               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0138n.06
                           Filed: March 7, 2008

                                          No. 07-1178

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


SUMMERDAWN D. WASHINGTON,                               )
                                                        )       ON APPEAL FROM THE
       Plaintiff-Appellant,                             )       UNITED STATES DISTRICT
                                                        )       COURT FOR THE EASTERN
              v.                                        )       DISTRICT OF MICHIGAN
                                                        )
COMCAST CORPORATION,                                    )
                                                        )
      Defendant-Appellee.                               )
__________________________________________              )




BEFORE: BOGGS, Chief Judge; BATCHELDER and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Plaintiff Summerdawn Washington worked as a retention representative for Comcast

Cablevision, a subsidiary of defendant Comcast Corporation (“Comcast”), until her termination on

November 4, 2004. Following the loss of her job, Washington filed suit against Comcast, alleging

breach of contract, promissory estoppel, violation of an implied covenant of good faith and fair

dealing, negligent evaluation, violation of Michigan’s Persons With Disabilities Civil Rights Act

(“Persons With Disabilities Act”), MICH . COMP. LAWS §§ 37.1101 et seq., violation of Michigan’s

Bullard-Plawecki Employee Right to Know Act (“Employee Right to Know Act”), MICH . COMP.

LAWS §§ 423.501 et seq., and violation of section 510 of the Employee Retirement Income Security

Act of 1974 (“ERISA”), 29 U.S.C. § 1140. After Washington voluntarily dismissed her common
No. 07-1178
Washington v. Comcast Corp.


law claims, the district court granted Comcast’s motion for summary judgment on her remaining

statutory claims raised under the Persons With Disabilities Act, the Employee Right to Know Act,

and ERISA.

       Washington now appeals the district court’s order, solely as it concerns her ERISA claim.1

Finding her claim devoid of merit, we affirm the district court.

                                                 I.

       Washington began working at Comcast’s Macomb Call Center in Sterling Heights, Michigan,

on June 10, 2002.      When starting her employment with Comcast, Washington signed an

“acknowledgment and receipt” form of Comcast’s employee handbook, which provided that

Washington, as all other Comcast employees, was hired on an “at will” basis. The handbook stated

that an “absence of three (3) consecutive workdays without notice is considered job abandonment,

and will be treated as a resignation from employment.” It also contained a summary plan description

(“SPD”) of Comcast’s Short Term Disability (“STD”) plan. The STD provided that after 90 days

of employment, employees are eligible for up to 26 weeks of STD benefits under Comcast’s

Employee Health and Welfare Benefits Plan. The STD also explained that an employee’s “position

cannot be guaranteed beyond twelve (12) weeks” from the start of the employee’s disability and that

STD coverage ends on the earliest of “the date the STD benefit is canceled, the date [the employee]

is no longer eligible, the date [the employee’s] employment terminates, or the date [the employee]


       1
        Because Washington has not pursued her Michigan Persons With Disabilities Act or
Employee Right to Know Act claims on appeal, she has waived these arguments. Radvansky v.
City of Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005).

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take[s] an unpaid personal leave of absence.” (emphasis added). Both parties agree that the STD is

governed by ERISA.

       In June of 2004, Washington informed Comcast Human Resources Administrator Ron

Andrews that she needed a leave of absence beginning June 19 to undergo gastric bypass surgery.

At Andrews’s direction, she contacted Broadspire, the third-party administrator Comcast uses to

process and review employee applications for STD leave, and applied for STD leave and income

benefits. Washington took off work beginning on June 19, 2004, and underwent surgery on June 24,

2004. On August 9, Comcast’s Human Resources Manager Rochelle Prestage sent Washington a

letter advising her that Comcast had received a completed Family Medical Leave Act (“FMLA”)

application form from Washington’s physician, that she had been approved for FMLA leave

beginning on June 24, 2004, and that Washington was expected to return to work no later than

August 12, 2004. The letter also explained that Washington was entitled to a maximum of twelve

weeks of unpaid leave during one calender year.

       Washington did not return to work as expected on August 12, and six days later, Prestage

sent Washington a letter stating that because she had not returned to work on her anticipated return

date, she had until August 20, 2004, to report to work and to provide documentation justifying her

unexplained absence, or Comcast would consider Washington to have resigned voluntarily.

Washington failed to respond, and Comcast sent Washington a letter on August 24, advising her that

because she had not returned to work or otherwise contacted Comcast, it assumed that she had

voluntarily resigned and that her employment with Comcast was terminated.


