MEMORANDUM OPINION AND ORDER

PHILIP G. REINHARD, united states district judge.

I. INTRODUCTION

Plaintiff, Mary Carter, has filed a seven-count amended complaint against defendant, General Electric Company ("GE"). Before the court is GE's motion for summary judgment under Federal Rule of Civil Procedure 56 as to Counts II, IV, and V. In these three counts, Carter alleges GE violated the Employee Retirement Income Security Program, 29 U.S.C. § 1001 et seq. ("ERISA"), when it improperly denied her claims under various employee benefit plans and breached its fiduciary duty (Count II), see id. § 1132(a)(1), and discharged her for the purpose of interfering with her right to seek benefits under these plans (Counts IV and V), see id. § 1140. Jurisdiction and venue are proper under 29 U.S.C. § 1132 (e) and 28 U.S.C. § 1331, 1391.

II. FACTS

GE employed Carter at its DeKalb plant for more than seventeen years, from 1977 until her termination in 1995. (LR 56.1(a) ¶ 5) In the year before GE discharged her, she worked as a "Remele Lathe Operator." (LR 56.1(b) ¶ 6) According to Carter, this job involved rapid and repetitive hand and arm motion and required her to stand in place at the lathe machine for an eight-hour shift, lift and carry scrap bins weighing in excess of fifty pounds at least ten to fifteen times per shift, and push and pull large bins weighing in excess of one hundred pounds at least ten to fifteen times per shift. (Id. ¶ 7) This assessment is generally confirmed by a "GE Disability Benefits Center Job Description," which indicates that the Remele position requires the employee to stand five and one-half hours per day, walk one and one-half hours per day, lift and carry up to twenty-five pounds for one-half to two and one-half hours per day ("occasionally"), and "use hands repetitively" between five and eight hours per day ("continuously"). (Def. Exh. V, Papaioannou Dec., Exh. A, p. A-06)

In early December 1994, Carter went on a disability leave of absence after contracting pneumonia. (LR 56.1(a) ¶ 15) Her physician, Dr. Kathleen Kelly, originally excused her from work as of December 6, 1994, until December 19, but later extended this to December 22. (Id. ¶ 16) After an intervening Christmas shutdown of the plant, Dr. Kelly further authorized Carter's absence from January 3, 1995, until January 16. (Id. ¶ 18)

Apparently Carter's pneumonia had caused her fibromyalgia to flare up and she visited various other doctors on her own during January 1995 to treat the fibromyalgia, as well as carpal tunnel syndrome, a sleep disorder, and depression. (LR 56.1(b) ¶¶ 9, 14, 15; Pl. Exh. H, Carter dep., pp. 65-68, 86-87) In addition, GE sent Carter to Dr. David Dansdill, a rheumatologist, for a second opinion. (LR 56.1(b) ¶ 16) Based on his examination of her on January 17, 1995, Dr. Dansdill diagnosed Carter with "severe fibromyalgia" and excused her from work until February 6, 1995. (LR 56.1(a) ¶ 19) Although he stated in his report that he could not take her off work after that date, Carter testified at her deposition that this was because he felt she needed to be in pain management and referred her to Dr. Frederick Gahl at the Rockford Memorial Hospital Pain Clinic. (LR 56.1(b) ¶¶ 18-19) It was Carter's understanding that Dr. Dansdill excused her from work until February 6 so that she could see Dr. Gahl, who would then take over her treatment. (Id.) This is likewise reflected in Dr. Gahl's report, in which Dr. Gahl indicated that "Dr. Dansdill has turned her care over to the pain center and does not wish to provide [Carter] with subsequent off-work slips." (Def. Exh. V, Papaioannou Dec., Exh. A, p. A-42)

Carter did not actually see Dr. Gahl until February 10, but she did submit to GE a "Disability Certificate" from Shelley A. Sartwell, D.C., indicating that Carter was "totally incapacitated" from February 4 until February 11 and would begin treatment for fibromyalgia. (LR 56.1(b) ¶ 32) When Carter saw Dr. Gahl on February 10, he too diagnosed her with fibromyalgia and authorized her "off work until further notice" — i.e., until she could be evaluated and Dr. Gahl would "know what to recommend further." (LR 56.1(a) ¶ 21)

