Fromer v. Pub. Serv. Enter. Grp. Inc.
Fromer v. Pub. Serv. Enter. Grp. Inc.
2022 WL 19335880 (N.D.N.Y. 2022)
September 27, 2022
Hummel, Christian F., United States Magistrate Judge
Summary
The court granted the plaintiff's motion to compel discovery in part, ordering defendants to provide job descriptions for certain positions for the ten years preceding the plaintiff's denial of benefits. The court also granted defendants' cross-motion for a protective order, excepting plaintiff's first demand for documents.
HOWARD FROMER, Plaintiff,
v.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED, et al., Defendants
v.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED, et al., Defendants
1:20-CV-963 (GLS/CFH)
United States District Court, N.D. New York
Filed September 27, 2022
Counsel
Gleason Dunn Walsh & O'Shea, 40 Bever Street, Albany, New York 12207, OF COUNSEL: RONALD G. DUNN, ESQ., NANCY W. WILLIAMSON, ESQ., Attorneys for plaintiffFisher, Phillips Law Firm, 430 Mountain Avenue, Murray Hill, New Jersey 07974, OF COUNSEL: DAVID B. LICHTENBERG, ESQ., KATHLEEN MCLEOD CAMINITI, ESQ., Attorneys for defendants
PSEG Services Corp., 80 Park Plaza, Newark, New Jersey 07102, OF COUNSEL: SUSAN SZAFRANSKI, ESQ., Attorneys for defendants
Hummel, Christian F., United States Magistrate Judge
MEMORANDUM-DECISION & ORDER
*1 Presently pending before the Court are (1) plaintiff's motion for discovery (Dkt. No. 35) pursuant to Rule 37 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) to compel defendants to “comply with Plaintiff's First and Second Demands for Documents, First Set of Interrogatories, and Deposition Notices of Raymond DePillo and Lola Holness,” (Dkt. No. 35), and (2) defendants’ Public Service Enterprise Group Incorporated, PSEG Power LLC, and PSEG Energy Resources & Trade LLC (collectively defendants or “PSEG defendants”) cross-motion for a protective order (Dkt. No. 37). Defendants opposed plaintiffs’ motion for discovery and filed further support for their cross-motion. See Dkt. Nos. 37-1, 38.[1] Plaintiff filed a reply. See Dkt. No. 39.[2]
I. Background[3]
Plaintiff commenced this action on May 18, 2020, seeking to challenge whether defendants violated the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq. (“ERISA”). See Dkt. No. 1 (“Compl.”). In April 2020, the PSEG defendants, upon company reorganizing that would eliminate plaintiff's Albany, New York-based position as the “Director, Market Policy – NYISO,” offered him the role of PJM Strategy Manager, covering Pennsylvania, New Jersey, Maryland, and “parts of the Midwest. See Compl. at 4.-5. Plaintiff learned that the PJM Strategy Manager Position would require “significant time at the Company's headquarters in Newark, New Jersey[,]” “with regular trips” of “three to four nights every other week” “required throughout the month to attend stakeholder meetings in Valley Forge, Pennsylvania, which is approximately 250 miles from Albany, New York.” See id. at 6-7. Due to the “significant differences between Plaintiff's eliminated position and the new position the Company offered him and the extensive travel and time away from home the new job would require,” plaintiff declined the PJM Strategy Manager Position and requested severance plan benefits. Id. at 7. Defendants denied plaintiff's request for severance benefits, contending in a letter that his work location would not change as he could work from home, and any travel for meetings would not be commuting, but business travel for which he would be reimbursed. See id. at 7-8. Plaintiff was also informed that he “would be expected to be physically present at PJM meetings, once in-person meetings resume.” Id. at 7. Plaintiff argues that pursuant to 29 U.S.C. § 1132(a)(1)(B), he is entitled to benefits under the terms of the severance plan for 36 weeks of severance pay on the ground that the new position defendants offered increased his commuting distance by more than fifty miles. See generally Compl.
II. Arguments
*2 Plaintiff first argues that it has demonstrated good cause to extend the discovery deadline. See Dkt. No. 35-16 at 10. Specifically, plaintiff seeks the following discovery through interrogatories: (1) “information for each employee who received severance pursuant to the Severance Plan from December 2001 to the present”; (2) “information regarding the typical commuting distance of each employee who held the Market Policy Director Position – PJM, PJM Strategy Manager, and/or all similarly titled and/or related positions from December 2001 to the present”; (3) “information regarding the ability to work remotely for each employee who held the Market Policy Director Position – PJM, PJM Strategy Manager, and/or all similarly titled and/or related positions from December 2001 to the present and who requested to work remotely; (4) “information regarding each unsuccessful applicant who was interviewed, recommended, or considered for the Market Policy Director – PJM, PJM Strategy Manager, and/or all similarly titled and/or related positions from December 2001 to the present.” Id. at 19-20.
