Miller v. Nortel CV-03-258-PB 1/25/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert H . Miller

v. Civil No. 03-258-PB Opinion No.

Nortel Networks Long Term Disability Plan and Nortel Networks, Inc.

MEMORANDUM AND ORDER

Robert H. Miller brings this action pursuant to the Employee

Retirement Income Security Act ("ERISA"),

(a)(1)(B), to recover benefits allegedly due him under the

terms of the Nortel Networks Long-Term Disability Plan (the

"Plan"). In Count I of the Complaint, Miller alleges that the

Plan administrator's decision to deny him long-term disability

benefits was arbitrary and capricious. See Compl. 55 41-46. In

Count II, he alleges that the Plan's administrator breached its

fiduciary duty to administer the Plan in a manner consistent with

its purposes. See Compl. 55 47-51. Finally, in Count IV, Miller

charges that his employer, Nortel Networks, Inc., misrepresented the position for which he was hired, his job security, and his

benefits package.1 See Compl. 55 57-62. Miller alleges that he

reasonably relied on Nortel's misrepresentations in leaving his

previous job, and this reliance has caused him to suffer damages,

including lost wages, lost benefits, and emotional distress. See

i d ., 55 63-64. Before me are Miller's Motion for Partial Summary

Judgment and Nortel's Motion for Summary Judgment. For the

reasons set forth in this Memorandum and Order, I grant Nortel's

motion as to all counts and deny Miller's motion.

I. BACKGROUND2

A. Miller's Employment with Nortel

Robert Miller was employed as a senior thin film engineer at

Barr Associates when he became interested in working for Nortel.

1 Count III of the Complaint alleged that defendant Prudential Insurance Company of America, Inc., which provided administrative services to the Plan, breached its fiduciary duty to Miller by administering his claim in an arbitrary and capricious manner. See Compl. 55 52-56. This count was voluntarily dismissed on September 8, 2003, along with Miller's other claims against Prudential.

2 The facts, construed in the light most favorable to Miller, are drawn from the parties' pleadings and accompanying exhibits.

- 2 - See Def.'s Ex. 1 , Miller D e p . at 19:17-19. In the fall of 2000,

Miller learned that Nortel had a particular piece of analytical

equipment that interested him, a piece that Barr Associates was

unable to afford. I d . at 19:20-20:6. Miller sent an email to a

Nortel manager, attaching his resume, and asking both to see the

equipment and to discuss the possibility of employment. I d . at

20:21-21:2. In response, Nortel representative, Masud Azimi,

contacted Miller in late November 2000, and invited him to tour

Nortel's Wilmington, Massachusetts facility. I d . at 20:2-23.

During this tour. Miller met with a number of Nortel employees.

After the tour. Miller was invited to return to Nortel's

Wilmington facility in mid-December 2000. I d . at 23:1-12. At

the second meeting. Miller spoke with Peidong Wang, another

Nortel representative, as well as several other Nortel employees.

Based on his conversations with company representatives,

including Azimi and Wang, as well as recruiters Tom Hurley and

Pam Wilkie, Miller formed the "overall impression" that Nortel

was an excellent company with outstanding benefits that would

offer long-term security and interesting, rewarding work. I d . at

24-26. Miller's positive impression of Nortel was bolstered by

reports from various employees who purportedly told him that Nortel planned to expand its operation to a facility in

Billerica, Massachusetts, and encouraged him to drive by the

proposed site. I d . at 27:7-19.

In December 2000, Miller entered into discussions with Wang

regarding the possibility of employment. On December 21, 2000,

Wang contacted Miller by telephone and offered him a position as

a senior thin film engineer. See Def.'s Ex. 1, Miller Dep. at

28:6-7, 29:4-19. The following day Wang sent Miller an email

that stated in relevant part,

Robert: Here is what we discussed last night. Hopefully you can join us as soon as everything clears out. . . . I wish you can join us in Jan. 15 or earlier.

Def.'s Ex. 5. Miller then received a formal offer of at-will

employment in a letter from Pam Wilkie dated February 2, 2001.

Def.'s Ex. 2. Miller signed the letter, indicating that he

understood and accepted the terms of Nortel's offer, on February

4, 2001.

In January 2001, however, prior to accepting the job at

Nortel, Miller read a report stating that the company was

planning to cut 4,000 jobs over six months. Def.'s Ex. 6.

Concerned about the potential impact this news would have on his

- 4 - employment status. Miller sent an email to Wang on January 11,

2001, asking him if the pending layoffs would impact Nortel's

Wilmington facility.

Specifically, Miller asked,

I have been hearing grim reports about pending Nortel layoffs. How do these events affect your expansion plans in Wilmington?

Wang replied, in a January 14, 2001 email, that

I am working on your case. Hopefully we can have an answer soon. There will be no layoffs here. However, we have to wait until we can have the green light to hire more needed people again.

About two weeks later, on January 31, 2001, Miller sent an

email to Wang asking him when he should expect a formal offer.

Def.'s Ex. 7. On February 1, 2001, Wang replied by email and

explained to Miller that

I know you are anxious to hear from me. With the current hiring freeze, the things change everyday. We have submitted your case to upper upper management fro [sic] approval. It could take some time, but nothing is garanteed [sic] at this time. We are doing our best. . . . Pam [Wilkie] is now handling the recruiting at this difficult time. I copied your message to her.

Later that day, Wilkie notified Miller by email that he had

been approved for hiring. Def.'s Ex. 8. She further informed

him that she would try to send the formal offer letter to him the

following day.

Miller received this letter and signed it.

- 5 - accepting Nortel's offer on February 4, 2001. Def.'s Ex. 2 at P-

MILLER 0003.

Miller started work as a senior thin film engineer at

Nortel's Wilmington facility on February 26, 2001, and enrolled

in Nortel's benefit plans. He also executed his right to

purchase optional long-term disability coverage, which increased

his long-term disability ("LTD") benefits for an additional

premium. See Def.'s Ex. 1, Miller Dep. at 10:6-14; Pl.'s Ex. 36

at P-MILLER 0085.

B. The Plan

In 2001 and 2002, Nortel's Short-Term and Long-Term

Disability Plans were comprised of four documents.3 Affidavit of

Debbie Lorimer at 5 3 ("Lorimer Aff."). Under the "ELIGIBILITY"

section of the Plan, a regular employee "working 20 or more hours

per week" would be eligible to participate in the disability

Plan. Def.'s Ex. 10 at P-MILLER 0014. The Plan designated the

Prudential Insurance Company of America as the Claims

3 Miller argues that a fifth document, entitled "Welcome to Nortel You Are Now Connected," Pl.'s Ex. 40, should also be included as part of the Plan. I decline to express an opinion on this issue as its resolution has no bearing on the disposition of the case.

- 6 - Administrator to handle participants' claims for benefits. See

Def.'s Ex. 12 at P-MILLER 0036-0039. Prudential's role was

governed by an Administrative Services Agreement. See Def.'s Ex.