The GE Disability Benefits Center ("Benefits Center"), which serves as the third-party administrator for GE's group disability plans, then arranged for Carter to have an independent medical examination by Dr. Panna Goswami on March 1, 1995. (Id. ¶ 22) Dr. Goswami reported that he could not "find any objective physical or neurological findings" and the "[n]eurological examination and physical/muscular examination were completely normal." (Id. ¶ 23) He suggested that Carter's "physical inability to work is all related to a psychological component which is also affecting her physically" and recommended a psychological evaluation. (Id.) Dr. Goswami concluded that Carter's "current disability consideration is secondary to her mentally not feeling [sic] able to do any physical work which makes her physically unable to do so. The patient will not be able to work, even on a restrictive basis, due to this reason." (Id.) At the request of the Benefits Center, Dr. Goswami also completed a "Functional Capabilities Statement" to evaluate which job functions Carter could perform. He indicated that she could lift, carry, push, or pull no more than five pounds "occasionally," stand for one hour per day, walk up to two hours per day, and could "never" "use hands repetitively." (LR 56.1(b) ¶ 28) Under "Additional Recommendations," Dr. Goswami further explained that Carter would not be able to operate equipment requiring "rapid movement." (Id.)

Per Dr. Goswami's recommendation, Carter underwent a psychological evaluation with Dr. Megan Smick on March 27 and 29. (LR 56.1(a) ¶ 24) Dr. Smick noted that Carter complained of "many lifestyle changes due to her pain" and is "much less physically active than she used to be, and her pain is interfering with her ability to perform household activities." (Def. Exh. V, Papaioannou Dec., Exh. A, p. A-78) She advised that Carter "may benefit from individual psychotherapy to provide assistance with stress management and strategies for coping with her chronic pain" and "would likely also benefit from multi-disciplinary evaluation for potential placement into a chronic pain and/or physical conditioning program." (Id.)

Since she first took off work in early December 1994, Carter had been receiving benefits under GE's "Short-Term Disability Benefits Plan." (LR 56.1(a) ¶¶ 15, 25) However, on April 13, 1995, the Benefits Center notified Carter that it was "unable to confirm [her] disability beyond February 6, 1995," and denied her short-term disability benefits as of February 7, 1995, based on "lack of medical necessity." (Id. ¶ 25) Carter appealed this decision but the appeal was denied on June 5, 1995. (Id. ¶ 26)

On April 21, 1995, Michael Condon, GE's Human Resources Coordinator at the DeKalb plant, wrote to Carter and informed her that, because her short-term disability benefits had been denied, he expected her to return to work no later than May 5, 1995, or he would assume that she had "broken service." (Id. ¶ 28) This deadline was then extended to May 12 after some discussion between Carter, Condon, Ed Belanger, GE's Human Resources Manager at the DeKalb plant, and George Ramer, President of the local union to which Carter belonged. (Id. ¶ 31) That day Condon spoke with Carter, who says that Condon simply requested an update on her progress. (LR 56.1(b) ¶ 39) Carter then called Dr. Gahl to have him fax a letter to Condon. (LR 56.1(a) ¶ 32) In his letter, which Condon received that same day, Dr. Gahl stated that he was "making progress in [Carter's] case" and felt she would be able to return to work in one month's time. (Id. ¶ 33)

Condon forwarded Dr. Gahl's letter to Belanger, who decided that it was not enough to save Carter's job. (Id. ¶ 34) In his own letter dated May 25, 1995, Belanger notified Carter she had been terminated. He explained to her, "You have been absent from work without proof of medical disability since your benefits were denied effective 2-7-95 . . . I must inform you that you have not provided proof of disability and therefore your absence is unexcused and your service terminated effective 2-7-95." (Id. ¶ 35)

III. ANALYSIS

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; Michas v. Health Cost Controls of Ill., 209 F.3d 687, 692 (7^th Cir. 2000). To determine whether a genuine issue of material fact exists, the court views the evidence and draws all reasonable inferences therefrom in the light most favorable to the nonmoving party.See Michas, 209 F.3d at 692. A genuine issue for trial exists only when a reasonable jury could find for the nonmoving party based on the record as a whole. See id. The mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment. See id.

