Jerry Isaacs v. Liberty Lobby, Inc., 477 U.S. 242, 255 1986 . Isaacs was employed by the Robert…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1549
JERRY ISAACS,
Plaintiff - Appellant,
versus
METROPOLITAN LIFE INSURANCE COMPANY,
Defendant - Appellee,
and
ROBERT BOSCH SHORT TERM DISABILITY PLAN,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:06-cv-00288-DCN)
Argued: May 15, 2008 Decided: June 13, 2008
Before NIEMEYER and DUNCAN, Circuit Judges, and Claude M. HILTON,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Niemeyer and Senior Judge Hilton joined.

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Robert Edward Hoskins, FOSTER LAW FIRM, LLP, Greenville, South
Carolina, for Appellant. James Derrick Quattlebaum, HAYNSWORTH,
SINKLER & BOYD, PA, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Jerry Isaacs (“Isaacs”) brought this action seeking a
declaration of his entitlement to long-term disability (“LTD”)
benefits under an employee welfare benefit plan governed by the
Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
§ 1132. The district court granted summary judgment in favor of
defendant-appellee Metropolitan Life Insurance Company (“MetLife”),
holding that Isaacs had not exhausted his administrative remedies
because he failed to file an LTD claim within ninety days after his
“date of loss,” as required by the plan. We affirm, albeit for
slightly different reasons than those given by the district court.
I.
Isaacs appeals the district court’s grant of summary judgment
in favor of MetLife. Accordingly, we review the facts in the light
most favorable to Isaacs. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
Isaacs was employed by the Robert Bosch Corporation (“Bosch”)
and participated in the Robert Bosch LTD Plan (the “LTD Plan”).
MetLife is the claims administrator for the LTD Plan. MetLife also
serves as the administrator for a separate Bosch short-term
disability (“STD”) plan, and for Bosch employees’ requests for
leave under the Family and Medical Leave Act (“FMLA”).

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1Isaacs points out that forms sent to him by MetLife referred
generically to a “disability claim” or “disability benefits” and
did not differentiate among FMLA, STD, and LTD benefits. See J.A.
147, 151.
4
The LTD Plan detailed two methods through which a claimant
could initiate a claim for LTD benefits. One option allowed a
claimant to submit a notice of claim and supporting written
evidence directly to MetLife. Under the second option, a claimant
could give notice to MetLife by calling a toll-free telephone
number, after which MetLife would send a claim form to be returned
by the claimant with supporting written evidence to MetLife.
Isaacs stopped reporting for work at Bosch on February 10,
2005, for reasons that are beyond the scope of this appeal. On
February 18, 2005, Isaacs initiated a telephonic claim for
benefits. MetLife processed the call as a concurrent FMLA/STD
claim and sent forms to Isaacs, which he completed. 1 Isaacs
visited Dr. Arlene Olaisen, who evaluated Isaacs and completed an
Attending Physician Statement on his behalf. Dr. Olaisen informed
MetLife that she had not advised Isaacs to stop working, and that
in her opinion Isaacs could safely perform his job duties while on
his current medication. Citing Dr. Olaisen’s statements, MetLife
denied Isaacs’s STD claim by letter dated June 1, 2005. In a
separate letter, MetLife denied Isaacs’s FMLA claim, citing his
“fail[ure] to provide the required medical certification of a
serious health condition.” J.A. 142.