14. The Plan also designated Nortel as the Plan administrator,

and Nortel, in turn, designated its own Employee Benefits

Committee ("EBC") as the final authority in reviewing denied

claims for benefits under the Plan. See Def.'s Ex. 12 at P-

MILLER 0036-0037.

The Plan's section on "WHEN COVERAGE BEGINS" provides that

"[]Short-Term Disability and []Long-Term Disability coverage is

automatically effective on the first day [a participant is]

Actively at Work as a new Employee." Def.'s Ex. 10 at P-MILLER

0017. A Plan participant seeking benefits must file a claim with

Prudential, which conducts a review of the claim under the Plan

and either accepts or denies it. A participant whose claim is

denied may then appeal that decision to Prudential. If

Prudential denies the first appeal, the participant may then file

a second and final appeal with Nortel's EBC. See Def.'s Ex. 12

at P-MILLER 0043-0044.

- 7 - 1. Short-Term Disability Benefits

Under the Plan, Short-Term Disability ("STD") benefits are

available to Plan participants who "become Totally Disabled by an

accidental bodily Injury or Illness while [they] are covered

under the plan." Def.'s Ex. 10 at P-MILLER 0019. The Plan pays

a weekly STD benefit of 100% of the participant's gross pre­

disability earnings for up to six weeks, and then 70% of the

participant's gross pre-disability earnings for up to 20

additional weeks, for a total of approximately six months of

coverage. Def.'s Ex. 10 at P-MILLER 0020. STD benefits end when

the participant's eligibility ends, when he or she is no longer

Totally Disabled, or when he or she has received 26 weeks of STD

benefits.

2. Long-Term Disability Benefits

Long-Term Disability ("LTD") benefits under the Plan are

paid to eligible participants who have been Totally Disabled for

the 2 6-consecutive week STD period, provided that, before the end

of the STD period, he or she has submitted written proof of Total

Disability that is satisfactory to Prudential. Def.'s Ex. 10 at

P-MILLER 0026. The maximum length of time that LTD benefits will be paid depends on the participant's age at the time Total

Disability begins, but generally ranges from six months for

employees age 75 and older, and up to age 65 for employees

younger than 60. Def.'s Ex. 10 at P-MILLER 0027.

The Plan's LTD component also includes a number of

exclusions, including a "Preexisting Conditions Exclusion" which

provides in relevant part.

Exclusions

LTD benefits will not be paid for any disability that is in any way caused by . . .

• a Preexisting Condition . . . .

Preexisting Conditions Exclusion

If you are a newly hired Employee, you will not be covered for 12 months after coverage is effective for any disability caused or in any way related to a condition existing within 90 days of your coverage Effective Date.

A "Preexisting Condition" is an Illness, Injury or condition for which you:

• received treatment or services from a Physician, • took drugs or medicines prescribed by a Physician. • incur expenses or • receive a diagnosis.

Def.'s Ex. 10 at P-MILLER 0032.

- 9 - C. Miller's History of Lymphoma

In October 1998, while living in Colorado, Miller was

diagnosed with low grade, unagressive non-Hodgkins Lymphoma. See

Def.'s Ex. 15 at P-MILLER 0239; Def.'s Ex. 1, Miller Dep. at

13:20-14:1. He was treated with chemotherapy and went into

partial remission. Pl.'s Ex. 6 at P-MILLER 0239. Then, in

December 1999, he was found to have a pelvic mass.

A biopsy

revealed the presence of a low-grade lymphoma.

Thereafter,

in early 2000, a second biopsy revealed that Miller had "mantle

cell lymphoma."

By October 2000, Miller was in "clinical

remission," although an abdominal CAT scan indicated evidence of

retroperitoneal adenopathy.4

From December 1999 through the

summer of 2001, Miller was treated for his lymphoma by Dr.

Sherman Baker, an oncologist. See Def.'s Ex. 1, Miller Dep. at

44:10-19.

On or about February 2, 2001, Dr. Baker determined that

Miller's lymphoma had probably recurred. See Def.'s Ex. 15 at P-

4 "Retroperitoneal adenopathy" is the swelling or morbid enlargement of the lymph nodes located behind the peritoneum, the thin membrane that lines the abdominal and pelvic cavities and covers most abdominal viscera. See Stedman's Medical Dictionary, 26, 1170, 1355 (25th ed. 1990).

- 10 - MILLER 0335. One week later, on February 9, 2001, Miller had a

CAT scan, as Dr. Baker had recommended. See i d . at P-MILLER

0290-0291. On February 22, 2001, Dr. Charles Leutzinger, with

whom Miller had consulted, noted that the CAT scan showed

"lymphadenopathy within the retroperitoneum starting at

approximately the L3 level and extending into the pelvis, with

the overall size of the mass increased since the September

examination, and measuring approximately 11 centimeters in the

greatest dimension." I d . at P-MILLER 0290. Dr. Leutzinger

characterized Miller's condition as " [ n ] o n - H o d g k i n ' s lymphoma

status post-chemotherapy with regrowth of disease four months

after completion of treatment." I d . at P-MILLER 0291. The day

after Miller started work at Nortel, on February 27, 2001, Dr.

Leutzinger began treating Miller with radiation for "Stage IV

non-Hodgkin's lymphoma." See i d . This treatment lasted until

March 28, 2001. See i d .

In July 2001, a surgical pathology consultation report of

Miller's condition indicated that "the findings are consistent

with malignant lymphoma, B cell type," and that this "most likely

represents evolution of this patients [sic] reported low grade

lymphoma." I d . at P-MILLER 0298. The July 24, 2001 notes of Dr.

- 11 - Jon Posner, who succeeded Dr. Baker as Miller's oncologist,

reflect his view that Miller was suffering from "a stage IV non-

Hodgkin' s lymphoma which clinically is moving ahead after CVP in

1998. . . ." I d . at P-MILLER 0286. Nearly one month later, on

August 23, 2001, Miller again consulted with Dr. Leutzinger, who

indicated that Miller had " [p]regressive non-Hodgkin's lymphoma

with bilateral neck axillary adenopathy and associated venous

compression." I d . at P-MILLER 0412-0413. Based on this

consultation. Dr. Leutzinger elected to treat Miller with

"further systemic chemotherapy."

Miller proceeded with chemotherapy treatments, but as Dr.

Leutzinger noted on October 9, 2001, the treatments did not

provide him with the relief his physicians expected. See i d . at

P-MILLER 0411. Miller was then treated with radiation from

October 10, 2001 through November 7, 2001. See i d . at P-MILLER

0410. In Dr. Leutzinger's treatment summary for this period, he

indicated that Miller's initial diagnosis was " [n]on-Hodgkin's

lymphoma with progressive adenopathy, edema, etc. after ICE

chemotherapy" and his final diagnosis was " [n]on-Hodgkin's

lymphoma with dramatic regression of visible and palpable

adenopathy."