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       On August 25, after receiving the August 24 letter, Washington informed Andrews that she

had been hospitalized from August 19 to August 24 due to complications from her surgery and that

she did not intend to resign her position with Comcast. Andrews called Broadspire immediately to

inform it of Washington’s hospitalization. Andrews assured Washington that her employment would

not be terminated if she provided all of the necessary paperwork confirming her inability to work to

Broadspire. The next day, Broadspire informed Andrews that it had received the necessary

paperwork and that continued STD benefits were authorized for Washington through September 11,

2004. On September 16, Washington exhausted the twelve weeks leave of absence for which she

had been approved.

       From September 12, 2004, to October 13, 2004, Washington continued her absence from

work while Broadspire reviewed her claims for extended benefits. On October 13, Broadspire

informed Andrews that extended STD benefits had been approved for Washington until October 5,

2004, but denied after that date. Broadspire likewise sent Washington a letter informing her of its

decision. Washington denies receiving this letter. She continued to miss work, and, on October 29,

Andrews sent Washington a letter informing her that because Broadspire had deemed her ineligible

for STD benefits beyond October 5, she was on unapproved leave status, and that if she did not

return to work by November 3, Comcast would construe her absence as a voluntary abandonment

of her employment. Washington denies receiving this letter as well. When Washington failed to

show up to work on November 3, Andrews contacted Broadspire to determine whether Washington

had appealed Broadspire’s denial of her STD benefits beyond October 5. Informed that she had not,


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Washington v. Comcast Corp.


Andrews terminated Washington as of November 4, and explained in Washington’s employee file

that Washington “did not respond to correspondence regarding denial of STD Benefits. Employee

has voluntarily terminated employment while on unapproved leave.”

       On November 8, after discovering that her STD benefits were no longer being deposited

directly into her bank account, Washington contacted Broadspire. Broadspire informed her that

continued STD benefits had been denied and that her benefits had been terminated. Washington

responded that she had not received any notice in the mail. Broadspire checked Washington’s

address in its file and discovered that it had the incorrect street name on file for Washington – she

resided on North Park Drive, rather than West Park Drive as listed in Broadspire’s database. Despite

this error, Washington was able to receive all correspondence from Broadspire, except the

October 13 letter informing her that her benefits were not approved after October 5. Washington

later discovered that Comcast had the same incorrect address on file for Washington. Nevertheless,

she was able to receive all correspondence from Comcast, except for the October 29 letter requiring

her to return to work by November 3. Washington faxed an appeal of Broadspire’s benefits

determination to Broadspire on November 12.

       Washington contacted Comcast on December 16, informing Human Resources employee

Kelly Valade that she would be ready to return to work. It appears from the record that this was the

first contact Washington had with Comcast, rather than Broadspire, since August 24. Washington

appeared at the Macomb Call Center on December 20, where she was told that Comcast had not yet




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determined whether Washington was authorized to return to work.              Comcast then notified

Washington on January 6 that her employment had been terminated on November 4, 2004.

         Broadspire wrote to Washington on January 21, 2005, informing her that her appeal of

benefits had been reviewed and that STD benefits were approved from October 6, 2004, through

December 17, 2004. After learning that Comcast had terminated Washington’s employment on

November 4, Broadspire sent a “correction letter,” stating that her benefits had been approved up to

her last day of employment, November 3.

         Washington filed suit in the Macomb County Circuit court on December 21, 2005, alleging

common law claims of breach of contract, violation of public policy, promissory estoppel, violation

of implied covenant of good faith and fair dealing, negligent evaluation, and statutory claims brought

pursuant to the Michigan Persons With Disabilities Act and the Employee Right to Know Act.

Comcast removed the case to federal court, and Washington amended her complaint to add a claim

arising under ERISA. Upon Comcast’s motion, the district court granted summary judgment to

defendant. Washington now appeals the district court’s order, but only with respect to her ERISA

claim.

                                                 II.

         Washington raises two ERISA-based claims on appeal: First, she contends that Comcast

failed to provide adequate notice of the termination of her benefits, as required by 29 U.S.C. § 1133.

Second, she argues that Comcast violated 29 U.S.C. § 1140 by terminating her employment due to




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the exercise of her right to receive STD benefits. Neither argument has any merit, and we

accordingly affirm the order of the district court.

