Darla Kay WHITE, Plaintiff, v. The STANDARD INSURANCE COMPANY, a foreign Corporation and Security First Associated Agency, Inc., a Michigan Corporation, Defendants, 895 F. Supp. 2d 817

OPINION AND ORDER GRANTING SECURITY FIRST’S MOTION FOR

SUMMARY JUDGMENT, GRANTING STANDARD INSURANCE COMPANY’S MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD, DENYING PLAINTIFF’S MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD, AND DISMISSING PLAINTIFF’S CLAIMS WITH PREJUDICE THOMAS L. LUDINGTON, District Judge. On April 7, 2010, Plaintiff Darla Kay White filed a complaint (ECF No. 1) against The Standard Insurance Company (“Standard”) and Security First Associated Agency (“Security First”). Security First was Plaintiffs employer during the time period relevant to the complaint.

Security First purchased a group disability policy for its employees including Plaintiff from Standard Insurance. Plaintiffs complaint originally included five counts alleging claims of Employee Retirement Income Security Act (“ERISA”) violations against both Defendants as well as claims of discrimination and retaliation arising under the Americans with Disabilities Act (“ADA”) against Security First. Plaintiffs second count seeking injunctive relief under ERISA § 502(a)(2)(3) and Plaintiffs fifth count alleging an ERISA fraud claim were subsequently dismissed by stipulation of the parties.

Security First filed a motion for

summary judgment on May 12, 2011, (ECF No. 32), contending that Plaintiffs claims of discrimination and retaliation under the ADA should be dismissed because at the time her employment was terminated, she was given the ability to seek reinstatement if and when she were able to perform her full-time duties. Plaintiff, however, did not seek reinstatement; she requested that her job be restructured.

Security First contends that Plaintiffs request for restructuring her job to have less than a full-time presence does not implicate reasonable accommodation because her full-time presence was an essential function of her job. Plaintiff disputes Security First’s assertion, and contends that it could have accommodated her circumstance and further responds that Security First retaliated against her for making the request for accommodation. Plaintiff also contends that Security First did not comply with the ERISA standards regarding Security First’s “return to work” accommodation process.

Plaintiff and Standard also filed cross-motions for judgment on the administrative record (ECF Nos. 33, 38) on May 12, 2011. The factual portions of the opinion are separated below in order to address the different periods of time related to Plaintiffs two claims as well as the administrative standard of review applicable to ERISA claims. A hearing was conducted on August 17, 2011, to address the parties’ motions. For the reasons provided herein, Security First’s motion for

summary judgment will be granted, Standard’s motion for judgment on the administrative record will be granted, and Plaintiffs motion for judgment on the administrative record will be denied. I. Facts A. Plaintiffs Employment with Security First Plaintiff holds an agency license for property and casualty insurance and is a Certified Insurance Service Representative. Plaintiff began work in the insurance industry in 1998, working for Frankenmuth Mutual Insurance for two and a half years. She then worked for several years at Saginaw Bay Underwriters before starting at Security First in 2003.

Plaintiff, at all times relevant, was employed as a full-time Customer Service Agent (“CSA”) assigned to Security First’s commercial lines department. Plaintiff had experience with trucking lines. She had no experience in handling personal lines insurance for Security First or any other insurance agency. As Plaintiff acknowledged at her deposition, it was desirable and beneficial to Security First’s customers to have a single CSA manage each account for continuity purposes. ECF No. 32 Ex. 2 at 22. There were fifteen customer service agents at Security First in 2007-2008.

While at Security First, Plaintiff was working with three different producers concurrently and received satisfactory or superior performance reviews. Plaintiff also received merit pay increases as part of her compensation. Plaintiff was considered an “hourly” worker, which entitled her to receive fringe benefits such as sick leave and vacation time. In 2007, Plaintiff had accrued 176 vacation hours for the year which could not be carried over to the following year.

Customer service agents at Security First were permitted to take time off without pay if they had exhausted all of their paid vacation or personal time. 1. Plaintiff injures her back In September of 2007, Plaintiff sustained a back injury that was not related to her employment. On September 17, 2007, Plaintiff experienced back pain and was treated by her chiropractor who indicated that she needed to consult with her physician regarding her pain. Plaintiff consulted her family physician, Dr. Scott Beasecker, on September 20, 2007. Dr.

Beasecker prescribed muscle relaxers and pain medication along with ordering her off work to rest for several weeks. Plaintiff took the prescribed muscle relaxers and pain medications and rested, but she continued to experience pain in her back. Plaintiffs manager, Lisa Williams, was on leave beginning the week of September 30, 2007. Plaintiff sent an email to Williams on September 21, 2007 requesting a foot rest at her desk. Plaintiff purchased the foot rest and was reimbursed by Security First. 2. Plaintiff is off work and receives short-term disability benefits On September 26, 2007, Dr.

Beasecker ordered Plaintiff off work until October 11, 2007 along with a no bending/lifting restriction as a result of magnetic resonance imaging (“MRI”) performed on or about September 25, 2007. Plaintiff notified Security First’s employees of her two-week leave by email on September 26, 2007. Plaintiff was unable to return to work on October 11, 2007 and was then placed on short-term disability (“STD”) pursuant to a benefit policy purchased by Security First for its employees.

The policy was administered by Standard Insurance and Plaintiff was referred to Security First’s human resources Administrator, Karen Goodrich, regarding her inquiries about the disability insurance coverage and about returning to work. Goodrich later informed Plaintiff, in response to her inquiry, that Standard Insurance did not have a “return to work” form for Plaintiff to submit directly to Standard and that, as a result, Security First was to report Plaintiffs hours to Standard once Plaintiff returned. Plaintiffs back pain continued through the month of October 2007.

She notified Security First that her medical leave needed to be extended into November while she continued with her physical therapy three times per week. The physical therapy prescribed for Plaintiff was not, however, alleviating her pain and, therefore, Dr. Beasecker was unwilling to authorize her to return to work until she could consult with a surgeon, which did not take place until December 10, 2007. 3. Plaintiff returns to work part-time contemplating a return to full-time employment Plaintiffs STD benefits were set to “max out” on December 24, 2007.

Plaintiff was released to return to work on a temporary, part-time basis by Dr. Beasecker on or about December 13, 2007, with the restriction that she could work no more than four hours per day along with no bending or lifting beyond fifteen pounds. Dr. Beasecker testified that he supported Plaintiffs effort in December 2007 to return to work part-time, and was aware that she performed clerical work that did not involve significant heavy lifting or other physical demands. Dr. Beasecker also testified that he had hoped Plaintiffs part-time work would only be for a couple months before returning to full time work.

Accordingly, Plaintiff requested to return to work on a temporary part-time basis with Dr. Beasecker’s restrictions. Plaintiffs restriction and request for part-time reinstatement presented a unique situation for Security First as they had never employed permanent CSA’s part-time. Security First CEO, Thomas Cowan, testified that Security First decided to make an exception and temporarily accommodate Plaintiffs request for part-time employment because Cowan considered her an important employee.

The Security First Board of Directors approved Cowan’s request for Plaintiff to work part-time on January 30, 2008, after Plaintiff had already been working part-time for over a month. Plaintiffs manager informed her that returning to work part-time, even on a temporary basis, is something that had never occurred at Security First but that Security First was short-staffed at that time. Security First agreed to allow Plaintiff to return to work part-time for approximately six weeks.

Security First’s decision was in part based upon the fact that Plaintiff had informed Security First that she hoped to be capable of full-time work in early 2008, but could not be sure until her January 14, 2008, doctor’s visit. 4. Plaintiff is advised her long term disability benefits will terminate with her return to work Plaintiffs part-time employment required her to convert her STD, which expired on December 24, 2007, to a long-term disability (“LTD”) benefit to subsidize her reduced income. Plaintiff was notified by Standard Insurance on January 29, 2008, that her LTD was set to expire on February 11, 2008.

Standard Insurance indicated that the reason for the February 11, 2008, expiration date was that they were advised by Plaintiffs doctor that she should be able to return to full-time work by that date. Standard Insurance also stated that, in the event Plaintiff was unable to work after February 11, 2008, because of medical reasons, she would have to have her physician complete a “Physician’s Report — Musculoskeletal” that she was provided.

