The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Plaintiff Kateena Butler's ("Butler") and Defendants Illinois Bell Telephone Company's ("Illinois Bell"), SBC Communications, Inc.'s ("SBC"), Ameritech Sickness and Accident Disability Benefit Plan's ("SADBP"), and Ameritech Long Term Disability Plan's cross-motions for summary judgment. For the reasons stated below, we grant Butler's motion for summary judgment in part and deny it in part, and we deny Defendants' motion for summary judgment in its entirety.
Butler alleges that she was employed as a consumer advocate fielding telephone calls from customers from October 1997 to August 2000, for Illinois Bell, a subsidiary of SBC. Butler alleges that she began working for Illinois Bell again in August 2001. Butler alleges that SBC was the plan administrator of the employee welfare plans for Illinois Bell employees ("Plans"). Butler claims that in December 2002, she was diagnosed with multiple sclerosis ("MS") and that over the next few months she informed her supervisors of her illness. Butler alleges that in January 2003, March 2003, and April 2003, she submitted medical documentation of her illness to the SBC Medical Absence and Accommodations Resource Team ("SMAART Unit") which was a third party administrator of the Plans.
Butler alleges that she was granted leave on March 20, 2003, for medical reasons, but was denied protection under the Family Medical Leave Act ("FMLA") because she had allegedly missed too much work in the preceding twelve months. Butler alleges that she returned to work on March 25, 2003, but became ill again on April 9, 2003. Butler claims that on April 11, 2003, she called the SMAART Unit and asked for disability benefits under the SADBP and was told that she had to wait seven days before her disability benefits would resume and she could apply for such benefits. Butler claims that on April 12, 2003, she left work because she was ill and that from April 14, 2003, to April 19, 2003, she called each day to the Illinois Bell attendance office ("Attendance Office"). According to Butler, the person she spoke with at the Attendance Office never told her that she was not eligible to take FMLA leave and, in fact, asked Butler whether she was taking FMLA leave. Butler claims that she indicated each day that she was taking FMLA leave. Butler claims that when she attempted to return to work on April 21, 2003, she was informed for the first time that she was not eligible to take FMLA leave, and was suspended for her absences from work. Butler claims that if she had been told she was not eligible for FMLA leave, she would have not have attempted to return to work on April 21, 2003, and would have instead applied for disability benefits and gotten approved for disability leave. Butler states that she called the Attendance Office on April 22, 2003, and was told that she could not go back on disability benefits because she had been suspended. Defendants claim that she was not told that she was barred from applying for disability benefits because of her suspension and that she did not receive benefits because she never applied in a timely manner. Butler alleges that on May 30, 2003, after a hearing with Illinois Bell management and a union representative, she was terminated without disability benefits for violations of Illinois Bell's attendance policy.
Butler subsequently brought the instant action and her complaint includes an estoppel claim under the FMLA, 29 U.S.C. § 2601 et seq., and the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., (Count I), a breach of fiduciary duty claim under 29 U.S.C. § 1104 and 29 U.S.C. § 1132(a)(3) (Count II), a claim under 29 U.S.C. § 1132(a)(1)(B) ("Section 1132(a)(1)(B)") for an improper interpretation of the SADBP (Count III), and a claim under 29 U.S.C. § 1140 of ERISA for retaliation (Count IV). Butler moves for summary judgment on Counts I, II and III. Defendants move for summary judgment on all counts.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial."Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross motions for summary judgment, the court should "construe the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
I. Defendants' Motion For Summary Judgment
Defendants argue that Butler cannot prevail on her ERISA claims because she did not exhaust her administrative remedies. Defendants also contend that Butler cannot base her ERISA estoppel claim on oral statements by Illinois Bell personnel, and that there is insufficient evidence to support Butler's ERISA retaliation claim or Butler's claim concerning the interpretation of the SADBP. Defendants further claim that there is not evidence that fiduciaries made any improper representations to Butler. Finally, Defendants argue that Butler's FMLA claim is time-barred.
