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w . v i l l a no va . e du/thir dc ir c uit_2004/585* The Honorable John R. Gibson, Senior Circuit J udge for the United States Court of

Ap pea ls fo r the Eig hth Cir cuit, s itting by de sign ation
. NOT PRE CEDENT IAL

UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

___________ No. 03-2271

___________ WINSOM J. ALVARES, Appellant

v.
MO NTEL L USA INC., a Forei gn Corporati on, MON TELL U SA INC., Plan

Ad min istrato r ofLT D a nd S TD Pla n, MONTELL LONG-TERM DI SABIL ITY P LAN, and MONTELL S HORT-TE RM DIS ABI LI TY PLA N

On A ppeal from the Un ited States District Co urt

for the D istrict of Delaw are Distri ct Court J udge: The Honorable Jos eph J. Fa rna n, Jr.

(D .C. C ivil N o. 01-cv-00072)

___________ Submitte d Under Third Circ uit L. A.R. 34.1( a)

on March 22, 2004 Bef ore: FUENT ES, SMIT H an d GI BSON, * Circuit Judges
. (Fil ed: June 23, 2004)2 ________________________ OPINI ON OF THE COURT

________________________ Fu ente s, Circuit

Judge : This case i nvolves a cl aim for short and long term disabi lit y benefi ts subj ect t o the Employee Retirement

Income Securi ty Act (“ERISA”). Winsom Alvares began her employment

with MontellUSA, Inc. (“Montel l”) i n November 1988. In 1994, she req ues ted a fou r-da y per w eek wo rk sc hed ule b eca use she suf fere d fr om fibr om yalgia
. Montell accommodated t his re quest byallowing he r to work 32 hours per week and to be paid 80% of th e sa lary sh e w oul d ha ve e arn ed w ork ing a 40 -ho ur w eek
. In 1998, Alvares was terminated after Montell downsized and el iminat ed her position. Montel l noti fied her in March 1998 that

she would be terminated on June30, 1998. By mutual agre ement, Alvares ceased worki ng for Montell on June 8, 1998, but was paid thr ough June 30, 1998. On Ju ne 26, 19 98, Alva res subm itted an application fo r short and lon g term disabi lit y benefi ts, which Montell deni ed on October 1, 1998. Subsequently , Alvares file d suit in the United State s District Court . In or der to avoi d a one-y ear st atuteof limi tati ons defense i n Delaware, Alvares fil ed her action in t he Eastern Distri ct of Pennsyl vania. However, the action was tr ansferr ed to theDistri ct of Delaware. Alvares clai med that Montellowed her short term dis abili ty benefit s for the one day each week1 Alvares cites Rodriguez v. McG raw-HillCos. LTD Plan , 297 F. Supp. 2d 676, 679

(SD NY 200 4), to su ppo rt her arg um ent tha t fibrom yalgia is a m edica lly determ inable disa bility de spite the la ck o f an obj ectiv e dia gno stic te st fo r the con ditio n. 3 (W edn esd ay) tha t she did not wo rk b etw een 199 4 an d 19 98 b eca use of h er fi bro myalg ia. Alv ares als o arg ued th at she w as totally disa bled a s of Ju ne 26 , 1998 and th erefo re sho uld recei ve long te rm disabi lit y benefi ts. Alvares and Montel l fil ed cross- motions for summary j udgment. On November 25, 2002, the Dist rict Court denie d Alvares’ motion for summary judgment and gr anted Montell ’s, holding t hat Alvare s had no ri ght to t he disabi lit y benefi ts cl aimed and that , in any event , her cl aim was time bar red. The Dist

rict Cou rt subseque ntly denied Alva res’ Rule 5 9 M otion for R econsidera tion. Thereaf ter, Alv ares app eale d to this C our t. We review a district c ourt’s g rant of sum mary jud gm ent de novo . Afte r caref ully reviewing t

he record, we agree with the District Court ’s thorough and well-reasoned opi ni on. We th er efo re aff irm. I. To be eligible under Montel l’s s hort term disabi lit y pl an, an employ ee must show that s he is “unabl e to work because of sicknes s or inj ury .” App. at 103. To be eli gible f

or long term disabil ity , an employ ee must show that she suffer ed “six months of conti nuous disabi lit y. ” Id. On appe al, Alv ares ar gues that he r fibro myalgia qualif ies as a disab ility 1 and that her reduce d work load for four year s sati sfies the el igibi lit y r equirement s under both of the se plans . However, Montellcounters that Alvares fai led to s atis fy t he4

prereq uisites fo r either sh ort or lo ng term disab ility benefits b ecau se she wa s able to continueworking with her conditi on and retained ful l-time stat us accordi ng to her
acc om mo date d sc hed ule o f 32 hou rs pe r w eek
. In addition, Montel l conte nds that coverage under