In Count II of her amended complaint, Carter alleges GE violated § 502 of ERISA, 29 U.S.C. § 1332 (a)(1)(B) ("§ 502"), when it denied her benefits under its Short-Term Disability (STD) Plan, Long-Term Disability Income (LTDI) Plan, Group Health Care ("Health Care") Plan, and Service Protection Policy. Count II also includes a claim that GE breached its fiduciary duty by improperly delegating its authority under the STD Plan. Tracking Count II, Counts IV and V allege GE violated § 510 of ERISA, 29 U.S.C. § 1140 ("§ 510"), by terminating her to interfere with her right to seek benefits under all four plans. A. Section 502 Count II 1. STD Benefits

The first step in reviewing GE's decision to deny STD benefits is to determine the appropriate standard of review. De novo review of an ERISA plan administrator's denial of benefits is the default rule "`unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.'" Postma v. Paul Revere Life Ins. Co., 223 F.3d 533, 538 (7^th Cir. 2000) (quoting Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). Although an ERISA plan can specify that the administrator has discretion in interpreting or applying it, the conferral of such discretion is not assumed. See Herzberger v. Standard Ins. Co., 205 F.3d 327, 331 (7^th Cir. 2000). Instead, the plan language must indicate with "the requisite if minimum clarity that a discretionary determination is envisaged." Id. Only then will the court apply the more deferential "arbitrary and capricious" standard. See Cozzie v. Metropolitan Life Ins. Co., 140 F.3d 1104, 1107 (7^th Cir. 1998).

Neither Carter nor GE have spent much time explaining which standard the court should apply to GE's STD Plan. Nevertheless, the court is required to review the language of the STD Plan de novo to determine the applicable level of review. See Mers v. Marriot Int'l Group Accidental Death and Dismemberment Plan, 144 F.3d 1014, 1019-20 (7^th Cir.), cert. denied, 525 U.S. 947 (1998). GE's STD Plan states that benefits "are payable upon receipt of proof of claim or as otherwise provided in this section." (Pl. Exh. D, Bates No. GE1304) It also provides that "[d]eterminations of all benefit payments under the Plan will be made by the carrier. Accordingly, the management and control of the operation and administration of claim procedures under the Plan, including the review and payment or denial of claims . . . shall be vested in the carrier." (Id., Bates No. GE1357) By itself, the "receipt of proof of claim" and "determinations will be made by the carrier" language is not enough to rebut the presumption of plenary review. See Herzberger, 205 F.3d at 332 (holding that mere fact that plan requires determination of eligibility or entitlement by the administrator or requires proof of applicant's claim does not confer discretion upon plan administrator); see also Postma, 223 F.3d at 539-40 (applying de novo review because typical policy terms requiring proof of disability do not reserve discretion to plan administrator). And the court reads the "management and control" language as saying nothing more than that "the carrier," rather than some other named fiduciary, is responsible for managing and controlling the claims procedures. It certainly does not come close to granting "the carrier" discretion to determine benefits or interpret the terms of the Plan.

In its statement of facts, though, GE points out a provision in the GE Benefits Handbook — or, in ERISA terminology, the "summary plan description" ("SPD") — which states in part:

The plan administrator or a designated representative, such as the benefits administrator . . ., has the authority and responsibility to interpret the provisions of the respective plans. The nature of this authority and the discretion afforded these persons are detailed in the applicable plan documents.

(Def. Exh. U, Belanger Dec., Exh. A, Bates No. GE0304) While this language arguably contains the "requisite if minimum clarity" to confer discretion upon GE, the problem is that it cannot be found anywhere in the STD Plan document itself (or at least not in the excerpts provided to the court). In other words, this appears to be a case in which the Plan is silent with respect to the administrator's discretion but the SPD expressly confers such discretion. Other courts facing this situation have concluded that, unless the Plan affirmatively grants discretion, the default rule of de novo review applies, even if the SPD provides otherwise. See, e.g., Reinersten v. Paul Revere Life Ins. Co., No. 99 C 6102, 2001 WL 40796, at *6-8 (N.D. Ill. Jan. 16, 2001); Clark v. Bank of New York, 801 F. Supp. 1182, 1190 (S.D.N.Y. 1992). This makes sense because it is the Plan, not the SPD, that forms the contract between the administrator and the beneficiary. See Herzberger, 205 F.3d at 330. As such, GE cannot use the SPD to confer upon itself the extra-contractual right to make discretionary benefits determinations when the Plan does not grant it this right. See Wilczynski v. Kember Nat'l Ins. Cos., 178 F.3d 933, 934-35 (suggesting in dicta that discretion must come from the Plan, not the SPD); cf. Mers, 144 F.3d at 1021-22, 1023-24 (stating that "existence of an SPD does not eviscerate the underlying policy" and holding that if SPD is silent on issue that is described in the underlying policy, the policy will control). This conclusion is reinforced here because the "nature of . . . the discretion" provided in GE's Benefits Handbook is determined by referring back to the "applicable plan documents." But, as discussed above, the STD Plan confers no discretion to begin with. As a result, the court will review GE's denial of Carter's STD benefits de novo.

