TORTORA v. SBC COMMUNICAT IONS, INC. (S.D.N.Y. 7-30-2010)

this proceeding is October 16, 2005 through November 30, 2005. During the first half of this period McCarthy worked at the Fairfax, Virginia facility and during the second half she worked at the Centerville, Virginia facility. McCarthy testified that she believed that the number of members that belonged to an LTF club had little relevance to the amount of business for the spa. McCarthy testified that she was expected to work a minimum of 45 hours and as many hours as it took to get her job done. She made a schedule of her hours at the beginning of the week and changed it whenever she worked different hours than she was scheduled. She read from her schedule which is marked as Plaintiffs' Exhibit 6. This schedule listed her as working 63, 63, 63, 56, 58, 22, and 36 hours per week during the relevant time period. McCarthy testified that the last two weeks were shorter because they were during the Thanksgiving holiday.

On cross-examination, McCarthy testified that she never took lunch breaks and that the hours listed on her schedule were accurate. She also stated that she never took a break to workout. She testified that all of the clubs operated similarly; not because they were all managed by her, but because that was the business model that LTF tried to create by adopting the SOP.

8. Plaintiff Marcia Richards

As their eighth witness, Plaintiffs called Marcia Richards, who testified that she was employed with LTF from July 1999 through January 2006 and was a Life Spa Department Head from 2002 until 2006 at the Novi, Michigan and Commerce, Michigan clubs. The Spa Department is a full service salon for hair and skin care, body treatments, massage, and retail products that is open to members and non-members.

Richards stated that her job responsibilities included the following: recruiting and hiring spa staff; training the spa commissioned employees and spa front desk hourly employees on the SOP; financial duties such as budget, payroll, and inventory; ordering inventory and conducting inventory counts; attending meetings in person and via conference calls; and responding to email and voicemail inquiries. Regarding meetings, Richards testified that she engaged in monthly regional calls with spa managers, monthly regional face-to-face meetings in a host club, weekly face-to-face meetings with local staff, one-on-one meetings with her General Manager, and weekly calls with other regional managers. In the course of visiting other clubs for meetings, Richards stated she observed other Life Spa Department Heads engaging in the same duties.

In addition to these job-specific duties, the witness testified that customer service was a directive from the corporate office via "impact" training to help create a recognizable brand like Nike or McDonald's. LTF managers, Richards recalled, were required to engage all customers so that the interaction was the same in each club.

The witness stated that LTF directed in the SOP that Life Spa Department Heads were expected to work 45 hours per week. Richards stated that if a Life Spa Department Head wanted to receive a bonus or make a profit, he or she would need to work more than 45 hours per week. Based upon her own schedule she created on Microsoft Outlook, Richards scheduled herself approximately 55 hours per week, but usually worked beyond that due to the high level of interaction with members.

She testified that she worked 55 hours per week with no lunch breaks from October 16, 2005 through November 30, 2005. Her scheduled hours were Monday through Friday from 8:00 a.m. to 6:00 p.m., though she usually worked until 7:00 p.m. She also stated that she worked from 10:00 a.m. to 5:00 p.m. on Saturdays and that she worked one Sunday per month. Richards did not believe she could have finished her job in 40 hours per week because the SOP required time was at least 45 hours, and she testified that a Life Spa Department Head could be terminated for not following the SOP.

On cross-examination, Richards clarified that the Commerce club opened January 1, 2005 and that during the October 16, 2005 to November 30, 2005 time frame, she corrected that she was the Life Spa Department Head at the Commerce club and had already left the Novi club.

Richards testified that the Commerce club was about 120,000 square feet. She believed the membership level was about 24,000. Richards did not have an assistant Department Head but did supervise 55 employees in the Spa Department. The witness stated she usually opened Monday through Thursday and did not schedule herself to close, though she was responsible to do so if another employee could not.

The witness stated that the spa department had "peaks and valleys" of business and the traffic was usually higher during the holiday seasons. Richards clarified on redirect that even though traffic in the spa came in peaks and valleys, her hours did not change.

Continuing on cross examination, Richards stated that she observed other Life Spa Department Heads at Life Time University, helped train other spa managers, and covered other salons in Michigan when their managers were absent. The witness stated she did not personally know the other Life Spa Department Heads that she would be representing at trial and had no first-hand knowledge of their hours worked outside what the SOP directed.

Evidence was admitted and Plaintiffs rested their case.

9. Kevin Logan

The first witness called by Defendant was Kevin Logan, LTF's Regional Vice President for the Midwest Region. Logan's job duties in this capacity include supervision of all club operations for the 13 facilities in his region. Logan testified that he visits each club at least once per month and knows each Department Head at each club under his supervision. During the time period of 2004 through 2005, Logan held the position of Area Director, which involved similar supervisory duties. However, as Area Director Logan had more direct contact with the individual Department Heads. Logan testified that the clubs under his supervision varied in terms of the sizes of the individual departments, the managerial approaches of the clubs' General Managers, and the tactics of the clubs' Department Heads. Logan claimed all of these factors, but especially the personalities and styles of the General Managers, resulted in differences among the clubs. The company looked for initiative and a willingness to take ownership in its Department Head candidates, Logan said, but each General Manager permitted greater or lesser discretion to their Department Heads.

Logan was familiar with the SOP as it related to training new Department Heads. He testified that these documents were guidelines that listed best practices and that the suggested number of weekly work hours listed were indicative of a flexible range. Each Department Head, he said, made his or her own hours, subject to the approval of the club's General Manager.

Logan testified that, outside of his region, clubs would differ in terms of overall size, square footage devoted to each department, maturity of the club, membership levels, number of swipes, and demographics of members. He claimed that these factors would affect member usage of the different departments and, as a result, the work required from the Department Heads. Logan also testified that Department Heads vary in terms of job skill, efficiency, and experience, which also affects the amount of time it takes to complete job duties.

On cross-examination, Logan testified that he had never held the position of Department Head at LTF. He also testified that he could not recall how many Department Heads' meetings he attended during the 2004 to 2005 time period.

On redirect, Logan testified that during that time period, his office was at the Algonquin club and that he and Judy Galloway both worked there during the time period between October 16 and November 20, 2005. He participated with her in both the Halloween event and "Reindeer Run" that she discussed in her testimony.

10. Douglas Ringeisen

Defendant called Douglas Ringeisen as its second and final witness. On direct and redirect examination, Ringeisen testified to the following. He has worked for LTF for six years and has been the Manager of Operations Planning and Analysis since 2007. During the last six years Ringeisen has worked at one of LTF's corporate offices in Minnesota. Ringeisen testified to the fact that variations from club to club affect how much work there is to do in a specific department. For example, the number of swipes per day at the club correlate to the activity in the café, and the number of total members and the square footage of the club correlate to the activity within member activities and the spa. He further testified that the clubs at which Plaintiffs are employed vary in their square footage; the club in Champlain, Illinois is approximately 62,000 square feet and the club in Warrenville, Illinois is approximately 115,000 square feet.

Ringeisen said he believed that the date a club opened correlates to how much business that club does. He testified that, in general, the longer a club is open the more members it has. He noted that the clubs Plaintiffs worked at vary in their maturity range; the Columbus, Ohio facility opened in 1999 and the Commerce, Illinois club opened in 2005.

Last, Ringeisen testified that there are discrepancies in the way each department in each club does business. The Life Café Department Heads have some discretion in the mixture of products they carry. Each spa varies in the way it divides its revenue between its services such as hair styling, massage therapy, and retail sales. The Members Activities Department at each club varies dependent upon the number of children and families that belong to the club. Ringeisen testified that the variation in activity between departments is significant enough that each club's budget is tailored specifically to it.

Additional evidence was admitted and Defendant rested.

B. Deposition Summaries

The parties admitted by agreement five depositions in their entirety for the Court's consideration. These depositions are summarized below.

1. Brandon Joseph Adams (Doc. # 112)

Adams has been the Director of the Life Spa Division for LTF since December, 1999. Id. at 4. In this role, Adams is a consultant to both the Spa Managers and the General Managers. Id. at 5. He is also the immediate supervisor of the Spa Managers. Id.

Adams testified that a Life Spa Department Head would typically supervise 18 employees at a large facility and nine employees at a smaller facility. Id. at 15. He said the Department Heads are expected to meet one-on-one with their employees once every month. Id. Adams said it is recommended for the spa to be open from 9 a.m. to 9 p.m. Monday through Friday and 9 a.m. to 7 p.m. on Saturday and Sunday. Id. 17. He also said it is recommended for the Life Spa Department Heads to open the spa twice a week, close the spa twice a week, and work two weekend days a month. Id. Other than this, Adams stated that there is no hour requirement for the Life Spa Department Heads; they are just expected to work as much as necessary to get the job done. Id. at 60. He testified that some Life Spa Department Heads have administrative assistants, but because the Life Spa Department Head is ultimately responsible for the success of the spa, only limited duties are delegated to these assistants. Id. at 18-19.

With regards to compensation, Adams stated that he helps the General Manager develop the target pay for new Department Heads. Id. at 20-21. Adams said he believed the compensation for all department heads is 80 % salary and 20 % bonus, but that he had no role in developing this plan. Id. at 22. Adams testified that employees of the spa are required to clock in and out to verify attendance, but he was not sure if the salaried Department Heads could do this. Id. at 42-43.

Adams stated that the Life Spa Department Heads have a certain amount of control over the total revenue the spa brings in. The Department Heads can increase the total revenue, and thus their bonus, by building relationships with past clients, hiring new employees, and coordinating promotions. Id. at 55.

