3d 443, 446 (6th Cir. 2000)). “[L]egal conclusions masquerading as factual allegations will not suffice.” Edison v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007). As the Supreme Court has explained, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level… .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see LULAC v. Bresdesen, 500 F.3d 523, 527 (6th Cir. 2007). To survive dismissal, the plaintiff must offer sufficient factual allegations to make the asserted claim plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint may also be taken into account. Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001).

         Rule 56(a) of the Federal Rules of Civil Procedures provides that 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). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view admissible evidence in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. 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. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248. The nonmoving party's version of the facts must be relied upon unless blatantly contradicted by record evidence. Scott v. Harris, 550 U.S. 372, 378, 380-81 (2007).

         B. Judicial Estoppel

         Defendants first argue that the doctrine of judicial estoppel precludes Grabowski from contending that Terence Grabowski was denied a reasonable accommodation, and so the Court should grant Defendants' Motion to Dismiss or in the Alternative Motion for Summary Judgment on the ADA claim. Defendants note that Terence Grabowski signed a supplemental questionnaire stating under penalty of perjury that he was unable to perform his job duties with or without reasonable accommodation and that he never requested an accommodation. See Doc # 29-4. Defendants also argue that “irrefutable” evidence in this case shows that Terence Grabowski was unable to work with or without accommodation immediately following his termination.

         Grabowski responds that, at minimum, there is a genuine issue of material fact to preclude summary judgment because, on that same day, Terence Grabowski stated just the opposite on his formal Charge of Discrimination. See Doc # 39-6, Pg ID 771. Grabowski argues that the medical documentation that Defendants rely on does not establish that Terence Grabowski was unable to work at the time of his termination.

         Defendants rely on Morales v. State Farm Mut. Auto. Ins. Co., 279 Mich.App. 720 (2008). In Morales, the defendants argued that the plaintiff was judicially estopped from asserting a claim for work-loss benefits because he had successfully asserted a claim for veteran disability benefits based on causes unrelated to the ones that were at issue. Id. at 736. The court addressed the plaintiff's prior position before an administrative agency, Veteran Affairs, explaining that

[t]he doctrine of judicial estoppel is intended to maintain the consistency of court rulings and to keep litigants from playing fast and loose with the legal system. Under the doctrine of judicial estoppel, a party who has successfully and unequivocally asserted a position in a prior proceeding is ...

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