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2There is a factual dispute surrounding these forms. Woods
asserts that she gave Isaacs a set of three Long Term Disability
Claim Forms: an LTD Claim Form Employee Statement, an LTD Claim
Form Employer Statement; and a “Long Term Disability Claim Form
Attending Physician Statement.” J.A. 231-43. By contrast, Isaacs
alleges that the forms he received from Woods were limited to a
generic four-page “Attending Physician Statement” that nowhere
indicated that it pertained solely to LTD claims. J.A. 208-13. We
accept Isaacs’s view for purposes of resolving this appeal.
3Contrary to Isaacs’s argument that these forms were intended
to initiate an LTD claim, the forms faxed to MetLife by Isaacs’s
doctor--ostensibly the same forms returned to Bosch--included a
cover page and authorization form with the claim numbers for
Isaacs’s STD and FMLA claims and several pages specifically
referencing the FMLA claim. None of the faxed forms referenced an
LTD claim. J.A. 120-37.
5
On June 6, 2005, Isaacs contacted MetLife to ask “what was
needed in order for the claim to be accepted.” J.A. 65. MetLife
advised Isaacs “that in order for the decision to be re-evaluated
his physician would need to submit medical documentation to support
his disability claim.” Id. The same day, in a face-to-face
meeting, Janice Woods (“Woods”), a Medical Supervisor with Bosch,
provided Isaacs with forms that she indicated would be sufficient
to initiate a claim for LTD benefits.2 Isaacs took the forms to
his doctor in July 2005, who completed them and later faxed a copy
to MetLife. Isaacs also returned a copy of the completed forms to
Woods and Bosch’s head of personnel for the Plan, and was told by
them “that these forms were all that was needed and that [he] would
be contacted if anything further was required.” J.A. 209. 3
In October 2005, Isaacs retained counsel. On November 3,
2005, Isaacs’s attorney wrote a letter to MetLife captioned,

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“Short-Term Disability Claim,” and referencing Isaacs’s STD claim
number. J.A. 109-11. In direct contradiction to the caption, the
first sentence of the letter reads, “Please be advised that I have
been retained to represent [Isaacs] in connection with the appeal
of your denial of his claim for long term disability benefits.”
J.A. 109 (emphasis added). After a detailed request for review of
Isaacs’ claim and a request for a copy of the administrative
record, the letter’s penultimate paragraph reads,
The third purpose of this letter is with regard to
my client’s LTD claim. My client has been out long
enough to where it is time to get her [sic] LTD claim in
the works. If you could please forward any LTD claim
forms or other documentation that needs to be completed
in order to prefect [sic] the filing of that claim I
would be most appreciative. If the LTD claim rolls over
automatically after payment in full of the STD benefits
then please just advise and I will proceed with the STD
claim since, essentially, it will be considered to be the
same claim.
J.A. 110. MetLife did not respond to this letter. On January 9,
2006, counsel wrote another letter to MetLife, again referencing
Isaacs’s “Short-Term Disability Claim” and listing his STD claim
number, explaining, “Please be advised that I am appealing the
denial of both Mr. Isaac’s claim for short term disability and long
term disability benefits. I wanted to clarify the foregoing in the
event it was not clear [from the November 2005 letter].” J.A. 107.
Counsel filed the complaint in this matter less than three weeks
later, on January 29, 2006.

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Isaacs’s amended complaint named MetLife and the Robert Bosch
Short Term Disability Plan as defendants and sought declarations of
Isaacs’s entitlement to LTD and STD benefits under 29 U.S.C.
§ 1132(a)(1)(B). Isaacs later dismissed the Robert Bosch Short
Term Disability Plan as a defendant and dropped his STD claim from
this case. Instead, Isaacs initiated a claim for STD benefits in
state court. While Isaacs’s federal claim was pending, Isaacs
litigated the STD claim to settlement in state court.
Reviewing the LTD claim against MetLife, the district court
held that Isaacs failed to file an LTD claim within ninety days
after his “date of loss,” as required by the plan, and that, as a
result, he had not exhausted his administrative remedies. The
court also rejected Isaacs’s alternative argument that his failure
to meet the exhaustion requirement was excused by the doctrine of
futility. Accordingly, the court granted MetLife’s motion for
summary judgment. Isaacs appeals.
II.
We review de novo the district court’s grant of summary
judgment. See Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 232
(4th Cir. 1997). We will affirm the district court’s decision “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

