~4-
evidence and all inferences that reasonably can be drawn therefrom
in the light most favorable to the nonmoving party. See Pitasi v.
Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). “Summary
judgment should be denied if the dispute is ‘genuine’: ‘if the
evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Talanda_v. KFC Nat’1 Management Co., 140

F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby

Inc., 477 U.S. 242, 248 (1986)). The court will enter summary
judgment against a party who does not “come forward with evidence
that would reasonably permit the finder of fact to find in [its]

favor on a material question.” McGrath v. Gillis, 44 P.3d 567, 569

(7th Cir. 1995).

A. Count I -- COBRA/ERISA Claim

Defendants contend that the only damages that plaintiff would
be entitled to for the wrongful denial of his dental insurance
claims are the actual dental fees that were initially unpaid.
Because FMH has paid these fees, defendants argue that plaintiff’s
claim in Count I is moot. Plaintiff wholly fails to respond to
this argument.* In addition, while plaintiff states that he has

not cashed the check from FMH, he does not deny that he has

2/ plaintiff does raise the new argument that he requested certain
information from his plan administrator and that the administrator failed to
provide such information. This is a separate issue from whether his claim for
dental benefits is moot. More importantly, this claim for failure to provide
information upon request is not raised in the complaint. While the complaint
contains citations to various COBRA provisions, it is clear that the only claim
raised therein is for wrongful denial of benefits pursuant to 29 U.S.C. §
1132 (a) (1) (B).


-7-
disclaimer that “this Policy Book is not a contract of employment
and does not affect your rights as an employee” to be “clear and
forthright” and thus a complete defense to a breach of contract
claim). Here, the St. Francis employee handbook explicitly states
that “neither this handbook nor any other policy, rule, procedure,
practice, or form is intended or should be construed as any sort of
contract, express or implied, or as creating any contractual
rights.” (Defendants’ Local Rule 56.1(a) (1) Appendix, St. Francis
Employee Handbook, Ex. P, at 6.) In addition, the handbook states
that “f{e]mployees covered by this handbook are employees-at-will.
This means that either you or [St. Francis] can terminate your
employment.” (Id.) These statements are clear and forthright and
preclude the formation of a contract.! Therefore, we grant
defendants’ motion for summary judgment with respect to Count II.

CONCLUSION

For the reasons explained above, defendants’ motion for

summary judgment is granted.®

4 Tt is undisputed that during the course of plaintiff's employment, he
signed acknowledgment forms in 1982, 1984, 1986, 1993, and 1996, which stated
that he read and understood the provisions of the employee handbook. The 1996
Handbook is the most recent handbook governing employees of St. Francis.
(Plaintiff's Response to Defendants’ Statement of Undisputed Material Facts, 4
16.)

¥ We leave it to plaintiff to decide whether to petition for attorney's
fees pursuant to 29 U.S.C. § 1132(g) (1).


— = oe cane

-3-
breached the employment contract with him by terminating him
without giving him an opportunity to reschedule the meeting with
his supervisor and for failing to follow the progressive
disciplinary steps set forth in St. Francis’s employee handbook.
As to Count I, plaintiff seeks recovery of the benefits that were
denied; a declaration that defendants violated COBRA; a $100/day
statutory penalty, pursuant to ERISA, from the initial refusal of
COBRA coverage; prejudgment interest; and costs and attorney’s
fees. As to Count II, plaintiff seeks back pay and future pay,
pain and suffering, and punitive damages.

Soon after plaintiff filed this action, FMH tendered a check
to him for $363.50, which represents the first two dental claims
paid at 100% and the third claim paid at 50% due to co-insurance.
Plaintiff has thus received all monies due to him under the dental
insurance policy, and he does not dispute this. (Plaintiff's
Response to Defendants’ Statement of Undisputed Material Facts, 9
13.) Defendants now move for summary judgment .

DISCUSSION

Summary judgment “shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). In considering such a motion, the court construes the


ee arvensis

-5-
received all monies due to him under the dental insurance policy.
(Plaintiff’s Response to Defendants’ Statement of Undisputed
Material Facts, @ 13.)

We agree with defendants that plaintiff’s claim for dental
benefits and declaratory relief in Count I is moot. There is no
actual controversy here because plaintiff has received payment for
the benefits that were initially denied, and other remedies are

unavailable. See Harsch v. Eisenberg, 956 F.2d 651, 656 (7th Cir.

1992) (extracontractual.compensatory and punitive damages are not
available under ERISA). Because plaintiff’s claim is moot, the
award of prejudgment interest requested in the complaint would be
inappropriate.?

Plaintiff argues that a $100/day statutory penalty pursuant to
29 U.S.C. § 1132(c) would be an appropriate award. However, §
1132(c) provides for such a penalty in the case of a plan
administrator’s failure or refusal to provide information requested

by a plan participant. Here, as discussed supra note 2, the
complaint does not allege that any of the defendants failed or
refused to provide any requested information. Thus, the statutory

penalty is not an available remedy.

# In addition, plaintiff does not argue for either award in his response
to defendants’ motion.


DATE: October 17, 2001

_ ABO LL.