Employees enrolled in GE's STD Plan are entitled to benefits if they "become totally disabled as a result of a non-occupational sickness." (Pl. Exh. D, Bates No. GE1303) The Plan, however (or, once again, the abridged version of the Plan provided to the court), does not define "totally disabled." The SPD provides the following explanation: "To qualify for [STD] benefits, you must be under the care of a doctor who certifies that you are totally disabled. The benefits administrator reviews the doctor's certification and determines whether you are unable to perform the duties of your regular job." (Def. Exh. U, Belanger Dec., Exh. A, Bates No. GE0170) It thus appears that the only criteria an employee must meet to qualify for STD benefits is to be certified by a doctor as "totally disabled" from a "non-occupational sickness" and be "unable to perform the duties" of her regular job.

Under a de novo review of the evidence GE had before it, Carter easily meets these criteria. Since she first went on disability leave in early December 1994 until her termination in late May 1995, various physicians certified Carter as unable to work due to non-work related ailments, including pneumonia and fibromyalgia. This was a completely uninterrupted period of excused absence. Furthermore, practically all of the evidence before GE indicated Carter was "unable to perform the duties" of her regular job as a Remele Lathe Operator. Perhaps most obvious is the examination by Dr. Goswami, who found nothing physically wrong with Carter but nevertheless concluded that Carter would "not be able to work, even on a restrictive basis." The "Functional Capabilities Statement" Dr. Goswami completed also imposed various limitations on Carter that unequivocally would have precluded her from performing her job, including the restriction that she "never" use her hands repetitively.

GE attempts to discredit Dr. Goswami's evaluation as irrelevant because it was based upon Carter's condition as of that date (March 1, 1995). But the same can also be said of the "Functional Capabilities Statement" forms filled out by Drs. Kelly and Dansdill, upon which GE so heavily relies. A few days after Carter saw Dr. Dansdill on January 17, 1995, GE requested Drs. Kelly and Dansdill to each complete a "Functional Capabilities Statement" for Carter. Both stated that Carter could return to work on February 6, 1995, with Dr. Dansdill adding that she could do so with "No restrictions." (Def. Exh. V, Papaioannou Dec., Exh. A, pp. A-21, A-25) But under GE's theory, the court should ignore these recommendations as well because they do not provide evidence of how Carter was doing as of February 6. If this is the benchmark for deciding whether Carter was entitled to STD benefits, the most relevant evidence is Dr. Gahl's evaluation, which took place on February 10. And it was Dr. Gahl who concurred with the diagnosis of fibromyalgia and took Carter off work "until further notice."

Besides all of this, it appears that Dr. Dansdill meant to extend Carter's absence from work on an interim basis, not because she was unconditionally ready to go back to work on February 6. As reflected in Dr. Gahl's notes, Dr. Dansdill expected Carter to visit Dr. Gahl before February 6 and have Dr. Gahl take over Carter's treatment. That Dr. Dansdill was not firmly committed to the February 6 date is confirmed by an exchange between him and the Benefits Center on February 16, in which he stated, "I don't recommend long-term disability. I don't think it will harm the patient to remain off work until the evaluation by Dr. Gahl is complete." (Def. Exh. V, Papaioannou Dec., Exh. A, p. A-45) Dr. Dansdill forwarded copies of his report to Dr. Kelly, who apparently just repeated Dr. Dansdill's recommendation that Carter return to work on February 6. In addition, both Drs. Kelly and Dansdill indicated certain restrictions in the "Functional Capabilities Statements" that would have been inconsistent with Carter's job as a Remele Lathe Operator.

