UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Gerald Laurendeau

v. Civil No. 05-cv-441-JD

Opinion No. 2006 DNH 121

Sheet Metal Workers’ Local

17C-NH Pension Trust

O R D E R

Gerald Laurendeau brought suit under the Employee Retirement

Income Security Act (“ERISA”), challenging the decision of the

Sheet Metal Workers Local 17C-NH Pension Trust to suspend payment

of his pension benefits after he had resumed work. He moves to

modify the record, seeking to add his affidavit and exhibits

pertaining to benefits he continued to receive from the Sheet

Metal Workers’ International Association despite his resumed

employment. Laurendeau also moves to suspend Local Rule 9.4, and

submits additional documents to supplement the record. The

Pension Trust objects to both motions.

Background

Laurendeau participated in the Sheet Metal Workers’ Local

No. 17C-NH Pension Plan (“the Plan”) for thirty nine years while

working for Empire Sheet Metal Company. In November of 2004,

Laurendeau took early retirement and began receiving pension

benefits from the Sheet Metal Workers’ International Local No.

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1The court notes that the documents in the record and the

parties use “Local No. 17C” and “Local No. 17” interchangeably in

the titles of the Pension Trust, the Plan, the Summary Pension

Plan, and the union. No explanation has been provided for the

difference. 

2

17C-NH Pension Trust (“Pension Trust”).1 On January 1, 2005,

Laurendeau began work for B. A. Roy Steel Erectors, Inc., in the

capacity of a “Miscellaneous Iron and Maintenance Worker.” 

The Plan is administered by the Pension Trust Trustees. The

Plan gives the Trustees “total and absolute discretion with

respect to the general administration and interpretation of the

Plan.” Plan § 6.05. The Trust Agreement also gives the Trustees

absolute and complete power to construe the provisions of the

Agreement and incorporates the Plan into the Trust Agreement.

At a meeting on June 8, 2005, the Trustees discussed

Laurendeau’s resumed employment and concluded that the work he

was doing made him ineligible to continue to receive benefits

from the Pension Trust under the terms of the Plan. The Trustees

decided to suspend payment of Laurendeau’s pension, unless he

could prove that he was not working in the sheet metal trade. 

Laurendeau was notified on June 10, 2005, that his pension would

be suspended as of July 1, 2005. The decision to suspend pension

payments was based on Section 5.03 of the Plan and Section 14 of

the Summary Pension Plan. 

Section 5.03(a) of the Plan precludes pension benefits if a

retiree returns to work as “a sheet metal worker or in other

Case 1:05-cv-00441-JD Document 23 Filed 10/19/06 Page 2 of 23
2Section 503(a) was amended, effective May 1, 2005, to add a

restriction if a retiree resumed work “in any capacity with an

employer that is a sheet metal contractor (or is a contractor in

other related crafts) that is not a party to, or is otherwise

bound by, the Collective Bargaining Agreement with the Union or a

collective bargaining agreement with any local union of the Sheet

Metal Workers’ International Association.” Admin. Rec. at 66. 

3

related crafts within the jurisdiction of any local union of the

Sheet Metal Workers’ International Association.”2 Admin. Rec. at

17. Section 14 of the Summary Pension Plan provides, in

pertinent part:

If you return to employment, other than as a sole

proprietor or partner, in the trade, or in other

related crafts, within the jurisdiction of any local

union of the Sheet Metal Workers’ International

Association, after you have taken Normal, Early or

Deferred Vested Retirement and begun to receive your

monthly pension benefit from the Plan, payment of your

benefits will be suspended for any calendar month in

which you are employed for forty (40) or more Hours of

Service.

Section 14 also explains that the additional restriction added by

amendment, effective on May 1, 2005, applies only to benefits

accrued after that date. Section 5.03(b) requires a pensioner

who returns to work to provide written notice to the Board of

Trustees within three days of returning to work and to provide

written notice when he is no longer working. That section also

provides that if a pensioner resumes work without properly

notifying the Trustees, the Board is entitled to presume that the

pensioner is engaged in employment that requires suspension of

benefits.