Finally, Dr. Posner's December 4, 2001

- 12 - "History and Physical" report concluded that Miller was suffering

from "Stage IV diffuse large cell lymphoma converting from a 1998

low grade lymphoma." I d . at P-MILLER 0241.

D. Short-Term Disability Benefits

In the early summer of 2001, Miller learned that his non-

Hodgkin's lymphoma had progressed. According to Miller, he

informed his supervisor of his condition and continued to work as

much as he could around his treatment schedule. In August 2001,

however. Miller's physicians told him that he would have to take

time off from work and go on disability because he reguired

chemotherapy treatments. Miller then reported this development

to his supervisor, and continued to work as much as he could. On

or about October 15, 2001, however, he was forced to take a leave

of absence.

In late October 2001, Miller was informed by Nortel that his

employment would be terminated and was offered a severance

package in exchange for a release of all claims against Nortel.

Compl. 5 13. Miller refused to accept the agreement and instead

retained counsel.

Miller's attorney contacted Nortel's

counsel and they agreed both that Miller would go out on STD and

- 13 - that his employment would not be terminated while he was on STD.5

at 5 14. On his application for STD benefits. Miller's

treating physician. Dr. Posner, indicated that his diagnosis of

Miller was "lymphoma relapsed." See Def.'s Ex. 16. Miller's

application was approved and he received short-term disability

benefits for 2 6-consecutive weeks, the maximum STD period, from

October 15, 2001 through April 14, 2002. See Def.'s Ex. 1,

Miller Dep. at 76:1-7.

E. Application for Long-Term Disability Benefits

Miller filed an application for LTD benefits under the Plan

on February 7, 2002, as his STD benefits period was approaching

its end. See Def.'s Ex. 17; Def.'s Ex. 1, Miller Dep. at 78:11-

12, 79:3-10. He indicated on the LTD application that

5 The record is devoid of any evidence identifying the reason Nortel terminated Miller's employment, or even the precise date of his discharge. Nortel contends that he was discharged from employment on January 1, 2003. See Def.'s Mot. for Summ. J. at 5 13. Miller, however, believed he had been terminated on June 1, 2003, until October 29, 2004 when he telephoned Nortel's Pension Service Center Office regarding withdrawal of his vested pension funds. See Pl.'s O b j . to Def.'s Mot. for Summ. J. at 3 & n.l. During that telephone call. Miller was informed that Nortel still considered him an active employee on a leave of absence. See Affidavit of Robert Miller 5 1. In any event. Miller is not claiming the termination itself was wrongful, nor does he claim breach of his employment contract. Pl.'s Obj. to Def.'s Mot. for Summ. J. at 11.

- 14 - " [r]ecalcitrant Non-Hodgkin's Lymphoma" was the condition that

prevented him from working. See Def.'s Ex. 17. Miller

anticipated that the LTD benefits would begin as soon as the STD

benefits ended, and continue for 30 months, based on his age at

the time he filed his application.

On March 5, 2002, Prudential sent a letter to Miller,

notifying him that it was "currently reviewing" his claim for LTD

benefits and reguesting his medical records for the period

between November 25, 2000 and February 25, 2001. See Def.'s Ex.

18. Citing the Plan's Preexisting Conditions Exclusion, the

letter informed Miller that his medical records were reguired to

"determine if [his] medical condition supports total disability

or is not excluded under the pre-existing conditions exclusion. .

. ."

Miller timely complied with this reguest. See Pl.'s

Ex. 43 & 44. Prudential followed with a letter dated March 19,

2002, informing Miller that it had received the medical

documentation. See Def.'s Ex. 19. The letter also asked Miller

to notify Prudential "if this information is to be reviewed for

an appeal of your claims for Long Term Disability benefits."

On about March 22, 2002, Miller contacted Prudential by telephone

and was informed that his LTD benefits claim had in fact been

- 15 - denied on March 21, 2002, due to the Preexisting Conditions

Exclusion.6 See Def.'s Ex. 1, Miller Dep. at 93:6-9.

F. Appeals

On April 9, 2002, Miller's attorney, John LaRivee, Esq.,

wrote to Prudential to appeal the denial of Miller's claim for

LTD benefits. See Def.'s Ex. 21. He informed Prudential that

Miller had not yet received a letter officially notifying him of

the denial. See i d . He also requested copies of all applicable

Plan documents. See i d . LaRivee then referenced the Plan's

Preexisting Conditions Exclusion and argued that a plain language

reading of the phrase "for 12 months" supported Miller's position

that "there will be no coverage for 12 months. Beyond that there

is coverage regardless of whether there was a pre-existing

condition or not."

In LaRivee's view, "[n]othing in the

exclusion says otherwise."

Accordingly, he urged Prudential

6 Prudential purportedly prepared a letter, dated March 21, 2002, informing Miller that his claim for disability benefits had been denied and setting forth the basis for the denial. See Def.'s Ex. 20. Miller claims, and for the purpose of this Memorandum and Order I accept, that he did not receive this letter until December 2003, during discovery. See Def.'s Ex. 1, Miller Dep. at 95:19-96:7. Nortel has not offered any explanation as to why this letter was prepared after the March 19, 2002 letter in which it asked Miller if he wanted to appeal the denial of benefits.

- 16 - to "take a serious look at this exclusion and what it really says

before responding with a knee jerk denial of Mr. Miller's

appeal."

Finally, LaRivee disputed Prudential's conclusion

that the non-Hodgkin's lymphoma from which Miller suffered on his

date of hire was related to the lymphoma that forced him out of

work.

One week later, on April 16, 2002, Debbie Lorimer of

Nortel's benefits department sent Attorney LaRivee copies of the

Plan, including the Administrative Information section. See

Def.'s Ex. 22.; Ex. 1, Miller Dep. at 98:17-99:8. Several weeks

after that, on May 23, 2002, Prudential informed Miller that he

could submit for consideration any additional information

pertaining to his appeal. See Def.'s Ex. 23; Ex. 1, Miller Dep.

at 100:1-101:4.

By letter dated June 4, 2002, Prudential denied Miller's

appeal and upheld its initial decision denying his claim for LTD

benefits, again relying on the Plan's Preexisting Conditions

Exclusion. See Def.'s Ex. 24. Specifically, Prudential noted

that Miller stopped working "within the 12 months of the date he

became a Covered Employee" for LTD coverage. I d . at P-MILLER

017 9. Prudential then explained that it had reviewed medical

information from Miller's physicians. Dr. Leutzinger and Dr.

- 17 - Posner, and determined that on February 22, 2001, Miller's "chief

complaint was non-Hodgkin's lymphoma (stage IV)" and that he went

out of work for lymphoma, a condition that was related to a

condition existing within 90 days of his coverage Effective

Date.7

Prudential next informed Miller that although he

alleged that the lymphoma that forced him out of work was not the

same as that for which he was treated earlier, the Plan

"indicates that if you go out of work for a condition that is in

any way related to a condition existing within 90 days of the

[coverage Effective Date], benefits are not payable."