For document demands, plaintiff seeks (1) “internal and external job postings for the Market Policy Director – PJM, PJM Strategy Manager, and all similarly titled and/or related positions from December 2001 to the present,” (2) “records regarding any ... business travel by any employee holding the Market Policy Director – PJM, PJM Strategy Manager, and all similarly titled and/or related positions from December 2001 to the present,: (3) records regarding Plaintiff's eligibility for severance pursuant to the Public Service Enterprise Group Incorporated Separation Allowance Benefits Plan for Non-Represented Employees, both before and after he was offered the PJM Strategy Manager position,” (4) “information regarding telephone conversations between Plaintiff and PSEG employees regarding the PJM position offered to Plaintiff,” (5) “information regarding reorganizing the ER&T regulatory group, the decision to eliminate the Director, Marketing Policy-NYSIO position,” (6) “the records concerning the decision to offer the PJM Strategy Manager position to Plaintiff,” (7) “financial plans or budgets supporting any reason for reorganizing the ER&T regulatory group,” (8) “[r]ecords concerning the decision to merge the job duties of the Director, Marketing Policy – NYSIP and Market Policy Director – New England,” and (9) “[r]ecords indicating whether the reorganization would result in cost savings for Defendants.” Dkt. No. 35-16 at 21-22. Finally, plaintiff seeks to take depositions of Lola Holness and Raymond DePillo. See id. at 17-18.
Plaintiff argues that parties had a “mutual understanding” regarding discovery “after Defendants proposed and Plaintiff agreed that discovery be deferred in advance of mediation” Dkt. No. 35-16 at 17-18. Plaintiff provides that when he served his “First Demand for Documents on July 30, 2021,” defendants responded by “propos[ing] that the parties ‘forego the time and expense of discovery in advance of mediation ... [.]’ ” Id. at 11. As mediation was unsuccessful, plaintiff “awaited Defendants Responses to his First Demand for Documents. Without receiving such responses, Plaintiff served his Second Demand for Documents and his First Set of Interrogatories in advance of the discovery deadline[.]” Id. Plaintiffs provide that “Defendants finally provided an incomplete response and objections to Plaintiff's First Demand for Documents ... on December 7, 2021.” Id.
Plaintiff also argues that discovery is warranted because “no date for trial as been set.” Dkt. No. 35-16 at 12. Plaintiff also argues that defendants would not be prejudiced by reopening discovery as “[t]his matter does not involve the accrual of potential damages” and because there has not been a trial date set. Id. Plaintiff further notes that defendants were advised of plaintiff's desire for further discovery, and it was defendants’ delay in informing him that they “had no intention of providing the discovery that Plaintiff had previously requested” that necessitates discovery being reopened. Id. at 12-13. Next, plaintiff contends that “the requested discovery will lead to relevant evidence” and is needed “to determine if the court has good cause to consider additional evidence.” Id. at 13. Further, plaintiff argues that defendants’ opposition is “on the basis of the relevance of Plaintiff's Discovery Demands,” yet defendants “fail to address the multiple procedural inconsistencies that Plaintiff identified within the administrative record which necessitate discovery.” Id. at 12.
*3 Plaintiff argues that discovery is needed because there is a reasonable chance that it will reveal information on “structural conflict of interest,” “inconsistencies in the information plaintiff was provided from members of PSEG,” and “crucial insights into the procedural process surrounding the denial of Plaintiff's benefits.” Dkt. No. 35-16 at 17. More specifically, plaintiff contends that a conflict of interest exists because PSEG “both funds the Severance Plan at issue and provides determinations of employee's [sic] eligibility under the plan.” Id.
As to the specific discovery requested, plaintiff seeks to depose Lola Holness, “Director of Human Resources Client relations of PSEG” and Raymond DePillo, plaintiff's supervisor during the relevant time period. See Dkt. No. 35-16 at 17-18. The requested interrogatories and “related documents” seek “information regarding the reasoning behind the decision to reorganize the ER&T regulatory authority” as this information “has a reasonable chance of procuring evidence that will provide good cause because responses will provide insight into the impact that the structural conflict of interest had on the denial of Plaintiff's claim.” Id. at 19.