2. Julie Shipe (Doc. # 113)

Julie Shipe is currently employed by LTF as the Senior Director of Member Activities and Retention. Id. at 5. She has worked for LTF for 11 1/2 years. Id. Shipe oversees the entire Member Activities Division. Id. at 7.

Shipe does not believe that managers at LTF should be eligible for overtime. Id. at 18. She testified that the managers were paid to do their job whether its 20 hours a week or 60 hours a week. Id. However, Shipe did not know what is required under federal and state wage laws for an employee to be considered exempt from overtime. Id. at 19.

Shipe stated that Member Activities Department Heads receive a base pay and a bonus pay which depends on the revenue their department generates. Id. at 22-23. She said the majority of revenue each department brings in comes from selling programs to the club's members. Id. at 23. Shipe guessed that selling these programs would make up more than 50% of a Department Head's job. Id. at 24.

Shipe testified that the Member Activities Department Heads are generally expected to work about 45 hours per week. Id. at 58. However, she said that the Department Heads would most likely work up to 60 hours a week during their first month and one-half or during the start of a new program session. Id. at 58-59.

3. Ken Zylstra (Doc. # 114)

Ken Zylstra has been the National Director of the Life Café since April of 2002. Id. at 5. Zylstra testified that since 2002 he has been compensated with a base pay and a bonus, and that the bonus depends on earnings before interest, tax, depreciation, and amortization. Id. at 11. He also said that he had two deductions from his pay due to overpayments in 2005, but that he did not recall how much was deducted. Id. at 11-12. Zylstra testified that he did not have any knowledge of the FLSA, but because he has been a salaried employee for most of his career he did not expect to be paid overtime. Id. at 13-15.

Zylstra stated that the Life Café Department Heads are responsible for running the café within their club and for operating the bistro during the summer. Id. at 17-18. He said that a Life Café Department Head's weekly hours vary depending on the season, but they are typically within 45 to 55 hours per week. Id. at 24. While he acknowledged that every facility has a time clock for the hourly employees to punch in and out, he did not believe the Department Heads had the capability to do this because they are salaried team members. Id. at 46. He further testified that LTF did not have any records of the hours worked by the Life Café Department Heads. Id. at 46-47.

Zylstra testified that 60 to 80 % of a Life Café Department Head's time is spent working "in the trenches" meaning working as a team member preparing food, cleaning tables, and interacting with guests. Id. at 25. Zylstra said that 20 to 40 % of the Department Head's time is spent on administrative tasks that typically involve taking calls from other team members. Id. at 35.

4. Derek Boaz (Doc. # 115)

Derek Boaz is LTF's Compensation and Human Resources Information Systems Manager ("HRIS"). Id. at 5. He has been with the company since October of 2004. Id. HRIS is a system that LTF uses to maintain employee information such as home addresses, social security numbers, job titles, and salaries. Id. Boaz's responsibilities include job descriptions, pay grades, salary ranges, and bonus plans. Id. at 6. He testified that when a new position is created, he works with the Chief Operating Officer, the Chief Financial Officer, and the human resources executive to design a compensation plan. Id. at 5-6.

Boaz testified that in previous jobs, his duties have included ensuring compliance with the FLSA. Id. at 8. While he said he has been to classes and seminars dealing with the requirements of the FLSA, the only training he had during his tenure with LTF was a conference in the summer of 2005. Id. at 9-11, 39. Boaz understood the FLSA to require an employee to make more than $455 a week and perform higher level management duties in order to earn a salary and thus be exempt from overtime.

Boaz stated that he understood the instant action to be about the reclaiming of bonus overpayments to employees. Id. at 14. He testified that LTF took some deductions from salaried employees' base pay. Id. at 14-15. However, he did not think this was illegal because it offset overpaid bonuses that these employees had received; thus by the end of the year they had been paid their full salary. Id. at 15. Boaz did not attempt to confirm the legality of these base pay deductions with the Department of Labor. Id. at 43.

5. Daniel J. Whitacre (Doc. # 117)

Daniel J. Whitacre has been an Area Director at LTF since 2000. Id. at 5. As an Area Director, Whitacre is responsible for the reports and revenues for the six clubs in his jurisdiction, interviewing personal trainers, and training General Managers. Id. at 6-7. Whitacre testified that he received a notice of this lawsuit but did not participate because he felt he was compensated fairly by LTF. Id. at 22. Whitacre said he only remembered hearing other employees complain about deductions being taken from their bonus, not from their base pay. Id. at 24.

Whitacre stated that Department Heads are expected to work about 45 hours a week. Id. at 34. However, events such as open houses or races could require the department head to work more than 45 hours. Id. Whitacre also said that Department Heads were expected to fill in whenever their department was missing an employee. Id. at 35. Because the Department Heads are paid a salary, Whitacre said they would be paid the same whether they worked 28 hours or more than 45 hours per week. Id. at 60-61. He also testified that, while LTF does not require salary employees to clock in and out, it has the technology to implement such a policy. Id. at 61.

C. Exhibits Admitted

The Court admitted Plaintiffs' Exhibits 1 through 6 on June 23, 2010, without objection. Plaintiffs' Exhibit 1 is Plaintiff Victor Barge's job description. Plaintiffs' Exhibits 2 and 3 are the SOP for the Member Activities Department and Life Café Department, respectively. Plaintiffs' Exhibit 4 is Plaintiff Judith Galloway's schedule for the Algonquin Café from November 2004 through February 2006. The SOP for the Life Spa Department is Plaintiffs' Exhibit 5. Finally, Plaintiffs' Exhibit 6 is the personal calendar of Plaintiff Jennifer McCarthy.

The Court admitted Defendant's Exhibits 10 and 11 without objection on June 24, 2010. Defendant's Exhibit 10 is LTF's Form 10-K, which was filed with the United States Securities and Exchange Commission in 2004 and Exhibit 11 is LTF's Form 10-K filing for 2005.

VI. Standard for Unpaid Wages

The following indicates the Court's conclusions of law regarding the appropriate standard applicable to the determination of the amount of unpaid hours, if any, worked by Plaintiffs. See Fed.R.Civ.P. 52(a).

During her opening and closing arguments, counsel for Plaintiffs, relying on Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946), superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293 (D.C. Cir. 1972), asserted that Plaintiffs were required to produce sufficient evidence to show the amount and extent of the uncompensated hours of work performed as a matter of just and reasonable inference. During his opening and closing arguments, however, defense counsel pointed the Court to O'Brien v. Ed Donnelly Enters., 575 F.3d 567 (6th Cir. 2009) and Myers v. Copper Cellar Corp., 192 F.3d 546, 551 (6th Cir. 1999) for the proposition that the Mt. Clemens Pottery "just and reasonable inference" standard does not apply to the establishment of the uncompensated hours for each individual plaintiff. Instead, Defendant relies upon the proposition set forth in O'Brien and in Myers that a FLSA plaintiff must prove by a preponderance of the evidence that he or she performed work for which he or she was not properly compensated. See O'Brien, 575 F.3d at 602 and Myers, 192 F.3d at 551 (both citing to Mt. Clemens Pottery, 328 U.S. at 686-87). Thus, Defendant posits that each individual plaintiff, the eight testifying plaintiffs and the 16 nontestifying plaintiffs, must prove by a preponderance of the evidence the hours he or she claims were not properly compensated. This standard would, therefore, require dismissal with prejudice of the nontestifying plaintiffs because none of the testifying witnesses had first-hand knowledge of the amount of hours the nontestifying witnesses worked. This Court disagrees.

The Court notes that counsel also cited one Oregon district court case and one Second Circuit court case for support of his proposition. Because Mt. Clemens Pottery, O'Brien, and Myers are dispositive of this issue, and binding upon this Court, the Court declines to address the merits, if any, these other cases have to support Defendant's argument.

Neither O'Brien nor Myers stands for the proposition, as Defendant posits, that each plaintiff must prove by a preponderance of the evidence each plaintiff's hours of uncompensated work. The preponderance of the evidence standard applies to proving FLSA liability, as is shown in O'Brien, or to proving the damages of plaintiffs who were improperly denied overtime pay and the defendant employer kept records of the employees' hours worked, as shown in Myers.

Specifically, in declining to apply the more lenient Mt. Clemens Pottery "just and reasonable inference" standard, the Myers court explained:

Because the plaintiffs failed to carry their burden of proving damages with specificity by the use of available employment records, the option to prove their damages inferentially, which arises only when the employer has neglected to create or preserve accurate or complete records, was unavailable to them. See id.

Myers, 192 F.3d at 551-52. Unlike Defendant here, the Myers defendant kept payroll records. Consequently, the court required the plaintiffs to utilize the records to determine the amount of hours they worked, as opposed to utilizing the Mt. Clemens Pottery inferential standard:

However, the defendant possessed precise records from which the plaintiffs could have conclusively reconstructed the definite days and hours during which each plaintiff worked during a designated "salad shift."

Id. at 551.

With regard to O'Brien, that court too indicated that it is a plaintiff's burden to prove by a preponderance of evidence that he or she performed work for which he or she was not properly compensated. However, the court went on to explain when that standard is not applicable and a more relaxed one applies:

To begin with, a "FLSA plaintiff must prove by a preponderance of evidence that he or she `performed work for which he [or she] was not properly compensated.'" Myers v. Copper Cellar Corp., 192 F.3d 546, 551 (6th Cir. 1999) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946), superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293 (D.C. Cir. 1972)). To determine the extent of damages, the plaintiff can "prove his or her `under-compensation' damages through discovery and analysis of the employer's code-mandated records. However, if the employer kept inaccurate or inadequate records, the plaintiff's burden of proof is relaxed, and, upon satisfaction of that relaxed burden, the onus shifts to the employer to negate the employee's inferential damage estimate." Id. (emphasis added) (citing Mt. Clemens Pottery, 328 U.S. at 687-88).