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4

Laurendeau did not provide written notice to the Trustees

when he began work at B. A. Roy Steel on January 1, 2005. He

states in his affidavit that he notified the Trustees “orally”

that he was returning to work and was told his work was

permitted. On June 16, 2005, after he received notice that his

benefits were being suspended, Laurendeau sent the Trustees a

letter explaining his work at B. A. Roy and asserting that he was

not doing sheet metal work or any work connected with the trade. 

He listed his duties as work on aluminum and steel truck beds;

repair and welding of aluminum and cast iron parts, boats, and

trailers; welding and repair of shop equipment, and welding and

layout of structural steel and stainless steel railings. 

On August 1, 2005, Laurendeau wrote to the Trustees to

appeal their decision to suspend his benefits, arguing that his

work for B. A. Roy did not involve sheet metal work and

submitting a note from B. A. Roy that listed his work duties. At

their meeting on October 12, 2005, the Trustees voted to continue

the suspension of Laurendeau’s benefits on the ground that the

work he described included jobs related to the sheet metal trade

and referred to Article 1, Section 5 of the Sheet Metal Workers’

International Association Constitution. Section 5 describes the

various trades and work over which the union claims jurisdiction.

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3Laurendeau filed a different set of documents with his

motion for judgment, although none of those documents were

submitted to the Trustees. He has not filed a motion to modify

the record to include those documents. Given that change in

course, Laurendeau’s motion to modify may be moot.

5

Discussion

 Laurendeau’s motion to modify the record seeks to add new

information that was not submitted to the Trustees. In his

motion to suspend Local Rule 9.4, he argues that discovery and a

trial are necessary to resolve factual issues in this case. The

Pension Trust objects to both motions.

I. Motion to Modify the Record

Acknowledging that his motion was not filed within the time

allowed, Laurendeau moves to supplement the administrative record

without addressing the timeliness issue. He argues that the

administrative record should include his affidavit and

documentation pertaining to benefits he has received from the

Pension Trust’s parent, the Sheet Metal Workers’ International

Association.3 He also argues that a reduced level of deference

is due the Trustees’ decision because the Union makes benefit

decisions and pays Plan benefits and because the disputed Plan

language allows an overly broad definition of the Union’s

jurisdiction. He asserts that discovery and an evidentiary

hearing are necessary to determine the actual scope of the

Union’s jurisdiction, the definition of “sheet metal contractor,”

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6

and whether the Trustees considered an amended version of the

Plan in their decision to suspend his benefits. He further

asserts that other sheet metal workers are both receiving

benefits and working in the trade, which he contends shows that

the Trustees were biased against him. The Pension Trust objects

to Laurendeau’s motion to modify the record on grounds that the

motion is untimely and that supplementation of the record is not

appropriate in this case.

A. Timeliness

Local Rule 9.4 governs suits that include a claim or claims

under ERISA, pursuant to 29 U.S.C. § 1132(a)(1)(B), which

includes Laurendeau’s suit. Under the rule, the defendant is

required to serve and file a copy of the administrative record

with its answer. LR 9.4(a). The record includes relevant plan

documents and documents considered or generated during the

benefit determination proceedings. LR 9.4(a). “Any motion to

modify the administrative record shall be served and filed within

ten (10) days after the administrative record is served.” Id.

The Pension Trust filed the administrative record on

February 7, 2006. Laurendeau did not move to modify the record

or to extend the deadline for doing so within the time allowed

under Rule 9.4(a). Instead, he filed his motion on July 31,

2006, without seeking leave to do so and without providing any

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4Although Laurendeau was not represented during the

administrative proceedings, he is represented by counsel here. 

7

justification for the late filing.4

As the Pension Trust points out, if Laurendeau had sought an

extension of time when he filed his motion to modify the record,

he would have had to show “excusable neglect” as the cause of the

late filing. See Fed. R. Civ. P. 6(b)(2); Cordero-Soto v. Island

Fin., Inc., 418 F.3d 114, 117 (1st Cir. 2005). Although

Laurendeau failed to file such a motion, his motion to modify

will be deemed to include a request for late filing under the

“excusable neglect” standard.