PSEG defendants argue that plaintiff's discovery demands and motion to compel are untimely under the Uniform Pretrial Discovery Order and Local Rules. See Dkt. No. 37-1 at 7. Defendants further argue that, under the applicable arbitrary and capricious standard of review, plaintiff has failed to establish good cause for the delay and for extending deadlines. See id. at 7-8. Defendants opine that plaintiff's argument that discovery is needed because there is a reasonable chance it will uncover information about a structural conflict of interest does not suffice because plaintiff must also “show there was a lack of criteria for determining an appeal, a practice of destroying or discarding all records within minutes after hearing an appeal, a failure to maintain written procedures for reviewing benefit claims, procedural irregularities in the review process, pressure on reviewers to deny claims, or inconsistent treatment of similarly-situated claimants.” Id. at 7-8.
Finally, defendants cross move for a protective order
striking Plaintiff's discovery demands and precluding any further demands on any or all of the four independent grounds: (1) Plaintiff is out of time to propound discovery; (2) Plaintiff has failed to meet the reasonable chance standard for propounding discovery in an ERISA case; (3) Plaintiff's discovery demands are irrelevant; and (4) Plaintiff's discovery demands are oppressive and unduly burdensome, often demanding more than 20 years’ worth of records.
Dkt. No. 37-1 at 8.
III. Discussion
A. Legal Standards[4]
Under an arbitrary and capricious standard of review,[5] an administrator abuses its discretion only when the administrator's actions are arbitrary and capricious.” Rood v. New York State Teamsters Conf. Pension & Ret. Fund, 39 F. Supp. 3d 241, 248-49 (N.D.N.Y. 2014) (citing McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 132 (2d Cir. 2008). “A denial of a claim is arbitrary and capricious if ‘there has been a clear error of judgment.” Id. (quoting Jordan v. Ret. Comm. of Rensselaer Polytechnic Inst., 46 F.3d 1264, 1271 (2d Cir. 1995)). “A district court's review under the arbitrary and capricious standard is limited to the administrative record” which “must be viewed as a whole in deciding whether the administrator's decision was without reason, unsupported by substantial evidence, or erroneous as a matter of law.” Id. at 249 (citing Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 646 (2d Cir. 2002) and Cohen v. Metro. Life. Ins. Co., 485 F. Supp.2d 339, 354 (S.D.N.Y. 2007)).
*4 Where a plaintiff seeks discovery beyond the administrative record, he or she “ ‘need not make a full good cause showing, but must show a reasonable chance that the requested discovery will satisfy the good cause requirement.’ ” Burgio v. Prudential Life Ins. Co. of Am., 253 F.R.D. 219, 230 (E.D.N.Y. 2008) (quoting Trussel v. Cigna Life Ins. Co. of New York, 552 F. Supp.2d 387, 390 (S.D.N.Y. 2008)); but see Smith v. First Unum Life Ins., No. 19 CIV. 00298 (NSR), 2020 WL 6281451, at *5 (S.D.N.Y. Oct. 21, 2020) (“[S]everal courts have expressed skepticism with this judicially invented standard for obtaining discovery in ERISA cases.... [T]here is no binding precedent or rule mandating fidelity to the ‘reasonable chance’ standard when determining requests for discovery outside of the scope of the administrative record in ERISA cases.’ ”). “ ‘[T]he standard for permitting discovery to supplement the administrative record in an ERISA case is far less stringent than the standard for actually considering that outside evidence.’ ” Joyner v. Cont'l Cas. Co., 837 F. Supp. 2d 233, 240-41 (S.D.N.Y. 2011) (quoting Baird v. Prudential Ins. Co. of Am., No. 09 Civ. 7898, 2010 WL 3743839, at *8 (S.D.N.Y. Sept. 24, 2010) (additional citation omitted)).
“[A]n administrator's conflict of interest may affect how a court reviews the benefits determination.” Rood, 39 F. Supp. 3d at 249.
In Metro. Life Ins. Co. v. Glenn, the Supreme Court held that an administrator who “both evaluates claims for benefits and pays benefits claims” is conflicted. 554 U.S. 105, 112, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). Such a conflict of interest should be weighed as a factor in a district court's analysis, but the factor's weight depends on the circumstances. Id. at 117, 128 S.Ct. 2343. In other words, “[a] plaintiff's showing that the administrator's conflict of interest affected the choice of a reasonable interpretation is only one of several different considerations that judges must take into account when reviewing the lawfulness of benefit denials.” Hobson, 574 F.3d at 82-83 (internal quotations omitted) (citing McCauley, 551 F.3d at 133).