Prudential disagreed with LaRivee's interpretation of the Plan's

Preexisting Conditions Exclusion and explained that because

Miller stopped working within 12 months of the date he became a

Covered Employee for LTD coverage, and his claim was subject to

the Preexisting Conditions Exclusion. Thus, under the terms of

the Plan he was not entitled to collect LTD benefits. See i d .

Finally, the letter informed Miller that any further appeal

should be directed to Nortel's EBC. See

7 Pursuant to the terms of the Plan, Miller's coverage Effective Date was February 26, 2001, his Hire Date. See Def.'s Ex. 10 at P-MILLER 0017.

- 18 - On August 2, 2002, Attorney LaRivee filed an appeal with the

EBC on Miller's behalf.8 See Def.'s Ex. 25. In this letter, he

referenced the reasoning of his April 9, 2002 letter, further

explained his interpretation of the Plan's Preexisting Conditions

Exclusion, and criticized Prudential's June 4, 2002 letter for

failure to cite to specific Plan provisions to corroborate its

reasoning. See i d . at P-MILLER 0173. LaRivee also disputed

Prudential's assertion that because Miller stopped working within

12 months of his date of hire, he would have to return to work

and file a subseguent claim in order to be covered under the Plan

and be eligible for LTD benefits. See i d . at P-MILLER 0174.

Urging Prudential to reconsider and reverse its original

decision, LaRivee argued that Miller's benefits "were to have

commenced on April 15, 2002, a date beyond 12 months from the

start of his employment and thus beyond the 12 month period the

pre-existing condition exclusion was in effect." I d . at P-MILLER

0173-0174 .

8 On August 8, 2002, Attorney LaRivee sent an additional letter to the EBC, enclosing a letter of support from Dr. Posner. See Def.'s Ex. 26.

- 19 - In response, by letter dated November 21, 2002, the EBC

denied Miller's appeal and upheld Prudential's decision on

Miller's LTD benefits claim.9 See Def.'s Ex. 27. The denial

letter explained why the EBC rejected LaRivee's interpretation of

the LTD Plan's terms. See i d . at P-MILLER 0161. The letter then

reiterated the reasoning behind Prudential's March 21, 2002

letter initially denying Miller's claim, and the June 4, 2002

letter denying Miller's first appeal. See i d . at P-MILLER 0161-

0162. After summarizing Miller's argument in support of his

appeal, the letter then stated that the EBC declined to reverse

Prudential's decision. I d . at P-MILLER 0162. According to the

EBC, that conclusion was "based upon the clear and unambiguous

terms of the LTD plan."

Next, the EBC described the particular Plan provisions on

which it relied in upholding Prudential's determination. First,

the EBC noted that LTD Plan "establishes that an individual

gualifies for an LTD Plan benefit only if it begins immediately

9 Miller points out that the letter identified his attorney by the wrong name in the salutation and incorrectly identified him as an electrical engineer. Although certainly sloppy work on Nortel's part, there is no evidence to suggest that these mistakes affected the EEC's handling of Miller's claim.

- 20 - after the conclusion of the STD Plan benefit period, while the

individual has coverage under the LTD Plan." I d . at P-MILLER

0163. Citing to the sections entitled "Core LTD Benefits" under

"When Benefits Begin and End," the EBC concluded that there are

no provisions for payment of an LTD Plan benefit at any time

other than immediately following the termination of the 26 weeks

of STD Plan Benefits, and Miller was not eligible for payment

under the LTD Plan immediately following the 26 week STD period

because he was not entitled to coverage at that time.

at P-

MILLER 0164.

Second, the EBC pointed out that "Total Disability must be

continuous and there must be continuous monitoring . . . for the

LTD Plan benefit to continue." Here, the EBC concluded that

there has been no continuous monitoring of whether Miller was

under the regular care of a Physician or whether he continued to

be unable to perform the functions of his normal work at each

possible review date."

Third, citing once again to the Plan's Preexisting

Conditions Exclusion, as well as to the section entitled "WHEN

COVERAGE ENDS," the EBC explained that the "LTD Plan does not pay

benefits to individuals who leave their active employment within

- 21 - 12 months after their initial coverage effective date and do not

return to active employment." I d . at P-MILLER 0164-0165. The

EBC determined that Miller's coverage under the Plan ended when

his STD Plan benefit ended and he was not approved for the LTD

Plan benefit due to a preexisting condition, and also did not

return to work. I d . at P-MILLER 0165. On that date, the EBC

explained. Miller stopped gualifying for coverage.

Having exhausted his administrative appeals. Miller

commenced this suit.

II. STANDARD OF REVIEW

Summary judgment is appropriate where "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). A genuine issue is one "that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party." Anderson v. Liberty Lobby, Inc.,

(1986). A material fact is one that affects the

outcome of the suit. See i d . at 248.

- 22 - In ruling on a motion for summary judgment, I must construe

the evidence in the light most favorable to the non-movant. See

Navarro v. Pfizer Corp.,

(1st Cir. 2001). The

party moving for summary judgment, however, "bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] which

it believes demonstrate the absence of a genuine issue of

material fact." Celotex Corp. v. Catrett,

(1986). Once the moving party has properly supported its motion,

the burden shifts to the nonmoving party to "produce evidence on

which a reasonable finder of fact, under the appropriate burden

of proof, could base a verdict for it; if that party cannot

produce such evidence, the motion must be granted." Ayala-Gerena

v. Bristol Myers-Sguibb Co.,

(1st Cir.

1996)(citing Celotex, 477 U.S. at 323; Anderson,

). Neither conclusory allegations, improbable inferences, or

unsupported speculation are sufficient to defeat summary

judgment. See Carroll v. Xerox Corp.,

(1st

C i r . 2 0 02).

When a denial of benefits is challenged under ERISA, §

1132(a)(1)(B), "the standard of review depends largely upon

- 23 - whether 'the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or

to construe the terms of the plan.'" Leahy v. Raytheon Co.,

(1st Cir. 200 2 ) (guoting Firestone Tire & Rubber Co.

v. Bruch,

(1989)). If discretionary authority

is clearly given under the benefit plan, "a deferential arbitrary

and capricious standard of review is mandated." See i d ., see

also Terry v. Bayer Corp.,

(1st Cir. 1998) . This

standard means that "the administrator's decision will be upheld

if it is reasoned and 'supported by substantial evidence in the

record.'" Vlass v. Raytheon Employees Disability Tr.,

(1st Cir. 200 1 ) (guoting Associated Fisheries of Maine,

Inc. v. Daley,

(1st Cir. 1997). As such,

reasoned denials of benefits that are supported by substantial

evidence will survive review under this standard. See Doyle v.

Paul Revere Life Ins. Co.,

(1st Cir. 1998) .

Substantial evidence means evidence that is "reasonably

sufficient to support a conclusion." Vlass,

.

Miller disputes Nortel's contention that its rejection of

Miller's claim should be reviewed under the arbitrary and

capricious standard. At the root of the parties' dispute over

- 24 - the proper standard of review is their sharp disagreement over

exactly what document or documents comprise the "Plan."