“[T]he excusable neglect inquiry involves a significant

equitable component and must give due regard to the totality of

the relevant circumstances surrounding the movant’s lapse.” 

Dimmitt v. Ockenfels, 407 F.3d 21, 24 (1st Cir. 2005) (internal

quotation marks omitted). Factors to consider in assessing

“excusable neglect” include “the danger of prejudice to the [nonmoving party], the length of the delay and its potential impact

on judicial proceedings, the reason for the delay, including

whether it was within the reasonable control of the movant, and

whether the movant acted in good faith.” Pioneer Inv. Servs. Co.

v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). The

most important factor is “the asserted reason for the mistake,”

and a late filing is not excused if it is due to “counsels’

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8

inattention or carelessness, such as a failure to consult or to

abide by an unambiguous court procedural rule.” Dimmitt, 407

F.3d at 24.

Laurendeau offers no reason for waiting five months after

the deadline to file his motion to modify the record. He states

only that the parties were unable to agree to amend the

administrative record to include the extrinsic information he

seeks to add. The docket shows that during the time between the

filing of the administrative record and the time he filed the

motion to modify the record, Laurendeau filed two motions to

extend the time for filing the parties’ joint factual statement. 

The Pension Trust assented to the first motion but filed a

limited objection to the second motion on June 8, 2006, noting

that Laurendeau had not filed a motion to modify the

administrative record and noting the extended delay Laurendeau

had caused in filing the joint factual statement. Laurendeau’s

motion to extend time was granted in part on June 21 with the

following admonition: “Plaintiff is advised that NO further

continuances will be granted and that the court expects real

compliance with the intent and purpose of LR 9.4(b) and not the

perfunctory and inadequate proposed joint statement filed on

5/23/06.” Laurendeau nevertheless waited another six weeks to

file his motion to modify the record.

Under these circumstances, Laurendeau has failed to show

Case 1:05-cv-00441-JD Document 23 Filed 10/19/06 Page 8 of 23
9

that the delay in filing his motion was due to excusable neglect. 

In addition, as the Pension Trust points out, modification of the

record would require additional delay, which is contrary to the

purpose underlying ERISA to provide an “expeditious method of

resolving disputes over benefits claimed under an employee

benefits plan.” Recupero v. New Eng. Tel. & Tel. Co., 118 F.3d

820, 831 (1st Cir. 1997); see also LR 9.4. Therefore, the motion

to modify is denied as untimely.

B. Expansion of the Record

Even if the motion had been timely filed or if the untimely

filing had been excused, Laurendeau’s motion to modify the record

would not succeed. The focus of judicial review is the record

made in the administrative proceedings. Orndorf v. Paul Revere

Life Ins. Co., 404 F.3d 510, 519 (1st Cir. 2005). The materials

Laurendeau seeks to add to the record, his affidavit about

benefits from the Sheet Metal Workers’ International Association,

despite his employment at B.A. Roy Steel and documents related to

those benefits, were not submitted to the Trustees. Laurendeau’s

request to add new information to the record ignores the rule

that “the final administrative decision acts as a temporal cut

off point.” Id. Although exceptions exist, “[s]till, at least

some very good reason is needed to overcome the strong

presumption that the record on review is limited to the record

Case 1:05-cv-00441-JD Document 23 Filed 10/19/06 Page 9 of 23
5Laurendeau’s arguments that the International Association

wrongly decided to suspend his benefits are not considered in

this suit, which seeks judicial review of the Trustees’ decision,

not the subsequent decision by the International Association.

10

before the administrator.” Liston v. UNUM Corp. Officer

Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003).

Laurendeau argues that the International Association’s

decision to continue to pay him benefits shows that the Trustees’

contrary decision was wrong. That theory does not fall within an

obvious exception to the rule limiting the record to the

information presented to the Trustees. See Orndorf, 404 F.3d at

520 (“We need not catalogue the situations in which new evidence

is admissible, other than to note it is more obviously relevant

when the attack is on the process of decision making as being

contrary to the statute than on the substance of the

administrator’s decision.”). More importantly, however, the

International Association has now suspended Laurendeau’s benefits

because of his employment at B.A. Roy Steel.5 Therefore, the

evidence he seeks to admit through his motion to modify the

administrative record no longer supports his position,

undermining any relevance it might have had, and he has not shown

a good reason to overcome the presumption against supplementing

the record.