both the s hort term and long term dis abili ty plans ended when Alvar es’ employment ended on the a greed upon dat e of June 8, 199 8. Th erefo re, M ontell a sserts tha t Alv ares’ Ju ne 26 , 1998 filing w as too late to all ow her to q ualif y for b ene fits. II. Montell’s short term disabi lit y pl an provides lost

compensati on to employ ees for those r egularl y sc heduled work day s on which theyare unabl e to work because of sickn ess or d isability. Alv ares cla ims th at her re ductio n in h ours a nd p ay was attributa ble to a disability and, therefore, shou ld have b een com pensab le under M ontell’s short term disabi lit y pl an. However, becaus e Wednesdays were not regular work days for

Alvares und er h er ac com mo date d w ork sch edu le, sh e did not lose com pen satio n on W edn esd ays. Furth er, Alv ares n ever c laime d that h er redu ced w ork sc hedu le con stituted a disab ility unt il afte r she wa s term inate d fo r un relat ed r eas ons . Montell’s short term disabi lit y pl an does provi de coverage for employe es working less t han a 40-hour week. App. at 104. However, the employ ee must demonstrate t hat she is “ unable t o work because of si ckness or i njury ,” i n which case the plan “r eplaces 66 2/3 % to 100% of [her] Basic Monthl y Earni ngs . . . for up to six months of disabi lit y. ”5

App . at 103. Thu s, the purpose of the plan is to replace lost incom e from short term absences during which an employ ee is unabl e to work due to i llnes s or inj ury . We agree with the Dis tri ct Court t hat Alvare s was not “unabl e to work because of sicknes s or injury, ” but that she onl y worked 32- hour weeks because t his was theschedule to which she and Mo ntell agreed. D ist. Ct. Op. at 6. Beca use A lvares wa s only scheduled to work 32 hours per week and her income was based on this sche dule, she did not lose any income . She w as, therefore, not eligible to h ave any incom e replaced thro ugh M ontell’s sho rt term disa bility pla n. In addition, w e agree that A lvares’ claim fo r benefits due to her reduc ed w ork sch edu le tha t beg an in 199 4 is tim e ba rred by D elaw are’ s on e-yea r statu te of limita tion s. 10 D el.C. § 8 111 . Alva res’ claim for d isability ben efits aro se in 1 994 , but sh e did n ot file her claim until J une 1998. Alvares cites VanDusen v. Barrack , 376 U .S. 612 (196 4), in which a transferee di stri ct was obli gated t o applythe st ate l aw that would have appl ied had there been no change of venue, to argue t hat theDistri ct Court s hould have appl ied Pennsyl vania’s three- year stat ute of l imit ations . However, even i f this were the cas e here, Alvares’ clai m is equally time barre d under Pennsy lvania ’s st atute . As to long term d isability, Alv ares is sim ilarly unab le to sho w th at there wa s a six month period i n which she was unable to perform her j ob. She was stillcapable of working 32 hours per

week and therefore did not s uffer a period of “continuous t otal disab ility” as the pla n req uires. A pp. at 1 03. A s the D istrict Co urt po ints ou t, “[i]t is6

uncontested that , aft er 1994, [Alvares’] job was to work her 32 scheduled hour s per week and that she did so unt

il her termination i n 1998.” Dist . Ct. Op. at 6. Alvares never identi fied a cl aimed peri od of conti nuous tot al dis abili ty to the Dis tri ct Court and she does not atte mp t to claim in this C ourt tha t she w as co ntinuo usly and totally disab led fo r six
mo nths. W e there fore a gree th at Alv ares f ailed to mee t the pre requ isites for eligibility under Montell ’s long term disabi lit y pl an. Finall y, we agree with the District Court ’s holdi ng that Alvares i s inel igibl e for eithe r short

or long term disabi lit

y because her cover age under the plans ende d before she applie d for benefi ts. Montell’s disabi lit y pl ans provi de that

in order to be el igibl e for benefit s one must be cur rentl y employ ed with Montell . App. at 104. Therefore, an employe e’s di sabil ity

coverage ends when her employ ment ends. Alvares’ employment ende d on June 8, 199 8 by her agree men t with M ontell, d espite th e fac t that she wa s paid untilJune 30, 1998. We agree with the Distri ct Court t hat becaus e her employ ment ended on June 8, 1998, her covera ge also ende d on this date. Therefore, her appli cati on for benefit s on June 26, 1998 occurred out side her coverage period, maki ng her inel igibl e for the c laim ed b ene fits. Accordingly , for t

he reasons stated above, we affi rm the opini on of the Dist rict Co urt.