Nortel asserts that there are four documents that

collectively constitute both the "Plan" and the Summary Plan

Description ("SPD"). Lorimer Aff. at 5 3. These four documents,

which incorporate each other by reference, are: (1) "In This

Section," Def.'s Ex. 10 ("In This Section Document"); (2) "US -

BENEFITS Employee Benefits and Programs FLEX Overview," Def.'s

Ex. 11 ("Flex Overview Document"); (3) "US - BENEFITS Employee

Benefits and Programs Administrative Information," Def.'s Ex. 12

("Administrative Information Document"); and (4) "Employee

Benefits and Programs Glossary," Def.'s Ex. 13 ("Program Glossary

Document").

These documents, Nortel maintains, are

interrelated and must be construed together. Notably, the FLEX

Overview Document directs Plan participants to the Administrative

Information Document for further details about the Plan,

including how to file claims and how to appeal claims that have

been denied. Def.'s Ex. 11 at P-MILLER 0096. The Administrative

Information Document then identifies Nortel Networks, Inc. as the

Plan administrator and provides that:

- 25 - The EBC [Employee Benefits Committee] has the final discretionary authority to construe and to interpret the plan, to decide all questions of eligibility for benefits and to determine the amount of benefits. The EBC's decisions on such matters are final and conclusive.

Def.'s Ex. 12 at P-MILLER 0044. This language, Nortel argues, is

sufficient to give the Plan administrator the requisite

discretionary authority to warrant application of the arbitrary

and capricious standard of review.

Miller responds by arguing that the language Nortel relies

on is irrelevant because it is not clear that the Administrative

Information Document is a part of the Plan. I disagree. Even if

Miller is correct in claiming that it is unclear whether the

Administrative Information Document is a part of the Plan rather

than merely a part of the SPD, his argument fails because the

inclusion of discretionary language in an SPD is sufficient to

confer discretionary authority on the Plan administrator. This

point was made clear in Wade v. Life Ins. Co. of N. America,

(D. Me. 2003). There, discretionary

language in an SPD stated that both the Plan administrator and

the defendant insurance company retain "the power . . . to make

all determinations that the Plan requires for its administration.

- 26 - and to construe and interpret the Plan whenever necessary to

carry out its intent and purposes and to facilitate its

administration." I d . at 318. The defendant insurance company

asserted that this language granted it sufficient discretionary

authority to warrant application of the arbitrary and capricious

standard.

The plaintiff countered that the SPD, standing

alone, was insufficient to confer the necessary discretion on the

defendant without some additional grant of authority in the

policy.

The court agreed with the defendant and found that

this language was sufficient to confer discretionary authority.

In doing so, the court held that "[t]he location of the relevant

language within the SPD rather than the Policy does not change

this conclusion." I d . at 318-19; see also Sidou v. UnumProvident

Corp.,

, (D. Me. 2003) (finding that grant of

discretionary authority in SPD is sufficient to warrant arbitrary

and capricious standard of review because SPD is a plan

document). I agree with the court's reasoning in Wade and thus

conclude that the Plan's grant of discretionary authority in the

Administrative Information Document is sufficient to vest Nortel

with discretion even if the Administration Information Document

is only a part of the SPD rather than a part of the Plan.

- 27 - Miller alternatively argues that I must apply a heightened

standard of review because Nortel was subject to a conflict of

interest. He asserts that the conflict existed because Nortel is

responsible for paying for any benefits awarded under the Plan.

Again, I disagree. The First Circuit has held that "[t]o affect

the standard of review, ... a conflict of interest must be

real. A chimerical, imagined, or conjectural conflict will not

strip the fiduciary's determination of the deference that

otherwise would be due." Leahy,

(citing Doyle,

). It is no more than mere conjecture to allege

that a conflict exists "simply because an award of benefits would

come from the same entity that is responsible for determining the

eligibility for those benefits." Robinson v. Unum Life Ins. Co.

of A m . , No. Civ. 02-6-B,

, at *5 (D.N.H. Mar. 12,

2003); see also Smith v. Fortis Benefits Ins. Co., No. Civ. 02-

55-B,

, at *4 (D.N.H. Mar. 6, 2003) (finding no

actual conflict where insurer served as both plan administrator

deciding claims and employer paying out claims). Without more,

this general assumption does not indicate that Nortel was

improperly motivated.

Furthermore, the only other evidence

Miller has produced to bolster his theory that Nortel was

- 28 - improperly motivated when it denied his claim is unpersuasive.

For example, evidence that Miller is in his sixties and suffering

from cancer, that Nortel may have made misrepresentations to him

during the hiring process, and that Nortel is "mired in an

accounting scandal that has led to criminal and securities

investigations" and "numerous lawsuits" is simply insufficient to

demonstrate the existence of an actual conflict. See Leahy,

. Finding no evidence of a conflict of interest, I

must apply an arbitrary and capricious standard of review and

proceed to ensure that the denial of long-term benefits was not

"objectively unreasonable in light of the available evidence."

Pari-Fasano v. ITT Hartford Life and Accident Ins. Co.,

(1st Cir. 2000) .

III. DISCUSSION

A. The Claim for Benefits

Miller argues that Nortel's denial of his claim was

arbitrary and capricious for three reasons. First, he asserts

that the evidence does not support Nortel's determination that

his disability was caused by a preexisting condition. Second, he

argues that Nortel based its decision on an unreasonable

- 29 - interpretation of the Preexisting Conditions Exclusion. Finally,

he contends that he is entitled to benefits because Prudential

failed to give him proper notice of its initial decision to deny

his claim. I examine each argument in turn.

1. The Determination that Miller's Disability was ___________Caused by a Preexisting Condition is Supported ___________By Substantial Evidence in The Record

Miller first challenges Nortel's decision that his

disability was the result of a preexisting condition. I reject

this argument. The medical records show that Miller sought

treatment for lymphoma within 90 days of his date of hire.

Specifically, the records indicate that on February 9, 2001,

Miller had a CAT scan that, as Dr. Leutzinger noted on February

22, 2001, reflected "lyphadenopathy with the retroperitonem

starting at approximately the L3 level and extending into the

pelvis, with the overall size of the mass increased since the

September examination. . . ." Based on these results. Dr.

Leutzinger concluded that Miller was suffering from "Non-

Hodgkin' s lymphoma status post-chemotherapy with regrowth of

disease four months after completion of treatment." Several

months later, in June, 2001, a biopsy report showed that Miller

had a "malignant lymphoma, B cell type," which "most likely

- 30 - represents evolution of this patient's reported low grade

lymphoma." In addition. Dr. Posner's July 24, 2001 notes reveal

his conclusion that Miller was suffering from "a stage IV non-

Hodgkin' s lymphoma which is clinically moving ahead after CVP in

1998. . . ," and his notes from December 4, 2001 reflect his

belief that Miller had "[s]tage IV diffuse large cell lymphoma

converting from a 1998 low grade lymphoma." Finally, Dr. Posner

indicated on Miller's October 2001 application for STD benefits

that Miller reguired a leave of absence due to a relapse of his

previously diagnosed lymphoma.

