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Lisa Counters, 016436

4506 N 12th Street

Phoenix, AZ 85014-4246

Voice: (602) 266-2667

Fax: (602) 266-0141

lisa@schiffmanlaw.com

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Mark Gardner,

Plaintiff,

vs.

Bank of America, Inc., Bank of America 

Group Benefits Program Plan, and Bank of 

America Corporation Corporate Benefits 

Committee,

Defendants.

Case No. 

COMPLAINT

For his complaint against Defendants, Plaintiff alleges:

PARTIES

1. Gardner is a resident of Maricopa County, Arizona.

2. Defendant Bank of America, Inc. (“BOA”) is a foreign employer authorized to 

operate, and currently conducting business, in Arizona.

3. BOA is the plan sponsor and administers the benefit plans and insurance 

policies at issue in this Complaint through its Corporate Benefits Committee (“CBC”).

4. The CBC is a Plan Administrator, as defined by ERISA, 29 U.S.C. § 

1002(16)(A).

Case 2:18-cv-00557-SPL Document 1 Filed 02/20/18 Page 1 of 8
SCHIFFMAN 

LAW 

OFFICE, P.C.

4506 N. 12 T H STREET

PHOENIX, AZ 85014-4246

(602) 266-2667

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JURISDICTION AND VENUE

5. This Court has personal jurisdiction over this matter as BOA and the CBC 

have committed acts or omissions set forth in this Complaint.

6. Personal jurisdiction is present because Defendants have has availed 

themselves of the laws, regulations, and benefits of Arizona.

7. This Court has subject matter jurisdiction over Defendants under the 

provisions of ERISA, 29 U.S.C. §§ 1132 and 1133, and because Defendants have caused 

events to occur in Arizona out of which Gardner’s claims arise.

8. Defendants reside and are found within this District within the meaning of the 

jurisdiction and venue provisions of ERISA, 29 U.S.C. § 1132 and 28 U.S.C. § 1391.

FACTUAL BACKGROUND

9. BOA provided certain employees and associates with long-term disability 

(“LTD”) benefits, pursuant to the Bank of America Group Benefits Program Plan (“The 

Plan”).

10. BOA and the CBC provided the benefits by purchasing an insurance policy 

from Aetna Life and Health Ins. Co.

11. Gardner worked for BOA as a mortgage loan officer. He started working for 

BOA in September 2007 and worked for BOA continuously until he became disabled on 

April 20, 2015. 

12. Gardner initially applied for short-term disability (“STD”), which was also 

provided to BOA employees through a policy provided by Aetna. 

13. Gardner’s eligibility for STD began on April 27, 2015, after a seven-day 

waiting period.

14. Aetna denied Gardner’s claim for STD benefits on May 5, 2015.

15. Gardner appealed Aetna’s denial of STD benefits on October 9, 2015 and 

Aetna reversed its decision on November 25, 2015, more than a month after he had 

exhausted his six months of STD benefits.

Case 2:18-cv-00557-SPL Document 1 Filed 02/20/18 Page 2 of 8
SCHIFFMAN 

LAW 

OFFICE, P.C.

4506 N. 12 T H STREET

PHOENIX, AZ 85014-4246

(602) 266-2667

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16. Gardner’s LTD benefit eligibility commenced on October 15, 2015. Gardner 

filed for LTD benefits on or about December 2, 2015.

17. Aetna approved Gardner for LTD benefits and have been paying him LTD 

benefits from his initial date of eligibility. 

18. Gardner worked as a licensed mortgage broker. BOA paid him an hourly base 

pay of $15.30 per hour. Gardner also earned commissions, which constituted more than half 

of his compensation from BOA. 

19. In 2014 Gardner’s earnings exceeded $75,000. 

20. On April 23, 2015, BOA sent Gardner a Confirmation of Coverage that 

explained how Gardner could continue his various benefit coverages while on leave, by 

paying the benefit himself. His LTD benefits are identified on this form and reflected 

Gardner elected “Option 2—60%” and referenced Gardner only to the 2013 Summary Plan 

Description.

21. The April 23, 2015 Confirmation of Coverage also indicated that he had 

Accidental Death & Dismemberment Insurance based on eight times his annual pay and 

bonus for a total of $479,000. If the $479,000 reflects eight times Gardner’s pay and bonus, 

BOA had calculated his pay and bonus to be approximately $60,000 annually.

22. The BOA Plan documents effective 2013, described two different methods by 

which an employee’s cost of certain benefits, including LTD, would be calculated for certain 

commissioned employees. 