Approximately one month into Plaintiffs temporary, part-time return-to-work, she notified Williams that her restriction was being extended by her physician because she was going to begin treatment at a pain clinic in three weeks. Williams expressed concern that her staff and customers found it difficult working with a part-time CSA in the trucking lines department.

Williams testified that she had several debates regarding Plaintiffs part-time work because Plaintiff was a good employee but that she had been advised that the part-time work was a temporary accommodation that would not be extended past her January 14, 2008 doctor’s visit. On January 15, 2008, Security First Producer / Agent, Ralph Clifton sent an email regarding his concern that the trucking accounts that Plaintiff was exclusively assigned to handle were suffering as a result of Plaintiff working part-time. He complained that Plaintiff was unable to adequately complete her job duties and responsibilities.

He reported that Plaintiffs work arrangement was breaking continuity between Security First and their customers. Plaintiff was unaware that any complaints regarding her work had been made until she received her personnel file after her termination In addition to the concerns being expressed by Clifton and Williams, Plaintiff had her own concerns about her performance and ability to work part-time. Plaintiff had a meeting with Williams around January 1, 2008, regarding her employment at Security First.

Plaintiff indicated that she was concerned she would be unable to work the hours required to return to full-time status but was also concerned about the possibility of losing her employment benefits if she remained part-time. ECF No. 32 Ex. 2 at 137-38. Williams relayed Plaintiffs concerns via email correspondence to Cowan on January 15, 2008. ECF No. 32 Ex. 19. Plaintiffs co-workers had also voiced concern regarding Plaintiffs performance. On January 22, 2008, fellow CSA Dorothy Bemis directed an email to Williams detailing how Plaintiffs part-time

schedule affected the trucking department. ECF No. 32 Ex. 20. Although Plaintiff disagreed with many of the concerns raised by her superiors and co-workers, she did acknowledge at her deposition that not being available for the complete workday was detrimental since she was the sole agent assigned to those accounts. ECF No. 32 Ex. 2 at 163-64. Plaintiffs temporary, part-time employment was extended by Security First until after her doctor’s appointment scheduled in early February 2008.

However, from January 15, 2008, to February 8, 2008, Plaintiff was having difficulty completing the part-time hours due to her ongoing pain. Dr. Beasecker described Plaintiff as being “unsuccessful” in her attempt to return to work during her eight-week restricted hours period. ECF No. 32 Ex. 13 at 39. During this period, Plaintiffs time records indicate that she did not come in to work on two occasions and left work before meeting her four-hour restriction on another four occasions.

Plaintiffs intermittent attendance continued in February 2008 when she left early on February 6, 2008, due to a back spasm and then called in sick on February 7, 2008. Plaintiff met with Williams, Goodrich, and Security First board member John Searles on February 8, 2008. Plaintiffs employment was terminated during the meeting. Goodrich recorded details surrounding Plaintiffs termination meeting in a March 25, 2008 memorandum. ECF No. 35 Ex. 22.

Goodrich later testified that she was unaware at the time of the meeting that a decision to terminate Plaintiffs employment had been made and that she had not been asked for any input before the decision was made. Plaintiff testified that Searles cited her inability to work full-time and properly accommodate Security First’s clients. ECF No. 35 Ex. 2 at 177. Searles also noted that he had personal experience with a back injury requiring surgery and thought that Plaintiff should not be working. ECF No. 41 Ex. B at 29.

Plaintiff was advised that, should her medical condition allow her to return to work full-time, her position would be available for her to return until the end of March 2008. ECF No. 35 Ex. 2 at 177-78. Although Security First did not continue to pay Plaintiffs wages, it did maintain her premiums to Standard Insurance for Plaintiffs LTD coverage. Goodrich testified that Plaintiffs position had not been filled by a new employee, but her customers were spread out amongst the remaining representatives in the commercial lines department. ECF No. 41 Ex. B at 27. 5.

Confusion over being unemployed but eligible over LTD On March 15, 2008, Plaintiffs husband received an email from Plaintiffs former work email address_ stating that Plaintiff “is on permanent disability as of February 8, 2008” and to contact the agency for any insurance needs.

The email was signed by “Security First Insurance.” As a result of what Plaintiff believed was an inconsistency between her employment being terminated and the email stating she remained entitled to the disability benefit, Plaintiff wrote a joint letter to Standard Insurance and Security First requesting that they resolve whether she was eligible for LTD or had been terminated. She did not receive a response. 6.

Plaintiff is considered disabled Plaintiff did not request that she be able to return to her full-time duties, nor did she make any representation to Security First that she could return to work full-time. ECF No. 35 Ex. 2 at 182-83. Dr. Beasecker considers Plaintiff to be totally and permanently disabled and did not extend Plaintiffs temporary work restrictions beyond the initial 6-8 week trial period. ECF No. 35 Ex. 13 at 27. Based on Plaintiffs inability to work, she was awarded Social Security Disability benefits in May of 2010. ECF No. 35 Ex. 23.

The Social Security Administration found that Plaintiff was disabled retroactive to her injury in September of 2007. ECF No. 35 Ex. 23. Plaintiff did not provide Standard Insurance with documentation that would otherwise evidence that she was unable to work in any capacity despite Standard Insurance notifying her that her LTD would be terminated based on their belief that she could perform the requirements of her job while self-managing her pain.

Plaintiff later attempted to work for a brief period of time from July 7, 2008 to August 7, 2008 at another company, Morley, in a clerical setting and did so without requesting an ergonomic assessment. ECF No. 35 Ex. 2 at 233. Plaintiff never contacted Security First requesting reinstatement to her former position. ECF No. 35 Ex. 2 at 235. Plaintiff stopped working for Morley when she was hospitalized for pneumonia and exhaustion and indicated that trying to return to work was an unsuccessful endeavor. ECF No. 35 Ex. 2 at 236.

Other than the one month period referenced above, Plaintiff has been continuously off work for over three years as a result of her disability. B. Plaintiffs ERISA Administrative Record 1. Plaintiffs Short-Term Disability Claim As a benefit of her employment with Security First, Plaintiff participated in its employee welfare benefit plan (the “Plan”), which provides long-term disability insurance to eligible employees. Standard is the Plan’s claims administrator and insurer. Plaintiff awoke with lower back pain with no apparent cause on September 18, 2007.

Less than two weeks later, Plaintiff filed a claim for short-term disability benefits, claiming her back pain prevented her from working. Plaintiffs application was accompanied by an “Attending Physician’s Statement” from Plaintiffs primary care physician Scott Beaseeker, M.D., which stated that he had diagnosed Plaintiff with sciatica and a “good” prognosis for improvement. Admin. Rec. 00492. Sciatica is a short-term symptom of another medical condition, and is a description of pain, numbness or tingling radiating in the leg with an anticipated recovery of approximately one month.

Plaintiffs application was approved on October 16, 2007, and subject to documentation being provided in the event the estimated return to work date would extend beyond October 23, 2007. Admin. Rec. 0093-95. Standard’s letter informed Plaintiff that her benefits could continue for a maximum benefit period of 76 days under the short term disability policy. Standard provided Plaintiff an attending physician’s form entitled “Or-tho/Neuro Questionnaire” to be completed in the event her claim needed to be extended.

At various times Plaintiffs physicians provided Standard with diagnosis of a condition of disability which included but were not limited to sciatica, radiculopathy, and lumber radiculopathy. At all times, the short-term disability claim was considered satisfactorily presented and benefits paid pursuant to the definition in the policy- In a November 15, 2007 medical questionnaire, Dr. Beaseeker opined that he expected Plaintiff to turn to full-time work by January 28, 2008.

Plaintiffs physical therapy records reflect that between October 15, 2007, and November 1, 2007, she increased her range of motion in her back, increased her ability to sit and stand, and significantly decreased muscle spasms. Dr. Beaseeker released Plaintiff to return to part-time work as of December 18, 2007 for six to eight weeks, and stated that the six to eight week period was for Plaintiffs gradual recovery to full-time work. Dr. Beaseeker limited Plaintiff to being able to sit for four hours, stand for one hour, and walk for one hour. Admin. Rec. 00470.