These medical findings provided sufficient evidence to

support Nortel's determination that Miller left work and sought

disability benefits for a preexisting condition. I thus conclude

that the Plan administrator's determination on this point was

reasonable.

2. The Plan Administrator's Interpretation of the____ ___________Plan's Terms was Reasonable

Nortel concluded that the Plan's Preexisting Conditions

Exclusion establishes a 12-month waiting period before LTD

coverage begins for disabilities that are caused by a preexisting

condition. Under its interpretation, an employee cannot obtain

- 31 - LTD coverage for such disabilities unless he is able to return to

work after the waiting period expires. Because Nortel determined

that Miller's disability was caused by a preexisting condition

and he did not return to work after the waiting period expired,

Nortel concluded that Miller never acguired coverage for his

disability.

Miller responds by arguing that Nortel's interpretation is

insupportable. He asserts instead that an employee acguires LTD

coverage for all covered disabilities - including those caused by

a preexisting condition - as soon as the employee begins to work.

The Exclusion, he argues, thus operates merely as a waiting

period before benefits can begin rather than a coverage waiting

period.10

10 Miller alternatively suggests that he is entitled to benefits even if the Exclusion establishes a coverage waiting period because coverage for disabilities that are caused by a preexisting condition begins automatically as soon as the waiting period is satisfied. I disagree. The Exclusion does not state that coverage commences when the waiting period is satisfied and the Plan elsewhere provides that an employee must be actively at work for coverage to commence. See Def.'s Ex. 10 at P-MILLER 0017. Since Miller was not actively at work at any point after the coverage waiting period expired, he never acguired LTD coverage for disabilities that are caused by a preexisting condition.

- 32 - I am unpersuaded by Miller's argument for several reasons.

First, Miller's interpretation cannot be reconciled with the Plan

language. The Preexisting Conditions Exclusion states that a

claimant will not be "covered" during the first 12 months of

employment for disabilities that result from a preexisting

condition. The Plan elsewhere draws an explicit distinction

between the time when "coverage" begins, see Def.'s Ex. 10 at P-

MILLER 0017, and the time when "benefits" begin. See Def.'s Ex.

10 at P-MILLER 0021, 0026. Further, when the Plan elsewhere

provides for a waiting period before benefits can begin, it does

so by stating in a straightforward fashion that "benefits will

begin as soon as you have been Totally Disabled for the 26

consecutive week waiting period . . . ." Def.'s Ex. 10 at P-

MILLER 0026 (Emphasis added). Under these circumstances, it is

difficult to accept Miller's position that the phrase "you will

not be covered" should be read to mean "benefits will not begin."

Second, notwithstanding Miller's argument to the contrary,

Nortel's interpretation of the Preexisting Conditions Exclusion

is linguistically plausible. To be sure, the interpretive fit is

not perfect. The Exclusion confusingly states that "you will not

be covered for 12 months after coverage is effective . . . ."

- 33 - Read literally, this phrase is problematic because it is

difficult to see how coverage can be effective during the first

12 months if, as the Plan states, there is no coverage during

that period. Nevertheless, given the absence of plausible

alternative readings, it is reasonable to construe the guoted

language to mean merely that the Plan does not provide LTD

coverage for disabilities that are caused by a preexisting

condition during the 12 month period after LTD coverage is

otherwise effective.

Third, the results that follow from Nortel's interpretation

serve rational ends. The net effect of Nortel's interpretation

is to allow an employee to collect LTD benefits for a disability

that is caused by a preexisting condition only if the employee is

actively at work at any point more than one year after the

employee's first day of work. It is entirely rational for an

employer such as Nortel to have intended such a result. Thus,

because Nortel's proposed interpretation is both consistent with

the Plan language and achieves rational results, I cannot say

that its interpretation was arbitrary or capricious.

- 34 - 3. The Violations of the Notice Requirements ___________Do Not Require Reversal

Miller charges that the Prudential violated the requirements

of

and that section's implementing regulation,

(f) .11 Specifically, Miller alleges that:

(a) Prudential failed to notify him of the initial denial of his

claim; (b) Prudential requested additional information from him

even though it had already decided to deny his claim; and (c) the

EBC's denial of his appeal included three new reasons for the

denial. In light of these procedural errors. Miller contends

that Nortel's denial of his claim should be reversed. Nortel

counters that any violation of ERISA's notice requirement does

11 Section 1133 specifies that a plan "shall provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant."

(1). The interpretive regulations, found at

(f), require that the notice contain, (1) The specific reason for the denial; (2) Specific reference to pertinent plan provisions on which the denial is based; (3) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and (4) Appropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his or her claim for review.

- 35 - not require reversal of the Plan administrator's decision because

Miller received a "full and fair review" of his claim, as is

required, and because he has not proffered any evidence that he

was prejudiced by the procedural defects.

The evidence is clear that Prudential failed to strictly

comply with

(f): Miller was not notified

in writinq that his oriqinal claim for LTD benefits had been

denied, and there is no evidence that he received Prudential's

March 21, 2001 letter explaininq the basis for the denial.12

Undoubtedly, Miller was entitled to an explanation of the

decision. Unfortunately for Miller, "ERISA's notice requirements

are not meant to create a system of strict liability for formal

notice failures." Terry,

. Not all procedural

defects will therefore require reversal of a plan administrator's

decision. In fact, "[s ]ubstantial compliance with the

requlations is sufficient." I d . (quotinq Donato v. Metropolitan

Life Ins. C o .,

(7th Cir. 1994)). Here, the

12 The evidence is also clear that Prudential's June 4, 2002 letter denyinq Miller's first appeal substantially complies with the requirements of

(f), as does the EEC's November 21, 2002 letter denyinq Miller's final appeal. Both letters cite the Preexistinq Conditions Exclusion and to evidence in Miller's medical records as the basis for the denial.

- 36 - record reveals that within days of the decision denying his

claim. Miller contacted Prudential by telephone and was offered

"a sufficiently clear understanding of [Prudential's] position to

permit effective review." I d . at 383. In letters dated April 9,

2002 and August 2, 2002, Miller's attorney responded to the

proffered bases for denying both his claim and his first appeal,

setting forth the reasons Miller believed he was entitled to

receive LTD benefits under the Plan. These communications

reflect Miller's understanding of the reasons for Prudential's

decision and demonstrate that he had an adeguate opportunity to

respond to the decision. See Terry,

.

Additionally, Miller has not offered any evidence that he

was prejudiced by Prudential's failure to strictly comply with

ERISA's notice reguirements. As the Seventh Circuit has

explained, ERISA's notice provision, and the corresponding

regulations, were "designed to afford the beneficiary an

explanation of the denial of benefits that is adeguate to ensure

meaningful review of that denial." Halpin v. W.W. Grainger,

Inc.,

(7th Cir. 1992) . Thus, claims for relief

based on technical violations of the notice reguirement are not

permitted, absent evidence that "a precisely correct form of

- 37 - notice would have made a difference" in the outcome of the claim.