GE also argues that, since Dr. Goswami concluded Carter had no physical or neurological problems, and Dr. Smick's evaluation revealed (in GE's words) "no psychological basis for [Carter] to remain off work," it was justified in concluding that she was not eligible for STD benefits. But this is an inaccurate reading of what both these doctors said. As already mentioned above, although Dr. Goswami could find nothing "objectively" wrong with Carter, he made it perfectly clear that she could not return to work and indicated several restrictions that would have prevented her from doing her job at GE. Dr. Smick's report actually says nothing one way or the other about Carter's ability to return to work. What she did say is that Carter "may benefit from individual psychotherapy to provide assistance . . . for coping with her chronic pain" and recommended placement into a "chronic pain and/or physical conditioning program." At best, Dr. Smick's report neither helps nor hurts GE; at worst, it reaffirms the diagnosis of fibromyalgia.

Despite GE's attempt to portray a "conflict of medical opinion," the evidence before GE at the time it made its decision indicated that nearly all of the doctors who saw Carter had imposed medical restrictions on her that would have prevented her from performing the duties of her regular job. The court thus finds there is, at a minimum, sufficient evidence in the record to create a question of fact about whether GE correctly determined that Carter was not "totally disabled" under the STD Plan.

2. LTDI Benefits

According to GE's Benefits Handbook, GE's LTDI Plan generally provides benefits to employees after they have exhausted their STD benefits (which are available for up to twenty-six weeks). (LR 56.1(a) ¶ 12) GE argues that summary judgment should be granted on Carter's claim for LTDI benefits because she never exhausted her STD benefits and, therefore, was never entitled to LTDI benefits. But the only reason Carter was not eligible for LTDI benefits is because GE denied her claim for STD benefits. As Dr. Gahl had authorized Carter off work until sometime around the end of June, this would have pushed her past the twenty-six week limit for STD benefits and into coverage under the LTDI Plan. Because Carter's eligibility for LTDI benefits hinged on her continued receipt of STD benefits, and the court has already determined that GE may have incorrectly denied STD benefits to Carter, it likewise denies summary judgment as to Carter's § 502 claim for LTDI benefits.

3. Health Care Plan

Carter argues GE improperly denied her benefits under its Health Care Plan in two ways: first by refusing to pay for certain doctor and medical bills and prescription medication between February 7, 1995, and May 25, 1995, and second by denying her right to convert her group policy to an individual policy.

Carter's theory for proving these claims, however, is better understood in the context of retaliation or interference under § 510 rather than a simple denial of benefits under § 502. It is undisputed that Carter was not notified of her termination until May 25, 1995. She therefore believed she was covered under the Health Care Plan until that date. Carter then argues that Belanger's decision to make her termination retroactive to February 7, 1995, caused her to lose all of her benefits under the Health Care Plan between February 7 and May 25 (because an employee's benefits under the Plan end upon the date of termination) and made it impossible for her to obtain a conversion (because an employee must request a conversion within thirty-one days from when coverage under the Health Care Plan ends). But this is essentially the same as arguing that GE retroactively terminated Carter for the purpose of interfering with her rights under the Health Care Plan, which is exactly what Carter argues in her § 510 claim. For this reason, the court grants GE's motion with respect to Carter's § 502 Health Care claims and will address these instead under § 510. See discussion infra, Part III-B.

4. Service Protection Policy

GE's Service Protection Policy provides that an employee's service is protected for one year if she is absent from work due to a layoff or non-work related injury or illness. (LR 56.1(a) ¶ 13; LR 56.1(b) ¶ 65) In other words, if an employee is on an approved medical leave of absence for no more than twelve months, she is guaranteed the right to her particular job when she returns to work. (LR 56.1(b) ¶¶ 57-58) because GE terminated Carter within one year from when she first went on disability leave and she was absent from work at the time of her termination due to a non-work related illness that (according to her) should have qualified for STD benefits, Carter believes GE violated the Service Protection Policy.

To bring this claim under ERISA, though, GE's Service Protection Policy first must be an "employee welfare benefit plan" or "welfare plan" as defined by the statute. See Diak v. Dwyer, Costello Knox, 33 F.3d 809, 812 (7^th Cir. 1994). ERISA defines such plans as "any plan, fund, or program . . . established or maintained by an employer . . . for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise . . . benefits in the event of sickness, accident, [or] disability." 29 U.S.C. § 1002 (1). To determine whether the Service Protection Policy is a "plan" covered by ERISA, the court examines the surrounding circumstances and decides whether a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits. See Diak, 33 F.3d at 812.

