Summary
noting that under Peterson, "the existence of an initial decision by the plan administrator is a non-waivable jurisdictional prerequisite to an ERISA action" that cannot be ignored on the ground of futility
Summary of this case from Eastman Kodak Co. v. Bayer Corp.Opinion
00 Civ. 6238 (JGK)
March 28, 2002
OPINION AND ORDER
The plaintiff brings this action pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., alleging that defendants UNUM Employee Short-Term Disability Plan (the "STD Plan"), UNUM Employee Long-Term Disability Plan (the "LTD Plan"), and UNUM Life Insurance Company of America ("UNUM America") owe him disability benefits under the STD and LTD Plans. The plaintiff also alleges that defendant Provident Life and Casualty Insurance Company ("Provident") breached a disability insurance contract and defamed the plaintiff. The defendants have now moved for partial summary judgment and the plaintiff has cross-moved for summary judgment against defendant STD Plan.
The Complaint names two additional defendants. The action has since been discontinued with respect to those defendants.
I
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party.See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986)
On a motion for summary judgment, once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts to show there is a factual question that must be resolved at trial. See Fed.R.Civ.P. 56(e). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible."Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983).
II
There is no dispute as to the following facts except where specifically noted.
UNUM America is an insurance company incorporated under the laws of the state of Maine. (Ans. ¶ 5.) Monroe-Trice was employed by UNUM America, and/or its then-subsidiary First UNUM Life Insurance Company (collectively "UNUM") , beginning on February 4, 1991. (Ans. ¶¶ 3, 8, 9.) On April 27, 1994, Provident Life, a Tennessee corporation (Ans. ¶ 6), issued a disability income insurance policy (the "Provident policy") to the plaintiff (Def. Ex. D). The Provident policy went into effect May 7, 1994. (Id. at 3.) As an UNUM employee the plaintiff was also insured against disability by the STD and LTD Plans (Affidavit of Andrew Monroe-Trice, sworn to Aug. 8, 2001 ("Monroe-Trice Aff."), Ex. J at D2, D4; Def. Ex. C), which were sponsored and administered by UNUM America (Compl. ¶ 4; Ans. ¶ 4; Def. Ex. C). Although UNUM America and Provident Life were separately owned companies in May, 1994, their parent companies merged to form the UNUM Provident Corporation on June 30, 1999. (Ans. ¶¶ 5, 6, 8; Monroe-Trice Aff. at 2 n. 1.)
On January 12, 1996, the plaintiff, who was a senior field inspector and claims resolution manager at the time, received a negative performance evaluation and was placed on "pre-probation." (Monroe-Trice Aff., Ex. A.) The pre-probation, which was to last until February 14, 1996, required the plaintiff to fulfill certain conditions, including completion of current assignments, resolution of a given number of claims, and increased contact with supervisors. (Id.) According to the pre-probation description, if the plaintiff failed to satisfy the conditions of the pre-probation, he would be placed on probation as of February 14, 1996, "the terms of which will be set at that time." (Id.)
As it turned out, the plaintiff's career at UNUM took a different path from that contemplated in the January, 1996 performance review and pre-probation description. The plaintiff advised. UNUM that he was taking sick leave from January 29 through February 9, 1996. (Monroe-Trice Aff. ¶ 14 Ex. C at 3-1.) The plaintiff states that he claimed the sick leave because he was severely depressed. (¶¶ 14.) Monroe-Trice also states that his alleged depression resulted from UNUM's unfair treatment of him, and that UNUM was motivated by racial prejudice and a desire to retaliate against the plaintiff for criticizing UNUM's claim practices. (Id. ¶ 7-8, 13-14.)
On February 15, 1996, the plaintiff's supervisor wrote to him, asserting that the plaintiff had not done any UNUM work since the beginning of the pre-probation period. (Id., Ex. C at 3-1.) He went on to explain that if Monroe-Trice wished to allege that he was disabled after the end of his sick leave period (February 9, 1996), he should file an STD claim to that effect. (Id. at 3-1a.) The supervisor also stated that unless the plaintiff was determined to be disabled, the plaintiff would be terminated on February 22, 1996 "for non-performance and job abandonment. This termination will be effective as of January 12, 1996, since that was the last date on which you performed any work at all . . . ." (Id. (emphasis in original).)
