Michael Jordan, Above And Beyond (1996) 34
Christian Erdmann
On October 24, 1996, Plaintiff submitted a typed letter describing her symptoms at length and requesting a second appeal of the denial of her claim. As part of her appeal, Plaintiff appears to have attached Dr. O'Connor's letter of October 10, 1996, referred to above, and a letter from Dr. Reddy dated October 18, 1996, which was nearly identical to his earlier letter of August 16, 1996. See Pl.'s Exhs. 39, 40. In short, both doctors' letters concluded without explanation that Plaintiff was disabled from her job as a secretary due to fibromyalgia.
Yet even when the plan vests the administrator with discretion, the degree of deference associated with this standard of review may be affected if a plaintiff makes a sufficient showing that the administrator has a conflict of interest. Snow v. Standard Ins. Co., 87 F.3d 327, 330 (9th Cir.1996). The court must first inquire whether a formal conflict of interest exists because of an administrator's dual role as both the funding source and the administrator of the plan. Next, the court considers whether this inherent conflict of interest actually influenced the decision. See Lang, 125 F.3d at 798; Atwood v. Newmont *1155 Gold Co., Inc., 45 F.3d 1317, 1322 (9th Cir.1995). The burden to show an actual conflict of interest lies first with the affected beneficiary who must present "material probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary's self-interest caused a breach of the administrator's fiduciary obligations to the beneficiary." Atwood, 45 F.3d at 1322. If the beneficiary satisfies this burden, the Court still reviews on an abuse of discretion basis, but it becomes "less deferential." See Snow, 87 F.3d at 331 (citing Atwood, 45 F.3d at 1322).
As noted above, Plaintiff bears the initial burden of providing material, probative evidence beyond the apparent conflict that tends to show MetLife's self-interest caused a breach of its fiduciary duties. Plaintiff sets forth the following as establishing MetLife's conflict of interest: 1) MetLife failed to give sufficient weight to evidence supporting Plaintiff's claims; 2) MetLife failed to give Plaintiff sufficient guidance concerning the information needed in order for Plaintiff to qualify for LTD benefits; 3) the time frame in which MetLife requested Plaintiff provide evidence of disability was contrary to the Plan; and 4) MetLife spent an insignificant amount of money investigating Plaintiff's claim in relation to the total value of the claim. For the reasons stated below, the Court finds Plaintiff's assertions meritless.
Based on information that Human Rights Watch received in February 1997, Bashir al-Khatib, who was transferred to Syria after he was abducted in Lebanon in July 1996 (see above), may have been subjected to torture at the Palestine Branch of Military Intelligence in Damascus, where he was last seen. Al-Khatib reportedly was walking with great difficulty, shaking constantly, and had signs of torture on his hands. His face was pale and his skin discolored. The report about al-Khatib's condition, which came from a credible source, is a cause for deep concern. Human Rights Watch has also documented cases of Syrian prisoners who have been interrogated and tortured while held incommunicado at the Palestine Branch. The victims have been blindfolded and handcuffed, then beaten, given electric shocks, and placed in special torture devices such as the "German chair" and the "tire." During a visit to Damascus in 1995, Human Rights Watch representatives saw the injuries that some of these victims -- current and former prisoners alike -- had sustained from torture, such as broken bones, broken teeth, disfigured extremities, and lateral marks on the skin from the impact of hard objects. [41]
Prime Minister Hariri has publicly expressed ignorance of the practice rather than acknowledging it as a problem. At a press conference in Washington, D.C., on October 17, 1996, the prime minister responded this way to a question from a Human Rights Watch representative about the abductions: "If there is a specific case...I would like to know the information, and I will see what to do about it." On March 5, 1997, Human Rights Watch provided the prime minister with information about a specific recent case, that of Bashir al-Khatib, who was taken into custody in Tripoli in July 1996 by Syrian security forces and transferred to Damascus, based on information that Human Rights Watch obtained from reliable sources (see above).
The Award of Special Merit commemorates the paramount contributions to the success and well being of the Society which in the judgment of the Society are above and beyond the expected and ordinary. The recipient need not be a member of the Society. This award was originally in the form of a document suitable for framing. In 1987, an engraved silver bowl was adopted as this award.