O'Brien, 575 F.3d at 602. The relaxed standard by which an employee may "prov[e] that he performed work for which he was not properly compensated" was first articulated by the Mt. Clemens Pottery Court. In that case the United States Supreme Court explained:

When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records. But where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes, a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.

Mt. Clemens Pottery, 328 U.S. at 686-87.

The issue before the O'Brien court was whether the relaxed Mt. Clemens Pottery standard, i.e., showing the amount and extent of the uncompensated work as a matter of just and reasonable inference, applies to reduce a plaintiff's burden of showing whether there was a FLSA violation. The O'Brien plaintiffs, two individuals on behalf of themselves only, argued that their "claims should not have been dismissed on summary judgment because they only needed to satisfy this lesser initial burden, as the defendants' records were inaccurate and inadequate." O'Brien, 575 F.3d at 602. In rejecting this argument, the Sixth Circuit explained:

However, Mt. Clemens Pottery and its progeny do not lessen the standard of proof for showing that a FLSA violation occurred. . . .

In short, Mt. Clemens Pottery does not help plaintiffs show that there was a violation under the FLSA. It would only allow them to prove damages by way of estimate, if they had already established liability. Plaintiffs' failure to show a genuine issue of material fact as to the time-sheet-alterations claims required the district court's entry of summary judgment against them. . . .

Id. at 602-03.

In the instant action, the Court did not apply the Mt. Clemens Pottery standard to determine liability. (See Docs. # 75, 88.) The Court's decision on summary judgment was appealed by all parties and ruled upon by the Sixth Circuit resulting in its conclusion that LTF is liable for overtime compensation to Plaintiffs for "violations of 29 C.F.R. § 541.602 [that] occurred in November and December of 2005" and that LTF "is liable for overtime compensation to those Plaintiffs employed and subject to the corporate bonus-pay plan from January 1, 2004 to August 23, 2004" because LTF's "pre-August 23, 2004 compensation plan [created] a substantial likelihood of deductions." Baden-Winterwood v. Life Time Fitness, 566 F.3d 618, 634 (6th Cir. 2009). The case has now moved into the damages phase, wherein the Court must determine the amount of overtime pay, if any, Plaintiffs are due. With regard to proving those uncompensated hours, the O'Brien court explained:

Mt. Clemens Pottery gives a FLSA plaintiff an easier way to show what his or her damages are. When an employer keeps inaccurate or inadequate records, for a FLSA plaintiff to show what his or her damages were, a FLSA plaintiff does not need to prove every minute of uncompensated work. Rather, she can estimate her damages, shifting the burden to the employer. If the employer cannot negate the estimate, then the "court may award damages to the employee, even though the result be only approximate." Mt. Clemens Pottery, 328 U.S. at 688.

Id.

Accordingly, the Court concludes that Plaintiffs were required to "produce[] sufficient evidence to show the amount and extent of [their] work as a matter of just and reasonable inference." Mt. Clemens Pottery, 328 U.S. at 687. "The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from [Plaintiffs'] evidence." Id.

XII. Findings of Fact and Conclusion of Law

After consideration of the credibility of each witness that testified before it at the bench trial, the admitted exhibits, the admitted depositions, and the parties' stipulations, the Court makes the following findings of fact and conclusions of law. The Court concludes that the testifying plaintiffs have carried their burden of proof but that Defendant has not carried its burden as explained in detail below. Thus, the Court must determine the amount of uncompensated hours each testifying plaintiff worked. That determination is by necessity imprecise, involving estimates and averages, since Defendant failed to keep records of the precise time Plaintiffs worked. See Cole Enters., 62 F.3d at 780-81 (relying on Mt. Clemens Pottery to explain that the defendant employer's objection to "the estimates of back wages due . . . apparently because they may not be precisely accurate" was not well taken). The Mt. Clemens Pottery Court explained:

The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of section 11(c) of the [FLSA]. And even where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances.

328 U.S. at 688. That is, Plaintiffs need not prove their damages with precision. See id.

Additionally, during trial Defendant's witnesses testified that, although the SOP dictated that the Department Heads were expected to work 45 to 46 hours per week, the expectation was that the Department Heads would not work more than those hours. Defense counsel also elicited cross-examination testimony from Plaintiffs regarding whether Defendant required Plaintiffs to work the amount of hours Plaintiffs claim they worked or whether Plaintiffs voluntarily worked the overtime hours. However, whether Plaintiffs voluntarily worked more hours than they were expected to work is not relevant to the issue of whether Defendant is required to compensate Plaintiffs for that work. "[I]t is the responsibility of management to see that work is not performed if it does not want it to be performed." Cole Enters., 62 F.3d at 779. Employers "`cannot sit back and accept the benefits without compensating for them.'" Id. at 779-80 (quoting 29 C.F.R. § 785.13).

A. Members Activities Department Heads

The Court concludes that Teresa Chaney's testimony was sufficient to show as a matter of just and reasonable inference that she worked an average of 55 hours per week during the relevant time period. The parties stipulated that the relevant time period for Chaney is May 31, 2004 through August 23, 2004, a total of 12 workweeks. The parties also stipulated that Chaney took 40 hours paid time off during July 16, 2004 through July 31, 2004, a period encompassing 2 workweeks. However, Chaney testified that the entire 40 hours was taken during one workweek. Consequently, Chaney did not work any time for which she was not paid for 1 week. Thus, Chaney was not compensated for 15 hours of work per week for 11 weeks

With regard to Amy Baden-Winterwood, the Court concludes that her testimony was sufficient to show as a matter of just and reasonable inference that she worked an average of approximately 53 hours per week during the time period of February 8, 2004 through August 23, 2004, a total of 13 hours per week over 40, for 28 workweeks. However, during that 28 week period, 6 of the workweeks varied from the 53 hour average. First, the Court accepts as sufficient Baden-Winterwood's testimony that she lead a group of LTF's clients on a white-water rafting and camping trip and that during that week she worked 89 hours, 49 hours over 40. Second, the parties stipulated that during the pay period of April 1, 2004, Baden-Winterwood took 16 hours of paid time off work, thus working no overtime. Third, the parties stipulated that during the pay period of April 16, 2004, Baden-Winterwood took 8 hours of paid time off work, therefore working 5 hours over 40. Fourth, the parties stipulated that during the pay period of May 1, 2004, Baden-Winterwood took 16 hours of paid time off work, thus working no overtime. Fifth, the parties stipulated that during the pay period of May 16, 2004, Baden-Winterwood took 40 hours of paid time off work, again therefore, working no overtime. Sixth, the parties stipulated that during the pay period of August 1, 2004, Baden-Winterwood took 32 hours of paid time off work, and thus again, working no overtime. Therefore, Baden-Winterwood has met her burden of showing that she is due to be compensated the following during the February 8, 2004 through August 23, 2004 time period: an additional 13 hours per week for 22 weeks; an additional 49 hours for 1 week; and an additional 5 hours for 1 week.

Further with regard to Baden-Winterwood, the Court concludes that she worked an average of 50 hours per week during the October 16, 2005 through November 30, 2005, a total of 6 workweeks. The parties stipulated that during the pay period of November 16, 2005, Baden-Winterwood took 8 hours of paid time off work, thus working 2 hours over 40. Therefore, Baden-Winterwood has met her burden of showing that she is due to be compensated for 10 hours per week for 5 weeks and 2 hours for 1 week for this time period.

The burden now shifts to Defendant. However, Defendant did not meet that burden because it failed to come forward with evidence of the precise amount of work performed by Chaney or Baden-Winterwood. Nor did the testimony presented by Defendant's witnesses, Logan and Ringeisen, the exhibits admitted to this Court, or the deposition testimony of LTF's managers, negative the reasonableness of the inference the Court drew from these two plaintiffs' testimony and the evidence before it. Indeed, the deposition testimony of LTF's Senior Director of Member Activities and Retention, Julie Shipe, supports Plaintiffs' position that they were expected to complete their work even if it took up to 60 hours per week.

B. Life Spa Department Heads

The Court finds that Jennifer McCarthy's testimony and Plaintiffs' submitted exhibits were sufficient to show as a matter of just and reasonable inference that she worked 63, 63, 63, 56, 58, 22, and 36 hours per week during the October 16, 2005 through November 30, 2005, the relevant time period for McCarthy. McCarthy worked fewer hours two of the relevant weeks because of the Thanksgiving holiday. Thus, McCarthy has met her burden of showing that she is due to be compensated for an additional 23 hours per week for 3 weeks, an additional 16 hours for 1 week, and an additional 18 hours for 1 week.

The Court further finds that Marcia Richards' testimony was sufficient to show as a matter of just and reasonable inference that from October 16, 2005 through November 30, 2005 she worked 55 hours per week. That time period encompassed 6 workweeks. Therefore, Richards has met her burden of showing that she is due an additional 15 hours compensation per week for 6 weeks.

The burden is now shifted to Defendant; however, Defendant failed to meet it because it did not come forward with evidence of the precise amount of work performed by McCarthy or Richards. Nor did the testimony presented by Defendant's witnesses, Logan and Ringeisen, the exhibits admitted to this Court, or the deposition testimony of LTF's managers, negative the reasonableness of the inference the Court drew from these two plaintiffs' testimony and the evidence before it. Indeed, the deposition testimony of Brandon Joseph Adams, LTF's Director of the Life Spa Division, supports these Plaintiffs' testimony that they were expected to work as many hours as were necessary to complete their work.