Id. “It is well established in the Second Circuit that a structural conflict of interest does not per se constitute good cause to consider additional evidence outside of the administrative record.” Id. at *4 (citing Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 294-96 (2d Cir. 2004)); see also Cohen v. CME Grp. Inc. v. Severance Plan, 21-CV-5324 (JMF), 2022 WL 1720318, at *2 (S.D.N.Y. May 27, 2002) (same). To meet the “reasonable chance” standard, a plaintiff must also show “some additional factor, such as a lack of established criterial for determining an appeal, a practice of destroying or discarding of all records within minutes after hearing an appeal, or a failure to maintain written procedures for claim review.’ ” Gosselin v. Sheet Metal Workers’ Nat'l Pension Fund, No. CV164391 ADS/AKT, 2017 WL 3382070, at *6 (E.D.N.Y. Aug. 4, 2017) (quoting Andrews v. Realogy Corp. Severance Pay Plan for Officers, No. 13-CV-8210, 2015 WL 736117, at *8 n.8 (S.D.N.Y. Feb. 20, 2015) (additional citation and quotation marks omitted)). Similarly, “plausible allegations of ‘procedural irregularities’ in the administrative review process, considered in conjunction with a structural conflict of interest, may be sufficient to show that a plaintiff has a reasonable chance of success in meeting the good cause standard.” Id. at *6 (citing S.M. v. Oxford Health Plans (N.Y.), Inc., 94 F. Supp. 3d 481 (S.D.N.Y. 2015)). Some courts have required that, to sufficiently demonstrate potential procedural irregularities, a plaintiff should “point to specific evidence in the administrative record” to support his or her assertions. Pretty v. Prudential Ins. Co. of Am., 696 F. Supp. 2d 170, 184 (D. Conn. 2010). However, “ ‘courts distinguish between discovery relating to the conflict and discovery into the substantive merits of a claim, generally holding that the latter is impermissible in an ERISA case.’ ” Cohen, 2002 WL 1720318, at *2 (quoting Hughes v. Hartford Life & Accident Ins. Co., 507 F. Supp.3d 384, 389 (D. Conn. 2020)). Even when extra-record discovery is permitted, courts limit the discovery permitted. See, e.g., Shelton v. Prudential Ins. Co. of Am., No. 16-CV-1559 (VEC), 2016 WL 3198312, at *3 (S.D.N.Y. June 8, 2016) (limiting the plaintiff's extra-record discover requests “in light of the ‘the significant ERISA policy interests of minimizing costs of claim disputes and ensuring prompt claims-resolution procedures.”) (quoting Lochner, 389 F.3d at 295 and citing Joyner, 837 F.Supp.2d at 243 (additional quotation marks omitted)).
B. Analysis
1. Due Diligence
*5 Plaintiff contends that (1) his motion to compel is timely “because Magistrate Judge Hummel set the briefing schedule that Plaintiff is adhering to”; and (2) “he has good cause for an extension of the demands.” Dkt. No. 39 at 4, 7. Additionally, plaintiff argues that he has demonstrated good cause because any delay in serving the discovery demands was “because of a mutual understanding between the parties that arose when the parties proposed deferring discovery” to pursue mediation. Dkt. No. 39 at 7-8. After mediation was unsuccessful and having not received defendants’ responses to his first demands for documents, plaintiff served a second demand for documents and first set of interrogatories before the expiration of the discovery deadline, “in the first part of November 2021[,]” and defendants “provided an incomplete response and objections to Plaintiff[’]s First Demand for Documents several weeks later, on December 7, 2021.” Id. at 8.
Defendants argue that plaintiff has not demonstrated good cause. Defendants assert that plaintiff served his first set of interrogatories and second demand for documents on November 12, 2021, despite that the Fed. R. Civ. P. permit thirty days to respond, which pushed defendants’ response deadline two weeks after the expiration of discovery in this case. See Dkt. No. 37-1 at 12. Similarly, defendants argue that plaintiff served the two deposition notices on November 22, 2021, “the Monday of Thanksgiving week, just nine days before the December 1 discovery cut off,” did not set forth the time and place of deposition, and were unreasonable because there could be “no realistic opportunity of scheduling the depositions on time.” Id. Defendants point out that plaintiff's deadline to file a motion to compel discovery, as set forth in the scheduling order, was January 24, 2022. See id. Defendants further contend that plaintiff cites the wrong good cause standard, and that this District, rather than rely on the five-factor test, assesses the “diligence of the moving party.” Dkt. No. 37-1 at 13 (citing Flaum v. Town of Stuyvesant, No. 11-CV-335, 2014 WL 12891533, at *4 (N.D.N.Y. Oct. 23, 2014).