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C. Standard of Review

 As part of his motion to modify the record, Laurendeau

argues that the court should use a heightened standard of review

because a conflict of interest existed when the Trustees decided

to suspend his benefits. The primary conflict, Laurendeau

argues, is that the Union both makes benefit decisions and pays

the benefits. He also argues that the Plan language allows the

Trustees to make benefit decisions based on personal

considerations and to expand the Union’s jurisdiction and

contribution base.

It is far from clear what relevance the standard of review

has in the context of Laurendeau’s motion to modify the record. 

See Orndorf, 404 F.3d at 519 (same rule for modifying record

regardless of standard of review). Even if the standard of

review were properly raised in this context, Laurendeau has not

shown that a conflict existed to support his request that a

heightened standard of review be used here. A structural

conflict alone, where the decision maker has a financial interest

in the decision, is not a sufficient basis to impose a heightened

standard of review. Janeiro v. Urological Surgery Prof’l Ass’n,

457 F.3d 130, 139 (1st Cir. 2006). A claimant must also show

additional factors that indicate the decision was improperly

motivated. Id. at 140.

In its objection, the Pension Trust shows that the Trustees

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12

are not all representatives of the Union but instead are divided

equally between management and Union members. See Admin. Rec. at

77. The mixed allegiances of the Trustees, therefore, undermines

Laurendeau’s structural conflict theory that the Union is both

making benefits decisions and paying for those benefits. In

addition, Laurendeau offered no competent evidence that the

Trustees decided to suspend payment of his pension based on

personal considerations or for the purpose of expanding the

Union’s jurisdiction. The First Circuit has reiterated that

“‘[t]o affect the standard of review . . . a conflict of interest

must be real. A chimerical, imagined, or conjectural conflict

will not strip the fiduciary’s determination of the deference

that otherwise would be due.’” Tsoulas v. Liberty Life Assurance

Co. of Boston, 454 F.3d 69, 77 (1st Cir. 2006) (quoting Leahy v.

Raytheon Co., 315 F.3d 11, 16 (1st Cir. 2002)).

D. Amendment of the Plan

Section 503(a) of the Plan was amended, effective on May 1,

2005, adding work that would cause a suspension of pension

benefits. In Cent. Laborers’ Pension Fund v. Heinz, 541 U.S. 739

(2004), the Supreme Court held that ERISA’s anti-cutback rule, 29

U.S.C. § 1054(g), “prohibit[ing] any amendment of a pension plan

that would reduce a participant’s ‘accrued benefit,” was violated

by the pension fund’s amendment that restricted the scope of

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13

employment an early retiree could do and still receive pension

benefits. Id. at 741 & 744-45. Laurendeau asserts that he is

entitled to discovery to determine whether the Trustees relied on

the amended version of § 503(a) in their decision to suspend his

benefits. 

The pertinent difference in the two versions of § 503(a) is

an additional restriction in the amended version. Both the preand post-amendment versions of § 503(a) provide that pension

benefits would be suspended if the retiree “returns to employment

as a sheet metal worker or in other related crafts within the

jurisdiction of any local union of the Sheet Metal Workers’

International Association.” As amended, § 503(a) also precludes

work “in any capacity with an employer that is a sheet metal

contractor (or is a contractor in other related crafts) that is

not a party to, or is otherwise bound by, the Collective

Bargaining Agreement with the Union or a collective bargaining

agreement with any local union of the Sheet Metal Workers’

International Association.” Admin. Rec. at 66.

