97 F.3d 734 (4th Cir. 1996), 95-2056, Davis v. Featherstone

Docket Nº:95-2056.
Citation:97 F.3d 734
Party Name:Garry DAVIS, Plaintiff-Appellant, v. D.L. FEATHERSTONE, Manager, Staff Services Department, Baltimore Gas and Electric Company; Administrator of the Baltimore Gas and Electric Company Long-Term Disability Plan, Defendant-Appellee.
Case Date:October 11, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 734

97 F.3d 734 (4th Cir. 1996)

Garry DAVIS, Plaintiff-Appellant,

v.

D.L. FEATHERSTONE, Manager, Staff Services Department,

Baltimore Gas and Electric Company; Administrator

of the Baltimore Gas and Electric

Company Long-Term Disability

Plan, Defendant-Appellee.

No. 95-2056.

United States Court of Appeals, Fourth Circuit

October 11, 1996

Argued March 6, 1996.

Page 735

ARGUED: Richard Paul Neuworth, Law Offices Of Richard P. Neuworth, Baltimore, MD, for Appellant. Luther Ellis Justis, Jr., Baltimore, MD, for Appellee. ON BRIEF: E. Fremont Magee, Lynn K. Edwards, E. Freemont Magee, P.A., Baltimore, MD, for Appellant.

Before ERVIN and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge BUTZNER wrote the opinion, in which Judge ERVIN and Judge MOTZ joined.

OPINION

BUTZNER, Senior Circuit Judge:

Garry Davis, a former employee of Baltimore Gas and Electric (BGE) who was injured on the job, seeks penalties from BGE's disability plan administrator for not providing him with a plan document in violation of the Employment Retirement Income Security Act of 1974 (ERISA). In the first count of his complaint, Davis seeks a copy of BGE's disability plan. In the second count, he seeks the imposition of a penalty on the administrator for her failure to provide the disability plan pursuant to his written request. The district court held that Davis did not have a right to receive a copy of the document because he was not a participant in the plan. It also held that even if Davis were a participant, he has shown no loss. Consequently, the district court granted the administrator's motion to dismiss, which was filed under Federal Rule of Civil Procedure 12, and denied Davis's motion for summary judgment. Because we find that Davis was a plan participant, as that term is defined by ERISA, when he requested the plan documents, and that he suffered a loss, we vacate the judgment and remand for further proceedings.

The district court with the acquiescence of the parties considered matters outside the complaint. For this reason, we will treat the administrator's motion to dismiss as a motion for summary judgment. Fed.R.Civ.P. 12(c). The standard for reviewing this motion and Davis's motion for summary judgment is de novo. Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 877 (4th Cir.1996). The standard for reviewing the district

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court's decision not to impose penalties and its denial of attorney fees is abuse of discretion. Glocker v. W.R. Grace and Co., 974 F.2d 540, 544 (4th Cir.1992).

I

Garry Davis worked for BGE for approximately 12 years, from early 1981 to February 1993. On February 9, 1993, while Davis was cutting wires at the top of a utility pole, the pole snapped, and he fell, suffering a concussion and other injuries. BGE discharged Davis nine days later for refusing to complete a fitness-for-duty examination. BGE considers a fitness-for-duty examination to be a work assignment, and refusal to comply subjects an employee to disciplinary action which may include discharge or some lesser sanction. Davis claimed that he could not complete this examination because of injuries resulting from the accident. In an affidavit filed in support of his motion for summary judgment, Davis explained that on February 16, 1993, two days before BGE terminated his employment, he gave a representative of BGE a small, bloody urine sample. The BGE representative asked for a larger sample, but Davis was unable to comply. The same day, Davis was treated by a urologist and subsequently underwent surgery for his urinary problem. On May 19, 1993, an orthopedist who examined Davis on behalf of BGE stated that Davis was not capable of returning to work. More than a year later, Davis's treating orthopedist stated that he remained unfit for duty.

In May 1994, Davis wrote a letter to BGE seeking information about salary continuation benefits. The company responded that...

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