The Uniform Pretrial Scheduling Order set the discovery deadline as December 1, 2021. See Dkt. No. 24 at 2. As a threshold issue, plaintiff appears to misunderstand defendants’ argument regarding the timeliness of his motion to compel. Defendants are correct that plaintiff's motion to compel is untimely because it falls outside of the deadlines set forth in the uniform pretrial scheduling order. Although filed within the timeline established at the undersigned's court conference, setting forth a briefing schedule for a discovery motion sought to be filed after the close of discovery does not mean that the Court is designating that motion as timely pursuant to the scheduling order. A motion filed after the expiration of scheduling order deadlines must show good cause for the delay. Despite plaintiff's apparent misunderstanding of defendants’ argument, his briefing does include a good cause analysis. See Dkt. No. 35-15 at 10-13; Dkt. No. 35-16 at 7.
Defendants point out, plaintiff was aware “no later than November 24, 2021[,] that Defendants were not going to respond to his First Set of Interrogatories, Second Request for Documents, or deposition notices. At that point, plaintiff still had three weeks to file a motion to compel, but instead, unaccountably, waited two months.” Dkt. No. 37-1 at 15. The Court finds defendants’ recitation somewhat disingenuous. In response to defendants’ December 10, 2021, letter to the Court (dkt. no. 28), and pursuant to this Court's text order, plaintiff filed a letter on December 29, 2021 (dkt. no. 32), raising the issues that were eventually briefed in his motion to compel. Also in that text order, the Court set a conference date of January 4, 2021. Dkt. No. 29. At that conference, the Court set January 24, 2022, as plaintiff's deadline by which to file his motion to compel. See id. Although the cited delays are not as substantial as they appear on first glance, plaintiff's first communication with the Court that even suggested a motion to compel discovery would be needed was on December 29, 2021, and only after defendants filed their December 10, 2021, letter motion. See Dkt. Nos. 28, 32. This delay is not explained, given that plaintiff knew by November 24, 2021, that defendants did not intend to respond to his discovery demands. See Dkt. No. 25-16 at 12-13.
*6 In reply, plaintiff does not fully address defendants’ arguments. Instead, he argues that good cause exists for the delay because he, in good faith, believed that following unsuccessful mediation, defendants would respond to his discovery requests, but when he did not receive responses, he served his second demand for documents and first set of interrogatories. See Dkt. No. 39 at 8. Plaintiff contends that he served his second demand for documents and first set of interrogatories before the expiration of the discovery deadline, and points out that defendants provided their “incomplete response and objections” to plaintiff's first demand for documents on December 7, 2022. Dkt. No. 39 at 8. Although plaintiff explains his delay in serving his second request for interrogatories and first request for documents, he does not explain why, after learning on November 24, 2021, that defendants did not intend to respond to his discovery requests, he did not contact the Court at that time. In fact, it was not until defendants contacted the Court that it was aware of a potential dispute.
The Court determines that plaintiff has shown due diligence as it relates to his first document demand for documents, served on defendants before mediation. As plaintiff provides, plaintiff timely served his first set of document demands on July 26, 2021. See Dkt. Nos. 35-1 at 2 ¶8; 35-4. Given defendants’ language – to “forego the time and expense of discovery in advance of mediation” – it was reasonable that plaintiff would believe that discovery would proceed in the event of an unsuccessful mediation. Dkt. No. 35-5 at 1-2. Although plaintiff would have been better served to follow up with defendants more expeditiously when he did not receive any response to his first demand for documents, but as his initial serving of these demands was timely and his expectation that defendants would respond to the initial demand reasonable, the Court finds plaintiff has demonstrated due diligence as to his first set of document demands.
The Court, however, finds that plaintiff has failed to show sufficient due diligence for his second set of document demands, first set of interrogatories, and deposition notices. Although the Court accepts that plaintiff believed that discovery would commence after the unsuccessful mediation, plaintiff did not proceed in a timely manner with serving his second set of document demands, first set of interrogatories, and deposition notices after the unsuccessful mediation. See Dkt. No. 35-1 at 3. Even given plaintiff's belief that defendant would timely respond to the first demand for documents served prior to mediation, he did not proceed in a timely fashion with the remainder of his discovery demands. Given the known December 1, 2021, discovery deadline, due diligence required plaintiff to very quickly serve interrogatories and notices for deposition. In serving his second demand for documents and first set of interrogatories on November 12, 2021, and November 22, 2021, respectively, plaintiff did not afford defendants thirty days to respond prior to the expiration of the discovery deadlines as the federal rules and scheduling order require. See FED. R. CIV. P. 33(b)(2), 34(b)(2)(A); Dkt. No. 24 at 2. “Service of discovery requests must be made a sufficient number of days before this deadline to allow responses to be served before the cut-off.”). Plaintiff noticed depositions and served demands that would require responses after the expiration of the deadline. Upon the unsuccessful mediation on October 8, 2021, even if defendant had immediately responded to the first demand for documents, due diligence would require plaintiff to serve the remainder of his demands, interrogatories, and deposition requests by at least November 1, 2021, or timely request a discovery extension from the Court.