Plaintiff was also restricted to lifting and carrying up to twenty pounds. There was no limitation placed on Plaintiffs ability to repetitively grasp, push or pull, or perform fine manipulation such as typing. Plaintiffs short-term disability claim expired on December 24, 2007, and converted to a long-term disability (“LTD”) claim for purposes of further administration of benefits. Based on Dr. Beasecker’s assessment, Standard approved Plaintiffs LTD claim through February 11, 2008 — Plaintiffs expected return to full-time work based on Dr. Beasecker’s release for part-time work.

The letter notifying Plaintiff that her benefits were approved also included a “Musculoskeletal Attending Physician’s Form” enclosure and advised that the form needed to be completed and returned if Plaintiff was unable to return to full-time work after February 11, 2008. Standard calculated Plaintiffs pre-disability actual earnings at $3,246.26 monthly and Plaintiffs “80% PDE” (monthly Pre-disability Earnings) at $2,597.01 per month. Admin. Rec. 00814. Standard also requested a job description from Security First, which Security First provided. Admin. Rec. 00804-807.

At that juncture, Plaintiffs earnings were less than that which would qualify her for disability under the “unable to earn” definition in the policy. 2. Plaintiffs Long-Term Disability Claim On February 8, 2008, Standard was notified by both Plaintiff and Security First that Plaintiffs employment had been terminated. Standard’s file reflects it received the following incoming call from Karen at Security First: “regarding what to do if clmnt is not able to work full time ...” The entry was made by Heather Smith at Standard. Admin. Rec. 00728.

A note from Diane Crawford dated February 8, 2008 at 9:39 a.m. states the following: Voice mail from Karen Goodrich 810.732.5800. Ms. White will no longer be working part time appears to be in severe pain. They need to have someone who can do the job full time. Diane. I spoke w/ Ms. White. She wanted to let me know she had been fired today. She stated she had severe pain on Wednesday and had to stay home yesterday. 10 minutes b/4 she was to go home today, they called her into the office and terminated her. She was really blindsided. She has her second injection on Monday 2/11/2008 and will see Dr. on 2/13/2008.

I tried to explain that we would need medical information to support she was unable to perform sedentary level work activities. If she is able to work full time, it does not matter that she doesn’t have a job to return to. Ms. White was tearful and didn’t understand. Diane Admin. Rec. 00729. Security First also noted in an internal memorandum that it gave Plaintiff until the end of March 2008 to return to work full-time, but Plaintiff responded that she felt she was being let go. On February 12, 2008, Plaintiff had Dr.

Beasecker fax the Physician’s ReportMusculoskeletal that had been included in Standard’s January 29, 2008, correspondence to Plaintiff. Admin. Rec. 00460-462. The musculoskeletal report portion completed by Plaintiff indicated she was prevented from working full time and had returned to work four hours per day. The portion completed by Dr. Beasecker indicated he had last seen Plaintiff on February 8, 2008. Dr. Beasecker noted Plaintiffs primary diagnosis as sciatica, and that there were no assistive devices, work-site medications or other suggestions to facilitate a return to work.

He indicated that Plaintiff could frequently sit, lift, carry, push, or pull up to ten pounds and that she could occasionally stand, walk, balance, reach above shoulder level, and lift, carry, push or pull up to twenty pounds. He also stated that it was unknown when Plaintiff could be expected to return to work. Plaintiffs functional capacities remained the same as in Dr. Beasecker’s prior questionnaire when he opined that she would be able to return to full-time work in six to eight weeks.

Standard consulted a vocational specialist, Jan Cottrell, M.A., C.D.M.S., who prepared a Detailed Job Specialty Report identifying the duties and physical demands of an “insurance clerk; insurance customer service representative,” which Cottrell opined matched Plaintiffs Own Occupation based on the Department of Labor’s Dictionary of Occupational Titles. Standard determined that Plaintiffs functional capacities, as assessed by Dr. Beasecker, satisfied the functional demands of her Own Occupation as an insurance customer service representative.

On February 20, 2008, Crawford advised Plaintiff that Standard would not change it’s decision to close Plaintiffs LTD claim as of February 11, 2008, the estimated date when Plaintiff could return to full-time work. The letter stated that based on the limitations and restrictions provided by Dr. Beasecker, Plaintiff was able to perform sedentary work activities as required by her Own Occupation. a. Plaintiff requests review of Standard’s decision to deny LTD benefits On March 26, 2008, Plaintiff requested that Standard review its decision to close her longterm disability claim.

She submitted a “Physician’s Report-Muscoloskeletal” completed by her pain management physician, Dr. Michael Papenfuse, D.O. The form was dated March 17, 2008. Dr. Papenfuse also opined that Plaintiff could “frequently” sit, and “occasionally” lift, carry, push, or pull up to ten pounds. He also opined that Plaintiff could continuously sit for forty-five minutes, continuously stand for twenty minutes, and continuously walk for ten minutes. Dr. Papenfuse further noted that Plaintiff could return to work if she were provided an ergonomic assessment for a “sit stand workstation.” Admin. Rec. 00457.

Plaintiff had also previously sent letters to Standard disagreeing with their decision to close her LTD file as of February 11, 2008, advising Standard that she had arranged for submission of medical records directly from her numerous providers, and noting that she had not been given specific directions as to what documentation Standard required in order to document that Plaintiff was unable to work full-time in her occupation. On April 17, 2008, Standard received Plaintiffs medical records from Dr. Papenfuse, including: (1) a January 23, 2008, hip x-ray, in which Plaintiffs hips were found to be normal (Admin.

Rec. 00345); (2) epidural injection reports called “operative reports” (Admin. Rec. 00325-330, 00349-354);

(3) Dr. Papenfuse’s physical examination records dated January 22, 2008, March 12, 2008, March 26, 2008, and April 9, 2008, Admin. Rec. 00332-339; and (4) a physical therapist’s functional capabilities assessment dated March 6, 2008. Admin. Rec. 00346-348. Dr. Papenfuse’s January 22, 2008, physical examination noted Plaintiffs subjective complaints of pain in the right thigh, and numbness and tingling in both lower extremities. Plaintiff complained that her back pain worsened when lying down or sitting in a straight-back chair, but stated that she felt relief when leaning forward or reclining while seated. Admin.

Rec. 00340. Dr. Papenfuse opined that Plaintiffs left lower extremity pain demonstrated an L4 pattern. Admin. Rec. 00343. Dr. Papenfuse diagnosed Plaintiff with chronic low back pain secondary to a herniated nucleus pulposus at L5-S1 and disc bulge at L4-L5 based on a September 25, 2007, MRI of her lumbar spine. Admin. Rec. 00343. Dr. Papenfuse recommended epidural injection nerve blocks at the L4 area of the lumbar spine. Dr. Papenfuse also recommended that Plaintiff quit smoking, but Plaintiff “stated she is not ready to consider that.” Admin. Rec. 00343. On March 6, 2008, Dr.

Papenfuse referred Plaintiff to Daniel Peterson, a physical therapist, to assess Plaintiffs functional capacities. Mr. Peterson noted that Plaintiff can perform “static sitting” without shifting positions for 45 minutes at a time, or less than six hours of static sitting cumulatively in an eight-hour work day, and standing or walking less than three hours cumulatively in an eight-hour work day. Admin. Rec. 00347. Mr.

Peterson noted that Plaintiff demonstrated the ability to frequently reach forward, reach above her shoulder, or perform gross manipulation (handling activities), and constantly perform fine manipulation (fingering activities). Plaintiff also demonstrated the ability to occasionally bend, squat, kneel, crawl, or climb, but Mr. Peterson advised that these activities should be avoided. Admin. Rec. 00347-348. At Plaintiffs next examination on March 12, 2008, Richard Lingenfelter, M.D., reported 70% improvement of Plaintiffs left leg symptoms without any pain, and 20% improvement of her lower back symptoms. Dr.

Lingenfelter reduced her pain medication by discontinuing Vicoprofen that had previously been prescribed by Dr. Beasecker and substituting Avinza, “a longer-acting low-dose narcotic.” Admin. Rec. 00337. During a March 26, 2008, examination, Dr. Papenfuse noted that Plaintiffs pain was 50% improved with Avinza. He prescribed Lyrica to decrease her symptoms of lower extremity tingling. Admin. Rec. 00335. At the April 9, 2008, examination, Dr. Papenfuse noted that Lyrica reduced Plaintiffs tingling sensation and only “slight tingling” remained. Dr.