C. Life Café Department Heads

The Court concludes that Scott Konieczny's testimony was sufficient to show as a matter of just and reasonable inference that he worked between 50 and 60 hours per week, an average of 55 hours per week, during 14 weeks of the relevant 15 week time period of May 16, 2004 through August 23, 2004. The parties stipulated that Konieczny took 2 days off work during one week in July 2004; therefore, he only worked approximately 33 hours that week. Accordingly, Konieczny has met his burden of showing that he is due to be compensated for an additional 15 hours per week for 14 weeks.

The Court further concludes that Judith Galloway's testimony was sufficient to show as a matter of just and reasonable inference that she worked approximately 58 hours per week for the relevant time periods of May 16, 2004 through August 23, 2004 and October 16, 2005 through November 30, 2005, a total of 20 workweeks. Although Galloway testified before this Court that she worked between 60 and 80 hours per week, the Court finds that testimony incredible considering Galloway's other responsibilities during those time periods — 6 children and a part-time teaching position-and her prior deposition testimony in a separate case against LTF that indicated that during those same time periods she worked between 55 and 60 hours per week. Galloway's explanation of the prior inconsistent deposition testimony, i.e., she scheduled herself 55 to 60 hours per week in a normal week, but that no week was ever normal and she always worked 60 to 80 hours per week, is belied by her testimony in that same deposition that unequivocally indicated that she worked between 55 and 60 hours per week during those time periods. That deposition was taken at a time closer to the events in question when her memory of the events should have been clearer. Thus, the Court concludes that Galloway has met her burden of showing that she is due to be compensated for an additional 18 hours per week for 20 weeks.

The burden is now shifted to Defendant. Defendant, however, did not meet its burden because it did not come forward with evidence of the precise amount of work performed by Konieczny and Galloway. Nor did the testimony presented by Defendant's witnesses, Logan and Ringeisen, the exhibits admitted to this Court, or the deposition testimony of LTF's managers, negative the reasonableness of the inference the Court drew from these two plaintiffs' testimony and the evidence before it.

D. Part-Time Employee

The Court finds that Tina Seals's testimony was sufficient to show as a matter of just and reasonable inference that she worked an average of 55 hours per week from August 1, 2005 through September 10, 2005, a total of 6 workweeks and that she worked an average of 35 hours per week from September 11, 2005 through October 24, 2005, a total of 6 workweeks. Because Seals was considered a part-time employee, she was compensated for 20 hours per week for each of the relevant 12 weeks. Thus, Seals has met her burden of showing that she is due to be compensated for an additional 15 hours per week for 6 weeks and an additional 35 hours per week for 6 weeks.

The burden is now shifted to Defendant; however, Defendant failed to meet it because it did not come forward with evidence of the precise amount of work performed by Seals. Nor did the testimony presented by Defendant's witnesses, Logan and Ringeisen, the exhibits admitted to this Court, or the deposition testimony of LTF's managers, negative the reasonableness of the inference the Court drew from Seals' testimony and the evidence before it.

E. Director of Project Management Organization

The Court concludes that Victor Barge's testimony and job description admitted as Plaintiffs' Exhibit 1 were sufficient to show as a matter of just and reasonable inference that he worked between 45 and 60 hours per week, an average of 53 hours per week for the relevant time period. The parties stipulated that the relevant time period for Barge is July 6, 2004 through August 23, 2004, approximately 7 workweeks. Therefore, Barge has met his burden of showing that he is due to be compensated for an additional 13 hours per week for 7 weeks.

The burden is now shifted to Defendant. Defendant, however, failed to meet it because it did not come forward with evidence of the precise amount of work performed by Barge. Nor did the testimony presented by Defendant's witnesses, Logan and Ringeisen, the exhibits admitted to this Court, or the deposition testimony of LTF's managers, negative the reasonableness of the inference the Court drew from Barge's testimony and the other evidence before it.

VIII. Nontestifying Plaintiffs A. Standard for Representative Testimony

The following is the Court's conclusions of law regarding the appropriate standard applicable to the determination of whether the testifying plaintiffs were representative of the nontestifying plaintiffs.

Relying on Mt. Clemens Pottery, courts, including the Sixth Circuit, have uniformly held that damages in FLSA overtime cases can be proved with testimony from a representative group of plaintiffs. See e.g., Dept. of Labor v. Cole Enter, Inc., 62 F.3d 775, 781 (6th Cir. 1995) (citing Reich v. S. New England Telecomm. Corp., 121 F.3d 58 (2nd Cir. 1997); Reich v. S. Md. Hosp., Inc., 43 F.3d 949, 951 (4th Cir. 1995); Martin v. Tony and Susan Alamo Found., 952 F.2d 1050, 1052 (8th Cir. 1992); Martin v. Selker Bros., Inc., 949 F.2d 1286, 1297 (3d Cir. 1991); Sec'y of Labor v. DeSisto, 929 F.2d 789, 792 (1st Cir. 1991); McLaughlin v. Ho Fat Seto, 850 F.2d 586, 589 (9th Cir. 1988); Brock v. Norman's Country Mkt., Inc., 835 F.2d 823, 828 (11th Cir. 1988); Beliz v. W.H. McLeod Sons Packing Co., 765 F.2d 1317, 1331 (5th Cir. 1985)). The Sixth Circuit explained that "[t]he testimony of fairly representative employees may be the basis for an award of back wages to nontestifying employees." Id.

A Southern District of Ohio court has articulated some guidelines for use in considering whether representative testimony is proper, noting that "there is no magic formula for the number or percentage of plaintiffs who must testify," and instead, it "is axiomatic that the weight to be accorded evidence is a function not of quantity but of quality." Takacs v. Hahn Auto. Corp., No. C-3-95-404, 1999 U.S. Dist. LEXIS 22146, at *6-7 (S.D. Ohio Jan. 25, 1999) (citing DeSisto, 929 F.2d at 793) ("`the adequacy of the representative testimony necessarily will be determined in light of the nature of the work involved, the working conditions and relationships, and the detail and credibility of the testimony'") and Reich, 121 F.3d 58 at 68 ("depending on the nature of the facts to be proved, a very small sample of representational evidence can suffice")). The "focus is not on the numbers in isolation but on whether the district court could reasonably conclude that there was `sufficient evidence to show the amount and extent of . . . [uncompensated] work as a matter of just and reasonable inference.'" Id. at *7 (quoting Reich, 121 F.3d at 67-68, which quoted Mt. Clemens Pottery, 3288 U.S. at 687) (alterations in original).

The Takacs court also discussed what quality means in the situation where, like in the instant action, Plaintiffs represent a variety of job categories:

The Plaintiffs argue that all of their members worked in only two job categories, store manager and senior assistant store manager. Defendant, on the other hand, contends that each separate store in which a particular Plaintiff worked is a separate job category. In Secretary of Labor v. DeSisto, 929 F.2d 789 (1st Cir. 1991), the First Circuit discussed representative testimony in instances in which employees work in a number of different job categories:

Where the employees fall into several job categories, it seems to us that, at a minimum, the testimony of a representative employee from, or a person with first-hand knowledge of, each of the categories is essential to support a back pay award. See Donovan v. Simmons Petroleum Corp., 725 F.2d 83 (10th Cir. 1983); Donovan v. New Floridian Hotel, Inc., 676 F.2d 468 (11th Cir. 1982); Dole v. Solid Waste Services, Inc., 733 F. Supp. 895 (E.D. Pa. 1989), aff'd, 897 F.2d 521 (3d Cir.), cert. denied, 497 U.S. 1024, 111 L. Ed. 2d 781, 110 S. Ct. 3271 (1990). This testimony need not be given orally at trial, but it must be properly before the court as admitted evidence.

929 F.2d at 793. Although the Defendant has cited a number of cases in which courts commented that there was testimony from an employee at each location, it has not cited any case in which a court said that such was an absolute requirement.

Id. at *8-9 (citations omitted).

Similarly, in Reich the appellate court affirmed the district court's award of damages to the class where 39 employees, accounting for each of the five job categories in question, testified on behalf of 1500 workers. The court focused on the fact that:

These witnesses served directly in four of the job categories ([outside plant technicians] OPTs, network deployment technicians/cable splicers, network delivery technicians/cable repair workers, and service delivery technicians/installation and maintenance workers), and some of the witnesses (particularly the OPTs) had firsthand knowledge of the fifth ([assistant supervisors of construction] ASCs). Although the district court did not make express findings that the sample covered the three types of sites at which SNET's work is performed, it is clear from the findings and the record that witnesses had worked in all three areas and testified broadly about their experiences.

121 F.3d at 67 (citations omitted).

Likewise, in Herman v. Hogar Praderas de Amor, Inc., the court noted:

The Secretary does not have to present the testimony of each underpaid employee; rather, she may put on a representative sample of employees. When there are different job categories, however, at least one representative employee or one person with first-hand knowledge of the category should testify. Generally, a worker can represent other workers only if they all do substantially similar work. There is no minimum ratio that the Secretary must meet; the adequacy of the representation is based on the nature of the work, working conditions, on-the-job relationships, and the witnesses' credibility.

130 F. Supp.2d 257, 265 (D. P.R. 2001).

Applying these guidelines to the facts of this case, the question before this Court is, therefore, whether the two testifying plaintiffs from each job category are fairly representative of those who did not testify so that the Court can reasonably conclude that there was sufficient evidence to show the amount and extent of uncompensated work as a matter of just and reasonable inference.

B. Findings of Fact and Conclusions of Law

1. Representative testimony of full-time employees

After consideration of the two witnesses presented as representatives of each category of jobs, i.e., the Members Activities Department Heads, the Life Spa Department Heads, and the Life Café Department Heads, and consideration of Defendant's witnesses, the admitted exhibits, the admitted depositions, and the parties' stipulations, the Court makes the following findings of fact and conclusions of law relative to the representative testimony issue.