As the Court concludes that plaintiff has not established due diligence in proceeding with discovery for his second demand for documents, first set of interrogatories, and notices of deposition, he has not met the good cause standard to reopen and compel defendant to respond to those discovery demands. Therefore, the motion to compel is denied, and defendant's cross motion is granted with respect to plaintiff's second demand for documents, first set of interrogatories, and notices of deposition. However, as plaintiff has demonstrated due diligence with respect to his first demand for documents, the Court proceeds with assessing whether plaintiff has shown a reasonable chance that the requested discovery will provide good cause for the Court to consider further evidence.
2. Reasonable Chance
*7 Acknowledging that his allegations of a structural conflict of interest are not sufficient to warrant extra-record discovery, plaintiff contends that there also exist “procedural irregularities” in the administrative review process. Dkt. No. 39 at 9. Next, plaintiff points to the fact that Lola Holness denied plaintiff's claim “one day after it was lodged and without any evidence of an investigation into whether plaintiff would be traveling more than 50 miles from his home in Albany, NY to where he would be physically spending his work days, i.e. ‘commuting,’ and was present at the meeting in which the appeal of his claim was reviewed.” Id. at 10. Next, plaintiff highlights “the improper impact that Lola Holness’ presence may have had on the determination of Plaintiff's appeal” as she denied plaintiff's claim but was present – although not voting – during plaintiff's “appeal process.” Id. at 11. Plaintiff also proffers “[i]nconsistencies in the information that Plaintiff received from PSEG's management” regarding the information that Raymond DePillo “communicated to Plaintiff directly” which “conflicted with information previously provided to Plaintiff regarding his denial of this claim: as evidence of “plausible allegations of procedural irregularities in the administrative review process.” Id. at 10-12 (citation omitted).
Addressing defendants’ arguments that plaintiff fails to show inconsistencies in the administrative record, plaintiff argues that defendants’ argument “is out of place because ... Plaintiff has pointed to relevant evidence included in the discovery made available by Defendants” which “casts doubt on the integrity of the procedure of the denial process or directly conflicts with the reasons proffered by PSEG for the denial of Plaintiff's claim.” Dkt. No. 39 at 11.
The Court has not come across a case that addresses whether a plaintiff demonstrates reasonable chance when he alleges procedural irregularities based on documents obtained through discovery, rather than within the administrative record. However, as defendants do not provide authority holding that a plaintiff must show evidence of procedural irregularities in the administrative record, but that some courts have held that the irregularities are to be identified within the administrative record; thus, it is not clear the Court that this is a requirement in this Circuit. See Pretty v. Prudential Ins. Co. of Am., 696 F. Supp. 2d 170, 184 (D. Conn. 2010). Accordingly, even though plaintiff does not identify procedural irregularities within the administrative record, the Court will still assess whether plaintiff has demonstrated plausible allegations of procedural irregularities.
The “additional factors” plaintiff proffers are that (1) his claim for benefits was denied one day after he submitted the request; (2) the person who denied his initial request for severance benefits, Lola Holness, “participated in a meeting of PSEG's Employee Benefits Committee in which Plaintiff's appeal was denied” and “may have even voted on her previous determination” during the appeals process; and (3) he received conflicting information from different PSEG employees about the PJM Strategy Manager position. See Dkt. No. 35-16 at 17-18.
As to the first proposed example of procedural irregularity, plaintiff produces no evidence or suggestion that it is unusual for a request for benefits to be denied one day after it is submitted. There is nothing to suggest that this quick turnaround is inherently unreasonable or irregular. Plaintiff does not claim that there is a required or suggested waiting period or turnaround time nor indicate that there is a substantial amount of paperwork to be reviewed in making these benefits determination such that it would be atypical for a decision to be made the next day. The Court does not see this as comparable to “a lack of established criteria for determining an appeal, a practice of destroying or discarding all records within minutes after hearing an appeal, or a failure to maintain written procedures for claim review.” Dkt. No. 35-16 at 16 (citing Andrews v. Realogy Corp. Severance Pay Plan for Officers, No. 13-CV-8210 (RA), 2015 WL 736117, at *8 (S.D.N.Y. Feb. 20, 2015)). Accordingly, the Court concludes that plaintiff has not demonstrated a reasonable chance that discovery on this matter will lead to evidence showing good cause to consider further evidence on his benefits determination being denied one day after it was submitted.