As timely as these high-profile initiatives were, it was not at all clear that they would affect specific corporate practices and lead to meaningful human rights improvements in and beyond factories internationally. As with the 1995 "Model Business Principles," there was a real danger they would be little more than window-dressing.
In October, the U.S. Department of Labor published a comprehensive and accurate assessment of corporate compliance with voluntary codes of conduct addressing the use of child labor. The report showed that while there was decreased use of child labor in the Americas, little progress had been made in Asia, where the practice is much more prevalent.
The importance of these issues was not only felt at the federal level. In a significant development, cities debated adopting selective purchasing ordinances to prohibit public entities from buying goods or services from corporations doing business in Burma. In 1995, the city government of Berkeley, California, had adopted such a measure. In 1996, the state of Massachusetts passed a law banning contracts with firms doing business in Burma.
Anti-gay legislation, violence, harassment and discrimination were among the human rights problems detailed in the report, Modern Capital of Human Rights? Abuses in the State of Georgia, released in July to coincide with the Olympic Games in Atlanta. These problems, although acute in Georgia, are often found elsewhere in the United States as well. The report exposed the failure of law enforcement officials to prosecute cross-burning, arson, and vandalism against gays and lesbians as well as the sluggish police response to investigating and solving cases involving murder or direct physical attacks. This distaste for protecting the rights of gays and lesbians results in the vast majority of such crimes never being reported to the police. Georgia also has a shameful record of state-sanctioned employment discrimination and lacks laws to prohibit such discrimination in the private sectorCso that even a mother who publicly decried the murder of her gay son by a group of teenagers with baseball bats had no recourse when, as a consequence, she lost her job. Intolerance of lesbians and gays became a highly visible issue before the Olympics as one Georgia county adopted a resolution condemning Alifestyles advocated by the gay community@ and another county swiftly did the same. The Atlanta Committee for the Olympic Games withdrew plans to have the Olympic torch carried through the first county; faced with that prospect, the second rescinded its own resolution, despite death threats to one of the county commissioners. Human Rights Watch urged the repeal of anti-gay laws and ordinances, the prohibition at the federal, state and local levels of discrimination based on sexual orientation, and the reauthorization of the Federal Hate Crimes Statistics Act, which has a provision requiring the collection of statistics regarding anti-gay bias crimes.
The prison specialist of Human Rights Watch also began research on sexual abuse and rape of prisoners, examining, among other issues, the vulnerability of gay prisoners to rape (see above). Our initial research highlighted as an area for further investigation the striking reluctance of prison officials to intervene when a victim is perceived as homosexual. Human Rights Watch and other human rights organizations also attacked discrimination against gays and lesbians in the context of a landmark U.S. asylum case. In March, we submitted a Afriend of the court@ brief in the case of Pitcherskaia v. INS, an appeal of a denial of asylum to a Russian lesbian activist. Alla Pitcherskaia had been arrested and beaten by the police numerous times because of her association with lesbians, expelled from medical school, dismissed from jobs, forced to undergo state medical Atreatment@ as a lesbian, and threatened with long-term institutionalization, medication and electroshock therapy. Nevertheless, her application for U.S. asylum was denied. In its decision, the Board of Immigration Affairs had called into question the applicability of Attorney General Janet Reno=s earlier determination that sexual orientation could be a basis for claiming persecution on account of membership in a social group. Our brief argued that as a matter of both U.S. and international law, persecution on account of sexual orientation is a basis for asylum. Following the submission of our brief, the Immigration and Naturalization Service admitted to misstatements in its brief and moved to correct the administrative record to reflect the view that gays and lesbians do constitute a particular social group; this was done, however, with the intent of avoiding a federal court decision that might settle the issue once and for all in U.S. law.
During 1996, the Human Rights Watch/Children=s Rights Project requested the American Psychiatric Association to look into cases of alleged psychiatric Atreatment@ of young people to change their sexual orientation. Although homosexuality was dropped from the official compilation of mental disorders in 1973, there had been reports that the diagnostic category of AGender Identity Disorder@ had been used instead to institutionalize children who manifest what are perceived as gay or lesbian traits.