Papenfuse opined that overall, Plaintiffs symptoms were 60-65% improved. Plaintiffs only reported side-effect from her new medications, Lyrica and Avinza, was constipation. Admin. Rec. 00332. Standard also received Dr. Beasecker’s medical records for Plaintiff on April 11, 2008. Admin. Rec. 00411-444. Dr. Beasecker diagnosed Plaintiff with sciatica and lumbar radiculopathy. Admin. Rec. 00415, 00418, 00421, 00425, 00428. These records reflect that after Dr. Beasecker referred Plaintiff to Dr. Papenfuse, a pain management physician, he became the primary treating physician for Plaintiffs back condition. Dr.

Beasecker’s records reflect that Plaintiff also was referred to a neurologist, Mark Jones, M.D., who examined her on December 10, 2007 and March 17, 2008. On December 10, 2007, Dr. Jones opined that Plaintiffs September 25, 2007 MRI showed a “bulging to small disc herniation on the right side at L5-S1” but noted that it did not compress the nerve root, contraindicating Dr. Beasecker’s diagnosis of lumbar radiculopathy. Dr. Jones noted only “mild dessication of the disc” and that the disc space heights “are well maintained.” Dr.

Jones opined that Plaintiff “seems to be making significant improvement” and “should be able to return to work in the next couple of weeks.” Dr. Jones recommended that Plaintiff cease smoking “to maintain her disc health” and begin an exercise program consisting of swimming. Admin. Rec. 00441. At the March 17, 2008 follow-up exam, Dr. Jones opined that Plaintiffs straight leg raising — a test for spinal nerve pain— was negative and she demonstrated “full strength.” Dr.

Jones noted that Plaintiffs “leg pain ha[d] remitted” following the epidural nerve blocks, and she had “some tingling in the front of the thigh and over the shin” and some pain “in the small of her back.” Dr. Jones reiterated his prior recommendation that Plaintiff begin an exercise program such as swimming, but Plaintiff resisted the recommendation. Dr. Jones explained: We had talked about getting her into an exercise program such as swimming the last time she was here. She says she [has] no access to a pool. She lives in Birch Run. We talked about that a bit. She then said well it is 20 minutes away.

I told her that she needs to do some sort of aerobic type fitness to get over her current constellation of symptoms and [I] think it became clear to her as we talked that she does have access and that she just needs to put forth a little effort to go out and [do] the program. Dr. Jones concluded, “I think that this is a non-surgical issue for her and should get better with [a] tincture of time and exercises to strengthen her back and belly and good back hygiene.” Admin. Rec. 00433. On April 8, 2008, Security First Human Resources Director Karen Goodrich contacted Crawford to discuss Plaintiffs claim.

On April 11, 2008, Plaintiff wrote a joint letter to Standard, Security First, and the Michigan Unemployment agency, requesting that they confer regarding the information in her respective files. On April 23, 2008, a medical consultant, Dr. Hans Carlson, reviewed Plaintiffs medical record at Standard’s request. The consultant report indicates that Dr. Carlson reviewed the available medical records, including Dr. Papenfuse’s March 17, 2008 musculoskeletal report. Dr. Carlson did not request an independent medical exam or contact any of Plaintiffs physicians in coming to his conclusions. Dr.

Carlson concluded that Plaintiffs condition was lower back pain with lumbar spine degenerative changes without lumbar sacral radiculopathy and that her reasonable limitations and restrictions would limit her to sedentary level work with no continuous bending, stooping, squatting, twisting or lifting activities. Admin. Rec. 00314-15. Standard’s file does not identify Dr. Carlson as a vocational expert or as being familiar with Plaintiffs job history description and his conclusions were not accompanied by any data in the file to reflect what he had been provided.

On May 2, 2008 Crawford wrote an internal memo to the Standard file that stated in pertinent part: “[Plaintiffs] LTD claim closed with our payment through 2/11/2008 as her doctor indicated she could return to work full time 6-8 weeks after return to work part-time.” Admin. Rec. 00499.

On May 9, 2008 Crawford wrote to Plaintiff that “We have completed our reconsideration of the decision to close your LTD claim with our payment through February 11, 2008 ... it continues to be our position that your medical records do not provide sufficient documentation of one or more medical conditions with such severity as to prevent you from performing your own occupation after February 11, 2008. Therefore your LTD claim will remain closed with our payment due February 11,2008 ...” Admin. Rec. 00665-71.

The letter did not discuss a partial disability claim, Plaintiffs limitations from chronic pain medication, did not provide an analysis that the Plan permits periods of “Temporary Recovery” without prejudicing the claim, nor did it enclose or quote a copy of Dr. Carlson’s memorandum. It did, however, inform Plaintiff of her rights under the Plan and ERISA to request an administrative appeal. Id. b. Plaintiff requests a second review of the decision to deny LTD benefits Plaintiff did not follow the Plan’s appeal procedures but filed a complaint with the Department of Insurance on June 4, 2008.

On May 23, 2008, Standard received a faxed a letter from Dr. Beasecker, which stated that he believed Standard had misinterpreted Dr. Papenfuse’s opinion that Plaintiff could return to work after an ergonomic assessment for a sit-stand work station. The letter stated: “This is in response to a communication to Ms. White dated May 9, 2008 ... [A]ll attempts to control her pain and alleviate the symptoms have been unsuccessful to date ... [Y]ou note the postural tolerance limitation testing and functionable evaluation done by Dr.

Papenfuse and our interpreting this as lack of disability since he felt that, with some ergonomical adjustment that she may be able to accommodate some part time work. These ergonomic adjustments have not been done and, as you may know, Ms. White already attempted to work part time and this was unsuccessful ... [Currently the fact that she is requiring the type of pain medication that she takes, in my opinion, makes her totally disabled.

These are medications that cause impairment of cognitive ability and functionable ability to do her job and she needs to be off sedating/narcotic pain medications before she is going to able to do her work successfully.” Admin. Rec. 01030. Dr. Beasecker’s opinion appears to be in conflict with Dr. Papenfnse’s opinion, as he opined at Plaintiffs April 9, 2008 examination that her only reported side-effect from her medication was constipation. Admin. Rec. 00332. On June 3, 2008, Standard sought a second medical review from Dr. Mark Shih, M.D.

The request presented five questions including what his conclusion as to Plaintiffs diagnosis, whether the findings support limitations and restrictions from full-time sedentary work beyond February 11, 2008, what reasonable limitations or restrictions would be, whether Dr. Shih agrees with Dr. Papenfuses’s March 17, 2008 assessment and whether he agrees with Dr. Beaseker’s January 4, 2008 assessment. Dr. Shih reviewed Plaintiffs medical records, including the February 19, 2008 musckuloskeletal report and Dr. Beasecker’s March 22, 2008 letter noting that he felt Plaintiff was disabled from her current job. Dr.

Shih nonetheless concluded that Plaintiffs diagnosis was chronic low back pain with lumbar degenerative disc disease, and that any diagnosis of sciatica or radiculopathy was unsupported. Admin. Rec. 00292-93. He also agreed with Dr. Papenfuse’s assessment that Plaintiffs clinical presentation would allow her to lifl/earry, and push/pull up to ten pounds, to sit frequently and to stand/walk occasionally. Admin. Rec. 00290-91. c.

Standard denies the LTD claim again On June 24, 2008, Standard’s administrative review office denied reconsideration of Plaintiffs request for reinstatement of LTD benefits stating in part “you reported in your June 4, 2008 letter that you were terminated for missing work ... because you were not meeting the standards of performance does not show proof of loss of disability. It also does not show your inability to perform your own occupation for another employer in the national economy ... I can assure you that we have given all your doctor’s opinions full and thoughtful consideration.” Admin. Rec. 00649-56.

Standard also notified Plaintiff that she had exhausted her administrative remedies under ERISA and the Plan. Shortly thereafter, Dr. Papenfuse sent a letter to Standard that stated: “Your denial stated Dr. Papenfuse had recommended an ergonomic assessment for a sit and stand workstation and that he indicated [Plaintiff] could frequently sit, occasionally sit/stand and occasionally lift, carry and push-pull up to ten pounds. This is not an accurate understanding of this recommendation....