The Plan Administrator said in his letter dated June 10,

2005, that the Trustees had directed him to suspend Laurendeau’s

pension benefits “effective July 1, 2005, “for violation of

Section 5.03 of the Plan, which is summarized in Section 14 of

the Summary Plan Description (SPD). A copy of Section 14 is

enclosed.” Admin. Rec. at 154. Although the copy of the letter

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14

provided in the administrative record does not include the copy

of Section 14 that was sent, Laurendeau paraphrased Section 14 in

his letter of appeal dated August 1, 2005, as follows: “You have

sited [sic] me for section 14 stating that you can no longer work

in the trade or other related crafts.” Admin. Rec. at 146. The

Trustees’ minutes from their meeting on June 8, 2005, when they

decided to suspend his benefits, states: “Mr. D’Alfonso noted

that Mr. Gerard Laurendeau is receiving a pension, but to his

knowledge is working in the trade. After some discussion, Mr.

D’Alfonso motioned to suspend Mr. Laurendeau’s pension until he

could provide proof that he is not working in the trade.” Admin.

Rec. at 149. Further, Laurendeau responded to the June 10 letter

on June 16, stating that he had agreed not to work in the “Sheet

Metal trade” after retirement and that he was “no longer doing

any sheet metal work or anything connected with the trade.” 

Admin. Rec. at 152.

Contrary to the rule of administrative exhaustion for ERISA

claims, Laurendeau did not raise the issue of the amendment of §

503(a) in the proceedings before the Trustees, which precludes

consideration of the issue here. See Liston, 330 F.3d at 25. If

failure to exhaust did not preclude the amendment issue that

Laurendeau now raises, the existing record amply shows that the

Trustees relied on language in section 503 that existed prior to

the amendment, precluding employment as “a sheet metal worker or

Case 1:05-cv-00441-JD Document 23 Filed 10/19/06 Page 14 of 23
6To the contrary, because the Plan granted complete

discretion to the Trustees to construe the terms of the Plan,

their interpretation is entitled to deference. See, e.g.,

Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 15 (1st Cir.

2003).

15

in other related crafts within the jurisdiction of any local

union of the Sheet Metal Workers’ International Association”

would result in a suspension of benefits. Therefore, no

discovery is necessary on that issue. 

E. Other Issues

Laurendeau raises several other issues in a perfunctory and

jumbled manner. He charges, without competent evidentiary

support, that other Union members who retired and received

pensions and then resumed work in the sheet metal industry

continued to receive their pensions. He asserts that he is

entitled to introduce new evidence if there is a dispute over

plan language and that any ambiguity in plan language must be

construed in his favor.6 He cites “29 U.S.C. §

1053(a)(3)(3)(ii)” for the proposition that his benefits could

only be suspended if he were employed in a job that would

otherwise be available to a Union member, which is an argument

pertaining to the merits of his case. 

These miscellaneous issues, theories, and allegations are

not sufficiently developed to support Laurendeau’s motion to

modify the record and are not considered here.

Case 1:05-cv-00441-JD Document 23 Filed 10/19/06 Page 15 of 23
7The court has not ruled on the parties’ motions for

judgment, which were filed on September 6 and September 28. 

8Laurendeau’s theory that his motions are not untimely

because he is seeking to add to the administrative record through

discovery and an evidentiary hearing, rather than to modify it,

is not persuasive.

16

II. Motion to Suspend Local Rule 9.4, Add to the Record, Allow

Discovery, and Conduct an Evidentiary Trial

 Local Rule 9.4 provides a procedure for ERISA cases that

precludes discovery and a trial until after the court rules on

the parties’ motions for judgment on the administrative record. 

LR 9.4(d). Laurendeau filed a motion to suspend Local Rule 9.4,

to add to the administrative record, to allow discovery, and to

conduct an evidentiary trial before he filed his motion for

judgment and three weeks after filing his motion to modify the

record.7 In this motion, Laurendeau asks the court to allow him

to supplement the record with information presented in his motion

to modify the record, to add information about his current work

status, and to add information about the decision by the National

Pension Fund to suspend his benefits. 