The evidence presented indicates that the job expectations among the positions were generally uniform. The testifying plaintiffs testified to such, and in the admitted depositions the defense representatives discuss the common goals for the Department Head positions. There are common objectives set forth in each of the SOP for each area. Additionally, the Department Heads in each area were subject to the same expectations regarding their schedule working hours. For example, LTF recommends Life Spa Department Heads open at least two days per week, close two days per week, work one or two weekends, and otherwise work "whatever time is [] necessary to get the job done." (Doc. # 112; Brandon Joseph Adams' Dep. at 60.) There are similar SOP for the other Department Heads.

Likewise, the job duties for each of the positions are the same regardless of the location of the club or any other factor. Indeed, the job duties are set forth in the SOP; as are the minimum suggested hours for each Department Head. There are not different SOP for each job position based on the LTF club location.

Further, the Department Heads were all required to participate in meetings with other Department Heads from locations besides their own and were generally familiar with the amount of hours those others' worked. The testimony showed that the testifying plaintiffs all believed, from their interaction with these other Department Heads, that the others were required to work similar hours to their own.

Moreover, Plaintiffs were all on the same compensation plans, which set forth the same formula of requirements for Plaintiffs with respect to meeting revenue and budget goals.

Finally, at trial, Plaintiffs testified fairly uniformly about the causes requiring them to stay late and work overtime. For example, all Department Heads were responsible for filling in for an absent employee, supervising club events, and making themselves visible and available to club members.

The Court finds that the testimony of the testifying plaintiffs from each job category was fairly representative of those who did not testify so that the Court can reasonably conclude that there was sufficient evidence to show the amount and extent of uncompensated work of the nontestifying plaintiffs as a matter of just and reasonable inference. See Mt. Clemens Pottery, 328 U.S. at 690-91; see also Cole Enter., Inc., 62 F.3d at 781. The Court notes that the testifying plaintiffs had firsthand knowledge of each of the job positions, an essential element in supporting an award of back pay. See Takacs, 1999 U.S. Dist. LEXIS 22146, at *8-9; Reich, 121 F.3d at 67; Herman, 130 F. Supp.2d at 265. Further, the quality of the testimony convinces the Court that it is to be accorded weight sufficient to show the amount and extent of the nontestifying plaintiffs' uncompensated work as a matter of just and reasonable inference. Finally, although this Court's focus is not on the numbers in isolation, the "sample" employees equal a large percentage of the employees whom they represent, which certainly weighs in favor of the appropriateness of the representation. See Reich, 121 F.3d at 66 (affirming district court's award of "back wages to an entire group of employees based on the testimony of a representative sample" that was equal to 2.5 % of the plaintiff group). The Members Activities Department Head testifying plaintiffs equal 20% of the total Members Activities Department Head group; the Life Spa Department Head testifying plaintiffs equal 29% of the total Life Spa Department Head group; the Life Café Department Head testifying plaintiffs equal 50% of the total Life Café Department Head group; and, in totality the testifying plaintiffs equal 29% of plaintiffs they represent.

2. Testimony of part-time employee

During trial, Defendant argued that, should the Court find that the testifying plaintiffs were fairly representative of the nontestifying plaintiffs, the Court should consider the testimony of Plaintiff Tina Seals as representative of the Members Activities Department Heads. Seals testified that during some months of the year she was able to complete her work in 40 or less hours per week. Defendant's argument is not well taken.

First, the Court permitted testimony of Seals on her own behalf, concluding that based upon her part-time status it was inappropriate to have her hours determined by representative testimony. (Doc. # 105 at 5) ("The Court determines that the appropriate procedure is to have Seals appear at trial as opposed to having her damages, if any, determined by representative testimony."). For the same reasons it was not reasonable to have Seals's damages determined by representative testimony, it is not reasonable to have the nontestifying plaintiffs' damages determined by Seals's testimony. Specifically, as stated, Seals was a part-time employee. That status alone renders it reasonable to assume that Seals, being paid salary on the assumption she was working approximately 20 hours per week, would not be inclined to work as many hours as an employee categorized as full-time, being paid salary on the assumption he or she worked at least 40 hours per week. Seals's testimony affirms this assumption.

At trial Seals testified that during the summer months she worked between 50 and 60 hours per week to complete her work and that during the remainder of the year she worked between 30 and 40 hours per week to complete her work. Seals clarified that although she completed the work necessary for the Members Activities Department to function, she did not meet all of the goals and expectations set forth by management and in the SOP.

Further, the parties have stipulated to a different formula, in accordance with the FLSA regulations, applicable to Seals based upon her status as a part-time employee.

Finally, were the Court to take account of Seals's hours in estimating proportionately the amount due to the full-time Members Activities Department Heads, it would skew the amount higher than the Court finds reasonable.

Accordingly, the Court finds that it cannot reasonably conclude that part-time Members Activities Department Head Tina Seals's testimony is fairly representative of the full-time Members Activities Department Heads. Seals's hours cannot be used to show the amount and extent of uncompensated work of the nontestifying plaintiffs as a matter of just and reasonable inference.

3. Amount of hours to be attributed to each nontestifying plaintiff

As the Court explained supra, Mt. Clemens Pottery provides that if the offending employer fails to produce evidence of the precise number of hours each testifying plaintiff worked or evidence that negatives the inference a court drew from the testimony of the testifying plaintiffs and the totality of the evidence before it, a court may then award damages to the employee and to those nontestifying plaintiffs for whom the employee represented even though the result be only approximate. See Mt. Clemens Pottery, 328 U.S. at 687-88. "It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages." Id. at 688. The Court has already determined that the testifying plaintiffs met their burden of producing "sufficient evidence to show the amount and extent of [their] work as a matter of just and reasonable inference" Mt. Clemens Pottery, 328 U.S. at 687, and that Defendant failed to meet its burden of coming "forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from [Plaintiffs'] evidence," Id.

This conclusion is now applied to the nontestifying plaintiffs to determine the amount of overtime pay owed to each of them. See Cowan v. Treetop Enters., 163 F. Supp. 2d 930, 938 (M.D. Tenn 2001) ("From the testimony of the Plaintiffs' and the Defendants 132; Def. 56.1 ¶ 132 ("The origin of [Plaintiff's] primarily self-reported impairments is deemed to be physical by the psychiatrist and psychological by Dr. Loehr. The neuropsychologist affirms that the deficits are primarily psychological as opposed to neurocognitive and the psychiatrist states that the claimant's depression and bipolar symptoms have remitted to a significant degree.").

See Pl. Reply 56.1 ¶ 134; Def. 56.1 ¶ 134. Because Tortora received less than fifty-two weeks of STD Benefits, she was deemed ineligible for LTD Benefits under the Plan. Tortora also appealed that determination, but her appeal was denied. See Pl. Reply 56.1 ¶ 139; Def. 56.1 ¶ 139.

III. STANDARD OF REVIEW AND APPLICABLE LAW

A. Summary Judgment

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." "`An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non[-]moving party. A fact is material if it might affect the outcome of the suit under the governing law.'" "[T]he burden of demonstrating that no material fact exists lies with the moving party. . . ." "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non[-]movant's claim."

Fed.R.Civ.P. 56(c).

SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009) (quoting Roe v. City of Waterbury, 542 F.3d 31, 34 (2d Cir. 2008)).

Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008) (citing McCarthy v. Dun Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007)).

Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).

To defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. The non-moving party must do more than show that there is "`some metaphysical doubt as to the material facts,'" and it "`may not rely on conclusory allegations or unsubstantiated speculation.'" However, "`all that is required [from a non-moving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'"

See id.

Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (quoting Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

Jeffreys v. City ofN. Y., 426 F.3d 549, 554 (2d Cir. 2005) (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)). Accord Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.").

Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)).

In determining whether a genuine issue of material fact exists, the court must "constru[e] the evidence in the light most favorable to the non-moving party and draw all reasonable inferences" in that party's favor. However, "`only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.'" "`Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.'" Summary judgment is therefore "appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."

Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (citing Anderson, 477 U.S. at 247-50, 255).

Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 65 (2d Cir. 1997)).

McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)).

Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009).

B. ERISA Standard

Pursuant to section 502(a)(1)(B) of ERISA, a plan participant or beneficiary may bring a civil action "to recover benefits due to [her] under the terms of his plan." In Firestone Tire Rubber Co. v. Bruch, the Supreme Court held that "a denial of benefits challenged under § 1132(a)(1)(B) 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." The Second Circuit has repeatedly held that when an ERISA-governed employee benefits plan grants the plan administrator authority to determine claimants' eligibility for benefits, "the standard governing the district court's review . . . is the arbitrary-and-capricious standard." "Under the deferential standard, a court may not overturn the administrator's denial of benefits unless its actions are found to be arbitrary and capricious, meaning `without reason, unsupported by substantial evidence or erroneous as a matter of law.'" "`Where both the plan administrator and a spurned claimant offer rational, though conflicting, interpretations of plan provisions, the administrator's interpretation must be allowed to control.'" However, "`where the administrator imposes a standard not required by the plan's provisions, or interprets the plan in a manner inconsistent with its plain words, its actions may well be found to be arbitrary and capricious.'"

29 U.S.C. § 1132(a)(1)(B).

489 U.S. 101, 115 (1989).

Pepe v. Newspaper Mail Deliveries `-Publishers' Pension Fund, 559 F.3d 140, 146 (2d Cir. 2009) (citing Firestone, 489 U.S. at 115). Accord Durakovic v. Building Serv. 32 BJ Pension Fund, 609 F.3d 133, 138 n. 2 (2d Cir. 2010) ("In an action under 29 U.S.C. § 1132(a)(1)(B), the district court conducts arbitrary-and-capricious review of ERISA-fund administrators' discretionary decisions." (citations omitted)). See also Hobson v. Metropolitan Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009); Giordano v. Thomson, 564 F.3d 163, 168 (2d Cir. 2009).

McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 133 (2d Cir. 2008) (quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995)). The Second Circuit has held that "substantial evidence" means "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)).

McCauley, 551 F.3d at 132 (quoting Pulvers v. First UNUM Life Ins. Co., 210 F.3d 89, 92 (2d Cir. 2000)) (internal quotation marks and citations omitted).

Pepe, 559 F.3d at 147 (quoting McCauley, 551 F.3d at 133).

1. Conflict of Interest

The deferential Firestone standard remains largely unchanged, even when a plan administrator faces a conflict of interest. Under the Supreme Court's recent decision in Metropolitan Life Insurance Co. v. Glenn, "`a plan under which an administrator both evaluates and pays benefits claims creates the kind of conflict of interest that courts must take into account and weigh as a factor in determining whether there was an abuse of discretion, but does not make de novo review appropriate.'" "A plaintiff's showing that the administrator's conflict of interest affected the choice of a reasonable interpretation is only one of `several different considerations' that judges must take into account when `review[ing] the

___ U.S. ___, 128 S.ct. 2343 (2008).

Hobson, 574 F.3d at 82-83 (quoting McCauley, 551 F.3d at 133).

lawfulness of benefit denials.'" Consideration of the conflict is given greater or lesser consideration depending on whether the "`the administrator has taken active steps to reduce potential bias and to promote accuracy.'"

Id. (quoting McCauley, 551 F.3d at 133). Accord Glenn, 128 S.ct. at 2351 (" Firestone means what the word `factor' implies, namely, that when judges review the lawfulness of benefit denials, they will often take account of several different considerations of which a conflict of interest is one.").

Burgess, 537 F.3d at 127 (quoting Glenn, 128 S.ct. at 2348).

2. Breach of Fiduciary Duty

"[W]here a plan participant has no remedy under another section of ERISA, she can assert a claim for breach of fiduciary duty under § 502(a)(3)." Section 502(a)(3) provides that "plan participants, beneficiaries or fiduciaries [may] bring a civil action `to enjoin any act or practice which violates any provision of this subchapter or terms of the plan, or . . . obtain other appropriate equitable relief.'" This provision, therefore, "act[s] as a safety net, offering appropriate equitable relief for injuries caused by [ERISA] violations that § 502 does not elsewhere adequately remedy."

Devlin v. Empire Blue Cross Blue Shield, 274 F.3d 76, 89 (2d Cir. 2001) (citing Varity Corp. v. Howe, 516 U.S. 489, 515 (1996)).

Id. (quoting 29 U.S.C. § 1132(a)(3)).

Varity Corp., 516 U.S. at 512.

In Varity Corp. v. Howe, the Supreme Court held that equitable relief under section 502(a)(3) will ordinarily not be necessary where the beneficiary can obtain relief for her injury under other provisions of the statute. As the Second Circuit subsequently explained, however, " Varity Corp. did not eliminate a private cause of action for breach of fiduciary duty when another potential remedy is available." While "the [ Varity Corp.] Court indicated that equitable relief under § 502(a)(3) would `normally' not be appropriate" under such circumstances, it could be granted at the court's discretion. Should the plaintiff succeed on both her section 502(a)(1)(B) claim, to enforce the terms of a plan, and her claim for breach of fiduciary duty under section 502(a)(3), "the determination of `appropriate equitable relief rests with the district court." "This determination must be based on ERISA policy and the `special nature and purpose of employee benefit plans.'"

See id. at 515 ("[W]e should expect that where Congress elsewhere provided adequate relief for a beneficiary's injury, there will likely be no need for further equitable relief, in which case such relief normally would not be appropriate.") (internal citations and quotation marks omitted).

Devlin, 274 F.3d at 89.

Id.

Id.

Id. (quoting Varity Corp., 516 U.S. at 515).

3. Full and Fair Review

Section 503(1) of ERISA requires than an employee benefits plan "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," and "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review." "Additionally, ERISA regulations . . . require that notice to the claimant of an adverse benefit determination `shall set forth, in a manner calculated to be understood by the claimant . . . [a] description of the plan's review procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action.'" "[T]he purpose of ERISA's notice requirement is to `provide claimants with enough information to prepare adequately for further administrative review or an appeal to the federal courts.'"

29 U.S.C. § 1133(1).

Id. § 1133(2).

Strom v. Siegel Fenchel Peddy P.C. Profit Sharing Plan, 497 F.3d 234, 245 (2d Cir. 2007) (quoting 29 C.F.R. § 2560.503-1(g)(1)).

Hobson, 574 F.3d at 87 (quoting Juliano v. Health Maint. Org. of NJ, 221 F.3d 279, 287 (2d Cir. 2000)).

IV. DISCUSSION

A. Standard of Review

Tortora claims that this Court should apply a "heightened standard" of review because the mutually advantageous arrangement between AT T and Sedgwick biased the claims process against her. In so arguing, however, Tortora misconstrues the central holding of Glenn. The Court in Glenn made clear that a plan administrator's discretionary denial of benefits must be reviewed under a deferential standard, even when that plan administrator has a conflict of interest. A reviewing court need only "consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits." Because Tortora does not contest that Sedgwick is given discretion to determine eligibility for benefits under the Plan, a heightened standard of review is inappropriate.

See Plaintiff's Memorandum of Law in Support of Cross-Motion for Summary Judgment ("Pl. Mem.") at 14-15.

See Glenn, 128 S.ct. at 2350 ("We do not believe that Firestone's statement implies a change in the standard of review, say, from deferential to de novo review.").

Id. at 2346.

See Hobson, 574 F.3d at 83 (holding that de novo review of the decision to deny benefits was unwarranted, notwithstanding a "structural conflict of interest" on the part of the plan administrator that "affected the choice of a reasonable interpretation").

B. Conflict of Interest

Contrary to Tortora's claims, it is not entirely clear that a conflict of interest in fact exists here. In Firestone, the employer acted as plan administrator, and was therefore responsible for both evaluating claims and paying benefits. Such an arrangement clearly creates a conflict of interest, because "`every dollar provided in benefits is a dollar spent by . . . the employer; and every dollar saved . . . is a dollar in [the employer's] pocket.'" Accordingly, "[t]he employer's fiduciary interest may counsel in favor of granting a borderline claim while its immediate financial interest counsels to the contrary." Similarly, Glenn involved an insurance company that both evaluated claims for benefits and paid benefits claims in its capacity as administrator of Sears, Roebuck, Company's long-term disability insurance plan. In both cases, the Court determined the administrator "ha[d] an `interest . . . conflicting with that of the beneficiaries,' the type of conflict that judges must take into account when they review the discretionary acts

489 U.S. at 105.

Glenn, 128 S.ct. at 2348 (quoting Bruch v. Firestone Tire Rubber Co., 828 F.2d 134, 144 (3d Cir. 1987)).

Id.

See id.

of a trustee of a common-law trust." By contrast, Sedgwick — the company charged with determining eligibility for benefits under the Plan — is structurally independent of AT T, which ultimately funds the Plan and pays benefits claims. Unlike a plan administrator that "both determines whether an employee is eligible for benefits and pays benefits out of its own pocket" — such as the employer-administrator in Firestone or the insurance company-administrator in Glenn — Sedgwick does not have to pay out benefits, and therefore has little financial incentive to falsely deny claims. If anything, Sedgwick has an incentive to provide accurate claims processing, because its professional reputation depends on unbiased results and customer satisfaction.

Id.

Id. at 2346.

Cf. id. at 2349 (nohing that a structural conflict "is less clear where . . . the plan administrator is not the employer itself but rather a professional insurance company," because such a company "has a much greater incentive than a self-insuring employer to provide accurate claims processing.").

As noted above, AT T evaluated Sedgwick's performance based in part on claimant satisfaction surveys.

Tortora claims that Sedgwick is "keenly interested in saving AT T money in disability payouts" because AT T comprises a large part of Sedgwick's business, and Sedgwick has an interest in retaining AT T's business. It is of course possible that Sedgwick — a company on AT T's payroll — was influenced vicariously by AT T's financial interest in denying claims, but that would be the case whenever an employer hires a third party claims administrator. An employer has no choice but to administer the plan itself, as in Firestone, enlist a third party insurance company to both evaluate claims and pay benefits, as in Glenn, or split the functions between two entities, as in the present case. By Plaintiff's logic, there could be no means of administering an ERISA benefits plan without creating a conflict of interest. Glenn does not demand such a result.

Plaintiff's Reply to Defendants' Cross Motion for Summary Judgment ("Pl. Reply Mem.") at 1-2.

See Glenn, 128 S.ct. at 2349-50 (noting that "the employer's own conflict may extend to its selection of an insurance company to administer its plan").

As the Second Circuit recently explained, "[t]he initial inquiry [in the Glenn analysis] is simple: whether the `plan administrator both evaluates claims for benefits and pays benefits claims.'" Durakovic, 609 F.3d at 138 (quoting Glenn, 128 S.ct. at 2348). Tortora's reliance on Durakovic is misplaced because the plan at issue there — an ERISA fund organized as a trust — is structurally similar to the plans in Firestone and Glenn, where the administrator's evaluator-payor dual role created a "categorical conflict," but distinguishable from the AT T Plan. The Durakovic court noted that "as in Glenn, the evaluation of claims [in an ERISA trust] is entrusted (at least in part) to representatives of the entities that ultimately pay the claims allowed." Id. at 139. As noted above, Sedgwick is not involved in the payment of claims, and therefore does not have a comparable conflict of interest.