       First, we regard Washington’s claim premised on § 1133 as a red herring. She raised no §

1133 claim in her complaint, but rather stated that she brought her claim “pursuant to 29 U.S.C. §

1132 and 29 U.S.C. § 1140 as a result of the Defendants’ interference with Plaintiff’s protected

rights under an ERISA plan resulting in the Plaintiff’s unlawful termination.” Nor was this § 1133

claim fully presented to the district court, as Washington’s response to Comcast’s motion for

summary judgment only included an oblique reference to § 1133, claiming that “another violation

of ERISA occurred when Comcast failed to properly provide notice in writing to the Plaintiff that

she would be terminated if she did not return to work.”2 “[I]ssues not presented to the district court

but raised for the first time on appeal are not properly before this court.” J.C. Wyckoff & Assocs.,

Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1489 (6th Cir. 1991). Finally, and perhaps most

tellingly, Washington did not name the plan administrator, Broadspire, as a defendant in this case.

Thus, we have no basis to address the notice required by § 1133 that Broadspire provided to

Washington.




       2
        This lone statement in Washington’s response to Comcast’s motion for summary
judgment hardly made clear the theory upon which her § 1133 claim was based. Washington’s
statement suggests that § 1133 somehow required her employer to remind her of the terms of her
employment. Section 1133, however, sets forth notice requirements that ERISA-governed plan
administrators must provide to participants when the participants’ claims for benefits have been
denied; it does not concern the notice an employer must provide its employees before terminating
their employment.

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        In any event, even assuming, without deciding, that this claim is properly before us, it has

no basis in fact. Section 1133 requires plan administrators, such as Broadspire, to “provide adequate

notice in writing to any participant or beneficiary whose claim for benefits under the plan has been

denied, setting forth the specific reasons for such denial, written in a manner calculated to be

understood by the participant,” 29 U.S.C. § 1133(1). We review Broadspire’s letter for “substantial

compliance” with § 1133. Wenner v. Sun Life Assur. Co. of Canada, 482 F.3d 878, 882 (6th Cir.

2007). Broadspire’s “correction letter,” dated January 26, 2005, met this standard. After first

explaining that STD benefits end on, inter alia, the date of employment termination, the letter then

stated: “We have confirmed with your employer you were terminated on 11/4/04. Therefore, Short

Term Disability benefits have been denied effective 11/4/04.” The letter accurately stated the reason

behind Broadspire’s termination of Washington’s benefits, and did so in clear, unambiguous terms.

This was sufficient to discharge Broadspire’s responsibility under § 1133. Cf. Wenner, 482 F.3d

at 882-83 (holding that plan administrator violated § 1133(2) where it failed to accurately explain

the basis for its termination of benefits, thereby depriving the beneficiary of a “reasonable

opportunity . . . for a full and fair review” of his benefits application).

                                                   III.

        Washington’s remaining claim is based on 29 U.S.C. § 1140, which provides that it is

“unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a

participant or beneficiary for exercising any right to which he is entitled under the provisions of an

employee benefit plan . . . .” In order to state a claim under § 1140, Washington must show that


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Comcast had a specific intent to violate ERISA. Schweitzer v. Teamsters Local 100, 413 F.3d 533,

537 (6th Cir. 2005); see also Lindemann v. Mobil Oil Corp., 141 F.3d 290, 295 (7th Cir. 1998) (“To

prove a violation of [§ 1140], plaintiffs must establish more than a loss of benefits; they must

demonstrate that their employers terminated them with the specific intent of preventing or retaliating

for the use of benefits.”). She can satisfy this requirement through the introduction of either direct

or circumstantial evidence. Schweitzer, 413 F.3d at 537; Smith v. Ameritech, 129 F.3d 857, 865 (6th

Cir. 1997).

       Washington’s task is clear: “in order to survive [a] defendant’s motion for summary

judgment, [the] plaintiff must come forward with evidence from which a reasonable jury could find

that the defendants’ desire to avoid [benefits] liability was a determining factor in [the] plaintiff’s

discharge.” Schweitzer, 413 F.3d at 537 (quoting Humphreys v. Bellaire Corp., 966 F.2d 1037, 1044

(6th Cir. 1992)). If Washington presents such evidence, Comcast then bears the burden to “introduce

admissible evidence of a legitimate, nondiscriminatory reason for its challenged action.”

Humphreys, 966 F.2d at 1043 (internal quotation omitted). If Comcast successfully articulates a

legitimate reason for Washington’s termination, then Washington must prove that the interference

with her disability benefits was a motivating factor in Comcast’s decision or prove that Comcast’s

stated reason is pretext. Id.