Without having an ergonomic assessment and having an ergonomic workstation to accommodate her restrictions, she would not be able to perform her job. Therefore, where it stated an ergonomic or a workstation would be helpful it is incorrect. This is something that would need to be done to accommodate her.” Admin. Rec. 00289. Standard considered the letter and concluded that these issues had been addressed in the June 24, 2008, letter sent to Plaintiff, and that the content of the letter did not change their earlier determination to deny Plaintiffs claim. 3.

Plaintiff seeks reconsideration of her LTD claim On December 18, 2008 Plaintiff requested, through counsel, a complete copy of her claim file. Admin. Rec. 00771. Plaintiffs counsel also provided additional and supplemental medical records to Standard from August through October 2008 reflecting continuation of Plaintiffs condition. Admin. Rec. 588. On February 9, 2009, more than seven months after exhaustion of Plaintiffs administrative remedies, Plaintiffs attorney requested that Standard reconsider its decision to close her claim. Admin. Rec. 00588-589.

Although the Plan provides for only one administrative appeal and Plaintiffs request was submitted more than seven months after conclusion of that appellate review, Standard agreed to conduct an additional review of its decision to close Plaintiffs claim. Admin. Rec. 00587. Standard again consulted Dr. Shih to evaluate the new medical information provided by Plaintiff, including reports of epidural injections from August 19, 2008, September 4, 2008, and September 18, 2008, and a discogram dated October 14, 2008, Admin. Rec. 00253-286, as well as the letter from Dr. Papenfuse received on June 26, 2008. Dr.

Shih reported that the medical evidence reflected Plaintiff had an annular tear localized to the L4-L5 level. Dr. Shih determined that it would be reasonable for Plaintiff to alternate between sitting and standing to alleviate discomfort. Dr. Shih opined, consistent with Dr. Papenfuse, that Plaintiff was capable of 10 pounds of occasional lifting, carrying, pushing and pulling throughout the day, but would require accommodation in a sit-stand work station. Dr. Shih concluded that Plaintiff had the functional capacity for full-time sedentary work. Admin. Rec. 00244-245.

On May 12, 2009, Standard informed Plaintiff of its decision to uphold its determination to close Plaintiffs claim as of February 11, 2008. (Admin. Rec. 00576-582). Standard detailed the medical and vocational evidence considered and the reasons for Standard’s determination. Standard again advised Plaintiff that her administrative remedies had been exhausted. On December 9, 2009, nearly two years after Plaintiffs claim closed and coverage terminated, her attorney submitted a “new and separate claim” for disability benefits beginning November 24, 2009. Admin. Rec. 00537-538.

On January 8, 2010, Standard notified Plaintiff that because she ceased to satisfy the Plan’s definition of disability as of February 11, 2008 and was no longer employed by Security First, her insurance ended and she was no longer a covered Member under the Plan. Admin. Rec. 00507-508. The Plan provision for “When Your Insurance Ends” states that “insurance ends automatically” on “the date your employment terminates.” Admin. Rec. 00617. 4. Standard’s Policy The Plan provides a maximum 24-month LTD benefit period if the participant satisfies the “Own Occupation” definition of disability.

The policy provides that the insured is disabled if “as a result of physical disease, injury, pregnancy or mental disorder” the insured is “unable to perform with reasonable continuity the Material Duties of [her] Own Occupation.” The policy further provides that in the case of Partial Disability, the loss must be of at least 20% in Pre-Disability Earnings when working in [her] Own Occupation. Admin. Rec. 604.

The definition of “Own Occupation” is: “[A]ny employment, business, trade, profession, calling or vocation that involves Material Duties of the same general character as your regular and ordinary employment with the Employer ... Material Duties mean the essential task, functions and operations, and the skills, abilities, knowledge, training and experience generally required by employers from those engaged in a particular occupation.” The Policy includes a “Return to Work Incentive” and specifies that your “Own Occupation” is not limited to your job with your employer. Admin. Rec. 00886, 00605.

The Plan also provides a “Reasonable Accommodation Expense Benefit” which provides that if the participant is disabled and returns to work in any occupation for any employer, “as a result of a reasonable accommodation made by such employer, [Standard] will pay that employer a Reasonable Accommodation Benefit.” Additional pertinent

definitions include: PRE-DISABILITY EARNINGS Your Predisability Earnings will be based on your earnings in effect on your last full day of Active Work unless a different date applies (see the Coverage Features). Any subsequent change in your earnings will not affect your Predisability Earnings. Admin. Rec. 00606. TEMPORARY RECOVERY You may temporarily recover from your Disability, and then become Disabled again from the same cause or causes, without having to serve a new Benefit Waiting Period. Temporary Recovery means you cease to be Disabled for no longer than the applicable Allowable period. A.

Allowable Periods 2. During the Maximum Benefit Period: 180 days for each period of recovery. B. Effect of Temporary Recovery If your Temporary Recovery does not exceed the Allowable Periods, 1 through 5 below will apply. 1. The Predisability Earnings used to determine your LTD Benefit will not change. 2. The period of Temporary Recovery will not count toward your Benefit Waiting Period, your Maximum Benefit Period or your Own Occupation Period. 3. No LTD benefits will be payable for the period of Temporary Recovery. 5.

Except as stated above, the provisions of the Group Policy will be applied as if there had been no interruption of your Disability. Admin. Rec. 00606. II. Plaintiffs Claims Against Security First A.

Summary Judgment Standard of Review A motion for

summary judgment should be granted if the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party asserting that a fact cannot be proven or is genuinely disputed must support the assertion by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). The party seeking

summary judgment has the initial burden of informing the Court of the basis for its motion, and identifying where to look in the record for relevant facts “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the opposing party who must “set out specific facts showing a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the opposing party fails to raise genuine issues of fact and the record indicates the moving party is entitled to judgment as a matter of law, the court shall grant

summary judgment. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The court must view the evidence and draw all reasonable inferences in favor of the nonmoving party and determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. The party opposing the motion may not “rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact” but must make an affirmative showing with proper evidence in order to defeat the motion.

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for

summary judgment must designate specific facts in affidavits, depositions, or other factual material showing “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The application of Rule 56 extends to employment-related cases, and courts have granted

summary judgment for employers in disability discrimination and retaliation cases. See e.g. Walsh v. United Parcel Serv., 201 F.3d 718, 724 (6th Cir.2000) (affirming

summary judgment on a disability claim); Canitia v. Yellow Freight System, Inc., 903 F.2d 1064 (6th Cir.1990) (affirming

summary judgment on a retaliation claim). As an initial matter, Security First notes that Plaintiff has filed inconsistent, competing claims against Security First and Standard Insurance. In her claims against Security First, Plaintiff represents that she is capable of working, albeit with her view of what a reasonable accommodation is. Security First contends that the record evidence of the case indicates otherwise. On the other hand, Plaintiff argues that Standard Insurance owes her LTD benefits because her disability and inability to work has continued beyond the LTD cutoff date of February 11, 2008.

Plaintiff has been deemed fully and totally disabled by the Social Security Administration and, therefore, is unable to work in any capacity. Since Plaintiff is asserting that she is a disabled person, Security First contends that she is estopped from making an ADA claim. Butler v. Village of Round Lake Police Dept., 585 F.3d 1020 (7th Cir.2009) (“[A] person who applied for disability benefits must live with the factual representations made to obtain them, and if these show inability to do the job then an ADA claim may be rejected without further inquiry.”). Security First argues that it is entitled to

summary judgment because the undisputed evidence suggests that Plaintiff has pursued this claim because she is permanently disabled. Plaintiff responds that she preferred to retain her employment, even if that meant only limited partial disability benefits and is thus not presenting opposite theories as was the case in Butler. Even though she represented to her disability insurer that she was disabled, the policy encourages a return to work and a return to work does not deprive one of disability insurance eligibility so she could have continued receiving partial benefits.

An application for disability benefits, partial or total, she contends does not absolve an employer of its duty to reasonably accommodate an employee who desires to perform the work with appropriate and reasonable accommodation. Plaintiff explains that she met the definition of disability under Standard Insurance’s policy designed to pay total or partial disability benefits and also permit her a gradual return to work with reasonable accommodation. Plaintiff contends that neither Defendant complied with its legal obligations to her in this process, which is required to be “interactive.” ECF No. 41 Exs. J and N.

