Robertson v. NE Telephone CV-97-314-M 12/08/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Frederick A. Robertson, Plaintiff

V. Civil No. 97-314-M

New Encrland Telephone and Telearaph Companv, Defendant

O R D E R

Frederick Robertson brings this action against his former

employer, seeking damages for alleged violations of the Employee

Retirement Income Security Act ("ERISA"),

, et

seq., and the Age Discrimination in Employment Act ("ADEA"),

, et seq. He also raises three state law claims,

over which he says the court should exercise supplemental

jurisdiction: negligent infliction of emotional distress,

intentional infliction of emotional distress, and wrongful

discharge. Defendant moves for summary judgment as to all five

counts in plaintiff's complaint. Plaintiff objects.

Factual Background

New England Telephone and Telegraph ("NETT") employed

Robertson as an outside plant technician (or lineman) for thirty

years, from February 28, 1966 through May 15, 1996. As a union-

represented employee, Robertson was subject to the terms of a

collective bargaining agreement between NETT and Local 2320 of

the International Brotherhood of Electrical Workers. He was also covered by NETT's Sickness and Accident Disability Plan (the

"plan"), an ERISA-governed employee benefit plan.

During the course of his employment, Robertson sustained a

number of injuries to his lumbar and cervical spine and left

shoulder.1 Prior to 1995, NETT determined that each of

Robertson's back injuries was "work-related." Although the

record is unclear as to this point, it appears that Robertson

received benefits under the "accident disability" benefits

provisions of the plan. See Disposition of Case forms dated

October __ (illegible), 1976; December 9, 1976; February 8, 1978;

January 21, 1980; August 27, 1980; October 14, 1986; and May __

(illegible), 1992.

In 1986, Robertson sustained neck and shoulder injuries and

again began receiving disability benefits under the plan. In

1991, Robertson reinjured his neck and shoulder and, after

1 The record reflects the fact that Robertson first injured his back on August 2, 1976. While climbing a telephone pole, he felt a sharp pain in his lower back and right leg. He was out of work from that date through October 1, 1976. His Employee Absence Record shows that NETT determined that his absence was due to an injury sustained in the course of his employment. He appears to have received "accident disability" payments under the plan during the course of that disability. On December 7, 1976, he suffered a relapse of that injury, but returned to work the following day. He suffered additional relapses of that injury in June, 1978; January 9, 1980; August 7, 1980; and August 18, 1986. On July 31, 1991, Robertson re­ injured his back when he slipped and fell after stepping out of a company truck. He remained out of work until May 11, 1992. On February 1, 1995, Robertson again injured his back while stooping down to cut a telephone pole. He did not, however, lose any time from work due to that injury.

2 ultimately prevailing on his workers' compensation claim against

NETT in 1994, began receiving workers' compensation benefits for

those injuries.

On May 8, 1995, Robertson went out on disability so that he

might have arthroscopic surgery on his shoulder. However, it

does not appear that Robertson had been involved in any incident

or accident immediately prior to that date which prompted his

need for surgery. It is egually important to note that, at that

point, Robertson's inability to work was exclusively the result

of his shoulder surgery; it was wholly unrelated to his back

condition/injury.

NETT notified Robertson that his reguest for benefits under

the plan had been accepted as "sickness disability." Because

Robertson had been classified as eligible for "sickness

disability" rather than "accident disability," he was entitled to

benefits under the plan for a maximum of 52 weeks. If, instead,

NETT had classified his disability as one entitling him to

"accident disability" benefits, he would have been entitled to

indefinite benefits. Robertson remained out of work following

his shoulder surgery and, on August 2, 1995, he underwent

additional surgery, this time on his neck.

In January of 1996, while Robertson was still out on

"sickness disability" relating to his shoulder and neck

3 surgeries, NETT offered him and other eligible employees an

"enhanced retirement package." The offer expired on January 31,

1996. Robertson says that, through his union representative, he

asked whether acceptance of the retirement package would affect

his workers' compensation benefits. He did not receive a reply,

nor did he accept the retirement package, before NETT's offer

expired. Had he accepted the enhanced retirement package in a

timely manner, Robertson would have received a larger pension

than the one NETT eventually awarded him.