A. Exhaustion of Administrative Remedies
Defendants argue that Butler had administrative remedies available to her that she did not pursue. In general, a participant in a plan governed by ERISA must exhaust her administrative remedies before bringing an ERISA action to obtain benefits. Stark v. PPM America, Inc., 354 F.3d 666, 671-72 (7th Cir. 2004). However, exhaustion is not required "if there is a lack of meaningful access to review procedures," or "if pursuing internal remedies would be futile." Id. In the instant action, Butler contends that she believed that her attempts to pursue the administrative steps to obtain disability benefits would be futile because a person at the Attendance Office told her that she was not eligible for such benefits when she was on suspension. In order to meet the futility exception to the ERISA exhaustion requirement, a plaintiff must show that is was "'certain' [that the] plaintiff's claim w[ould] be denied by the plan administrator." Ruttenberg v. U.S. Life Ins. Co., 413 F.3d 652, 662 (7th Cir. 2005); see also Smith v. Blue Cross & Blue Shield United of Wis., 959 F.2d 655, 659 (7th Cir. 1992)(stating that "[i]n order to come under the futility exception, the [plaintiff] must show that it is certain that [her] claim will be denied on appeal, not merely that [she] doubt[s] an appeal will result in a different decision").
In the instant action, Butler claims that an employee at the Attendance Office told her that she could not apply for disability benefits because she was on suspension. Defendants deny that any employee made such a statement and thus there is a legitimately disputed fact in regard to the substance of the alleged conversation. Defendants also point to the deposition testimony of Lisa Trevino ("Trevino"), a manager at Illinois Bell who testified that any employee could apply for disability benefits. (Trev. Dep. 84). However, Trevino further testified that employees with a certain employment status would not meet the eligibility requirements and that their applications would be denied. (Trev. Dep. 84). Trevino also explained that an employee who was on suspension would be unable to satisfy the seven-day waiting period and would thus not be eligible for disability benefits. (Trev. Dep. 97). The mere fact that Trevino testified that "[a]nybody can apply for sickness disability benefits" does not show that Butler had any administrative remedy available, since Trevino indicated that such a claim would have been denied. (Trev. Dep. 84, 97). At the very least, to the extent that Trevino avoided giving a precise answer regarding whether Butler's application, if filed, would have been denied out of hand, there exists genuinely disputed facts that must be addressed by the trier of fact. Defendants also point to past experiences that Butler had with the Plans' claims systems, but such evidence is not sufficient to show that Butler's attempt to apply for disability benefits at the time in question would not have been futile.
In addition, ERISA provides that a summary plan description must be "written in a manner calculated to be understood by the average plan participant" and must be "sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan. Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 590 (7th Cir. 2000)(quoting 29 U.S.C. § 1022(a)). Butler has presented evidence showing that the SADBP written plan does not clearly apprise participants of their rights when they are under suspension. Finally, the decision of whether to "require exhaustion as a prerequisite to bringing a federal lawsuit is a matter within the discretion of the trial court . . . ." Lindemann v. Mobil Oil Corp.,79 F.3d 647, 650 (7th Cir. 1996). Therefore, we find that Defendants have not pointed to sufficient evidence to warrant barring Butler's ERISA claims based on her failure to exhaust her administrative remedies and decline to exercise our discretion to bar her claims for a failure to exhaust her administrative remedies.
B. Oral Misrepresentations
Defendants argue that Butler cannot base her ERISA estoppel claim on oral misrepresentations. Although, the Seventh Circuit has recognized that a plaintiff may bring an estoppel claim under ERISA, it has also cautioned that "ERISA's prohibition against oral modifications of written plans" must be considered and that "estoppel in the ERISA context only applies to written, and not to oral, misrepresentations." Gallegos v. Mount Sinai Medical Center, 210 F.3d 803, 809 (7th Cir. 2000). In the instant action, Butler's estoppel claim is based mainly on the alleged oral statements made by personnel at the Attendance Office during her absences after April 12, 2003, and by an individual at the Attendance Office on April 22, 2003, when Butler was allegedly told that she could not apply for disability benefits. Butler does not allege that there was a misrepresentation made to her in writing. Although the Seventh Circuit has stated that "equitable estoppel cannot dilute the rule forbidding oral ...