B. Discussion 1. Plaintiffs Claims of ADA Discrimination Plaintiff contends that she was terminated due to her alleged disability relating to her back injury of September of 2007. To establish a prima facie case of disability discrimination under the ADA, a plaintiff must prove: (1) she is an individual with a disability; (2) she is otherwise qualified to perform the job requirements, with or without reasonable accommodation; and (3) she was discharged solely on account of her disability. Walsh, 201 F.3d at 724; see also Monette v.

Electronic Data Systems Corp., 90 F.3d 1173, 1183-84 (6th Cir.1996) (“The disabled individual bears the initial burden of proposing an accommodation and showing that that accommodation is objectively reasonable ... [and] the disabled individual must prove that he or she would in fact be qualified for the job if the employer were to adopt the proposed accommodation.”). a.

Plaintiffs Ability to Perform the Essential Functions of her Position Security First contends that Plaintiff cannot fulfill the second prong of her prima facie burden of demonstrating that she is otherwise qualified to perform the job requirements, with or without reasonable accommodation. The ADA’s protections extend only to an employee who is a qualified individual with a disability — i.e. “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position such individual holds or desires.” 42 U.S.C. § 12112.

Security First asserts that Plaintiff does not meet this definition, as she was admittedly unable to meet the requirements of her full-time employment as a CSA. Plaintiff represented in her disability papers that her disabling event occurred in September 2007. ECF No. 32 Ex. 23. After the mandatory five month waiting period, Plaintiff became eligible for Social Security Disability in March of 2008, just weeks after her termination of February 8, 2008. Since being approved for disability benefits from the SSA, Plaintiff has been unable to work in any capacity.

Thus, Plaintiff is unable to establish that she was able to fulfill the essential functions of her position. Townley v. Blue Cross and Blue Shield of Mich., 254 F.Supp.2d 661, 665-66 (E.D.Mich.2003) (plaintiffs representation in her disability applications and during her deposition that she was unable to work negated any assertion that she was a qualified individual with a disability). Accordingly, Plaintiff is not a qualified individual with a disability.

Plaintiff contends that the question at issue is whether an employee is a “qualified individual with a disability” must be considered in conjunction with the question of whether that individual could perform the essential functions of the position with a reasonable accommodation, including elimination of an essential job function. Plaintiff confusingly states that if the answer to this question is “yes” then she is a qualified individual with a disability entitled to protection under the ADA and

summary judgment would be improper. Moreover, Plaintiff submits that Security First has not established that her full-time presence was an essential function of her position. The only written complaint Plaintiff is aware of is a January 15, 2008 email from Ralph Clifton which stated that if Plaintiffs part-time status were to be continued, the company would need to consider reassigning her accounts to another CSA. Plaintiff contends that this communication demonstrates that there was not any problem with her part-time status accommodation.

Instead, Plaintiff characterizes her position as akin to “flexible management functions” that did not require her to be present full-time to respond to her client’s phone calls. Security First, however, is entitled to

summary judgment on Plaintiffs ADA claim. The record evidence demonstrates that being a full-time employee is an essential function of the CSA position at Security First. The job description explains that it is a full-time position. Plaintiff acknowledged at her deposition that she was unable to complete her work during a four-hour day, and other employees were then assigned on a rotating basis to cover her accounts for the other four hours of the day resulting in those employees working overtime to address her assigned accounts.

Plaintiff also acknowledged, and Security First reiterates, that the CSA position is a customer-service focused position that requires being available to customers when they call to respond to or resolve the customer’s request. There has been no evidence presented that Plaintiffs position was a “flexible” position. This is further supported by the fact that Security First recognized the need to reassign all of Plaintiffs accounts to another CSA if she were to continue working part-time. Security First’s motion for

summary judgment on this claim will be granted. b. Reasonable Accommodation To satisfy the second element of the prima facie standard, an employee “must establish that a ‘reasonable’ accommodation is possible, and bears a traditional burden of proof that she is qualified for the position with such reasonable accommodation.” Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1186 n. 12 (6th Cir.1996). The employee’s initial burden of articulating a reasonable accommodation need not be onerous.

For the purposes of a prima facie showing, the plaintiff must merely “suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir.1995). “The regulations define reasonable accommodation only by example.” Id. at 136. The examples include “[j]ob restructuring, part-time or modified work schedules, ... and other similar actions.” 34 C.F.R. § 104.12(b)(2).

If the employee establishes that a reasonable accommodation is possible, then the employer bears the burden of proving that the accommodation is unreasonable and imposes an “undue hardship” on the employer. Monette, 90 F.3d at 1186 n. 12. When considering undue hardship, the ADA requires the courts to consider the following factors: (

i) the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity. 42 U.S.C. § 12111(10)(B).

To prove undue hardship, the employer has to show “both that the hardship caused by the proposed accommodation would be undue in light of the enumerated factors, and that the proposed accommodation is unreasonable and need not be made.” Borkowski, 63 F.3d at 139. The employer, however, does not need to prove that the employee was unqualified. Instead, the employee must bear the burden throughout the litigation of proving that she is qualified. Cehrs v. Northeast Ohio Alheimers Center, 155 F.3d 775, 782 (6th Cir.1998).

Security First asserts that there were no reasonable accommodations which could have rendered Plaintiff qualified for the full-time sedentary work of a CSA. Plaintiffs physician, Dr. Beasecker initially authorized Plaintiff to return to work part-time for four hours a day for six to eight weeks. ECF No. 32 Ex. 12. Dr. Beasecker did not extend Plaintiffs part-time restriction from the initial six to eight week period, but concluded that Plaintiff was unable to work in any capacity due to her inability to manage the pain associated with her condition. ECF No. 32 Ex. 13 at 19, 30. Dr.

Beasecker’s opinion is consistent with Plaintiffs subjective complaints of pain that otherwise prevented her from returning to work full-time in the time period before and immediately after her termination. ECF No. 32 Ex. 2 at 182-83. Security First contends that holding Plaintiffs position open for an indefinite period of time would be an objectively unreasonable accommodation under the ADA.

See Walsh, 201 F.3d at 727 (“[W]hen the requested accommodation has no reasonable prospect of allowing the individual to work in the identifiable future, it is objectively not an accommodation that the employer should be required to provide”). Security First provided Plaintiff an extended leave period from September 17, 2007 until her return to work on a part-time basis on December 17, 2007. She was allowed to work on a part-time basis until her termination of February 8, 2008. After her termination, Plaintiffs position was maintained for several weeks in the event she was able to return to full-time work.

Myers v. Hose, 50 F.3d 278, 283 (4th Cir.1995) (reasonable accommodation does not require an employer to wait indefinitely for the correction of a medical condition). Plaintiff did not request full-time reinstatement during this period. Alternatively, Security First contends that indefinitely meeting Plaintiffs part-time work restriction is likewise an objectively unreasonable accommodation under the ADA. As outlined in her job duties and responsibilities, Plaintiffs position as a CSA was on a full-time basis only. ECF No. 32 Ex. 3.

The decision to accommodate Plaintiffs restrictions on a temporary basis until after her scheduled doctor’s appointment in February of 2008 was a decision of first impression for the management at Security First but indefinite, part-time employment could not have been accommodated due to the nature of Plaintiffs position. Further, Plaintiff did not, on any occasion, request an extension of her temporary part-time accommodation, attempt to work on a full-time basis, or request reinstatement of her position after her employment was terminated. ECF No. 32 Ex. 2 at 182-83.

Plaintiff has acknowledged that working as a part-time CSA was detrimental to the Security First’s customers as well as for her co-workers covering her duties. ECF No. 32 Ex. 2 at 163-64. Plaintiff, in seeking to permanently have part-time employment, effectively requested that an essential function of her position be eliminated or, at the very least, requested that she be allowed to perform only some of her CSA responsibilities. Security First argues that such an accommodation and alteration of the full-time CSA position is not reasonable as a matter of law. See, e.g., Denman v.