In March of 1996, NETT notified Robertson that if he did not

return to work by May 14, 1996 (52 weeks after he began his

disability leave and the point at which his "sickness disability"

benefits under the plan would expire), his employment would be

terminated. Robertson claims that he was, at least initially,

ready and able to immediately return to light-duty employment and

could have returned to full duty by May, 1996. He says that he

reguested NETT to accommodate his light-duty work capacity, but

the company refused. In the end, the issue of accommodation

proved to be moot. Robertson was unable to return to work (even

light duty work) by May, 1996 because he was recovering from

additional surgery, this time related to his lumbar spine, which

had been performed in April.

On May 9, 1996, approximately one year after first receiving

notice that NETT had classified his disability as "sickness" and

4 less than a week before the date by which he was required to

return to work or face termination, Robertson, through his union

representative, appealed his disability classification to the

NYNEX Claims Committee, a named fiduciary of the plan. Despite

the fact that the plan provides that all appeals must be received

within 60 days, see the plan. Section 3, para 3 (b), the Claims

Committee allowed Robertson to file a late appeal and considered

it on the merits. Based upon the record before it, the Claims

Committee concluded that Robertson's disability (which began in

May, 1995) had been properly classified as "sickness," rather

than "accident." Robertson appealed that decision to the NYNEX

Employees' Benefits Committee, another fiduciary under the plan

which, like the Claims Committee, retained discretionary

authority to interpret the terms of the plan. The Benefits

Committee upheld the Claims Committee's determination denying

Robertson's claim that he was entitled to accident, rather than

sickness, disability.

In May of 1996, when he was unable to return to work after

receiving 52 weeks of sickness disability benefits, Robertson's

employment was terminated. He then applied for and received a

pension under NETT's pension plan. He also applied for and

received social security disability benefits, arguing that he was

completely disabled and unable to return to any form of

employment.

5 Robertson claims that as a result of NETT's "wrongful

classification of [his] neck and shoulder injuries, [NETT's]

failure to acknowledge [his] lumbar spine surgery in April 1996,

and the subseguent denial of his appeals on these matters, [he]

was paid 'sickness disability' benefits and not 'accident

disability' benefits under the defendant's self-administered,

self-insured employee benefits plan." Plaintiff's memorandum

(document no. 18) at 5. He also alleges that if NETT had

properly classified his most recent disability status as the

product of a work-related accident, his employment would have

continued indefinitely and he would not have been terminated on

May 15, 1996. Additionally, he says that NETT's wrongful conduct

prevented him from electing to receive the enhanced retirement

package.

Discussion

I. Plaintiff's Federal Claims.

A. ERISA Violation (Count 1).

In count 1 of his complaint, Robertson asserts that NETT

acted arbitrarily and capriciously when it classified his

disability as being due to "sickness" rather than "accident,"

under the terms of the plan. Specifically, he alleges that his

back surgery in April, 1996 (one month before he was terminated)

was the reason he could not return to work. And, because he says

that defendant had, for nearly 20 years, determined that his back

injuries were work related, it violated the terms of the plan

6 (and the governing provisions of ERISA) when it refused to

recognize that the disability which prevented him from returning

to work made him eligible for "accident disability benefits,"

rather than merely "sickness disability benefits."

1. Standard of Review.

The plan under which Robertson seeks benefits is part of an

employee welfare benefit plan regulated by the Employee

Retirement Income Security Act of 1974,

, et seq.

("ERISA"). NETT's denial of coverage under that plan constituted

denial of a welfare benefit under an ERISA regulated plan. When

a fiduciary's denial of plan benefits is challenged under

(a)(1)(B), the denial "is to be reviewed under a de

novo standard unless the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the plan." Firestone Tire &

Rubber Co. v. Bruch,

(1989). If the plan does

give discretion to an administrator or fiduciary to determine

eligibility for benefits, the court must employ a more

deferential "abuse of discretion" standard in reviewing a denial.