Recupero v. New England Tel. & Tel. Co.,

(1st

Cir. 1997). Miller has failed to adduce any evidence that but

for Prudential's failure to notify him of its decision to deny

his claim, he would have followed a different course of action or

the outcome his claim for benefits would have been different.

Despite the procedural violation. Miller was able to file a

timely first appeal to Prudential as well as a timely second

appeal to the EBC, both of which were afforded thorough

consideration and a full and fair review.

Finally, I reject Miller's assertion that the November 21,

2002 letter from the EBC added three new reasons for denying his

claim. Rather, the November 21, 2002 letter reiterated the

reason that Miller's claim was originally denied: that he was

excluded from coverage due to a preexisting condition. The

letter then went on to further explain both why Miller's coverage

under the Plan was terminated when his STD benefits ended, and

why coverage had not been reinstated. In the process, the letter

referred to additional Plan provisions, including the sections on

"When Benefits Begin and End," "WHEN COVERAGE ENDS," and

"ELIGIBILITY." These provisions corroborate and furnish context

- 38 - to the Preexisting Conditions Exclusion rather than provide new

reasons for the denial.

Having found that substantial evidence in the record

supported Prudential's conclusion that Miller had a preexisting

condition, that the Plan administrator's interpretation of the

Plan's terms was reasonable, and that Prudential's violations of

the notice reguirements did not prejudice Miller's claim, I grant

summary judgment for Nortel as to Count I.

B. Breach of Fiduciary Duty Against Nortel

In Count II of his complaint. Miller charges that Nortel

breached its fiduciary duty as Plan administrator and is liable

to him for this breach pursuant to

[Section 409]

and § 1132(a) (2) [Section 502(a) (2)], and § 1132(a) (3) [Section

502(a)(3)]. Nortel challenges Count II, arguing that Miller's

Section 409 claim cannot be sustained under Section 502(a) (2)

because he has not brought the claim on behalf of the Plan, nor

has he sought eguitable relief to redress his alleged injury.

Nortel is correct.13

13 In his Objection to Defendants' Motion for Summary Judgment, Miller has not put forth any argument as to why summary judgment on this count should be denied. Nevertheless, Miller's failure to respond does not constitute a waiver of the claim, and

- 39 - Civil enforcement for Section 409 lies under Section

502(a)(2), which provides that "[a] civil action may be brought .

. . (2) by the Secretary, or by a participant, beneficiary or

fiduciary for appropriate relief under section 1109 of this

title."

(a)(2). The Supreme Court has

determined that a participant may not rely on Section 502(a) (2)

to recover damages on his own behalf that are caused by a failure

to pay benefits that are recoverable by the participant in an

action under Section 5 0 2 (a)(1)(B). See Mass. M u t . Life Ins. Co.

v . Russe11,

(1985). Accordingly, Miller's

Section 409 claim must be dismissed. Tregoning v. American

Community. Mut. Ins. Co.,

(6th Cir. 1993)(holding

plaintiffs not entitled to recover damages in their individual

capacities under section 409); Long v. Group Long-Term Disability

Benefits for Employees of Fleet Fin. Group, Civ. No. 98-11388-

DPW,

, at *21-*22 (D. Mass.

1999)(same).

For similar reasons. Miller cannot base Count II on §

5 0 2 (a)(3). As the First Circuit has explained, "federal courts

I am therefore obliged to examine the merits of Nortel's argument.

- 40 - have uniformly concluded that, if a plaintiff can pursue benefits

under the plan pursuant to [§ 502(a) (1) (B)], there is an adequate

remedy under the plan which bars a further remedy under [§

5 0 2 (a)( 3 ) ] Larocca v. Borden, Inc.,

(1st Cir.

2002) (collecting cases) . Accordingly, because § 502(a) (1) (B)

gives Miller the right to obtain benefits that were improperly

withheld, he cannot also seek relief for the same injury under §

5 0 2 (a)(3). See Turner v. Fallon Community Health Plan, Inc.,

(1st Cir. 1997); Trombley v. New Eng. Tel. & Tel.

Co.,

(D.N.H. 2000) .

Based on the foregoing analysis, then, I grant Nortel's

motion for summary judgment as to Count II.

C. Misrepresentation Claim Against Nortel

In Count IV of his complaint. Miller alleges that during job

site interviews in November 2000, and in subsequent pre-hire

telephone conversations, Nortel employees, recruiters, and agents

represented that the position of senior thin film engineer was a

good job with security, good benefits that included long-term

disability benefits, and a high potential for success. He also

charges that he was assured, via email from Wang, that Nortel

would not lay off anyone at its Wilmington plant. Miller then

- 41 - alleges that he reasonably relied on these representations, which

were false, in making the decision to leave his job at Barr

Associates and accept employment at Nortel. Lastly, Miller

complains that Nortel's misrepresentations have caused him

emotional and financial trauma, and caused him to suffer damages,

including lost wages and LTD benefits, as well as emotional

distress.

Nortel has moved for summary judgment on this claim, arguing

that Miller cannot establish either intentional or negligent

misrepresentation. Because I conclude that the undisputed facts

fail to support a misrepresentation claim, and Miller has failed

to point to any disputed facts that would support a different

result, I grant Nortel's motion for summary judgment as to Count

IV.14

14 Count IV potentially presents a choice of law problem because the events on which the claim is based occurred in Massachusetts, but the case has been filed in New Hampshire. Nortel submits, however, that there is no actual conflict between New Hampshire and Massachusetts law as to the substantive elements of claims for intentional or negligent misrepresen­ tation. Accordingly, it asserts that I need not make a formal choice of law finding because the application of one state's law over the other will not affect the result. Def.'s Summ. J. Br. at 21 n.25, citing to Judge v. Moving Into Maths, No. Civ. 93- 213-JD,

, at *3 (D.N.H. Jan. 11, 1994). Miller, on the other hand, does not dispute this conclusion. Instead, he

- 42 - 1. Representations Upon Which Miller Relied Were Not Statements of Fact

Nortel argues that the statements on which Miller relies in

making his misrepresentation claims are not actionable because

they are not statements of fact but merely the non-actionable

opinions of current Nortel employees regarding the state of the

company. I agree. Statements of opinion, even if false, are not

actionable as misrepresentations. "A statement on which

liability for misrepresentation may be based must be one of fact,

not of expectation, estimate, opinion, or judgment," Zimmerman

v. Kent, 31 Mass. A p p . C t . 72, 79 (1991) . Nor are false promises

generally actionable. See Hinchey v. NYNEX Corp.,

(D. Mass. 1997)(noting that promissory statements or

opinions about future events ordinarily are not actionable as

misrepresentations); Plantes v. Pepperidge Farm,

(D. Mass. 1995). Furthermore, Miller has not presented

proceeds to cite only New Hampshire cases in support of his misrepresentation claims. Because I agree with Nortel that there is no actual conflict between Massachusetts law and New Hampshire law as to the substantive elements of intentional and negligent misrepresentation, I conclude that I need not determine which state's law applies See Fashion House, Inc. v. K Mart Corp., 892 F .2d 1076, 1092 (1st Cir. 1989).