Davey Tree Expert Co., 266 Fed.Appx. 377, 380 (6th Cir.2007) (“A job function is essential if its removal would fundamentally alter the position ... The inability to attend work can ‘fundamentally alter’ a position, which requires attendance to perform tasks”); Lauby v. Swanson, No. 96-3301, 1997 WL 561334, *4-5 (6th Cir. Sept. 9, 1997) (request for modified part-time work, where no other individuals worked part-time in employee’s position, and where only some of the duties would be performed some of the time, was not a reasonable accommodation).

Based on the evidence that has been submitted, Security First contends that it is clear that no reasonable accommodation existed as of February 8, 2008 that would have allowed Plaintiff to remain employed, and Security First was not required to create a new part-time position where none previously existed. Kleiber v. Honda of America Mfg., Inc., 485 F.3d 862, 869 (6th Cir.2007) (employer riot required to create a new position to accommodate disabled employee).

Plaintiff stated at her deposition that an ergonomic assessment was recommended at her March 6, 2008, examination at Matrix Pain Management and she sent notification of the recommendation for an ergonomic workstation to Security First on April 11, 2008-two month after her employment was terminated. ECF No. 32 Ex. 2 at 151-52; Ex. 25. Plaintiff did not request an ergonomic assessment prior to her termination, ECF No. 32 Ex. 2 at 149-50, and the employee bears the responsibility to request the accommodation that they deem reasonable in nature. Gantt v.

Wilson Sporting Goods Co., 143 F.3d 1042, 1046-47 (6th Cir.1998). Further, the employer is not required to speculate as to the nature and extent of an alleged disability of their employee or their need or desire for an accommodation. Id. Even assuming the ergonomic assessment was something that could have been provided before Plaintiffs termination, Plaintiff was unsure that she would be able to perform her job responsibilities even with an ergonomic workstation. ECF No. 32 Ex. 2 at 198, 204. Security First believes that Plaintiff was provided with all reasonably requested accommodations.

She was authorized to purchase a footrest for her workstation with full reimbursement from Security First. She was granted leave from September to December 2007. She was then given the opportunity to work on a temporary, part-time basis for a period of six to eight weeks based on the representation that she would be working toward full-time employment. Dr. Beasecker approved Plaintiffs return to work on a temporary basis, as well as be approved for LTD with a cut-off date of February 11, 2008. ECF No. 32 Ex. 15.

Plaintiff and her physicians did not provide any additional documentation beyond the initial restriction period that would have otherwise extended her temporary part-time restriction or rendered her fully restricted from working. Security First submits that it was Plaintiffs own delay in submitting the appropriate paperwork to Standard Insurance which resulted in her LTD claim to be denied beyond February 11, 2008, and subsequently closed. Plaintiff contends that, at a minimum, Security First was required to discuss an additional period of leave for her before terminating her employment. Cehrs v. Ne. Oh.

Alzheimer’s Ctr., 155 F.3d 775 (6th Cir.1998) (noting that the court is unsure that there should be a per se rule that an unpaid leave of indefinite duration could never constitute a reasonable accommodation under the ADA). Plaintiff also contends that Security First, in conjunction with Standard Insurance, did not properly confer with respect to Plaintiffs “return to work” accommodation process as required by ERISA because it was “too much of a hassle” to conform with the requirements of the ADA.

It is unclear how Plaintiff contends Security First and Standard Insurance should have conferred or how this relates to Plaintiffs ADA causes of action. Plaintiff appears to be arguing that an additional period of unpaid leave would have been an appropriate accommodation. Indeed, Security First accommodated Plaintiff first by agreeing to six to eight weeks of part-time work, which resulted in other employees needing to work overtime and the quality of work in Plaintiffs department declining as a whole.

Security First then advised Plaintiff that her employment was being terminated, but left open her position should she be able to return to full-time work by the end of March. This provided Plaintiff an additional seven weeks to continue her recovery in order to return to full-time work. Plaintiff did not suggest that an ergonomic workstation accommodation might be helpful until April 2008 — after the period of her position being held open had passed.

Security First made the reasonable accommodations Plaintiff requested: Security First reimbursed Plaintiff for her foot rest, and after she had been on medical leave for over three months Security First agreed to temporarily accommodate Plaintiffs part-time work restrictions. It is undisputed that in the five months that Plaintiff was on medical leave or working part-time that she was unable to fully perform the duties of her job, as it was required that other employees cover her duties for half of each day to the detriment of their own work performance.

Moreover, Security First did not employ any part-time CSAs, and an employer is not required to create a new position in order to accommodate an individual with a disability that is no longer able to perform the essential functions of her own occupation. See, e.g., Denman v. Davey Tree Expert Co., 266 Fed.Appx. 377, 380 (6th Cir.2007) (“A job function is essential if its removal would fundamentally alter the position ... The inability to attend work can ‘fundamentally alter’ a position which requires attendance to perform tasks”); Lauby v. Swanson, No. 96-3301, 1997 WL 561334, *4-5 (6th Cir.

Sept. 9, 1997) (request for modified part-time work, where no other individuals worked part-time in employee’s position, and where only some of the duties would be performed some of the time, was not a reasonable accommodation). As a result, Plaintiff has not demonstrated that she was able to perform the essential functions of her job even with reasonable accommodation and Security First’s motion for

summary judgment will be granted. 2. Plaintiffs Retaliation Claim Plaintiffs remaining claim against Security First is for retaliation. In order to establish a prima facie case of retaliation under the ADA, Plaintiff must establish: (1) she engaged in a protected activity;

(2) Security First took an adverse employment action against her; and (3) there was a causal connection between the protected activity and the adverse action. Barrett v. Lucent Technologies, 36 Fed. Appx. 835, 841 (6th Cir.2002). In the event that Plaintiff is able to meet her burden, she would still have to show that Security First’s legitimate, non-discriminatory or non-retaliatory reasons for its actions were pretextual. Willey v. Slater, 20 Fed.Appx. 404, 406 (6th Cir.2001); Smith v.

Chrysler Corp., 155 F.3d 799, 808 (6th Cir.1998) (to prove pretext, plaintiff must establish an employer’s stated reasons are “unworthy of credence.”). A plaintiff that is claiming retaliation “must establish that the decision complained about as retaliatory would not have been made ‘but for’ the protected status of the plaintiff.” Canitia, 903 F.2d at 1068. Security First submits that Plaintiff can not meet her prima facie burden let alone establish pretext and, therefore, her claim fails as a matter of law.

Plaintiff alleges that she engaged in a protected activity when she complained about disability discrimination. Security First does not have a record of Plaintiff making a complaint prior to her termination and did not pursue a claim with the EEOC until December 2008. The only other protected activity that Plaintiff alleges in her complaint is that she “informed Security First that the Standard Insurance policy included provisions for reasonable accommodation, which was a protected activity.” ECF No. 1 ¶ 63.

This protected activity appears to be in reference to Plaintiffs post-termination April 11, 2008, letter to Goodrich requesting an ergonomic assessment of her workspace because Security First had provided Plaintiff all of her pre-termination accommodation requests. Plaintiffs claim of engaging in protected activity after her termination is insufficient to sustain a claim for retaliation. At the time of her termination in February 2008, Security First did not know Plaintiff would later file an EEOC claim regarding Security First’s failure to provide an ergonomic assessment.

Plaintiff also implies that Security First bears some responsibility for the administration of a benefit plan between Plaintiff and Standard Insurance because Security First pays the premiums for their employees to have such coverage. Plaintiff provides no legal authority to support this contention. Because Security First provided Plaintiff with her requested accommodations, and because Plaintiff does not allege that she engaged in any protected activity before her termination, she cannot establish a prima facie case of retaliation.

Even if Plaintiff could established her prima facie ease of retaliation, the evidence demonstrates that Security First had legitimate and nondiscriminatory reasons to terminate Plaintiffs employment. Security First complied with all requests made by Plaintiff and her physicians regarding her efforts to return to work full-time. Plaintiffs attendance remained irregular and she was unable to work for the four-hour part-time shift on a number of occasions.