*8 As to plaintiff's allegations regarding Lola Holness, the Court finds this also fails to demonstrate a reasonable chance that requested discovery will satisfy the good cause requirement. Plaintiff argues that Ms. Holness may have voted on plaintiff's appeal[6] and suggests that, even if Ms. Holness did not vote on the appeal, her presence at the meeting may have influenced other PSEG employees who decided the appeal. See Dkt. No. 35-16 at 18. Defendants argue that even though Ms. Holness was present, she “could not have voted” because the “[Employee Benefits Committee] minutes show she was not a member of the Committee, and it was the Committee that voted.” Dkt. No. 37-1 at 20. The Court thus assesses whether plaintiff has demonstrated “plausible allegations of procedural irregularities” insofar as Ms. Holness’ presence at the appeal meeting which may have made the Committee members feel pressured to deny his appeal. Feltington v. Hartford Life Ins. Co., No. 14-CV-6616, 2021 WL 2474213, at *10 (E.D.N.Y. June 17, 2021). The Court concludes that his mere allegation that Committee members “may have felt pressure” to deny his claim because Ms. Holness, who denied plaintiff's initial claim, was present at the meeting, does not amount to a plausible allegation of procedural irregularities. Cf. Samedy v. First UNUM Life Ins. Co. of Am., No. 05-CV-1431 (CBA/KAM), 2006 WL 624889, at *3 (E.D.N.Y. Mar. 10, 2006) (noting that, in support of a deposition request, the plaintiff submitted a declaration of a former employee of the defendant's corporate parent who stated that she “made eligibility determinations and was familiar [with] her employer's claims handling, who stated that she was under pressure to deny claims” and concluding that the affidavit “raise[d] questions as to whether the defendant had institutional practices that encouraged its employees to deny benefit applications).[7]
Finally, the Court addresses plaintiff's contention that the conflicting information he received between his conversations with his manager about the PJM Manager position's duties versus the job description given in his denial letter and draft letter amounts to a procedural irregularity warranting discovery. Plaintiff contends that he “discussed information with his then manager that was inconsistent with the information provided within the claim denial letter provided to Plaintiff and the draft information letter that was provided to Plaintiff[.]” Dkt. No. 35-6 at 21 (citing Compl. at 7-8 ¶¶34, 36). Plaintiff claims that his manager told him that the “majority of Plaintiff's time each month” would be spent in Newark, New Jersey or Valley Forge, Pennsylvania. Compl. at 6 ¶28, 8 ¶34. However, the claim denial letter stated that his reporting location would not change, he would continue to work from home, and that his presence would have been required “for certain PJM meetings” which is not considered commuting. See id. at 7 ¶33 (citing Dkt. No. 1-4). Similarly, the “draft information letter” stated that there “will be no change to your physical work location. Your work location will remain in Albany, NY. You will be expected to be physically present at PJM meetings once in-person meetings resume.” Dkt. No. 1-5 at 1.
Defendants argue that plaintiff presented evidence of what Mr. DePillo told him about the commuting requirements for the PJM position “both in his initial claim for benefits and on appeal”; thus, evidence of these conversations are already a part of the administrative record, and “no discovery outside the administrative record regarding those conversations is permissible absent a showing of a ‘reasonable chance’ such discovery will lead to evidence showing ‘good cause.’ ” Dkt. No. 37-1 at 21. Thus, defendants provide that plaintiff's allegations about the earlier conversations he had “and Defendants’ (qualified) denial of them satisfy neither the good cause standard nor the reasonable chance standard.” Id.
As to the conflict between what plaintiff alleges his managers told him about the commuting/travel requirements of the PJM Manager position versus what the draft letter and benefits denial letter state were the commuting requirements, plaintiff has demonstrated a reasonable chance that discovery will lead to evidence showing good cause. As to this particular question, plaintiff argues that a deposition of Raymond Depillo would be “imperative” because defendants deny plaintiff's conversation with his manager about the commuting requirements of the PJM position. Dkt. No. 37-1 at 21. However, as the Court has already determined that plaintiff did not demonstrate due diligence with respect to his interrogatories or deposition requests, the only discovery to which he is entitled is that which was requested in his first demand for documents. Further, as the Court has determined that plaintiff has not met the reasonable chance standard as it relates to his allegation about Ms. Holness’ presence at the appeals meeting or her denial of his benefits one day after its submission, only those document demands seeking evidence relating to the potential conflict between what plaintiff alleges management told him about the job requirements versus what he was told in his denial letter and draft letter must be produced. The Court concludes that the only document demand that is relevant to the commuting requirements of the PJM manager position is plaintiff's document demand #3 insofar as he requests “all job descriptions for the positions of the following ...: Director, Marketing Policy -NYISO, Market Policy Director – PJM, Market Policy Director – New England, PJM Strategy Manager, and “[a]ll similarly titled and/or related positions.” Dkt. No. 34-4 at 4. However, plaintiff's request for the job descriptions of these positions from January 2000 to the present is overbroad and overburdensome. As plaintiff is attempting to access discovery that is relevant to the alleged conflict between what he was told about the then current PJM position from management versus what he was told in his denial letter and draft letter, he provides no reasonable explanation as to why he needs twenty-two years of job descriptions. See Dkt. No. 35-4 at 3. Indeed, the Court does not see how the job descriptions from twenty-two years ago are relevant to his allegation of procedural irregularity as job descriptions/job duties would likely change over the course of two decades. Accordingly, the Court finds more than reasonable that defendants provide to plaintiff the job descriptions for these positions for ten years, starting from the date of his denial of benefits.