The plaintiff asserts that he filed an STD claim on February 19, 1996 (Monroe-Trice Aff., ¶ 20), citing depression which rendered him unable to work as of January 29, 1996 (Id. Ex. B). The plaintiff has submitted a fax log which supports the assertion that he sent a claim form to UNUM on February 19, 1996. (Id.) However, on February 27, 1996, the plaintiff's supervisor wrote to him stating that no claim had been received as of February 26, and that "[a]ccordingly, . . . you have been terminated effective January 12, 1996. Of course, if you do submit an STD claim, STD Benefits will assess it in the normal course and, in accordance with UNUM policy, the decision on that claim may affect this termination." (Id., Ex. C at 3-3.)
Subsequently, UNUM America, acting as the administrator of the STD plan, denied Monroe-Trice's claim for short-term disability benefits. (Id., Ex. F.) UNUM America denied the claim on the basis that the plaintiff's employment terminated on January 12, 1996, whereas his purported disability began on January 29, 1996, so he was not eligible for benefits at the time he claimed to have become disabled. (Id.) By request of the plaintiff, UNUM America reviewed its denial of STD benefits, and affirmed the denial. (Id., Ex. H.) The plaintiff did not file a claim for LTD benefits at any time. (Monroe-Trice Aff. ¶ 29.)
The plaintiff was also covered by a statutory disability insurance policy administered by UNUM America. He was awarded benefits under that policy after an appeal. (Monroe-Trice Aff., Ex. H.) The statutory policy is not at issue in this case.
The plaintiff filed a claim for disability benefits under the Provident policy in November, 1996. (Declaration of Gregory J. Breter, dated June 15, 2001 ("Breter Decl."), ¶ 3.) In January, 1997, Provident began paying the plaintiff total disability benefits based on depression. (Id.; Def. Ex. F.) The payments included benefits retroactive to the onset of his disability in early 1996, less a ninety-day elimination period. (Compl. ¶ 31; Ans. ¶ 25.)
At Provident's direction, Monroe-Trice underwent an independent medical examination by Dr. Eric Goldsmith in July and August, 1999. (Breter Decl. ¶ 4.) Dr. Goldsmith's examination involved a review of the plaintiff's medical history and other documents from his file, short phone interviews with the plaintiff's psychotherapist and treating physician, and over five hours of interviews with the plaintiff. (Def. Ex. E at 2-3.) The plaintiff consented to having the interviews audiotaped. (Id. at 5.) Dr. Goldsmith produced a report reflecting his opinion that the plaintiff "has 'moderate symptoms,' and 'moderate difficulty' in social and occupational functioning" (Id. at 2), and that "[n]o psychiatric impairment exists that would prevent Mr. Monroe-Trice from returning to work" (Id. at 14).
Dr. Goldsmith submitted his report to Provident, and on October 12, 1999, Provident terminated the plaintiff's disability benefits, stating that he was "not currently disabled from a psychiatric condition." (Def. Ex. F at 2.) On November 10, 1999, the plaintiff wrote to Provident, stating that the decision was "unjust" and requesting copies of the audiotapes of the independent medical examination. (Def. Ex. G at 1.) Provident provided the tapes to the plaintiff's attorney on or about December 3, 1999. (Breter Aff. ¶ 9.)