John F. Grady,| United States District Judge



testis pareve

‘Minute Order Form (06/97)

fe United States District Court, Northern District of Winois
Name of Assigned Judge : Sitting Judge if Other
or Magistrate Judge John F. Grady than Assigned Judge
CASE NUMBER 01 C 64 DATE October 18, 2001
CASE Moreno v. St. Francis, et al.
TITLE
{in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.]
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due___.
(4) ira) Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at
7) o Trial{set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) General Rule 21 O FRCP41(a)(1) 0 FRCP41(a)(2).
ao) «of {Other docket entry] Defendants’ motion for summary judgment [11-1] is
granted. ENTER MEMORANDUM OPINION.
dl x [For further detail see order (on reverse side of/attached to) the original minute order.]
No notices required, advised in open court. Document
No notices required umber of notices Number
X_ |} Notices mailed by judge’s staff. @ OCT 22 2001
Notified counsel by telephone. : date dockered
Docketing to mail notices. : |
x Mail AO 450 form. docketing deputy initial )
Copy to 917101
date mailed notice
courtroom
KAM deputy’s KAM
initials Date/time received in
central Clerk’s Office ling deputy initials



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B. Count II ~- Breach of Contract Claim

Defendants argue that no employment contract between them and
plaintiff existed. Plaintiff contends that St. Francis’s employee

handbook created an employment contract, citing Duldulao v. Saint

Mary of Nazareth Hospital Center, 115 Ill. 2d 482, 505 N.E.2d 314

(1987), without elaboration or additional explanation.

Plaintiff’s argument is without merit. It is true that, under
Duidulao, an employee handbook or other statement may be considered
to confer contractual rights, but only if three classic contractual
requirements are met. See id., 115 Ill. 2d at 490, 505 N.E.2d at
318. First, the language of the handbook or statement must contain
a promise clear enough that an employee would reasonably believe it
to be an offer. Second, it must also be shown that the employee
received the statement, was aware of the language, and believed it
to be an offer. Third, there must also be some act constituting
acceptance of the offer, such as commencing or continuing to work
upon learning of the statement. See id. Plaintiff has not shown
that the provisions of St. Francis’s employee handbook contain
language constituting an offer.

Moreover, the Seventh Circuit has held that clear and
forthright language in an employee handbook disclaiming contract
formation is a complete defense to a suit for breach of contract

based on an employee handbook. See Workman v. United Parcel

Service, Inc., 234 F.3d 998, 1000 (7th Cir. 2000) (holding that a


01-64.011-JcD October 17, 2001

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THOMAS MORENO,
Plaintiff,
v. No. 01 C 64

ST. FRANCIS HOSPITAL & HEALTH

CENTER, SSM HEALTH CARE, and
FMH BENEFIT SERVICES, INC.,

Defendants.

MEMORANDUM OPINION

Before the court is defendants’ motion for summary judgment.

For the reasons stated below, the motion is granted.
BACKGROUND

Plaintiff, Thomas Moreno, brings this action for breach of
contract and for violation of the Consolidated Omnibus
Reconciliation Act (“COBRA”), 29 U.S.C. § 1161 et seg., which
amended and is part of the Employee Retirement Income Security Act
of 1974 (“ERISA”). Plaintiff was formerly employed at defendant
St. Francis Hospital & Health Center (“St. Francis”), which is
located in Blue Island, Illinois. St. Francis is an operating
division of defendant SSM Regional Healthcare ("SSM"). SSM
administered plaintiffi’s COBRA dental plan. Defendant FMH Benefit
Services, Inc. (“FMH”) is a third-party administrator that paid

benefits covered by plaintiff’s dental plan.

21


-2-

The following relevant facts are taken from the parties’
statements of undisputed material facts and from the complaint.!
Plaintiff worked for St. Francis as a “unit support partner” until
January 5, 1999. His job involved cleaning patient rooms and
bathrooms, assisting nurses in transporting patients, stocking
medical supplies, and answering telephones. After plaintiff was
reprimanded and warned at times in 1998 regarding his job
performance, he was placed on disciplinary probation for six
months. He was then suspended in December 1998, and his failure to
appear for a meeting with his supervisor on January 5, 1999 was
treated as a resignation.

After his employment at St. Francis ended, plaintiff elected
to continue his medical, vision, and dental care coverage pursuant
to COBRA. From February 1999 to February 2000, plaintiff paida
monthly premium for single dental insurance coverage. Between June

1999 and September 1999, plaintiff or his dentist submitted three

dental claims to FMH in the amounts of $59.00, $14.00, and $581.00,
for a total of $654.00.. Those claims were denied.

Plaintiff filed the instant action on January 4, 2001. Count
I of the complaint is an ERISA claim for wrongful denial of dental

benefits. In Count II, plaintiff alleges that St. Francis and SSM

¥ In his Response to Defendants’ Statement of Undisputed Facts, plaintiff
neither admits nor denies many of the statements of undisputed facts set forth
by defendants. Rather, he attempts to explain and restate those facts and “flesh
out” the story. These explanations and restatements do not constitute proper
denials. Thus, where appropriate, we deem admitted those statements that are not
properly controverted. See Local Rule 56.1.