Dube v. J.P. Morgan Investor Services

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2487
DANIEL B. DUBE,
Plaintiff, Appellant,
v.
J.P. MORGAN INVESTOR SERVICES,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Selya, Lynch, and Howard, Circuit Judges.
Daniel B. Dube, on brief pro se.
Richard W. Paterniti and Joan Ackerstein, Jackson Lewis, LLP,
on brief for defendant, appellee.
October 13, 2006
Per Curiam. After a thorough review of the record and of
the parties’ submissions, we affirm.
We see no abuse of discretion in the district court’s
refusal to award a statutory penalty pursuant to 29 U.S.C. §
1132(c)(1)(B). See Rodriguez-Abreu v. Chase Manhattan Bank, N.A.,
986 F.2d 580, 588 (1st Cir. 1993). The district court noted the
absence of bad faith on the part of defendant/appellee J.P. Morgan
Investor Services (“JPMIS”), and there was no evidence that any
delay prejudiced plaintiff/appellant Daniel Dube’s attempt to
collect disability payments. See Sullivan v. Raytheon Co., 262
F.3d 41, 52 (1st Cir. 2001) (in deciding whether to assess a penalty
for delay, a court may consider whether the employer acted in bad
faith or whether delay prejudiced the plaintiff) (citing Rodriguez-
Abreu, 986 F.2d at 588-89). Dube admitted that his claim for
insurance benefits was rejected because he failed to provide
medical documentation to support the claim. Although the plan
documents originally provided to Dube apparently were out-of-date
(and, therefore, may have made the claim process more difficult or
frustrating for Dube), that fact ultimately had no effect on the
outcome of his claim for disability coverage.1 Accordingly, we
affirm the district court’s award of summary judgment in JPMIS’s
favor on this count.
1
Dube contends that JPMIS had an obligation to keep its plan
documents up-to-date, and while other provisions in ERISA may
impose this requirement, subsection 1132(b)(1)(C) – the provision
under which Dube seeks relief – does not provide a remedy for an
employer’s failure to update its documents.
We also affirm the district court’s award of summary
judgment on Dube’s claims under the Family and Medical Leave Act
(“FMLA”). Dube first argues that JPMIS did not comply with the
requirement that it post a notice alerting all employees of their
rights and obligations under the FMLA. See 29 C.F.R. § 825.300(a).
JPMIS posted its FMLA notice on its intranet website – which was
accessible to all employees while they were at work – and Dube says
this was insufficient because he could not access it from home
during his leave period. But, JPMIS was not required to post the
notice where it could be seen by employees at home; the regulation
only requires that the notice be posted at the workplace, and Dube
cites no authority to support his suggestion that this rule is
different where the notice is posted electronically. The district
court properly rejected this claim.
Dube also complains that JPMIS did not provide him with
adequate individual notice of his rights or duties under the FMLA
once he announced his need for leave, as required by 29 C.F.R. §
825.301(b), nor did it discuss the FMLA with him. Even if JPMIS
failed in its duties under 29 C.F.R. § 825.301(b) – a question we
do not decide – Dube has no remedy. That is because JPMIS gave him
the full 12-weeks (and more) of FMLA leave to which he was
entitled. In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81(2002), the Court ruled that where an employee had received all of
the FMLA leave to which that employee was entitled, the employee
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had no remedy for the employer’s technical violation of the notice
requirements. Id. at 89-90. The only exception to this rule
occurs where the employee can show that the lack of notice caused
some prejudice (e.g., that the employee would not have structured
leave in the same way had notice been provided); but we see nothing
in this record indicating that Dube was prejudiced by any lack of
notice.
Dube next argues that he was not provided the full 12
weeks of FMLA to which he was entitled. This argument fails. Dube
insists that he did not receive his full 12 weeks of FMLA leave
because JPMIS purported to start his unpaid FMLA leave on April 8,
2002 (about seven weeks into the 15-week leave period he was
afforded), and he contends that he was entitled to 12 weeks of FMLA
leave beginning on April 8. In Ragsdale, the Court explicitly
rejected such a notion, holding that an employer was only obligated
to give an employee 12 weeks of FMLA leave, and that this was true
no matter what additional benefits (e.g., paid leave) were provided
by a more generous company policy or when the employer first
designated the leave as FMLA leave. The district court properly
rejected this claim.
Finally, Dube argues that he was discharged in
retaliation for invoking his rights under the FMLA. Even if Dube
can establish a prima facie case of retaliation, see Colburn v.
Parker Hannifin, 429 F.3d 325, 336 (1st Cir. 2005), JPMIS has
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advanced legitimate, nondiscriminatory reasons for dismissing Dube
after 15 weeks of leave: he failed to provide documentation
showing that he was unable to return to work after April 8, and
even if he had provided that documentation (he says he did, though
he provides no proof), the uncontradicted evidence shows that Dube
was unable to return to work after the expiration of his 15-week
leave period. This provides a second legitimate, nondiscriminatory
reason for Dube’s dismissal. Thus, Dube must show that these
stated reasons are pretextual. See id. He has pointed to no
evidence of pretext in the record, and we see none. Indeed, there
is ample evidence to the contrary. Though it was under no
obligation to do so, JPMIS paid Dube’s full salary throughout most
of his leave. It began doing so immediately (in February 2002),
despite the fact that it took Dube a full seven weeks to provide
any documentation of his medical condition. And, although the
documentation he did eventually provide stated that Dube could
return to work (part-time) on April 8, 2002, Dube remained on
leave, and JPMIS continued to pay his full salary for an additional
eight weeks (later recovering one paycheck covering a two-week
period). In all, Dube was given 13 weeks of paid leave (and an
additional two weeks of unpaid leave), despite his failure to
document fully his inability to work throughout the last eight
weeks of that period, and despite the fact that the FMLA only
required JPMIS to give Dube 12 weeks of unpaid leave. Dube points
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to nothing in the record which might show JPMIS’s reasons for
dismissing him after this leave period were pretextual or that its
action were retaliatory. Accordingly, the district court properly
granted summary judgment on this claim.
Affirmed. See 1st Cir. R. 27(c).
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