Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-2487

DANIEL B. DUBE,

Plaintiff, Appellant,

v.

J.P. MORGAN INVESTOR SERVICES,

Defendant, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Selya, Lynch, and Howard, Circuit Judges.

Daniel B. Dube, on brief pro se.

Richard W. Paterniti and Joan Ackerstein, Jackson Lewis, LLP,

on brief for defendant, appellee. 

October 13, 2006
Dube contends that JPMIS had an obligation to keep its plan 1

documents up-to-date, and while other provisions in ERISA may

impose this requirement, subsection 1132(b)(1)(C) – the provision

under which Dube seeks relief – does not provide a remedy for an

employer’s failure to update its documents. 

Per Curiam. After a thorough review of the record and of

the parties’ submissions, we affirm.

We see no abuse of discretion in the district court’s

refusal to award a statutory penalty pursuant to 29 U.S.C. §

1132(c)(1)(B). See Rodriguez-Abreu v. Chase Manhattan Bank, N.A.,

986 F.2d 580, 588 (1 Cir. 1993). The district court noted the st

absence of bad faith on the part of defendant/appellee J.P. Morgan

Investor Services (“JPMIS”), and there was no evidence that any

delay prejudiced plaintiff/appellant Daniel Dube’s attempt to

collect disability payments. See Sullivan v. Raytheon Co., 262

F.3d 41, 52 (1 Cir. 2001) (in deciding whether to assess a penalty st

for delay, a court may consider whether the employer acted in bad

faith or whether delay prejudiced the plaintiff) (citing RodriguezAbreu, 986 F.2d at 588-89). Dube admitted that his claim for

insurance benefits was rejected because he failed to provide

medical documentation to support the claim. Although the plan

documents originally provided to Dube apparently were out-of-date

(and, therefore, may have made the claim process more difficult or

frustrating for Dube), that fact ultimately had no effect on the

outcome of his claim for disability coverage. Accordingly, we 1

affirm the district court’s award of summary judgment in JPMIS’s

favor on this count.
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We also affirm the district court’s award of summary

judgment on Dube’s claims under the Family and Medical Leave Act

(“FMLA”). Dube first argues that JPMIS did not comply with the

requirement that it post a notice alerting all employees of their

rights and obligations under the FMLA. See 29 C.F.R. § 825.300(a).

JPMIS posted its FMLA notice on its intranet website – which was

accessible to all employees while they were at work – and Dube says

this was insufficient because he could not access it from home

during his leave period. But, JPMIS was not required to post the

notice where it could be seen by employees at home; the regulation

only requires that the notice be posted at the workplace, and Dube

cites no authority to support his suggestion that this rule is

different where the notice is posted electronically. The district

court properly rejected this claim.

Dube also complains that JPMIS did not provide him with

adequate individual notice of his rights or duties under the FMLA

once he announced his need for leave, as required by 29 C.F.R. §

825.301(b), nor did it discuss the FMLA with him. Even if JPMIS

failed in its duties under 29 C.F.R. § 825.301(b) – a question we

do not decide – Dube has no remedy. That is because JPMIS gave him

the full 12-weeks (and more) of FMLA leave to which he was

entitled. In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81

(2002), the Court ruled that where an employee had received all of

the FMLA leave to which that employee was entitled, the employee
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had no remedy for the employer’s technical violation of the notice

requirements. Id. at 89-90. The only exception to this rule

occurs where the employee can show that the lack of notice caused

some prejudice (e.g., that the employee would not have structured

leave in the same way had notice been provided); but we see nothing

in this record indicating that Dube was prejudiced by any lack of

notice.

Dube next argues that he was not provided the full 12

weeks of FMLA to which he was entitled. This argument fails. Dube

insists that he did not receive his full 12 weeks of FMLA leave

because JPMIS purported to start his unpaid FMLA leave on April 8,

2002 (about seven weeks into the 15-week leave period he was

afforded), and he contends that he was entitled to 12 weeks of FMLA

leave beginning on April 8. In Ragsdale, the Court explicitly

rejected such a notion, holding that an employer was only obligated

to give an employee 12 weeks of FMLA leave, and that this was true

no matter what additional benefits (e.g., paid leave) were provided

by a more generous company policy or when the employer first

designated the leave as FMLA leave. The district court properly

rejected this claim.

Finally, Dube argues that he was discharged in

retaliation for invoking his rights under the FMLA. Even if Dube

can establish a prima facie case of retaliation, see Colburn v.

Parker Hannifin, 429 F.3d 325, 336 (1 Cir. 2005), JPMIS has st
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advanced legitimate, nondiscriminatory reasons for dismissing Dube

after 15 weeks of leave: he failed to provide documentation

showing that he was unable to return to work after April 8, and

even if he had provided that documentation (he says he did, though

he provides no proof), the uncontradicted evidence shows that Dube

was unable to return to work after the expiration of his 15-week

leave period. This provides a second legitimate, nondiscriminatory

reason for Dube’s dismissal. Thus, Dube must show that these

stated reasons are pretextual. See id. He has pointed to no

evidence of pretext in the record, and we see none. Indeed, there

is ample evidence to the contrary. Though it was under no

obligation to do so, JPMIS paid Dube’s full salary throughout most

of his leave. It began doing so immediately (in February 2002),

despite the fact that it took Dube a full seven weeks to provide

any documentation of his medical condition. And, although the

documentation he did eventually provide stated that Dube could

return to work (part-time) on April 8, 2002, Dube remained on

leave, and JPMIS continued to pay his full salary for an additional

eight weeks (later recovering one paycheck covering a two-week

period). In all, Dube was given 13 weeks of paid leave (and an

additional two weeks of unpaid leave), despite his failure to

document fully his inability to work throughout the last eight

weeks of that period, and despite the fact that the FMLA only

required JPMIS to give Dube 12 weeks of unpaid leave. Dube points
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to nothing in the record which might show JPMIS’s reasons for

dismissing him after this leave period were pretextual or that its

action were retaliatory. Accordingly, the district court properly

granted summary judgment on this claim.

Affirmed. See 1 Cir. R. 27(c). st