On December 22, 1999, the plaintiff's attorney wrote to Provident stating that "Dr. Goldsmith [had) misrepresented and in some cases falsified what [the plaintiff] actually said . . . ." (Def. Ex. H at 1.) In particular, the attorney provided a transcription of part of the interview in which the plaintiff was asked about his "sexual functioning." Whereas Dr. Goldsmith had reported that Monroe-Trice "related that his sex driver [sic] remains low, 'Although, I might have fun with a prostitute for one night. But that's not what you mean by sex'" (Def. Ex. E at 7), the attorney indicated that on tape the plaintiff had actually said, "could I go out there and go to bed with some prostitute for a night and have fun from the sex? Probably just for the moment, but that's not what sex is to me . . . ." (Def. Ex. H at 2). In response, Dr. Goldsmith acknowledged that he had not accurately quoted the plaintiff, and "added an addendum to [his] notes with the full and correct quote," but he did not change the report itself or his conclusion about whether the plaintiff was disabled. (Def. Ex. J.)
III
The defendants move for summary judgment dismissing the plaintiff's claim under the LTD plan on the grounds that the Court lacks jurisdiction to consider the claim and that the claim is time-barred.
It is undisputed that the LTD plan is an "employee benefit plan" within the meaning of 29 U.S.C. § 1003(a) and that the plaintiff's claim under that plan is therefore governed by ERISA. ERISA establishes a framework for narrow federal court review of the discretionary acts of benefit plan administrators. Peterson v. Continental Casualty Co., No. 01-7068, 2002 WL 234246, at *4 (2d Cir. Feb. 19, 2002); see also Pagan v. NYNEX Pension Plan, 52 F.2d 438, 443 (2d Cir. 1995); Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 594 (2d Cir. 1993); Barnett v. IBM, 885 F. Supp. 581, 587 (S.D.N.Y. 1995). Accordingly, "[a]bsent a decision by the plan administrator, district courts have no jurisdiction to make an assessment of a beneficiary's eligibility for benefits." Peterson, 2002 WL 234246, at *5; see also Jones v. UNUM Life Ins. Co. of America, 223 F.3d 130, 140-41 (2d Cir. 2000). In addition, after receiving an unfavorable decision, a claimant is required to exhaust available administrative remedies before resorting to the courts.Peterson, 2002 WL 234246, at *5; Jones, 223 F.3d at 140 Kennedy, 989 F.2d at 594. Nevertheless, courts have waived the exhaustion requirement in instances where a plaintiff has made a "`clear and positive showing' that seeking review by the carrier would be futile . . . ." Jones, 223 F.3d at 140 (citing Kennedy, 989 F.2d at 595).
In this case, the plaintiff admits that he never filed a claim specifically seeking disability benefits under the LTD plan. It is also clear that, in the absence of such a claim, the plan administrator never issued a decision regarding the plaintiff's eligibility for LTD benefits. Therefore, the Court lacks jurisdiction to determine the plaintiff's eligibility for benefits under that plan in the first instance. See Peterson, 2002 WL 234246, at *4.
The LTD Plan's silence following a September 11, 1996 letter addressed to the STD plan in which the plaintiff mentioned his belief that he "remain[ed] disabled and therefore eligible for LTD benefits which are now past due" (Monroe-Trice Aff., Ex. G.) is not equivalent to a decision by the plan administrator. See Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 133 (2d Cir. 2001) (per curiam) (correspondence from employer specifically directed to plan at issue and stating employer's view that employee was not covered by plan does not constitute denial reviewable by district court pursuant to ERISA).
Monroe-Trice argues that under the terms of the Summary Plan Description ("SPD") that was issued to him, a claimant is required to exhaust STD plan benefits as a condition precedent to filing a claim for LTD plan benefits. He also argues that the SPD plan's terms, as he interprets them, should control even though the language of the LTD policy does not require a claimant to apply for or exhaust STD benefits before filing a claim under the LTD plan. (See Def. Ex. C at LTD-CLM-1.) Even if correct, these contentions could not cure this Court's lack of jurisdiction over the plaintiff's LTD plan claim. Instead, they would indicate that "the issue [is] not even ripe for adjudication by the plan administrator, much less by the District Court." Peterson, 2002 WL 234246, at *5; see also Jones, 223 F.3d at 140-41.