In large part, Laurendeau’s motion to suspend Local Rule 9.4

serves as a reply to the Pension Trust’s objection to his motion

to modify the record.8 Local Rule 7.1(e)(2) requires that a

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17

party seek leave of court before filing a reply to an objection

to a nondispositive motion. Laurendeau did not move for leave to

file a reply, and therefore the arguments he makes in opposition

to the Pension Trust’s objection are not properly before the

court. In addition, none of the arguments he makes would succeed

on the merits, even if they had been properly presented.

A. Fair Hearing

Laurendeau argues that he is entitled to supplement the

record with new information because ERISA requires that he be

afforded a fair hearing. He cites 29 C.F.R. § 2560.503-1 that

“sets forth the minimum requirements for employee benefit plan

procedures pertaining to claims for benefits by participants and

beneficiaries . . . .” § 2560.503-1(a). As stated in the

regulation, those provisions govern administrative proceedings,

not the judicial review process. Laurendeau does not challenge

the Trustees’ proceedings as having violated those requirements. 

Therefore, Laurendeau’s argument based on the “fair hearing”

regulation is meritless. Cf. DiGregorio v. Hartford

Comprehensive Employee Benefit Serv. Co., 423 F.3d 6, 14-15 (1st

Cir. 2005) (claimant sought remand for further administrative

proceedings, asserting lack of administrative compliance with

statutory and regulatory requirements).

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18

B. Opportunity to Present New Evidence

Alternatively, Laurendeau argues that the restrictions of

Rule 9.4 should not apply in his case because he did not have an

opportunity to present evidence to the Trustees. The record does

not support his claim. The record shows that he sent letters and

a memo from his employer to the Trustees to explain the nature of

his resumed work. Laurendeau argues, however, that he could not

have submitted the evidence that he offers here because he was

not represented by counsel and because the evidence was not then

available. 

Laurendeau cites no authority to support a theory that a

claimant who was unrepresented by counsel during the

administrative process is entitled to introduce new evidence

during judicial review. As is discussed in the context of the

motion to modify the record, the presumption in ERISA cases is

that the decision will be based on the administrative record and

a claimant must present a good reason to overcome that

presumption. Liston, 330 F.3d at 23. 

 In appropriate cases, new evidence or information might be

added for judicial review of claims of corruption, personal bias

by the administrator, and “prejudicial procedural irregularity”

in the administrative review process. Orndorf, 404 F.3d at 520. 

Laurendeau attempts to fit his case into an exception by

asserting that he is challenging the procedure used by the

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9Instead, on appeal, he simply reiterated the same cursory

description of his work at B.A. Roy that he provided,

unsuccessfully, initially, albeit reinforced with a note from his

employer. 

19

Trustees in reaching their decision and seeking to introduce

evidence relevant to that issue. He contends that no evidence

was considered with respect to the definition of “sheet metal

trade” and argues that he should be allowed to introduce new

evidence to explain in more detail the work that he does at B.A.

Roy Steel Erectors, Inc., to show that he is not doing work in

the sheet metal trade. 

Despite his conclusory assertions, Laurendeau has not

presented a claim of prejudicial procedural irregularity. He

also does not explain why he did not provide more detail to the

Trustees when given the opportunity to do so.9 Cf. Wright v. R.

R. Donnelley & Sons Co. Group Benefits, 402 F.3d 67, 77 (1st Cir.

2005) (holding it was claimant’s duty to provide evidence about

his occupation). He also has not offered any evidence here that

would provide the detail that he claims is missing from the

administrative record. To the extent he argues that the National

Pension Plan documents would provide explanatory evidence about

the sheet metal trade, he has not shown the relevance of those

documents, particularly in light of the dissimilarities between

those documents and the Plan, as noted by the Pension Trust.

Therefore, Laurendeau has not shown “a very good reason” to

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20

except his case from the presumption that review is limited to

the administrative record.

C. Discovery

Laurendeau argues that he is entitled to discovery of “the

plan administrator’s own documents interpreting the language of

the Plan and providing a standard for evaluation of the facts

presented, analogous to an administrative agency’s guidelines or

regulations.” That request is taken from Glista v. UNUM Life

Ins. Co. of Am., 378 F.3d 113, 122 (1st Cir. 2004), where the

claimant had obtained a reference guide and training materials in

discovery and sought to add them to the administrative record. 