       Plaintiff has failed to offer any evidence that Comcast terminated her employment with the

specific intent to interfere with Washington’s disability benefits. Citing Lessard v. Applied Risk

Management, 307 F.3d 1020 (9th Cir. 2002), Washington argues that because she was terminated


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while seeking STD benefits, she has raised an inference of discrimination.               According to

Washington, Lessard stands for the proposition that “[i]f [the plaintiff] is on leave at the time of her

termination, then the discrimination is obvious.” Lessard, however, is inapplicable to this case.

       In Lessard, the plaintiff was a recipient of long-term disability benefits. While the plaintiff

was away from active work on disability leave, her employer entered into an asset-sale agreement

which provided that only the seller’s employees who were actively employed on the day of the sale

(i.e., “at work”) would be covered under the purchaser’s welfare benefits plan without an

interruption in coverage. Lessard, 307 F.3d at 1022-23. The asset-sale agreement thus “facially

discriminate[d] against employees who were on disability, workers’ compensation, and any other

form of extended leave [by] explicitly excepting from its separate schedule for conditional transfer

any employee who was absent from work due to vacation, holiday, or personal reasons.” Id. at 1025-

26. The Lessard court held that this agreement was direct evidence of a specific intent to interfere

with the plaintiff’s right to receive disability benefits, thus precluding summary judgment in favor

of the defendant.

       Lessard is no assistance to Washington because at the time of her termination, Washington

was neither receiving approved STD benefits nor had she filed any appeal of the termination of her

benefits. Rather, Comcast notified Washington in the October 29 letter that she had been deemed

ineligible for STD benefits beyond October 5, that she was on “unapproved leave” status, and that

she was required to return to work by November 3. Although Washington appealed the termination

of her benefits on November 12 (which ultimately resulted in Broadspire’s January 26, 2005,


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“correction letter”), this occurred after Comcast had terminated her employment. Thus, at the time

of her termination, Washington was not on approved leave.

        Washington’s reliance on our opinion in Pennington v. Western Atlas, Inc., 202 F.3d 902 (6th

Cir. 2000), is also misplaced. In Pennington, we held that the plaintiff had established a prima facie

violation of § 1140 where the plaintiff introduced evidence that (1) the defendant’s president and a

human resources department employee created a spreadsheet that organized candidates for a

proposed reduction in force by, inter alia, birth date, whether the employee smoked, and the

employee’s health benefit program; (2) the defendant’s president stated that the defendant “wanted

to reduce salaries and medical costs and . . . [it was] not concerned about lawsuits”; and (3) the

plaintiff’s expert witness testified that the defendant’s reduction in force was not age neutral and that

more employees aged 50 or over were terminated than would be expected in a random process. Id.

at 908. Here, in contrast, Washington has offered no evidence that her termination was part of a

pattern of terminating benefit-receiving employees at Comcast, or that Comcast was actually

motivated to interfere with Washington’s right to receive disability benefits.

        In any event, even if we were to find that Washington has established a prima facie case

under § 1140 – and we do not – she has not rebutted as pretextual Comcast’s explanation for her

termination. Comcast contends that Washington was terminated for her unexcused absences from

work, consistent with its policy. This claim has a basis in fact, as Comcast’s employee handbook

provided that an “absence of three or more workdays without notice is considered job abandonment,

and will be treated as a resignation from employment. Employees who are terminated for job


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Washington v. Comcast Corp.


abandonment will not be eligible for rehire.” In its October 29 letter to Washington, Comcast

explained that she was on unapproved leave as of October 6, 2004, and that she would be deemed

to have voluntarily abandoned her position unless she returned to work by November 3. Washington

did not return to work at Comcast until December 20. Although she testified that she never received

the October 29 letter, Washington was hardly diligent in maintaining contact with Comcast; even

after learning on November 8 that her benefits had been terminated, she did not speak with Comcast

until December 16, nearly four months after her last direct contact with her employer. Having gone

nearly four months without hearing from Washington, Comcast was within its rights to terminate

her employment. Likewise, because we agree with Comcast and the district court that Washington

abandoned her job by failing to report to work on November 4, 2004, Comcast had no duty under

its policies to accommodate Washington and find a new position for her at Comcast.

       Under these circumstances, we cannot conclude that a genuine issue of material fact exists

with respect to Washington’s ERISA claim. Accordingly, we agree with the district court that

Comcast is entitled to summary judgment.

                                               IV.

       For these reasons, we affirm the judgment of the district court.




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