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matter of law.” Fed. R. Civ. P. 56(c). Again, we view the record
and all reasonable inferences drawn therefrom in the light most
favorable to Isaacs. See Williams v. Giant Food Inc., 370 F.3d
423, 428 (4th Cir. 2004).
A.
This appeal essentially distills to two somewhat interrelated
arguments, which we discuss in turn. First, Isaacs asserts that he
initiated an LTD claim through his February 18, 2005 phone call to
MetLife but that MetLife prevented him from pursuing the claim by
failing to send him forms necessary to perfect that claim; by not
responding to his attorney’s November 2005 and January 2006
letters; and by otherwise failing to act on his LTD claim. MetLife
responds that Isaacs never actually filed an LTD claim and that it
processed and ultimately rejected the only properly-filed claims--
the STD and FMLA claims--based on insufficient evidence of
disability.
Isaacs’s argument ultimately implodes as it attempts to do two
inherently contradictory things simultaneously. Isaacs fully
pursued the claim he initiated on February 18, 2005 through the
administrative process. Isaacs’s attorney indicated in November
2005 that he understood that Isaacs’s STD and LTD claims were one
and the same, and in January 2006, referencing a single claim
number, that he was “appealing the denial of both Mr. Isaac’s claim
for short term disability and long term disability benefits.” J.A.

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4 It is unclear how Isaacs believes he would have benefitted
had MetLife processed an LTD claim beginning on February 18, 2005.
As Isaacs himself points out, “disability” is defined identically
in the STD and LTD plans. Appellant’s Br. at 8. Isaacs’s failure
to provide evidence of a disability therefore would likely have
doomed his LTD claim just as it did his claim for STD benefits.
5The evidence leaves no doubt that on June 6, 2005, if not
before, Isaacs knew that MetLife had not yet received from him
documentation sufficient to initiate a claim for LTD benefits. See
Isaacs Aff., J.A. 208 (“[At the June 6 meeting] I was told that I
needed to file for long-term disability [benefits] and I replied
that I did not have the forms.”). It seems disingenuous for Isaacs
to claim that he continued to labor under the illusion that an LTD
claim had been filed on February 18, 2005 and remained pending.
9
107. Isaacs eventually litigated this claim to settlement in state
court. Now, Isaacs would have it that MetLife precluded him from
pursuing a claim for LTD benefits by not processing a separate LTD
claim based on his February 18, 2005 telephonic claim.
Isaacs cannot have it both ways. The initial claim on which
he now seeks to rely was denied due to Isaacs’s failure to provide
sufficient evidence of a disability. 4 His dismissal of the appeal
in that regard and pursuit and settlement of the matter in state
court places the denial of benefits on that claim beyond the scope
of our review, and the record is devoid of evidence that any other
claim was filed pursuant to the LTD Plan claims procedures. See
J.A. 194 (describing the two methods for filing a claim under the
LTD Plan).5
B.
Isaacs also argues that his receipt, completion, and return of
the forms Woods gave him on June 6, 2005 was the functional

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6Isaacs argues, in the alternative, that his failure to
exhaust his administrative remedies with respect to his LTD claim
should be excused because, in light of MetLife’s denial of his STD
claim, any attempt to pursue the LTD Plan remedies would have been
futile. We find that Isaacs failed to show that he was (or would
have been) denied access to the claims procedures provided by the
LTD Plan. His “bare allegations of futility are no substitute for
the ‘clear and positive’ showing of futility . . . required before
suspending the exhaustion requirement.” Makar v. Health Care Corp.
of Mid-Atlantic (Carefirst), 872 F.2d 80, 83 (4th Cir. 1989). We
therefore find Isaacs’s argument to be without merit.
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equivalent of filing a claim under the LTD Plan. We disagree.
Aside from the February 18, 2005 claim discussed above, Isaacs has
never properly initiated any other claim for benefits with MetLife.
Moreover, the documents faxed by Isaacs’s doctor referenced either
the STD and FMLA claims or no claim at all. We therefore hold that
the faxed forms were insufficient to initiate a claim under the LTD
Plan. 6 Isaacs’s attorney’s subsequent letters were likewise
insufficient either to initiate an LTD claim or to put MetLife on
notice that Isaacs believed that such a claim existed separate and
apart from his STD claim.
III.
Isaacs’s actions have presented us with a record which
includes neither a predicate finding of disability nor a completed
claim for LTD benefits. We therefore have no basis on which to
grant him the relief he seeks.
AFFIRMED

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