Tortora also contends that Sedgwick's repeated use of NMR physician reviewers evidences a conflict of interest. Relying on dicta from Black Decker Disability Plan v. Nord, she argues that "physicians repeatedly retained by benefits plans may have an incentive to make a finding of `not disabled' in order to save their employers money and to preserve their own consulting arrangements." While this is undoubtedly so, Tortora fails to read the remainder of the Court's opinion. Indeed, the very next sentence contradicts her argument. "But the assumption that the opinions of a treating physician warrant greater credit than the opinions of plan consultants may make scant sense when, for example, the relationship between the claimant and the treating physician has been of short duration, or when a specialist engaged by the plan has expertise the treating physician lacks." More to the point, the Court goes on to say, "if a consultant engaged by a plan may have an `incentive' to make a finding of `not disabled,' so a treating physician, in a close case, may favor a finding of `disabled.'" There is no basis for assuming that the disability determination was biased by the use of NMR's independent physician advisors. In fact, reliance on outside medical consultants would seem to improve the claims process. I cannot find, therefore, the existence of a Glenn conflict.

538 U.S. 822, 832 (2003) (internal quotation marks and citations omitted).

Id.

Id.

In support of her contentions, Tortora cites other court cases in which Dr. Goldman and Dr. Mody — two NMR reviewing physicians — issued opinions regarding claimants' disability. She notes that in every case, these doctors determined that the claimant in question was capable of returning to work. On that basis, she concludes that these doctors "were loath to find any disability when reviewing [claimants'] ERISA claim[s]." Plaintiff's Reply Mem. at 7-8. As Defendants point out, however, these statistics cannot prove bias on the part of NMR reviewers. Litigation only arises when physicians find that claimants are not disabled, and benefits are denied accordingly; "if the claimants were found eligible for disability benefits, there would be no litigation." Reply Brief in Support of Defendants' Motion for Summary Judgment at 4.

One of the cases cited by Tortora herself supports this contention. See Kludka v. Qwest Disability Plan, No. 08 Civ. 1806, 2010 WL 1408895, at *6 (D. Ariz. Apr. 7, 2010) ("Plan administrators should consult and rely on medical experts when making disability determinations. To make such decisions without the close assistance of medical professionals might well produce inaccurate and unfounded claim denials. The fact that doctors are retained and relied on heavily for such a medical decision is entirely reasonable and foreseeable.").

See Pl. Reply Mem. at 4. Tortora also suggests that Sedgwick's use of Disability Duration Guidelines — a best practices guide for claims reviewers — demonstrates bias in favor of denying claims. I find no evidence to suggest that the mere existence of such guidelines biases the claims process, or that Sedgwick unreasonably relied on the guide to the exclusion of pertinent medical evidence.

Even assuming, argumendo, that a conflict of interest exists for ERISA purposes, that does not end the inquiry. On the contrary, this Court must weigh the conflict as a factor in determining whether there was an abuse of discretion on the part of the administrator. The "significance of the factor," however, "depend[s] upon the circumstances of the particular case." "The weight properly accorded a Glenn conflict varies in direct proportion to the `likelihood that [the conflict] affected the benefits decision.'" "Evidence that a conflict affected a decision may be categorical (such as `a history of biased claims administration') or case specific (such as an administrator's deceptive or unreasonable conduct), and may have bearing also on whether a particular decision is arbitrary and capricious."

Glenn, 128 S.ct. at 2346.

Durakovic, 609 F.3d at 139 (quoting Glenn, 128 S.ct. at 2351).

Id. (quoting Glenn, 128 S.ct. at 2351).

Where, as here, the administrator "has taken active steps to reduce potential bias and to promote accuracy," the conflict of interest "should prove less important (perhaps to the vanishing point)." AT T is completely walled off from Sedgwick. AT T has no role in deciding which claimants are eligible for benefits, and Sedgwick's compensation is completely independent of its claim denial rate. Moreover, the performance benchmarks contained in Sedgwick's contract with AT T reduce the incentive to inaccurately deny claims. Sedgwick's policy of referring claims to NMR only further protects against bias, because it adds an additional layer of independent review.

Glenn, 128 S.ct. at 2351 (steps that tend to diminish the significance of a Glenn conflict include "walling off claims administrators from those interested in firm finances" and "imposing management checks that penalize inaccurate decision[-]making irrespective of whom the inaccuracy benefits").

There is no evidence to suggest that Sedgwick has a history of unreasonably denying claims. Of the nearly 58,700 claims for Plan benefits handled by Sedgwick between 2003 and 2006, less than 4,600 were appealed. Of these, 1,300 (less than one-third) were overturned on appeal. This is hardly an indication that Sedgwick refused to grant meritorious claims. Nor does Tortora offer any proof that either Sedgwick or NMR were biased by their economic relationship with each other or with AT T. In fact, Plan referrals represented only a small fraction of NMR's total business during the relevant time period — as little as 1.2 percent in 2003, and at most seven percent in 2006. Sedgwick, moreover, is one of the largest claims services providers in the country, with revenues exceeding five hundred million dollars in 2006. That the company handled fifteen thousand claims per year from AT T proves little, especially in light of the fact that disability claims on the whole make up less than twenty percent of Sedgwick's business (and AT T-related claims undoubtedly less). Even if Sedgwick does employ an entire team just to deal with claims for benefits under the Plan, there is simply no support for the proposition that Sedgwick is the "alter ego" of AT T. While Sedgwick ultimately dismissed the findings of some of Tortora's physicians, it was not the case that review of her disability claim was completely "one-sided," as in Durakovic. Contrary to Tortora's assertion, the fact that none of the NMR physician advisors examined her does not imply that the claims decision was biased. Accordingly, the conflict of interest — if there is one — deserves little or

See 4/30/10 Letter from Kristine J. Feher, Counsel for Defendants ("Feher Letter") at 1-2.

See id. at 3. The data submitted by Sedgwick represents only those disability claim appeals that were referred to NMR physician advisors. The total number of benefits denials overturned on appeal is likely higher than 1,300.

See id. at 4.

See id. at 1.

See Sedgwick 2006-07 Report Outlook at 3-4, https://www.sedgwickcms.com/docs/Outlook/OutlookReport06-07.pdf.

Pl. Reply Mem. at 1.

Durakovic, 609 F.3d at 140.

See Hobson, 574 F.3d at 91 (holding that a Plan administrator's failure to conduct an independent medical examination does not render a benefits denial arbitrary and capricious). See also Fitzpatrick v. Bayer Corp., No. 04 Civ. 5134, 2008 WL 169318, at *14 (S.D.N.Y. Jan. 17, 2008) ("any suggestion that an administrator's physicians are required to conduct an in-person, physical examination of a plaintiff rather than a review of the record in a case such as this is unsupported by law") (citations omitted).

no weight in this Court's arbitrary-and-capricious review.

See Durakovic, 609 F.3d at 140 ("No weight is given to a conflict in the absence of any evidence that the conflict actually affected the administrator's decision.") (citing Hobson, 574 F.3d at 83).

C. Sedgwick's Denial of Tortora's Benefits Was Neither Arbitrary Nor Capricious

Tortora contends that Sedgwick's decision to deny her benefits was "arbitrary and capricious" because it was not supported by reason or substantial evidence. Tortora also contends that Sedgwick abused its discretion by not affording her claim a "full and fair review" as required by section 503(2) of ERISA. Specifically, Tortora alleges that Sedgwick failed to fully and fairly review her claim by, inter alia, (1) not notifying her of what additional information or evidence she needed to satisfy deficiencies in the claim; (2) giving undue weight to the opinions of Sedgwick's consultants over those of Tortora's treating physicians; (3) requiring objective support for her medical conditions; and (4) failing to consider all the medical evidence she submitted.

1. ERISA Notice Requirement

Sedgwick clearly communicated to Tortora the reason her STD Benefits were being terminated, as required by section 503(1) of ERISA. In a letter dated June 22, 2006, Sedgwick explains that its decision to deny benefits was based on a review of medical documentation provided by Dr. Loehr, as well as the neuropsychological evaluation performed by Dr. Hargett. Dr. Hargett's evaluation indicated that Tortora manifested "mild cognitive deficits," and that she should continue taking psychoactive medications, but that "[h]er emotional state may also improve by returning to work." The letter stated that AT T had given Tortora the opportunity to return to work gradually, with accomodations for her mental condition, but she declined. Accordingly, Sedgwick concluded that Tortora's claim did not qualify for payment under Article II, paragraph 2.26 of the Plan because she was not "Totally Disabled". The letter then notified Tortora that she was entitled to make a written appeal with 180 days, directed her to a copy of the appeal procedure and appeal form, which it enclosed with the letter, and ordered her to submit any additional evidence she wished to have reviewed in connection with the appeal. The letter also notified Tortora of her right to bring a

See 29 U.S.C. § 1133(1) (a plan administrator must provide the claimant with "adequate notice in writing . . . setting forth the specific reasons for [a claim] denial, written in a manner calculated to be understood by the participant").

See 6/22/06 Sedgwick Claim Denial Letter, Ex. F to Certification of Susan HagEstad, Appeals Manager for Sedgwick.

Id.

See id.

lawsuit under section 502(a) of ERISA.

Although Sedgwick's benefits denial letter did not identify specific information Tortora could offer to cure the defects in her claim, Sedgwick did extend Tortora's STD Benefits twelve times over the course of nine months. This implies that Sedgwick evaluated all aspects of Tortora's claim, and considered relevant medical information that supported her claim for disability. The fact that Tortora was able to "perfect her claim" twelve times — up until the point Sedgwick ultimately decided she was not disabled — indicates "that she was fairly apprised of how she could `prepare adequately' for subsequent appeals of earlier benefit denials." Accordingly, I find that Sedgwick complied with the ERISA notice requirement.