*9 It is the Court's understanding that defendants have already produced limited discovery to plaintiff through initial disclosures and “objected and partially responded to plaintiff's First Demand for Documents on or about December 7, 2021.” Dkt. No. 35-1 at 4 ¶20; Dkt. No. 35-13. As the Court does not have access to the documents defendants overturned in response to plaintiff's first demand for documents, it is unaware whether defendants have already overturned any of these job descriptions to plaintiff. Thus, to the extent defendants have already disclosed to plaintiff any of the requested job descriptions, defendants need only provide those that have not been overturned relating to the job descriptions for the Director, Marketing Policy -NYISO, Market Policy Director – PJM, Market Policy Director – New England, PJM Strategy Manager, and “[a]ll similarly titled and/or related positions” for the ten years preceding the date of plaintiff's denial of benefits.
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff's motion to compel discovery, Dkt. No. 35, is GRANTED IN PART, insofar as plaintiff is entitled to the following limited discovery: job descriptions for the following positions for ten years preceding plaintiff's denial of benefits: (1) Director, Marketing Policy -NYISO, (2) Market Policy Director – PJM, (3) Market Policy Director – New England, (4) PJM Strategy Manager, and “[a]ll similarly titled and/or related positions”; and it is further
ORDERED, that plaintiff's motion to compel discovery, Dkt. No. 35, is otherwise DENIED; and it is further
ORDERED, that defendants’ cross-motion for a protective order pursuant to Fed. R. Civ. P. 26(c) is GRANTED IN PART, as to plaintiff's second demand for documents, first request for interrogatories, and notices of deposition, and any other discovery demands, and DENIED IN PART, insofar as defendants must provide plaintiff discovery with respect to plaintiff's first demand for documents to the limited extent set forth herein; and it is further
ORDERED, that pursuant to the protective order, plaintiff's discovery demands, excepting his first demand for documents, are deemed STRICKEN, and plaintiff may not file further discovery demands;[8] and it is further
ORDERED, that defendants will provide to plaintiff the job descriptions for the ten years preceding the date of plaintiff's denial of benefits, for the aforementioned positions, within THIRTY (30) days from the filing date of this Memorandum-Decision & Order.
IT IS SO ORDERED.
Footnotes
Docket number 38 is a duplicate of docket number 37-1.
The Court's citations to the parties’ briefs are to the pagination generated by the Court's electronic filing system, CM/ECF, located at the header of each page, rather than the pagination of the individual documents.
For detailed recitation of the facts and procedural history of this action, reference is made to plaintiff's complaint, plaintiff's memorandum of law in support of his motion to compel, and defendant's opposition brief. See Dkt. Nos. 1, 35-16, 37-1. Although the Court has reviewed them closely, the facts and procedural history will be recited here only to the limited extent necessary to review the motion.
For a recitation of ERISA section 502(a),29 U.S.C. § 1132(a), reference is made to the Court's earlier Decision & Order. See Dkt. No. 5 at 5-6.
In a May 6, 2021, Decision & Order, Judge Sharpe noted the standard that, where the employee benefit plan in question (“the Plan”) confers discretionary authority on the plan administrator, the Court will apply an arbitrary and capricious standard of review when determining whether PSEG defendants’ denial of benefits was proper. See Dkt. No. 16 at 6-7. Judge Sharpe concluded that “the Plan Administrator had discretionary authority under the Plan.” Id. at 7. Thus, the arbitrary and capricious standard of review applies.
Plaintiff's motion states, in the following paragraph, without qualification, that “Ms. Holness was the employee who denied Plaintiff's claim, and participated in the denial of Plaintiff's appeal[.]” Dkt. No. 35-15 at 18.
See Dkt. No. 35-16 (citing Samedy, 2006 WL 624889, at *3)
The only relevant ground defendants provide in their cross-motion for a protective order is that “[p]laintiff is out of time to propound discovery.” Dkt. No. 37-1 at 30. The Court makes clear that in granting the protective order, it is solely on this ground.