The court noted that such documents and information were required

to be disclosed to claimants in disability benefit disputes and

that the guidelines and training materials were “discrete

documents easily made available.” Id. at 123. The court

concluded that the disputed documents were relevant and

considered them in reviewing the district court’s decision. Id.

at 125.

In this case, Laurendeau does not cite any specific

documents or materials that he believes would be relevant to his

claim that have not been disclosed to him. The Trustees cited

provisions in the Plan and the Summary Plan Description in their

first decision to suspend his pension and referenced Article I,

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21

section 5 of the Sheet Metal Workers’ International Association

Constitution in their decision denying his appeal. Those

documents were all available to Laurendeau and are included in

the administrative record on appeal. Therefore, his amorphous

request raises issues of delay and undue burden on the Plan

administrators that are inconsistent with the purposes of ERISA. 

See Glista, 378 F.3d at 123.

Laurendeau also seeks information pertaining to his claim of

disparate treatment. He contends that the Trustees have not

suspended benefits of other employees who retired and then

resumed work in the sheet metal trade. He did not raise this

issue in the claims process before the Trustees, which is a

prerequisite to pursuing the issue here. Liston, 330 F.3d at 25.

In addition, even if Laurendeau had raised the disparate

treatment issue and had sought and been denied discovery on the

issue, he would now have to show that the discovery he seeks

would be helpful to his case. Id. at 26. 

To succeed on a theory that the Trustees acted arbitrarily 

based on disparate treatment, Laurendeau “must demonstrate, at a

minimum, that [the Trustees] treated him differently from

similarly situated employees.” Mauser v. Raytheon Co., 239 F.3d

51, 57 (1st Cir. 2001). A disparate treatment theory is

appropriate in an ERISA case when “it is easy to determine from

records whether prior practice represents an administrative

Case 1:05-cv-00441-JD Document 23 Filed 10/19/06 Page 21 of 23
10Because Laurendeau and his counsel know the names and

places of employment of the working retirees, they could be

contacted and interviewed, and if willing, they could provide the

necessary information. The working retirees themselves appear to

be a better source of information about the nature of their work

and whether they are or are not continuing to receive benefits

than would discovery from the Pension Trust.

22

construction.” Liston, 330 F.3d at 26. When, however, the

plan’s standard is vague and variables in the circumstances of

other employees make it difficult to identify similarly situated

employees, “comparison of the files of others who received or

were denied benefits invites an open-ended and probably hopeless

attempt to compare disparate situations.” Id. In addition, plan

administrators cannot be required, under ERISA, to grant benefits

merely based on past practices. See Foley v. Int’l Brotherhood

of Elec. Workers Local Union 98 Pension Fund, 271 F.3d 551, 558

(3d Cir. 2001). 

Although Laurendeau names other retirees who he claims

resumed work in the sheet metal industry without a suspension of

their pensions, he has failed to present any competent evidence

to support his allegations or explain why discovery is necessary

to assemble such evidence.10 In addition, Laurendeau himself

describes the language in the Plan pertaining to excluded work as

broad and vague, which makes it unlikely that the comparisons he

proposes would allow an easy determination from the records as to

whether the Trustees’ “prior practice represents an

administrative construction.” Liston, 330 F.3d at 26. As such,

Case 1:05-cv-00441-JD Document 23 Filed 10/19/06 Page 22 of 23
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even if the issue had been properly exhausted, which it was not,

Laurendeau’s theory is not sufficiently developed or supported to

persuade the court that the “concerns about efficient

administration that underlie the ERISA statute itself” and the

procedures mandated by Rule 9.4 should be set aside here. Id.

Conclusion

For the foregoing reasons, the plaintiff’s motion to modify

the record (document no. 13) and motion to suspend Local Rule 9.4

(document no. 16) are denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 19, 2006

cc: John-Mark Turner, Esquire

Vincent A. Wenners, Jr., Esquire

Case 1:05-cv-00441-JD Document 23 Filed 10/19/06 Page 23 of 23