23. The SPD identified one method as the “ABBR” – Annual Benefits Base Rate. 

The 2013 SPD indicates that effective June 30, 2012, Defendants would calculate an ABBR 

for employees in certain roles because a “base salary may not adequately represent cash 

compensation for employees in these roles.” 

24. Among the roles identified as using an ABBR for calculation was Mortgage 

Loan Officer. 

25. The SPD also indicated that an employee could confirm their role and whether 

that employee had an ABBR by contacting the Global HR Service Center.

Case 2:18-cv-00557-SPL Document 1 Filed 02/20/18 Page 3 of 8
SCHIFFMAN 

LAW 

OFFICE, P.C.

4506 N. 12 T H STREET

PHOENIX, AZ 85014-4246

(602) 266-2667

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26. In late 2013, Gardner required STD benefits. In November 2013, Gardner 

called the National Benefits center, where he spoke with Camille. Camille, made numerous 

misrepresentations regarding Gardner’s benefits upon which he relied including the fact that 

an ABBR has nothing to do with an employee’s “band,” and Gardner’s benefits were 

calculated according to his ABBR.

27. While he was on STD in 2013, Gardner received STD benefits based on his 

base salary and his commissions. 

28. The 2014 Summary of Material Modifications to the SPD made no changes to 

the definition or classification of employees whose benefits were measured by an ABBR.

29. The 2015 Summary of Material Modifications indicated that BOA added 

“New ABBR Roles.” Mortgage Loan Officer remained listed as well as other roles. The 

roles contained parentheticals that included an alpha-numeric code, but the significance of 

the parenthetical codes is not explained in the 2015 SMM.

30. Once approved for LTD, Gardner began receiving checks that were based on 

60% of a monthly salary of $2,652, or $1,591.20. Gardner, however, had already qualified 

for Social Security Disability, which lowered his check to the minimum benefit available, 

i.e., 10% of his monthly benefit. 

31. Gardner attempted to resolve the issue with his LTD pay on numerous 

occasions with Aetna. Aetna then advised Gardner he had to address the problem with BOA.

32. Gardner contacted Defendants and Aetna through his counsel on April 12, 

2016 and explained the issue.

33. On April 25, 2016, Defendants responded that the calculation was correct 

because he was not one of the “Mortgage Loan Officers” who had an ABBR and Gardner 

did not select buy-up “Option 2” to cover 60% of his salary and 60% of his eligible bonus 

amount. 

34. The April 2015 Confirmation of Coverage, however, indicated that Gardner 

had selected “Option 2.” 

35. BOA provided the opportunity for Gardner to appeal its decision. 

Case 2:18-cv-00557-SPL Document 1 Filed 02/20/18 Page 4 of 8
SCHIFFMAN 

LAW 

OFFICE, P.C.

4506 N. 12 T H STREET

PHOENIX, AZ 85014-4246

(602) 266-2667

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36. Gardner requested documents from Defendants on April 29, 2016, including 

“any policy statements or guidelines that explain how a Mortgage Loan Officer is 

categorized as an ABBR employee.” And documents “that establish[] Mr. Gardner is not 

entitled to a percentage of his base salary plus commissions as STD and LTD benefits.”

37. Defendants refused to provide any documents in this category, indicating in a 

May 25, 2016 letter that:

You also request information related to Mr. Gardner's status as an employee 

with an ABBR and how a mortgage loan officer is classified as one. As was 

previously communicated to you, Mr. Gardner is currently in a position with 

Bank of America that is not qualified as an ABBR role. Specifically, Mr. 

Gardner, at the time of his leave in 2015 was qualified as a Mortgage Loan

Officer with a specific job code of ‘SR007’. As you will note in the 2015 

SMM' s provided, for roles as of June 30, 2014, while Mortgage Loan Officers 

are included on the ABBR list, it is only Mortgage Loan Officers with a job 

code of SM009, of which Mr. Gardner did not have. There are many factors 

that Bank of America uses to determine which roles qualify as an ABBR role, 

and Bank of America does so in its sole discretion. Bank of America does not 

maintain any official policy or guidelines to determine which roles are ABBR 

roles and which are note, and makes that determination as needed in its sole 

discretion as the employer and the Plan sponsor.