Security First decided to terminate Plaintiffs employment because she was no longer able to perform the essential function of her job, which required servicing customer’s requests in a high-volume, fast paced environment. A position that would have allowed Plaintiff to perform sedentary work on a part-time basis at Security First was unavailable. Plaintiff, however, submits that Security First’s legitimate, nondiscriminatory reason to terminate Plaintiffs employment was pretext because she believed her part-time work

schedule was sufficient to meet the demands of her position. The record evidence does not support Plaintiffs contention. The record indicates that there were multiple reports of her department’s work quality suffering because of her part-time status. Plaintiffs termination occurred after she had worked approximately eight weeks—the outer limit of the part-time accommodation that Security First had agreed to—and was unable to return to full-time work at that point in time.

Plaintiffs department’s struggle to cover her workload during her part-time work tenure is further evidenced by the emails from Plaintiffs manager on January 14, 2008 and January 15, 2008. ECF No. 32 Ex. 16; Ex. 19. Alternatively, Plaintiff contends that Security First retaliated against her after she expressed an objection over her health insurance quotation. However, Plaintiff complained about her health insurance quotation in the Fall of 2007 before she notified Security First of her back injury.

Plaintiff does not explain how her predisability complaint regarding health insurance premiums is a protected activity, nor does she explain how Security First’s actions were in retaliation for her making the complaint. Security First’s motion for

summary judgment will thus be granted as to Plaintiffs retaliation claim. III. Plaintiffs ERISA Claim A. Standard of Review for Judgment on the Administrative Record Generally, federal courts review a plan administrator’s decision to deny benefits de novo. Sanford v. Harvard Industries, Inc., 262 F.3d 590, 595 (6th Cir.2001) (citations omitted). Where, as here, the plan administrator reserves discretionary authority to determine eligibility and construe policy terms, the more deferential arbitrary and capricious standard of review applies. Id.

Standard’s “Allocation of Authority” included in its policy grants it the “full and exclusive authority ... to interpret the Group Policy and resolve all questions arising in the administration,

interpretation, and application of the Group Policy.” Standard has the “right to establish and enforce rules and procedures,” the “right to resolve all matters when a review has been requested,” and the “right to determine” the “sufficiency and the amount of information” in determining “entitlement to benefits.” Any decision made by Standard “in the exercise of our authority is conclusive and binding.” Admin. Rec. 00896. The arbitrary and capricious standard is “the least demanding form of judicial review of administrative action.

When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Shields v. Reader’s Digest Ass’n, Inc., 331 F.3d 536, 541 (6th Cir.2003) (quotation marks and citation omitted). The arbitrary and capricious standard requires courts to review the plan provisions and the record evidence and determine if the administrator’s decision was “rational.” Id.

Although the evidence may be sufficient to support a finding of disability, if there is a reasonable explanation for the administrator’s decision denying benefits in light of the plan’s provisions, then the decision is neither arbitrary nor capricious. Williams v. Int’l Paper Co., 227 F.3d 706, 712 (6th Cir.2000). Yet the deferential standard of review does not mean courts should “rubber stamp[ ]” a plan administrator’s decision — a court must review the quantity and quality of the medical evidence on each side. Evans v. UnumProvident Corp., 434 F.3d 866, 876 (6th Cir.2006).

A decision reviewed according to the arbitrary and capricious standard must be upheld if it results from “a deliberate principled reasoning process” and is supported by “substantial evidence.” Baker v. United Mine Workers of Am. Health & Ret. Funds, 929 F.2d 1140, 1144 (6th Cir.1991). Deferential review is tempered, however, when a conflict of interest might be apparent justifying more close scrutiny. When the same entity determines eligibility for benefits that is also responsible for paying those benefits out of its own pocket, an inherent conflict of interest arises.

In close cases, courts must consider that conflict as one factor among several in determining whether the plan administrator abused its discretion in denying benefits. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2345, 171 L.Ed.2d 299 (2008); DeLisle v. Sun Life Assur. Co. of Can., 558 F.3d 440, 444 (6th Cir.2009). Here, Standard’s Plan contains language sufficient to grant discretionary authority to Standard to determine eligibility and construe policy terms and the more deferential arbitrary and capricious standard of review applies.

However, because Standard decides whether to grant or deny eligibility for benefits and pays benefits and Court must bear in mind that a conflict of interest exists even under the highly deferential arbitrary and capricious standard of review. A court may consider only that evidence presented to the plan administrator at the time he or she determined the employee’s eligibility in accordance with the plan’s terms. The court’s review is thus limited to the administrative record. See Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir.1998). B. Discussion 1.

Plaintiffs Argument Plaintiff first submits that, in examining the denial of her claim under an arbitrary and capricious standard, elements of the standard established in the Eighth Circuit are helpful in applying the standard. These include (1) whether the administrator’s

interpretation is consistent with the goals of the plan; (2) whether it might render some language in the plan meaningless or internally inconsistent; (3) whether the challenged

interpretation is at odds with the procedural and substantive requirements of ERISA; (4) whether the provision at issue has been applied consistently; and (5) whether the fiduciary’s

interpretation is contrary to the clear language of the plan. Cooper Tire & Rubber Co. v. St. Paul Fire & Marine Ins. Co., 48 F.3d 365, 371 (8th Cir.1995). a. Standard’s Response to the LTD Claim Plaintiff contends that the goal of the Plan is to provide short-term and long-term benefits for insured individuals in the event they have a medical condition that results in a disability.

Plaintiff asserts that Standard’s application of the language of the plan to the facts of Plaintiffs case was inconsistent with that purpose and that Standard’s refusal to credit reliable evidence is an abuse of discretion under ERISA. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). Plaintiff believes that Standard not only denied her benefits, notwithstanding medical information supporting the disability, but did so in a way that would prevent her from knowing the reason for the decisions.

This, Plaintiff argues, made it impossible for her to challenge Standard’s decision. Plaintiff also contends that Standard’s review of her second appeal in 2009 was inappropriately conducted by the same consultants that evaluated the first appeal in 2008 and thus had a vested interest in upholding the prior determination. Moreover, Plaintiff emphasizes that the record reflects that Standard treated its January 29, 2008 decision to close the file as of February 11, 2008, as a denial of further benefits to Plaintiff.

Plaintiff believes that this decision is arbitrary because the policy allows an individual to qualify for benefits even if they have returned to work and her medical condition continued to be documented at a level for which Standard had previously approved benefits. Plaintiff also contends that Standard had a duty to communicate with Security First, and Security First had a duty to communicate with Standard for a “Reasonable Accommodation Expense” to ensure that an ergonomic assessment for Plaintiff’s workstation would take place. Plaintiff also seeks to challenge Standard’s

interpretation of one’s Own Occupation because it ignores the language regarding “reasonable continuity.” Plaintiff contends that Standard’s long term disability plan’s definition of “partial disability” is best viewed as a “subset” of “own occupational disability.” In other words, participants who are partially disabled and working part-time also meet the definition of own-occupation disability because working less than full time is not working with reasonable continuity. See Huberty v. Standard Ins. Co., No. 06-CV-2388, 2008 WL 783407, at *1 n. 3 (D.Minn. March 25, 2008).

Plaintiff does not explain how this argument relates to her total disability claim or the fact that benefits were scheduled to terminate as a result of Dr. Beasecker’s projected recovery date. Plaintiff also does not suggest that she had made a request for partial benefits in order to continue working less than full time. Plaintiff also appears to challenge Standard’s denial of her “new and separate” claim in November 2009.

In denying this claim, Plaintiff asserts that Standard failed to consider and address that Plaintiffs disability continued from before the date she ceased being a covered Member under the Plan. The Plan provides that if continuation of disability occurs, the insured meets the policy definition of an individual entitled to “Benefits After Insurance Ends or Is Changed.” In making this argument, Plaintiff is presumably arguing that her “new and separate” claim is, in reality, a third appeal of Standard’s denial of her claim; an appeal to which she was not entitled.

If Plaintiff is seeking the Court’s review of a new and separate claim, the record does not include any evidence that an administrative appeal was made before seeking judicial review. Review of any new and separate claim would thus not be warranted. i. The Adequacy of Standard’s Notice Plaintiff next asserts that it is impossible for her to determine whether the applicable provisions in the policy were consistently applied.

The ERISA claims regulations, as a part of the “minimum requirements for employee benefit plan procedures,” require that “claims procedures contain administrative processes and safeguards designed to ensure and to verify the benefit claim determinations are made in accordance with governing plan documents and that, where appropriate, the plan provisions have been applied consistently with

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