At oral argument and in subsequent correspondence, the plaintiff relied on the language of the SPD to argue that the STD and LTD plans are in effect one integrated plan. It is, however, clear that the SPD treats LTD and STD benefits separately; for example, there is a section entitled "How to Apply for LTD Benefits" as well as one called "How to Apply for STD Benefits." (Monroe-Trice Aff., Ex. J at D3, D5.) The Court's role is to review the plan administrator's "eligibility or claim determination" and even if the LTD and STD benefits were part of the same plan, the lack of any decision regarding the plaintiff's right to LTD benefits would deprive the Court of jurisdiction over that claim. See Peterson, 2002 WL 234246 at *3-*5 (district court erred by adjudicating eligibility for permanent benefits where plan administrator had not rendered a decision on such benefits, although administrator had issued a decision regarding occupation-period benefits under same plan).
The plaintiff also argues that filing a claim under the LTD plan would have been futile, so the Court should not require him to have done so in order to obtain judicial review. However, as the plaintiff himself acknowledges, courts in this Circuit "will generally not apply the [futility] doctrine in cases where the plaintiff has not filed an initial application for benefits under the ERISA plan." (Pl. Opp. Mem. at 5.)See, e.g., Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 134 (2d Cir. 2001); Barnett, 885 F. Supp. at 589. Indeed, the recent opinion of the Court of Appeals for the Second Circuit in Peterson, 2002 WL 234246, at *4, suggests that the existence of an initial decision by the plan administrator is a non-waivable jurisdictional prerequisite to an ERISA action. Without at least an initial decision by the plan administrator, there is nothing for the district court to review.
Moreover, as courts have repeatedly pointed out, even if it were within the district court's discretion to do so, allowing a plaintiff to proceed on the basis of a claim never filed with or determined by the plan administrator would frustrate the purposes of the exhaustion requirement, which are to "(1) uphold Congress' desire that ERISA trustees be responsible for their actions, not the federal courts; (2) provide a sufficiently clear record of administrative action if litigation should ensue; and (3) assure that any judicial review of fiduciary action (or inaction) is made under the arbitrary and capricious standard, not de novo Kennedy, 989 F.2d at 594 (quoting Denton v. First Nat'l Bank of Waco-Texas, 765 F.2d 1295, 1300 (5th Cir. 1985)); see also Davenport, 249 F.3d at 133-34; Barnett, 885 F. Supp. at 588.
The reasons for requiring the filing of a claim apply even if the ultimate standard of review is determined to be de novo. The plan should resolve the claim in the first instance and there should still be a decision for the district court to review. See generally Salve Regina College v. Russell, 499 U.S. 225, 232 (1991) (de novo appellate review of district court's decision "necessarily entails a careful consideration of the district court's legal analysis"); Zervos v. Verizon New York, Inc., 252 F.3d 163, 168 (2d Cir. 2001) ("When we review a district court's decision de novo, we take note of it, and study the reasoning on which it is based."). Moreover, if the reason that de novo review applies is that a conflict of interest actually influenced the decision of the plan administrator, the district court must examine the administrator's decision in order to determine what standard of review to apply. See Sullivan v. LTV Aerospace and Defense, 82 F.3d 1251, 1255-56 (2d Cir. 1996) (holding that "arbitrary and capricious" standard applies where discretion is expressly given to plan administrator, and where administrator is shown to have a conflict of interest, unless conflict actually influenced decision).
Since the Court lacks jurisdiction to consider the plaintiff's claim under the LTD plan, the claim will be dismissed without prejudice. Given its lack of jurisdiction, the Court will not consider the defendants' statute of limitations defense at this time. See Davenport, 249 F.3d at 135.
IV
Provident moves to limit the plaintiff's claims under the Provident policy to the monthly disability payments allegedly due when the action was commenced. The plaintiff had originally sued for relief including an Order directing Provident to "restore his disability benefits" retroactive to the date that they were discontinued, attorney's fees, and punitive damages. The plaintiff has since conceded that he cannot recover for future benefits and that he is not entitled to attorney's fees. He continues to claim punitive damages for Provident's alleged breach of contract.
Under New York law, punitive damages are usually not available to an insured on a claim against a first-party insurer based on an insurance contract. Manning v. Utils. Mut. Ins. Co., Inc., 254 F.3d 387, 399 (2d Cir. 2001). There are, however, "a limited number of instances" in which the "extraordinary remedy" of punitive damages is available. Rocanova v. Equitable Life Assurance Soc'y of the United States, 634 N.E.2d 940, 944 (N Y 1994) (citations omitted). In Rocanova and New York Univ. v. Continental Ins. Co., 662 N.E.2d 763, 767 (N.Y. 1995), the New York Court of Appeals set forth a two-step analysis for the award of punitive damages:
First, the defendant's conduct must be "actionable as an independent tort for which compensatory damages are ordinarily available." Second, in order to state a claim for punitive damages, a claimant must allege conduct which is "aimed at the public generally," involves "a fraud evincing a high degree of moral turpitude" and demonstrates "such wanton dishonesty as to imply a criminal indifference to civil obligations."Manning, 254 F.3d at 400 (quoting Rocanova, 634 N.E.2d at 940) (internal citation omitted)
The plaintiff has failed to satisfy either step of this analysis. He argues that his defamation claim against Provident shows that there is an independently actionable tort satisfying the first step. But his defamation claim relates to how Provident handled the records of his interview with Dr. Goldsmith, not to how it processed his claim under the Provident policy. The plaintiff has not shown that the conduct on which he bases his contract claim would be independently actionable in tort.
Even if the plaintiff could show that there is an independently actionable tort, he has not raised a triable issue of fact with regard to the second step of the Rocanova analysis. The plaintiff has not explained how Provident's conduct could be construed as directed against the public generally, and indeed, he conceded at oral argument that it cannot be so construed. Furthermore, the plaintiff has not alleged sufficiently egregious conduct. The plaintiff has alleged that UNUM acted outrageously in or around January, 1996, when UNUM was a separate entity from Provident, but such allegations cannot establish that Provident was acting with a "high degree of moral turpitude" and "wanton dishonesty" when Provident terminated the plaintiff's benefits in October, 1999. The plaintiff's only allegation in this respect is that Provident denied his benefits based on a false and defamatory report. However, he has not alleged that Provident knew that the report was false when it decided to terminate his benefits. Nor has the plaintiff alleged that the purportedly false statements contained in the report so undermined its credibility as to the essential issue of whether he was disabled that Provident committed egregious misconduct by relying on the report in terminating his benefits.
The plaintiff's potential damages under the Provident policy are therefore limited to the amount past due to him under that policy.
V
Provident moves for summary judgment dismissing the plaintiff's defamation claim on the grounds that the plaintiff has not shown sufficient injury and that any publication of defamatory statements was protected by the common interest privilege.
Under New York law, to prevail on a libel claim a plaintiff must prove five elements: "(1) a written defamatory statement of fact regarding the plaintiff; (2) published to a third party by the defendant; (3) defendant's fault . . .; (4) falsity of the defamatory statement; and (5) injury to [the] plaintiff." Meloff v. New York Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001). The plaintiff's compensable injury is presumed if the statement falls within the definition of libel per se. Id.
A
The plaintiff claims that the statement in Dr. Goldsmith's report that refers to prostitutes constitutes libel per se and is therefore actionable without proof of special damages. For a written statement to constitute libel per se, it must "tend to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." Jewell v. NYP Holdings, Inc., 23 F. Supp.2d 348, 396 (S.D.N.Y. 1998) (quoting Rinaldi v. Holt, Rinehart Winston, 366 N.E.2d 1299, 1305 (N.Y. 1977)); see also Tracy v. Newsday, Inc., 155 N.E.2d 853, 854 (N.Y. 1959); Donati v. Queens Ledger Newspaper Group, 659 N.Y.S.2d 306, 307 (App.Div. 199 7); Matherson v. Marchello, 473 N.Y.S.2d 998, 1001-02 (App.Div. 1984). It is for the Court to decide whether the statement is reasonably susceptible of an interpretation that would render it libelous per se. James v. Gannett Co., Inc., 353 N.E.2d 834, 837 (N.Y. 1976); Tracy, 155 N.E.2d at 854.
The plaintiff argues that by misquoting the interview between Dr. Goldsmith and the plaintiff, Dr. Goldsmith's report implies that Monroe-Trice has sex with prostitutes. The plaintiff, who is married, cites cases which have found statements imputing sexual immorality to a man or imputing that a man has committed adultery actionable per se. See Rejent v. Liberation Pubs., Inc., 611 N.Y.S.2d 866, 868-69 (App.Div. 1994) (libel); Meyer v. Somlo, 482 N.Y.S.2d 156, 157 (App.Div. 1984) (slander); see also Jewell, 23 F. Supp. 2d at 399 n. 35 (libel plaintiff meeting slander per se standard need not prove special damages). The defendant has not argued on this motion that the allegedly libelous statement was substantially true. It is capable of the defamatory meaning that the plaintiff occasionally has sex with prostitutes and differs from the plaintiff's interpretation of what he told the psychiatrist, which was only that he was physically capable of having sex with a prostitute. Moreover, the phrase "but that's not what you mean by sex" is susceptible of the interpretation that the plaintiff has no moral reservations about sex with prostitutes, whereas his interlocutor does. Therefore, a jury could find that the written statement tended to expose the plaintiff to public contempt, ridicule, aversion, or disgrace.
Although not always followed with precision, the definition of libel per se, which looks to whether the statement is so injurious to reputation that it is actionable without reference to extrinsic facts, differs from the definition of slander per se, which is defined as including four categories of accusation — the most significant of which, for this case, is the imputation of serious sexual misconduct to a man or woman. See generally Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems ¶¶ 2.8.1-2.8.2.
Because of the injurious nature of the accusations included in slanderper se, it would be unusual to have an accusation that was slander per se which was not also libel per se if published. See id. § 2.8.3.2.
Accordingly, the plaintiff need not prove special damages and his claim cannot be dismissed on the basis that it failed to allege special damages.
B
"Defamatory communications made by one person to another upon a subject in which both have an interest" are protected by the common interest privilege, which is a defense to defamation. Meloff, 240 F.3d at 145 (citing Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 98 (2d Cir. 2000)). A plaintiff may overcome the privilege by proving that the statement was not substantially true and that the defendant abused the privilege. Id. at 146. A defendant abuses the privilege if the defendant acted beyond the scope of the privilege, acted with common law malice, or acted "with knowledge that the statement was false or with reckless disregard as to its truth." Id. (citing Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61-62 (2d Cir. 1993).
The plaintiff does not dispute that communications between Provident and medical or claims personnel are generally protected by the common interest privilege. Instead, he claims that Provident was aware of the falsity of the statement by, at the latest, February 29, 2000, when Dr. Goldsmith wrote to the insurer acknowledging that he had misquoted the plaintiff. (Def. Ex. J.) The plaintiff has presented documentary evidence which suggests that Provident circulated the report to two of its employees in or about March, 2000. (Declaration of Steve Stavridis, dated Sept. 18, 2001 ("Stavridis Decl.") , Ex. A.) This evidence is sufficient to raise an issue of fact as to whether the plaintiff published the statement with knowledge that it was false or with a reckless disregard for the truth.
To overcome the privilege, the plaintiff must also show that the allegedly defamatory statement was not substantially true in the understanding of the average reader. Meloff, 240 F.3d at 146. On this motion, the defendant does not dispute that the statement was not substantially true.
Since the March, 2000 publications of Dr. Goldsmith's report, if proven, may not be protected by the common interest privilege, Provident's motion for summary judgment with respect to the plaintiff's defamation claim is denied.
VI
The plaintiff has moved for summary judgment on his claim under the STD plan on the basis that he was, contrary to the plan's assertions, eligible for benefits on January 29, 1996, the date his disability allegedly began.
The defendants claim that the plaintiff was employed "at will," and that, as a result, UNUM could terminate him at any time for any reason The plaintiff argues that UNUM's freedom to terminate him was constrained by statements in the UNUM employment manual; that UNUM was bound to follow the procedures set forth in the pre-probation letter before terminating the plaintiff; and that in any case, UNUM could not fire him retroactively.