You further requesting documents that establish that Mr. Gardner is not 

entitled to a percentage of his base salary plus commissions for his STD and 

LTD benefits. The Plan Documents which you are being provided, most 

importantly the Summary Plan Description for the Plan, clearly detail the rules 

under which STD and LTD benefits are paid. Furthermore, the denial letter 

which was sent to you regarding your client's claim for LTD benefits clearly 

outlines the LTD rules applicable to your client and what he is eligible for 

based on his position and his benefit elections (that he did not elect to have his 

annual bonus included in his LTD benefits)

38. Gardner did not appeal Defendants’ determination because, once Defendants

disclosed his “job code” he would not have coverage under the terms of the Plan.

39. Gardner did not need to exhaust his administrative remedies because his claim 

against Defendants is a claim for breach of fiduciary duty that does not require exhaustion.

Case 2:18-cv-00557-SPL Document 1 Filed 02/20/18 Page 5 of 8
SCHIFFMAN 

LAW 

OFFICE, P.C.

4506 N. 12 T H STREET

PHOENIX, AZ 85014-4246

(602) 266-2667

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40. Even if Gardner was required to appeal Defendants’ decision, his demand 

letter constituted an appeal, not a claim for benefits as referenced by Defendants in the May 

25, 2016 letter.

41. Appealing Defendants’ decision was futile, given Defendants’ refusal to 

provide any documents from which to argue an appeal and Defendants’ representations that 

Gardner’s job code was not job code that qualified him for 60% of his base salary and 

commissions. 

COUNT I

BREACH OF FIDUCIARY DUTY

42. All previous paragraphs are realleged. 

43. ERISA requires plan fiduciaries to discharge their duties solely in the interest 

of the participants and beneficiaries and for the exclusive purpose of providing benefits to 

participants and their beneficiaries; and defraying reasonable expenses of administering the 

plan. 29 U.S.C. § 1104(a)(1). 

44. Plan Fiduciaries are required to discharge their duties with the care, skill, 

prudence, and diligence that a reasonable fiduciary would discharge their duties in a similar 

situation.

45. Plan Fiduciaries are also required to act in accordance with the documents and 

instruments governing the plan, provided the plan documents are consistent with 

requirements under ERISA.

46. Defendants breached its fiduciary duties to Gardner by misrepresenting his 

enrollment status. 

47. Defendants breached their fiduciary duties by failing to properly advise 

Gardner of his job class/category and that he was not included among the employees who 

had an ABBR.

48. Defendants breached their fiduciary duties by providing summary plan 

descriptions and material modifications that cannot be understood by a beneficiary.

Case 2:18-cv-00557-SPL Document 1 Filed 02/20/18 Page 6 of 8
SCHIFFMAN 

LAW 

OFFICE, P.C.

4506 N. 12 T H STREET

PHOENIX, AZ 85014-4246

(602) 266-2667

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49. Defendants breached their fiduciary duty by providing him with misleading 

information regarding his benefit structure. 

50. Defendants breached their fiduciary duties by failing to provide his with 

proper explanation of benefits.

51. Defendants breached their fiduciary duties by failing to provide Gardner with 

an appropriate appeals process. 

52. Defendant breached their fiduciary duties by failing to advise Gardner of his 

“job code” and by having arbitrary and capricious job code designations. 

53. Defendants actively misinformed Gardner about the nature and basis of his 

LTD coverage. 

WHEREFORE, Gardner prays for entry of judgment against Defendants as 

follows:

A. For a finding that Defendants breached their fiduciary duties to Gardner;

B. For injunctive and equitable relief as appropriate, including surcharge, 

reformation, hat would place Gardner in the condition he would have been 

in but for the breach;

C. For injunctive relief requiring Defendants to actively advise any 

commissioned employee whether their “job code” qualifies them for an 

ABBR or PYCC.

D. For injunctive relief requiring Defendants to provide “relevant documents” 

that establish an employee’s job class and the way job classes are 

determined; 

E. For a finding that Defendants are equitably estopped from denying Gardner 

coverage;

F. For interest on any award received by Gardner at the highest allowable rate; 

G. For an award of Gardner’s attorneys’ fees and costs incurred herein; and

H. For such other and further relief as the Court deems just and reasonable.

Case 2:18-cv-00557-SPL Document 1 Filed 02/20/18 Page 7 of 8
SCHIFFMAN 

LAW 

OFFICE, P.C.

4506 N. 12 T H STREET

PHOENIX, AZ 85014-4246

(602) 266-2667

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Dated this 20th day of February 2018.

SCHIFFMAN LAW OFFICE, P.C.

By: s/MmarLisa J. Counters

Lisa J. Counters

Case 2:18-cv-00557-SPL Document 1 Filed 02/20/18 Page 8 of 8