- 43 - any evidence to show that Nortel intended to breach any alleged

promise at the time the promises allegedly were made. See i d .

These allegedly false statements, therefore, cannot serve as the

foundation of a misrepresentation claim. 2. There is No Evidence The Statements Were False When They Were Made

Another defect in Miller's misrepresentation claim is that

even if Nortel's representations were statements of fact and not

simply opinions or promises, he has not pointed to any evidence

that these statements were false at the time they were made. See

Rodowicz v. Mass. Mut. Life Ins. Co.,

, 49 (1st Cir.

200 2 ) (remanding with instructions to enter judgment for defendant

employer where evidence showed employer's statements to plaintiff

were not false when made); Whelan v. Intergraph Corp.,

(D. Mass. 1995)(refusing to infer defendant's intent

to deceive where plaintiff alleged no specific facts as to

defendant's knowledge of statement's falsity). Miller's bald

assertion that Wang was lying when he wrote in an email, "[t]here

will be no layoffs here," and his conclusory statements that Wang

was being lied to by his superiors, or that his supervisors were

negligent in failing to know or disclose material information.

- 44 - are nothing more than unsubstantiated conjecture. There is

simply no documentary or testimonial evidence to indicate that

these statements were untrue. Indeed, Miller has failed to

allege any specific facts that support his claim that any Nortel

employee spoke falsely. Given the scant facts available, I

refuse to infer fraudulent intent. See Whelan,

.

Miller also asserts that he was promised a transfer to

Nortel's Billerica facility within two months of his start date,

and, in the course of pre-employment discussions, was given

directions and encouraged to visit this facility. By this.

Miller seems to suggest that because the Billerica facility

closed in July 2001, as did the Wilmington facility in 2002, and

because he never received the promised transfer, these

representations must have been false at the time they were made.

The mere facts, however, that the Billerica facility closed in

July 2001 and that Nortel laid off workers in Wilmington are

insufficient to establish that these statements were false.

Evidence based solely on conjecture or supposition is inadeguate

to establish a genuine issue of material fact and defeat summary

- 45 - judgment. See Stone & Michaud Ins., Inc. v. Bank Five for Sav.,

(D.N.H. 1992). This is all Miller offers.

Declining to "enter the realm of surmise," I instead conclude

that Miller has failed to allege specific facts to establish an

essential element of his claim: that Nortel made false

statements of material fact. Id.

3. There is No Evidence That Nortel Knew or Should Have Known The Statements Were False

Miller has also failed to offer any evidence to show that

Nortel representatives knew or should have known that the

statements at issue were false. See Kaechele v. Nova Info. Sy s .,

Inc., No. Civ. 00-313-JD,

, at *4 (D.N.H. 2001).

Again, there is no evidence in the record to indicate that Nortel

personnel wittingly communicated false statements. See i d . at

*5; Whelan,

. Nor has Miller demonstrated that

Nortel employees and recruiters failed to exercise reasonable

care in determining the truth of their statements. See Finn v.

GenRad, Inc., No. 2000-3292-C,

, at *6 (Mass.

Super. Jan. 17, 2002) aff'd , 60 Mass. App. C t . 1107 (2003).

Miller's speculation that Wang and other Nortel representatives

- 46 - "either had to know their representations were false, or should

have known, but through their own negligence did not," is without

support in the record. And although Miller further posits that

Wang "did not conduct a reasonable inguiry to determine the truth

of his statement," he has not alleged any specific facts or

offered any evidence of this allegedly unreasonable conduct.

Miller's misrepresentation claims also fail because his

purported reliance on Nortel's allegedly false representations

was neither reasonable nor justified. As Nortel points out, when

Miller signed his offer letter accepting a job at Nortel, he knew

that under the terms of that letter, he was an at-will employee

and that Nortel could terminate him at any time and for any

reason.15 Miller's contention therefore, that had he been

terminated for "some legitimate business reason other than a

dramatic reduction in workforce, his reliance on the

misrepresentation would have been moot" defies logic and reflects

a complete misunderstanding of his at-will status.

15 Miller concedes that under the terms of the offer letter, he was an at-will employee and admits that at-will employees could be terminated at any time and for any reason.

- 47 - Likewise, it was unreasonable for Miller to rely on

"assurances," whether communicated orally or through email,

regarding job security and layoffs which clearly conflicted with

subseguent written provisions of his offer letter. If he had any

guestion as to the terms of his employment, the reasonable course

of action would have been to conduct further inguiry before

taking the job. See Trifiro v. New York Life Ins. Co.,

(1st Cir. 1988)(explaining that a "reasonable person"

faced with conflicting information seeks assurances or

clarification before relying). There is no evidence in the

record that Miller made any additional inguiries or sought

clarification of the terms of his employment prior to accepting

Nortel's offer.

Lastly, Miller's alleged reliance on the FLEX Benefits

Enrollment Guide ("Enrollment Guide") was egually unreasonable.

Miller contends that the Enrollment Guide "unambiguously states

he would be covered for LTD benefits," and claims that had he

been aware that he was subject to Nortel's interpretation of the

Plan, he would not have left his job at Barr Associates. Miller

has misread the Enrollment Guide. The Enrollment Guide is

- 48 - clearly not intended to be a comprehensive overview of the

eligibility requirements for LTD benefits. It merely serves as

an outline of the available benefits options open to Plan

participants. The Enrollment Guide also states that "[i]f you

are a new hire, and if you become disabled within three months of

the effective date of your Nortel Networks LTD coverage, special

rules may apply." (Emphasis added). It was unreasonable for

Miller to assume, without further inquiry, that these special

rules would not apply to him. Moreover, the Enrollment Guide

refers participants to the Employee Benefits and Programs Binder,

which contains the SPD, and urges them to either visit the

Employee Services website or call the Employee Services telephone

number for additional information about how the Nortel benefits

program operates. I d . at P-MILLER 0101. Again, there is no

evidence that Miller took advantage of these additional resources

or sought additional information about his eligibility for LTD

benefits prior to accepting Nortel's offer of employment. See

Trifiro,

.

I therefore grant Nortel's motion for summary judgment as to

the misrepresentation claims.

- 49 - IV. CONCLUSION

_____ For the reasons outlined above, I grant Nortel's motion for

summary judgment as to Counts I, II, and IV (Doc. No. 15), and

deny Miller's motion for summary judgment (Doc. No. 14). The

clerk shall enter judgment accordingly.

SO ORDERED.

Paul Barbadoro United States District Judge

January 25, 2005

cc: John J. LaRivee, Esg. Jonathan D. Rosenfeld, Esg. Mary E. Tenn, Esg.

- 50 -