Under New York law, a term of employment for an indefinite period of time is presumed to be "a hiring at will that may be freely terminated by either party at any time for any reason or even for no reason." Lobosco v. New York Tel. Co./NYNEX, 751 N.E.2d 462, 464 (N.Y. 2001) (citation omitted). Despite this presumption, if an employee can prove that "(1) an express written policy limiting the employer's right of discharge exists, (2) the employer (or one of its authorized representatives) made the employee aware of this policy, and (3) the employee detrimentally relied on the policy in accepting or continuing employment," the policy becomes part of the employment contract. Baron v. Port Auth. of New York and New Jersey, 271 F.3d 81, 85 (2d Cir. 2001) (citing Lobosco, 751 N.E.2d at 462); see also Weiner v. McGraw-Hill, Inc., 443 N.E.2d 441, 445-46 (N.Y. 1982).
Employee manuals and similar "[r]outinely issued" documents "should not lightly be converted into binding employment agreements." Lobosco, 751 N.E.2d at 465. An "explicit disclaimer of a contractual relationship" in an employee manual preserves the employer's right to terminate employment at will, even when the manual contains provisions which might be construed as implying protection from termination. Id. In this case, the section of the UNUM "Employee Guide" on which the plaintiff seeks to rely begins with the sentence: "Our employment relationship is one of "employment at will, which means that either you or the company may terminate your employment at any time, for any reason." (Monroe-Trice Aff., Ex. D at 21.) The plaintiff's effort to incorporate the employee guide into his employment relationship with UNUM is foreclosed by the explicit disclaimer contained in the guide itself.
The letter setting forth the pre-probation plan, on the other hand, was specifically prepared for Monroe-Trice and contains no disclaiming language. It is clear that it sets forth a policy regarding the potential discharge of the plaintiff, and that the employer made the plaintiff aware of the policy. However, the plaintiff has not alleged any reliance on the letter, as required under Lobosco and Weiner. Therefore, he cannot argue that the pre-probation plan limited UNUM's right to terminate him.
Thus, the plaintiff's relationship with UNUM was one of employment (and termination) at will. In an at-will employment contract, "the terminating party is still required to notify the other party, either by words or by actions, that the employment action has ended," and the date of termination cannot precede the date of such notice. Smith v. United Parcel Svc. of America, Inc., 65 F.3d 266, 269 (2d Cir. 1995) (Walker, J., concurring). Accordingly, UNUM's February 27, 1996 letter retroactively terminating the plaintiff cannot prove that the plaintiff was actually terminated on January 12, 1996.
Of course, the plaintiff may have terminated his employment himself by abandoning his job on that date. Unum did complain at the time that the plaintiff did no work after January 12, 1996, and did not respond to his employer's repeated attempts to reach him. (Monroe-Trice Aff., Ex C.) There is a question of fact as to whether the plaintiff terminated his employment on that date, so that he was ineligible for STD benefits when he allegedly became disabled on January 29, 1996. Therefore, the Court cannot grant the plaintiff summary judgment on this claim.
The policy provides that an employee's disability coverage ends "the last day you are in active employment . . ." (Def. Ex. C at EMPLOYEE-4), with "active employment" defined as "working for your Employer for earnings that are paid regularly and . . . performing the material and substantial duties of your regular occupation" (Id. at GLOSSARY-1). There is also a triable issue of fact as to whether the plaintiff was in "active employment" as defined by the policy when he allegedly became disabled.
Conclusion
In sum:
1. The plaintiff's claim under the LTD plan is dismissed without prejudice.
2. The plaintiff's demands for punitive damages, attorney's fees, and prospective or declaratory relief in connection with his claims under the Provident policy are stricken.
3. Provident's motion for summary judgment with respect to the plaintiff's defamation claim is denied.
4. The plaintiff's motion for summary judgment with respect to his claim under the STD plan is denied.
SO ORDERED.