. Here, the parties agree that the plan vests the

plan fiduciaries with discretionary authority to make eligibility

determinations and, therefore, the court must apply the

deferential "arbitrary and capricious" standard of review in

evaluating NETT's denial of "accident disability benefits" under

the plan.

7 In discussing the application of the "arbitrary and

capricious" standard in the ERISA context, the Court of Appeals

for the First Circuit has noted that a fiduciary's "decision will

be upheld if it was within [its] authority, reasoned, and

'supported by substantial evidence in the record.' Substantial

evidence, in turn, means evidence reasonably sufficient to

support a conclusion." Doyle v. Paul Revere Life Ins. Co.,

(1st Cir. 1998) (citation omitted). See also

Wildbur v. Arco Chemical Co.,

(5th Cir.

1992) (defining the contours of the "arbitrary and capricious"

standard in the ERISA context and adopting a two-part test for

resolving claims that an ERISA fiduciary violated that standard).

2. Discussion.

Plainly, what is at issue in this case is whether the plan's

fiduciaries properly interpreted the terms of the plan and

reasonably concluded that Robertson's most recent disability

(beginning in May of 1995) fell within the scope of "sickness

disability," rather than "accident disability." The plan

provides, in relevant part, as follows:

Section 4. Sickness Disability Benefits.

1. Participation. All employees whose term of employment with the Company is six months or more, shall become participants in the Sickness Disability Benefits portions of the Plan and be gualified to receive payments under the Plan on account of physical disability to work by reason of sickness. . . . For the purposes of the Plan, sickness shall include injury other than accidental injury arising out of and in the course of employment by the Company . . . . Section 5. Accident Disability Benefits

1. Participation. All employees shall be participants in the Accident Disability Benefit Plan and qualified to receive payments under the Plan on account of physical disability to work by reason of accidental injury (not including the accidental injuries specified in Paragraph 12 of Section 6) arising out of and in the course of employment by the Company . . . .

5. Relationship of Injury to Employment. Accidental injuries shall be considered as arising out of and in the course of employment only where the injury has resulted solely from accident during and [ini direct connection with the performance of duties to which the employee is assigned in the service of the Company . . . There must be a clear and well-established history of the cause and circumstances of injury accidentally inflicted, which must be sufficient to produce the alleged injury, and there must be satisfactory evidence that such injury renders the employee unable to perform his duty in the service of the Company.

The plan. Sections 4 and 5 (emphasis supplied). It would seem,

therefore, that an employee is entitled to "accident disability"

benefits if his or her disability is caused solely by an accident

which occurred during, and in direct connection with, his or her

duties as an employee of NETT. If, however, an employee's

disability is caused by sickness, or an accident which did not

occur in the course of performing his or her duties (e.g., an

off-duty traffic accident), or even a work-related accident which

was not the sole cause of the disability, he or she is entitled

only to "sickness disability" benefits. In support of his claim that NETT acted arbitrarily and

capriciously in classifying his disability as sickness rather

than accident, Robertson advances two arguments. First, he

asserts that the reason he could not return to work in May of

1996 was because of the recent (April, 1996) surgical procedure

on his lumbar spine. And, because NETT had previously classified

his disabilities relating to his lumbar spine injury as "accident

disability," he says that his most recent disability (like those

which preceded it) should also have been classified as accident

disability. Next, Robertson focuses on his neck and shoulder

injuries. He asserts that because he received workers'

compensation benefits for those injuries, they were necessarily

work-related and, therefore, should have been classified under

the terms of the plan as "accident disability."

Unfortunately, it is entirely unclear from the record

precisely what Robertson's "appeal" asked the Claims Committee to

do. It is possible that he was essentially asking the committee

to make a new benefits eligibility determination, based not upon

his May, 1995 shoulder surgery, but instead upon his more recent

back surgery. However, if that was his intent, his "appeal" to

the plan fiduciaries did not make that point clear. In fact,

Robertson himself concedes that, "[t]he reason the two committees

ignored the lumbar surgery is that they were not told about it."

Plaintiff's memorandum at 6. It would, however, certainly seem

that if Robertson wished either committee to make a new benefits

10 eligibility determination based upon his recent back surgery, he

was obligated to notify the plan fiduciaries that he had

undergone such surgery. In that way, he would have apprized the

fiduciaries of his position that there was a new basis for his

claim to "accident disability" benefits (i.e., independent of the

shoulder/neck surgeries which were previously deemed to make him

eligible only for "sickness disability").2

Alternatively, however, it is possible that Robertson's

claim before the plan fiduciaries was merely an "appeal" in the

more traditional sense of that word - a reguest that the plan

fiduciaries simply review and reassess NETT's earlier

determination that he was, as a result of his shoulder surgery in

May, 1995, entitled only to "sickness disability" benefits.3

2 It bears noting that NETT admits that, while Robertson did not explicitly notify it that he had undergone recent back surgery when he filed his appeal with the Claims Committee, the medical records he provided to the committee did contain numerous references to that surgery. Accordingly, this case presents a somewhat unusual situation in which the plaintiff admits that he failed to specifically raise a seemingly dispositive issue to the ERISA plan fiduciary and yet, rather than argue some sort of waiver, the defendant claims to have actually considered and weighed that issue in its final decision. Ultimately, however, the extent to which the Claims Committee (or even the Benefits Committee) actually considered whether Robertson's recent back surgery entitled him to "accident disability" benefits is entirely unclear due to the fact that neither committee provided any real detail (nor did either reference his recent back surgery) in its decision denying the appeal.

3 It appears that this latter argument, if actually advanced, would have little merit. First, Robertson himself acknowledges that he had fully recovered from his neck and shoulder surgeries prior to May of 1996 (i.e., less than 52 weeks after his "sickness disability" began). He also concedes that, but for his subseguent back surgery, would have been ready.

11 The vagueness of Robertson's appeal and the lack of any

definitive statement concerning the precise basis for his

asserted entitlement to "accident disability" benefits is not the

only problem confronting the court. It is egually unclear from

the record precisely which of the two guestions arguably raised

by Robertson's appeal the plan fiduciaries actually considered

and addressed. The written decisions issued by both the Claims

Committee and the Benefits Committee fail to discuss what they

perceived to be the substance of Robertson's claim(s) nor do they

discuss in any detail the basis for their denial of Robertson's

appeal.

In light of the foregoing confusion, the parties agreed (at

a pretrial conference) that the most appropriate resolution at

this juncture would be a remand to the Claims Committee (and, if

appropriate, the Benefits Committee) for administrative

redetermination. That process will allow Robertson to clearly

and succinctly frame the issue(s) presented and will allow the

Committee the opportunity to disclose its reasons for granting or

denying Robertson's claim. At that point (if appropriate), the

court will have a complete record to review under the applicable

willing, and able to return to work by that date. Conseguently, it would seem that he received all the benefits to which he was entitled for those particular injuries and disabilities (regardless of whether they were labeled "sickness disability" or "accident disability"). In short, he received disability payments for his neck and shoulder injuries for the full time that they caused him to be disabled. For the purposes of this litigation, the label NETT (or the plan fiduciaries) ascribed to those benefits is irrelevant.

12 deferential standard. Absent remand, the plaintiff would, in

essence, be asking the court to rule de novo on his entitlement

to "accident disability" benefits under the plan. That is, quite

plainly, an inappropriate role for the court to assume when the

plan gives the fiduciaries discretion to interpret its terms.

See Firestone Tire & Rubber Co., supra.

Accordingly, Robertson's ERISA claim that he is entitled to

"accident disability" benefits under the plan) is remanded to the

plan fiduciaries. Although the court will administratively close

this matter, it will retain jurisdiction over Robertson's claim,

in the event that it becomes necessary for the court to review

the fiduciaries' decision. See Petralia v. AT&T Global

Information Solutions Co.,

(1st Cir. 1997) .

B. Robertson's ADEA Claim (Count 5).

Robertson next claims that he was discharged in violation of

the Age Discrimination in Employment Act ("ADEA"),

, et seq. "Absent direct evidence of discriminatory intent,

an ADEA plaintiff may present circumstantial evidence pursuant to

the familiar three-stage, burden-shirting paradigm." Shorette v.

Rite Aid of Maine,

(1st Cir. 1998). To carry that

burden and establish a prima facie case of age discrimination,

Robertson must demonstrate that: (1) he was at least 40 years

old; (2) he met NETT's legitimate performance expectations; (3)

he suffered an adverse employment action; and (4) in deciding to

13 terminate him, NETT did not treat age neutrally. See Alvarez-

Fonseca v. Pepsi Cola of Puerto Rico,

(1st Cir.

1998); Hidalgo v. Overseas Condado Ins. Agencies, Inc.,

(1st Cir. 1997).

NETT contends that Robertson cannot make a prima facie

showing of discrimination because, when he was terminated (and

for several months preceding that date and continuing through the

present), he was completely disabled and, therefore, unable to

meet the legitimate performance reguirements of his job. In

support of that contention NETT points out that on July 24, 1996,

Robertson applied for and began receiving Social Security

disability benefits. In his application for those benefits,

Robertson represented that he became totally and permanently

disabled as of May 9, 1995, approximately one year prior to his

termination. NETT represents (and Robertson does not dispute)

that he has not notified the Social Security Administration of

any change in his condition and, therefore, continues to receive

benefits for his total disability. Additionally, nearly every

month from May, 1995 through December, 1996 (i.e., prior to and

following Robertson's discharge), Robertson's physician. Dr.

Dennis Wachs, M.D., monitored his condition and completed New

Hampshire Workers' Compensation Medical Forms on which he

represented that Robertson was unable to return to work.

Finally, in August of 1997, Robertson re-certified to NETT that

he remained totally disabled and unable to return to work.

14 In response to the substantial body of evidence which

suggests that Robertson was incapable to performing any work for

NETT when he was discharged in May of 1996 (and, therefore,

unable to meet NETT's legitimate performance expectations),

Robertson makes only a single argument: that NETT's "own doctor.

Dr. Pick, gave Mr. Robertson a light duty work capacity in

November of 1995, and a return to full duty status by May 2,

1996." Plaintiff's objection at 20. Dr. Pick's optimistic

prediction regarding Robertson's ability to return to light-duty

status proved to be incorrect. As Robertson himself points out,

he was unable to return to work in May of 1996 due to his back

surgery in April, 1996, which occurred after Dr. Pick opined that

Robertson should be able to return to work. See Plaintiff's

memorandum at 4. See also Plaintiff's Deposition at 22

(testifying that due to his medical condition, he was unable to

work as of May 8, 1995, and continuing through the date of his

deposition, on August 21, 1998).

Other than his reference to Dr. Pick's erroneous prediction

that Robertson should be able to return to work in May of 1996,

Robertson has pointed to no evidence which would support his

assertion that he was, at the time of his discharge, capable of

meeting NETT's legitimate performance expectations. And, NETT

has produced substantial evidence in support of its assertion

that Robertson was, in fact, completely disabled at the time and,

therefore, unable to perform any aspects of his job. This

15 includes assertions made by both Robertson and his treating

physician that he was totally disabled and unable to perform the

requirements of his job. Accordingly, the court is compelled to

conclude that Robertson has failed to establish the essential

elements of a prima facie case of age discrimination.

Consequently, NETT is entitled to judgment as a matter of law as

to that count in plaintiff's complaint.

II. Plaintiff's State Law Claims.

A. Negligent and Intentional Infliction of Emotional Distress (Counts 3 and 4).

In count 3 of his complaint, Robertson alleges that NETT's

allegedly wrongful termination of his employment was done for the

purpose of (or with reckless disregard for the likelihood of)

causing him severe emotional distress. In count 4, he alleges

that NETT's conduct was, at a minimum, negligent, reckless, and

outrageous, proximately causing him to suffer emotional harm.

NETT asserts that Robertson's claims for emotional distress (both

negligent and intentional) are barred by New Hampshire's workers'

compensation statute, N.H. Rev. Stat. Ann. ch. 281-A.

The New Hampshire Supreme Court has yet to address this

issue (although it is currently pending before that court). This

court has, however, construed New Hampshire's workers'

compensation statute to prohibit suits against an employer for

both intentional and non-intentional torts. See, e.g.. Sweet v.

Hadco, No. 95-576-M, slip op. at 4 (D.N.H. January 18, 1996).

16 "More specifically,

-A:8 has

consistently been held to bar causes of action for intentional

infliction of emotional distress brought by employees against

employers."

(citations omitted). See also Censullo v.

Brenka Video, Inc.,

(1st Cir. 1993) ("Emotional

distress is a personal injury, not subject to recovery in a

common law action under [New Hampshire's] workmen's compensation

statute."). Accordingly, Counts 3 and 4 of plaintiff's complaint

must be dismissed.

Nevertheless, plaintiff suggests that the court should "hold

in abeyance" any ruling on NETT's motion for summary judgment as

to those claims:

given the [unsettled] state of the law [on this issue] in New Hampshire [Superior Courts] and the pending case in the New Hampshire Supreme Court [which raises this issue], this Court should hold in abeyance its determination of whether the New Hampshire Workers' Compensation Statute bars Mr. Robertson from claiming damages under a theory of infliction of emotional distress until the New Hampshire Supreme Court has ruled on the Karen C. Karch v. Baybank case.

Plaintiff's memorandum, at 20.

That the New Hampshire Supreme Court may settle the guestion

is not sufficient reason to "hold in abeyance" NETT's motion.

The law in this court is settled. Robertson's emotional distress

claims are barred by the workers' compensation statute. Should

the New Hampshire Supreme Court issue a contrary ruling prior to

17 trial, Robertson may of course file whatever motion for relief he

deems appropriate.

B. Wrongful Discharge (Count 2) .

NETT asserts that the terms of the Collective Bargaining

Agreement (the "CBA") bar Robertson from bringing his wrongful

discharge claim in this court and, instead, reguire him to

arbitrate that claim. In fact, it points out that Robertson

actually initiated a grievance procedure under the CBA and the

matter is currently scheduled for arbitration in March, 1999. In

response, Robertson asserts:

Mr. Robertson did file a grievance but expects [NETT] to claim, and the arbitrator to rule, that it is not arbitrable. . . . Mr. Robertson has no remedy in the arbitration process because his wrongful discharge was based on retaliation by the defendant in connection with his reguest for benefits under the Plan. If [NETT] truly asserts that Mr. Robertson's misclassfication under the Plan is arbitrable, it may stipulate to the same. If the stipulation allows an arbitrator to make the Plaintiff whole, the Plaintiff will withdraw this count.

Plaintiff's memorandum, at 16. Such a stipulation is, however,

unnecessary. NETT has judicially admitted, in its motion for

summary judgment, that Robertson's claim (in the form of a breach

of contract claim, rather than one for "wrongful discharge") is

arbitrable. See Defendant's motion for summary judgment, at

para. 2 (b) . See also Censullo,

(noting that,

under New Hampshire law, "contract employees are limited in their

remedies for breach by the terms of the contract.").

18 Because his "wrongful discharge" claim is subject to ongoing

arbitration under the terms of the CBA, Count 2 of Robertson's

complaint must be stayed pending resolution of that arbitration

proceedings. See

. Should the arbitrator determine

that he or she lacks jurisdiction over Robertson's claim (e.g.,

because it involves a claim for benefits under an ERISA governed

plan), the court may then address the merits of Robertson's

wrongful discharge (or, more properly, breach of contract)

claim.4

Conclusion

Defendant's motion for summary judgment (document no. 12) is

granted in part and denied in part. As to Robertson's ERISA

claim (count 1), defendant's motion is denied. The matter is

hereby remanded to the plan fiduciaries for reconsideration of

Robertson's claim(s). The court will, however, retain

jurisdiction over this matter, pending the fiduciaries' decision

on Robertson's claim(s). As to Robertson's wrongful discharge

claim (count 2), the court will stay all proceedings with regard

4 Plaintiff recently filed a motion to amend his complaint in which he seeks to add a new count 6, in which he alleges that he is a contract employee who was terminated in violation of his employment contract. He has not, however, moved to withdraw his "wrongful termination" count (a claim which is normally reserved for employees at will). At this juncture, however, the court need not address Robertson's motion to amend and it is, therefore, denied as moot, with leave to refile at a later date if appropriate.

19 to that claim and retain jurisdiction, pending completion of the

arbitration.5

Defendant's motion for summary judgment is, however, granted

as to Robertson's claims for negligent and intentional infliction

of emotional distress (counts 3 and 4), and his claim under the

ADEA (count 5). The former state law claims are barred by the

New Hampshire workers' compensation statute. And, with respect

to his ADEA claim, the court concludes that Robertson has failed

to carry his burden of establishing a prima facie case of age

discrimination. Specifically, he has failed to demonstrate that,

at the time of his termination, he was able to meet NETT's

legitimate job-performance expectations. In fact, the record

5 Although the court has retained jurisdiction over Robertson's ERISA claim and his wrongful termination claim, it will administratively close the case, subject to plaintiff filing (if appropriate) a motion to reopen. See Petralia,

(recognizing that a court may administratively close a case involving claims which have been remanded to an ERISA fiduciary). See also Alford v. Dean Witter Reynolds, Inc.,

(5th Cir. 1992) (guoting Sea-Land Service, Inc. v. Sea-Land of Puerto Rico, Inc.,

(D.P.R. 1986)) (recognizing that a court may dismiss without prejudice (or, presumably, administratively close) a case under the Federal Arbitration Act when it is properly subject to arbitration).

Should the arbitrator conclude that Robertson's claim is properly arbitrable and should Robertson be dissatisfied with the outcome, he may move to reopen this case and seek judicial review of the arbitrator's decision. Alternatively, if the arbitrator should determine that he or she lacks jurisdiction over plaintiff's claim (or that it is otherwise not properly subject to arbitration), plaintiff may move to reopen the case and present his wrongful termination claim, on the merits, in this forum. The same is obviously true with regard to his ERISA claim, once the plan fiduciaries have considered his claim(s) and rendered their decisions.

20 suggests (and plaintiff himself has conceded both at deposition

and in papers filed in support of his application for Social

Security disability benefits) that he was totally disabled on or

prior to his termination and continues to be totally disabled

today.

Finally, plaintiff's motion to reconsider the Magistrate

Judge's denial of his motion to extend discovery and take in

excess of ten depositions (document no. 21) is denied as moot.

Plaintiff's motion for leave to file an amended complaint

(document no. 28) is likewise denied, with leave to refile should

arbitration not resolve his wrongful discharge/breach of contract

claim. Plaintiff's motion for leave to file a responsive

pleading (document no. 29) is granted.

In summary, defendant's motion for summary judgment is

granted with regard to counts 3, 4, and 5 of plaintiff's

complaint. As to count 1 (ERISA) and count 2 (wrongful

discharge), plaintiff's claims will be addressed, at least

initially, by the plan fiduciaries and an arbitrator,

respectively. In the interim, the Clerk of the Court shall

administratively close the case. If appropriate, plaintiff may

seek to reopen this matter at a later date.

21 SO ORDERED

Steven J. McAuliffe United States District Judge

December 8, 1998

cc: Thomas T. Barry, Esq. Vincent A. Wenners, Jr., Esq. Robert E. Jauron, Esq.

22