See Hobson, 574 F.3d at 87-88.

Id. at 88 (quoting Juliano, 221 F.3d at 287).

2. Weight of Competing Medical Evaluations

Tortora takes issue with the fact that Sedgwick disregarded the diagnoses of her treating physicians, and chose instead to rely on the opinions of NMR physician advisors who were not specialists on her condition. The Supreme Court in Nord explained that "courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation." In other words, "while the administrator may choose to give greater weight to the treating physician's findings, it is not required to do so under the arbitrary and capricious standard." As the Second Circuit has made clear, administrators may consider the opinions of paid medical consultants when making benefits decisions. Sedgwick's failure to defer to the assessments of Tortora's treating physicians, therefore, was not arbitrary and capricious.

538 U.S. at 834. Accord Hobson, 574 F.3d at 85.

Fitzpatrick, 2008 WL 169318, at *13 (citing Nord, 538 U.S. at 823-24). Accord Hobson, 574 F.3d at 90 (the plan administrator "is not required to accord the opinions of a claimant's treating physicians `special weight,' especially in light of contrary independent physician reports") (quoting Nord, 538 U.S. at 834).

See Hobson, 574 F.3d at 90 (holding that the plan administrator "did not abuse its discretion by considering these trained [independent reviewing] physicians' opinions solely because they were selected, and presumably compensated, by [the administrator]").

3. Requirement of Objective Medical Evidence

Tortora also contends that Sedgwick's continued requests for additional medical evidence to support her disability claim were unreasonable, and that discontinuing her benefits on the basis that she failed to provide such evidence was arbitrary and capricious. The Second Circuit in Hobson, however, held that it is not unreasonable or arbitrary for plan administrators to require the plaintiff to produce objective evidence of disability "in order to guard against fraudulent or unsupported claims of disability." As in Maniatty v. Unumprovident Corp., Sedgwick did not ignore the reports of Tortora's treating physicians, but instead "relied on the fact that none of them adduced any objective evidence of plaintiff's complaints." While an administrator may not arbitrarily disregard evidence submitted by a claimant's physician, Sedgwick was not required to accept Tortora's subjective complaints in the absence of objective evidence supporting disability.

Hobson, 574 F.3d at 89. Accord Diamond v. Reliance Standard Life Ins., 672 F. Supp. 2d 530, 537 (S.D.N.Y. 2009) (noting that "courts in this district have found that an administrator's reliance on the opinions of non-examining physicians over the plaintiff's own treating physicians is not, in and of itself, arbitrary and capricious") (citations omitted).

218 F. Supp. 2d 500, 504 (S.D.N.Y. 2002), aff'd, 62 Fed. Appx. 413 (2d Cir. 2003).

See Nord, 538 U.S. at 834.

See Maniatty, 218 F. Supp. 2d at 504 ("In these circumstances, it was not unreasonable for the administrator to conclude that the only material reason the treating physicians were reaching their diagnoses was based on their acceptance of plaintiff's subjective complaints: an acceptance more or less required of treating physicians, but by no means required of the administrator.").

In response, Tortora claims that she was suffering from, inter alia, fibromyalgia, chronic fatigue, and trouble concentrating — all of which are characterized by subjective symptoms, and do not lend themselves to objective medical findings. Relying on Strope v. Unum Provident Corp., she argues that it was therefore unreasonable for Sedgwick to require clinical evidence in support of her disability claim. As the court in Strope notes, however, "`[a] distinction exists . . . between the amount of fatigue or pain an individual experiences, which . . . is entirely subjective, and how much an individual's degree of pain or fatigue limits his functional capabilities, which can be objectively measured.'" The Second Circuit has explicitly held that plan administrators may require objective evidence of disability, even when the claimant is suffering from diseases like fibromyalgia. The relevant question when reviewing Sedgwick's decision to deny benefits is not whether Tortora actually suffered from any particular illness, but whether that illness rendered her "Totally Disabled" within the meaning of the Plan. While Tortora may not have been able to produce objective evidence regarding her symptoms — and the Court does not question that she was indeed suffering from significant physical pain and psychological distress — it was not unreasonable for Sedgwick to require objective evidence suggesting that she was unable to return to work.

No. 06 Civ. 628C, 2010 WL 1257917, at *6-*7 (W.D.N.Y. Mar. 25, 2010). See also Diamond, 672 F. Supp. 2d at 536 ("While the very concept of proof connotes objectivity and it is hardly unreasonable for the administrator to require an objective component of such proof, the subjective element of pain is an important factor to be considered in determining disability. Diseases such as chronic fatigue syndrome and fibromyalgia pose unique issues for insurance plan administrators, since for these types of conditions, their cause or causes are unknown, there is no cure, and, of greatest importance to disability law, their symptoms are entirely subjective.") (internal quotation marks and citations omitted).

Strope, 2010 WL 1257917, at *6 (quoting Williams v. Aetna Life Ins. Co., 509 F.3d 317, 323 (7th Cir. 2007)). Accord Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 16 n. 5 (1st Cir. 2003) ("While the diagnoses of chronic fatigue syndrome and fibromyalgia may not lend themselves to objective clinical findings, the physical limitations imposed by the symptoms of such illnesses do lend themselves to objective analysis."); Cook v. N.Y. Times Co. Long-Term Disability Plan, No. 02 Civ. 9154, 2004 WL 203111, at *4 (S.D.N.Y. Jan. 30, 2004) ("It is . . . reasonable to insist on some objective measure of claimants' capacity to work, so long as that measure is appropriate as applied to each specific condition.").

See Hobson, 574 F.3d at 88.

See Fitzpatrick, 2008 WL 169318, at *11.

4. Consideration of All Medical Evidence

Tortora claims that Sedgwick ignored the reports of her treating physicians tending to support her claim for disability, as well as her own subjective complaints of pain and stress on the job. I have already concluded that Sedgwick was not obligated to consider Tortora's subjective complaints, in the absence of objective evidence of disability. Sedgwick's decision to dismiss Tortora's claim was not based solely on the lack of objective medical evidence. On the contrary, Sedgwick relied heavily on the findings of the reviewing NMR physician advisors, and indeed on the reports of Tortora's own treating physicians, some of whom indicated that her condition did not preclude returning to work. There is no merit to the claim that Sedgwick arbitrarily ignored medical evidence that she was disabled. It was completely within Sedgwick's discretion to determine that the evidence in the record was insufficient to support a claim for disability, and this Court cannot substitute its judgment for that of the Plan Administrator. Because Tortora did not meet her "burden of proving, by a preponderance of the evidence, that she is `totally disabled' within the meaning of the Plan," I conclude that Sedgwick's decision to terminate benefits was not arbitrary and capricious.

See Hobson, 574 F.3d at 88 ("By the terms of the Plan, [the administrator] retains the discretion to interpret what constitutes `sufficient medical evidence,' and [the administrator's] determination that such evidence requires objective support, rather than merely subjective reports of pain, is reasonable.").

See Pagan, 52 F.3d at 442.

Fitzpatrick, 2008 WL 169318, at *9 (quoting Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 441 (2d Cir. 2006)). Accord Lee, 2007 WL 1541009, at *4 ("[The administrator] is not required to disprove the possibility that [plaintiff] was disabled in order to terminate her benefits; rather, it is [plaintiff's] burden to demonstrate her disability under the Plan.").

D. Breach of Fiduciary Duty

Plan administrators have a fiduciary obligation to act solely in the interest of plan participants. Tortora claims that Sedgwick breached its fiduciary duty by dismissing claims unreasonably and without substantial evidence in an effort to decrease costs for AT T. In other words, Tortora suggests that Sedgwick administered the Plan in AT T's financial interest, rather than in the interest of beneficiaries.

See Devlin, 274 F.3d at 89 (citing 29 U.S.C. § 1104(a)(1)).

Tortora is correct in pointing out that "ERISA imposes higher-than-marketplace quality standards on insurers." ERISA places "a special standard of care upon a plan administrator" by requiring "that the administrator `discharge [its] duties' in respect to discretionary claims processing `solely in the interests of the participants and beneficiaries' of the plan." The statute "simultaneously underscores the particular importance of accurate claims processing by insisting that administrators `provide a full and fair review of claim denials,'" and "supplements marketplace and regulatory controls with judicial review of individual claim denials."

Glenn, 128 S.ct. at 2350.

Id. (quoting 29 U.S.C. § 1104(a)(1)).

Id. (quoting Firestone, 489 U.S. at 113).

Id. (citing 29 U.S.C. § 1132(a)(1)(B)).

However, I can find no evidence in the administrative record to suggest that Sedgwick failed to live up to the ERISA standard. Sedgwick considered the medical evidence proffered by Tortora, requested updated reports from her doctors as needed, and continued to grant her STD benefits, even when she missed submission deadlines. Moreover, Sedgwick sought independent medical advice from physician advisors in all the relevant specialities. As Claims Administrator, Sedgwick had to decide among conflicting medical opinions. Because there is no evidence it did so unfairly or unreasonably, Tortora's claim for breach of fiduciary duty fails.

To the extent Tortora is claiming that Sedgwick was biased by its financial relationship with AT T, I have already addressed that argument above.

V. CONCLUSION

For the foregoing reasons, Plaintiff's cross-motion for summary judgment is denied and Defendants' motion for summary judgment is granted. The Clerk of the Court is directed to close these motions (Docket Nos. 18 and 25) and this case.

SO ORDERED: