F MICHAEL CUSTER; MARSHA F CUSTER v. MURPHY OIL USA INC, formerly known as Murphy Oil Corp
No. 06-30672
United States Court of Appeals, Fifth Circuit
October 5, 2007
Before REAVLEY, GARZA, and DENNIS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
We GRANT the Petition for Rehearing filed by defendant Murphy Oil USA, Inc., and having duly considered the response, we withdraw the prior panel opinion, 493 F.3d 626, in its entirety and substitute the following:
In December 2003, Michael Custer (“Custer“) had an accident at his home and, as a result, suffered a ruptured disk in his neck. Custer was totally disabled and unable to return to work. When Custer inquired about medical coverage from his employer, Murphy Oil USA, Inc. (“Murphy“), he was informed that because he was totally disabled his employment would be terminated and he would no longer qualify for coverage under the Group Insurance Plan for Employees of Murphy Oil Corp. (“the Plan“). Under the Plan in effect prior to
I
Custer worked at Murphy from 1979 to 2004. He started as an H-operator but, by 1997, he had worked his way up to shift foreman at Murphy‘s plant in Meraux, Louisiana. This promotion made Custer a salaried employee and he became eligible for the Plan. The Plan is a self-funded group health plan administered by the Employee Benefit Committee (“Benefit Committee“). In Novembеr 2002, the Benefit Committee met to consider changes to the Plan‘s benefits, specifically relating to the long term benefits for employees who become totally disabled and are unable to work. At the time, the Plan allowed employees who became totally disabled, and whose employment was terminated as a result, to receive benefits until the age of 65.1 The Benefit Committee agreed to make changes, limiting benefits of totally disabled employees to COBRA Continuation coverage for 18 months.
Although the Benefit Committеe agreed to the changes, they were still pending approval from the corporate office when the Employee Benefits
On December 19, 2003, Custer was injured while moving boxes in his attic. Apparently, the attic stairs collapsed; he fell eight feet and ruptured the disks in his neck. As a result of the accident, he was totally disabled and immediately went on a leave of absence from work. On January 22, 2004, the Benefits Department sent Custer a letter explaining how some aspects of his benefits would be affected by his leave of absence, and included some forms which he filled out and returned on January 28, 2004. On May 25, 2004, the Benefits Department sent Custer another set of forms, which were returned completed. In June of 2004, Custer called Murphy to inquire about his benefits and was told that his employment could be terminated due to his disability and therefore he would be no longer covered under the Plan, as amended in January 2003. Custer claims that this was the first he had heard of these amendments.
Eventually, Custer was terminated from his employment on September 30, 2004. The Benefits Department notified Custer that his medical coverage ended
The plaintiffs filed suit against Murphy in March 2005, seeking a declaratory judgment and damages under the pre-2003 version of the Plan. After delays due to Hurricane Katrina, Murphy moved for summary judgment in April 2006. The plaintiffs opposed the motion and filed a cross-motion for summary judgment, but in June 2006 the district court granted summary judgment to Murphy on all claims and denied the plaintiffs’ cross-motion for summary judgment.
II
“We review grants of summary judgment de novo, applying the same legal standard used by the district court.” Chacko v. Sabre Inc., 473 F.3d 604, 609 (5th Cir. 2006). Summary judgment is appropriate if the moving party can 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.”
A
The plaintiffs first argue that Murphy‘s December 2002 notice did not comply with ERISA‘s reporting and disclosure requirements. ERISA requires that “[a] summary of any material modification in the terms of the plan . . . shall be written in a manner calculated to be understood by the average plan participant and shаll be furnished in accordance with section 1024(b)(1) of this title.”
In arguing that it complied with the reporting and disclosure requirements, Murphy asks this court to apply the “mailbox rule.” The version of the mailbox rule that Murphy would have us apply “provides that the proper and timely mailing of a document raises a rebuttable presumption that the document has been received by the addressee in the usual time.” Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 961 (9th Cir. 2001) (citing Hagner v. United States, 285 U.S. 427, 430 (1932)); see also Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (applying the mailbox rule). Because this mailbox rule functions merely to create a presumption of receipt, it only comes into play when there is a material question as to whether a document was actually received. See, e.g., Schikore, 269 F.3d at 963 (“We note that the Plan requires only actual receipt and does not require any particular form of mailing.“). However, in this case, the question is not whether there was actual receipt by the plaintiffs, but rather whether the plan administrator “use[d] measures reasonably calculated to ensure actual receipt.”
Although the mailbox rule does not operate here to shift burdens and create presumptions, as Murphy argues, the mailbox rule is still germane to our analysis. A threshold question for the application of the mailbox rule is whether there is sufficient evidence that the letter was actually mailed. Because Murphy contends that the measure the plan аdministrator used to ensure actual receipt was distribution by first-class mail, we ask whether there is a genuine issue of material fact as to whether Murphy mailed the notice.
Further, we have recognizеd that “[p]lacing letters in the mail may be proved by circumstantial evidence, including customary mailing practices used in the sender‘s business.” Wells Fargo Business Credit v. Benn Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1983). To show that the normal procedures were followed in mailing the December 2002 notice, Murphy provides the deposition testimony of Ronald Smith, the manager of the Benefits Department as well as the affidavits of Saulsbury and Wilson. Saulsbury and Wilson stated that, under the normal process the Benefits Department provides mail services with a list of addresses. Mail services then prints labels of those names аnd addresses, placing them onto envelopes. The envelopes then go back to the Benefits Department for stuffing and sealing after which they are returned to mail
The individuals actually responsible for addressing and mailing the envelopes, Anthony Yarborough and David Kilby, provided no evidence to support that the notices were mailed or how they were addressed. Yarborough and Kilby stated that the mail room does not keep, as a matter of practice, any records, reports, codes, or memoranda concerning what it sends out; the mail room does not know the contents of sealed envelopes received from the Benefits Department; and the сomputers and printers that would have been used to produce the lists to address the envelopes were discarded in February 2006. Yarborough and Kilby provided no evidence, either physical or testimonial, to support Smith‘s claim that the notices had been properly addressed and sent.
The plaintiffs, for their part, provide sworn deposition testimony that they never received the notice. Evidence of non-receipt can be used to establish that the notice was never mailed. This is the inverse of the mailbox rule‘s prеsumption of receipt. As WIGMORE ON EVIDENCE states:
The presumption [of receipt] rests upon the supposed uniform efficiency of the postal service in delivering letters duly stamped, addressed, and mailed into its custody; if therefore the efficiency is operating, does not the nonarrival of an alleged letter indicate that such a letter was never given into the postal custody?
9 WIGMORE ON EVIDENCE § 2519 at 567 (Chadbourn rev. 1981); but see, Meckel v. Continental Resources Co., 758 F.2d 811, 817 (2d Cir. 1985) (applying New York law and holding that denial of receipt does not upset finding that a notice was mailed).
While the plaintiff ultimately bears the burden of demonstrating that Murphy failed to “use measures reasonably calculated to ensure actuаl receipt” of the notice, Murphy, as the party moving for summary judgment, bears the burden of demonstrating that there is no genuine issue of material fact. See Harvill v. Westward Commc‘ns., L.L.C., 433 F.3d 428, 433 (5th Cir. 2005) (“The moving party has the burden of demonstrating that there are no genuine issues of material fact in dispute.“). “Where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the movant, summary judgment is appropriate.” Alton v. Texas A&M Univ., 168 F.3d 196, 199 (5th Cir. 1999).
First, we refuse to fully adopt Wigmore‘s “inverse mailbox rule” in this setting, such that a plaintiff‘s bare assertion of non-receipt could create a genuine issue of material fact to survive summary judgment. To do so would essentially require proof of receipt on the employer‘s part where the regulations only require proof of mailing. But while proof of receipt is unnecessary, we
Turning back briefly to the evidence of mailing in this case, Saulsbury asserts that the notice was mailed. But Murphy has not produced any business records or other physical evidence that the notice was sent. In fact, Murphy has presented no evidence, testimonial or otherwise, as to the day on which the notices were mailed. The only two individuals who make sworn statements that they received the notices are Smith and Wilson, both employees of the Benefits Department responsible for the mailing. The plaintiffs assert that they did not receive the notice. Further, the plaintiffs’ аssertion of non-receipt is supported by the other Meraux shift supervisors’ testimony that they also could not recall receiving the notice, and that they regularly retain such notices but could not locate the notice in their records.4
While we refuse to adopt Wigmore‘s “inverse mailbox rule” in its entirety, in this case, where the employee‘s assertion of non-receipt is supported by circumstantial evidence, and the employer provides an equally weak assertion that notice was mailed, the issue of mailing should not be decided at summary judgment. 9 WIGMORE ON EVIDENCE § 2519 at 567 (Chadbourn rev. 1981) (self-interested testimony of mailing and self-interested testimony of non-receipt should go to jury); cf. Rosenthal v. Walker, 111 U.S. 185, 193 (1884) (noting that the mailbox rule‘s presumption of receipt is “a mere inference of fact... and, when it is opposed by evidence that the letters never were received, must be weighed with all the other circumstances of the case, by the jury.“). Because
2
The plaintiffs also argue that еven if Murphy did use proper methods to distribute the notice, Murphy was still not in compliance with
Medical costs have continued to increase nationwide and unfortunately our Plan has not been immune to this problem. At present we are still reviewing our plan design and associated cost. For the time being coverage and premiums will remain unchanged. However, as soon as our review process has been completed we will advise of any changes in coverage and/or premium.
Following this notice, Murphy sent the December 2002 notice, which is three pages long and contains similar language regarding the increasing costs of medical coverage. But it contains an additional section announcing modifications to the plan effective January 1, 2003. It is this language, announcing the modifications, which the plaintiffs claim is not sufficiently clear. Under a section entitled ”MEDICAL PLAN CHANGES,” the notice states,
Disability Termination - When an employee is unable to work due to an illness or injury, medical coverage is continued for a period of time at active employee rates while the employee is on leave of absence. When an employee is unable to return to work due to disability and is terminated due to disability, again our practice has been to continue medical coverage for a period of time at active employee rates. Our employment practice while on leave of absence will remain unchanged, however, should termination occur due to disability, our practice will now be that the employee will be extended COBRA Continuation as required by law. Murphy will subsidize the COBRA premium cost and the employee will only pay the active rate for the initial eighteen months under COBRA. All other terms and conditions under COBRA Continuation provisions will apply.
This section is then followed by another paragraph discussing increasing medical costs and responsiblе use of benefits.
The notice is clearly announcing changes to the Plan, and the section on disability termination is structured to contrast those benefits previously available to employees terminated due to disability with those benefits available to employees terminated due to disability after January 1, 2003. Taken
B
Next, the plaintiffs argue that Murphy discharged Custer for the purpose of interfering with the plaintiffs’ ERISA rights, in violation of
The plaintiffs attempt tо show discriminatory intent by arguing that Murphy terminated Custer two weeks after finding him totally disabled. The plaintiffs argue that the normal company practice was to terminate an employee six months after finding him to be totally disabled. But the evidence the plaintiffs rely on, namely Smith‘s testimony, does not establish such a policy. Rather, the testimony establishes that Murphy generally waits six months after an employee is on a medical leave of absence before determining whether the employee should be terminated because of disability. Custer was placed on medical leave of absence in December 2003 and terminated in September 2004.
All evidence suggests that Custer‘s employment was terminated because he was unable to perform his job function. The plaintiffs do not allege that Custer was able to perform his job function. In Holtzclaw, we held that “qualification for the position sought is an element of a primа facie ERISA claim.” Holtzclaw, 255 F.3d. at 261. As a result, we affirm the district court‘s grant of summary judgment to Murphy on the plaintiffs’ retaliation and interference claim.
C
Finally, the plaintiffs argue that the modifications to the Plan are not effective because Murphy never formally approved the modifications. “[O]nly an amendment executed in accordance with the Plan‘s own procedures and properly noticed could change the Plan.” Williams, 48 F.3d at 926. The Plan in effect prior to the modification stated,
The employer‘s board of directors, its president or the Plan Administrator may modify or amend the Plan from time to timе at its sole discretion. Participants will receive notification of amendments or modifications that affect their coverage.
The Plan Administrator is the Benefit Committee. It is undisputed that the Benefit Committee met on November 11, 2002 and approved the Plan modifications to take effect on January 1, 2003. Murphy has produced the minutes from that meeting indicating such, and the plaintiffs have produced no evidence to the contrary. Once the Benefit Committee approved the changes, it sought corporate approval from Murphy senior management. Although there is no documentary evidence of senior management‘s approval, such evidence is unnecessary because the terms of the Plan allow the Benefit Committee to
III
In conclusion, we agree with the district court‘s rulings that the December 2002 notice was sufficiently clear, that Murphy did not discriminate against Custer or interfere in the exercise of his ERISA rights, and that the December 2002 modifications were properly approved in accordance with the Plan. But we REVERSE and REMAND because there is a genuine issue of material fact as to whether Murphy properly distributed the December 2002 notices.
Notes
Although we reverse the district court‘s ruling on this issue, we make no holding on the difficult question of what remedy, if any, ERISA provides for a violation of its reporting and disclosure requirements. This issue was neither briefed by the parties nor considered by the district court.
The plaintiffs are seeking the benefits that would have been owed to Custer under the pre-2003 version of the Plan, and they assert that ERISA‘s civil enforcement provision,
When relying on a statutory scheme such as ERISA, where Congress has specifically enumerated and limited available remedies, parties are encouraged to identify which remedial provision provides the remedy they seek. See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985) (“The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted, however, provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.“) (emphasis in original).