GE has specifically denied in its answer to Carter's amended complaint that the Service Protection Policy is an ERISA "plan" but has devoted just a short footnote in its reply brief to explain why this is so. (Def. Reply, p. 10 n. 7) Meanwhile, Carter has glossed over the issue entirely in her response brief with the simple conclusory remark that the Service Protection Policy "is a benefit plan covered by ERISA." (Pl. Resp., p. 14)

On its own review of the record, the court finds that GE's Service Protection Policy is not an "employee welfare benefit plan" or "welfare plan" under ERISA. This is mainly because there is no evidence that any sort of benefits are ever paid out under this Policy. Consequently, no source of funding for this Policy can be identified. In fact, there is nothing to suggest that the Service Protection Policy is financed or funded in any way whatsoever, whether "through the purchase of insurance or otherwise." It seems to be nothing more than GE's internal company policy that it will not terminate an employee who is on disability leave for up to one year. It also is not one of the benefits under the STD or LTDI Plans, but is actually a separate policy. (LR 56.1(b) ¶ 57) For these reasons, the court finds that the Service Protection Policy is not an ERISA "plan" and GE's motion is granted as to this claim.

5. Improper Delegation of Fiduciary Duty

Carter's last claim under § 502 is a somewhat confusing one that accuses GE of breaching its fiduciary duty by improperly delegating its obligations under the STD Plan. Under the terms of the STD Plan, GE, as the plan administrator, may delegate or allocate its fiduciary duties to named and unnamed fiduciaries by "written instrument." (Pl. Exh. D, Bates No. GE1357) Because GE has not produced a "written instrument" delegating its fiduciary responsibilities over the STD Plan to the Benefits Center, Carter believes GE has in fact improperly delegated its obligations under the STD Plan and thereby breached its fiduciary duty.

Although it is curious that GE did not respond to this claim simply by offering the "written instrument" (lending credence to the idea that no such "written instrument" exists), this failure does not spell success for Carter. To sustain a claim for breach of fiduciary duty under ERISA, Carter must show, among other things, that the breach resulted in a "cognizable loss." See Hendrich v. Pegram, 154 F.3d 362, 369 (7^th Cir. 1998), rev'd on other grounds, 530 U.S. 211 (2000). Even assuming GE did not formalize its delegation to the Benefits Center in writing, Carter has not come close to showing that she was somehow harmed by this. Carter did testify at her deposition that she believed it was GE, not the Benefits Center, making the decision on her STD claim. (LR 56.1(b) ¶ 68) But she does not argue that her STD benefits would have been approved had GE, rather than the Benefits Center, been the one to review her claim. Instead, Carter apparently seeks to hold GE liable for no reason other than to make sure it complies with the requirement of putting its delegation in writing. This is form over substance and technical violations do not justify relief under ERISA absent a showing of bad faith, active concealment, or detrimental reliance (none of which plaintiff has even mentioned or attempted to prove). See Murphy v. Keystone Steel Wire Co., 61 F.3d 560, 569 (7^th Cir. 1995).

B. Section 510 Counts IV and V

In Counts IV and V, Carter alleges that GE terminated her to retaliate against her for receiving STD benefits and to interfere with her right to seek additional benefits under the STD, LTDI, and Health Care Plans. To prove her § 510 claim, Carter must establish more than a loss of benefits; she must demonstrate that GE terminated her with the specific intent to avoid paying benefits to which she would have been entitled had she continued working. See Fairchild v. Forma Scientific Inc., 147 F.3d 567, 576 (7^th Cir. 1998); Lindemann v. Mobil Oil Corp., 141 F.3d 290, 295 (7^th Cir. 1998). Carter may meet this burden either by presenting direct evidence or utilizing the burden-shifting method set out in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). See Fairchild, 147 F.3d at 576. As Carter has no direct evidence of retaliation and the parties have proceeded under the McDonnell-Douglas framework, the court will do the same. However, because GE has articulated a legitimate nondiscriminatory reason for Carter's discharge, the court need not determine whether she has met her prima facie case. See Lindemann, 141 F.3d at 296. It can instead move onto the issue of deciding whether she has met her burden of proving that GE's proffered reason is a pretext and that the motivating factor behind her termination was the specific intent to interfere with her ERISA rights.See id.; Salus v. GTE Directories Serv. Corp., 104 F.3d 131, 135 (7^th Cir. 1997).

The legitimate nondiscriminatory reason GE has articulated for terminating Carter comes from Belanger's May 25, 1995, letter to her: because Carter's STD benefits had been denied effective February 7, 1995, GE considered her absence since that date as unexcused and terminated her as of that date. In accordance with the collective bargaining agreement between GE and the union to which Carter belonged, GE terminated her for being absent from work "without satisfactory explanation beyond the period of any leave of absence granted [her] by the Company." (LR 56.1(a) ¶ 6)

As evidence that this reason is pretext, Carter repeats that GE had no basis for denying her STD claim. While this may be true, see supra Part III-A-1, it is equally true, as noted above, that Carter must establish more than the loss of her benefits to prove her § 510 claim. See Lindemann, 141 F.3d at 295.

She also tries to prove pretext by arguing that Belanger "relied solely on the denial of the STD claim as the basis for termination" and asserts that Belanger would not have terminated her had he known she was appealing the Benefits Center's denial of her STD claim. Carter has it backwards if she believes this evidence proves pretext. As she says, Belanger relied on the denial of her STD benefits, not her receipt of those benefits. That is, he terminated her because she was not receiving STD benefits, not because she was. And even assuming that Belanger would not have terminated her had he known she was appealing the denial of her STD benefits (a fact Carter does not support by citing the record), this only proves the point more. By not terminating her while her appeal was pending, he would have been giving her the chance to get those benefits, not to prevent her from getting them. These are not the actions of somebody who wants to interfere with Carter's rights to ERISA benefits.

Carter also tries this line of attack from a different angle. She asserts that two GE employees, Michael Condon and Sherry Olson, who was the occupational health nurse at the DeKalb plant, knew Carter had appealed the Benefits Center's denial of her STD claim and also knew Belanger would not have terminated her if he had known about her appeal. Carter then says that Belanger spoke with Olson and Condon before sending out his termination letter to Carter to see if there was any new information about her STD claim and suggests that Olson and Condon "remained silent." The implication seems to be that Olson and Condon knew Carter was seeking STD benefits and deliberately withheld information from Belanger in the hope that he would terminate her. However, the court will not consider this "evidence" because Carter has once again completely failed to support any of these factual contentions with citations to the record. See Carter v. American Oil Co., 139 F.3d 1158, 1163 (7^th Cir. 1998) (district court is "not obligated to assume the truth of a nonmovant's conclusory allegations on faith or to scour the record to unearth material factual disputes").

Carter also believes that Belanger's decision to terminate her retroactively provides further evidence of pretext and proves Belanger intended to interfere with at least her rights under the Health Care Plan. As explained above, making Carter's termination retroactive had the effect of causing her to lose all of her Health Care Plan benefits between February 7, 1995, and May 25, 1995, and automatically cutting off her right to a conversion.

But to succeed in her § 510 claim Carter needs to prove that the loss of these benefits was not just a "mere consequence" of her termination. See Lindemann, 141 F.3d at 295. instead, she must produce evidence from which a reasonable factfinder could conclude that Belanger's stated reason for terminating her retroactively was a lie or lacks any factual basis. See Jordan v. Summers, 205 F.3d 337, 343 (7^th Cir. 2000). For example, Carter could have tried to prove her retroactive termination violated the collective bargaining agreement. However, Carter actually filed a grievance with the union to contest the retroactive nature of her termination and the union found there was no violation. (LR 56.1(a) Exh. E) She also may have introduced evidence that, when GE terminated an employee because of an unexcused absence, regardless of whether it was due to illness, injury, or otherwise, it was GE's ordinary practice to make the termination effective as of the date it decided to terminate the employee, rather than the last day the employee worked. If this were the case, Belanger's decision to terminate Carter retroactively might have raised some suspicion. But this is not the case. As it is, there is little, if any, evidence from which to infer Belanger's reason for making her termination retroactive was other than what he said: that February 6, 1995, was the last day GE had authorized Carter to be off work and, per the terms of the collective bargaining agreement, Carter had been absent beyond the leave of absence GE had granted her. While this reason may turn out to be poorly founded (e.g., if a jury determines Carter really was entitled to STD benefits after February 6), Carter has not shown that Belanger did not honestly believe it at the time. See Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7^th Cir. 1997).

In short, Carter has failed to establish that the desire to interfere with her ERISA rights was the motivating factor behind her retroactive termination or that the reason GE gave for her termination was pretextual. GE's motion on her § 510 claim is therefore granted.

IV. CONCLUSION