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Colvin v. Peterson Industrial, Inc.

United States District Court, N.D. Alabama, Middle Division

July 2, 2015

DEBBIE COLVIN, individually and as Personal Representative of the Estate of Oscar Colvin, Deceased Plaintiffs,



This is a civil action filed by the plaintiff, Debbie Colvin, individually and as personal representative of the estate of Oscar Colvin, deceased. The plaintiff sues Peterson Industrial, Inc., her deceased husband's former employer, for alleged violations of the notice provisions of the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. § 1162, et seq.

The case comes before the court on the defendant's motion for summary judgment. (Doc. 37). For the reasons stated herein, the motion will be GRANTED, and this case will be DISMISSED.


Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits - or by the depositions, answers to interrogatories, and admissions on file - it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact - that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.


Pursuant to Rule 56(c)(2) of the Federal Rules of Civil Procedure, the defendant objects to and/or moves to strike certain evidence presented by the plaintiff in opposition to the motion for summary judgment. (Doc. 45 at 3-4). No response to the objections/motion has been filed by the plaintiff.[1]

It has long been the law in this circuit that, when deciding a motion for summary judgment, a district court may not consider evidence which could not be reduced to an admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). But, until 2010, Rule 56 lacked a formal procedure to challenge such inadmissible evidence. In 2010, the advisory committee added Rule 56(c)(2), which provides:

A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

Fed. R. Civ. P. 56(c)(2). The advisory committee's note to Rule 56(c)(2) provides that:

[An] objection [under Rule 56(c)(2)] functions much as an objection at trial.... The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.

Fed. R. Civ. P. 56 advisory committee's note to 2010 amendments (emphasis added).

Here, the defendant states:

The following excerpts of the Affidavit of Dewayne Colvin are presented in a form which not be admissible ([d]oc 42...):
- "On the day in January of 2012[, ] [that] this incident occurred, my [f]ather called me and told me he was about to talk with Sonny about bonus checks/commission[s] that Sonny promised [the] men for working jobs in Mississippi, and for bonus checks/commission[s] he promised to my [f]ather for working in South Carolina, Arkansas and Mississippi[, ] but had refused to pay[;]"
- "He [Oscar] told me Sonny is about to fire me' because he was going to ask for money that was owed to him and to the other employees[;]"
- "[M]y dad was calling Sonny a lying thief' and "[m]y dad was telling Sonny you fired me[.]"
Furthermore, the transcript of a telephone conversation with a Blue Cross Blue Shield representative ([d]oc. 42 [at] 32-33) and Ms. Colvin's testimony regarding an alleged conversation with a representative of Gadsden Regional Medical Center ([d]oc. 40 [at] 9-10) would constitute inadmissible hearsay.

(Doc. 45 at 4-5). In addition,

the [d]efendant objects to the extent that the [p]laintiffs rely upon excerpts from the [a]ffidavit of Dewayne Colvin which constitute improper lay opinion testimony, speculation[, ] and are not based upon personal knowledge. Specifically, the affidavit stated the following:
- "I do believe that Sonny thought I would also quit because he knew I was angry with both of them[;]"[] and
- "[T]here was no misconduct in the way that they dealt with each other because this was common place [sic] between my [f]ather and Sonny[.]"

(Doc. 45 at 5-6).

The plaintiff has not responded to the defendant's objections. Therefore, the plaintiff has not met his burden to show that the evidence is admissible (or can be reduced to an admissible form) at trial. Because the plaintiff has failed to meet his evidentiary burden, the defendant's motion will be GRANTED, and this evidence will be STRICKEN.[2]


Peterson Industrial, Inc. ("Peterson Industrial") is an Alabama corporation located in Ashville, Alabama. Peterson Industrial installs equipment in poultry and meat plants. Peterson Industrial's shareholders are of Sonny Peterson ("Sonny") and Paula Peterson ("Paula"), who are married. Paula is the secretary/treasurer and handles the accounting and finances. As a part of her job, Paula handles most of the insurance issues. Peterson Industrial makes health insurance available to all of its employees. If, after a six month probationary period, the employee elects the health insurance coverage, Peterson Industrial will pay one half of the insurance premium.

Peterson Industrial has never had more than twenty (20) employees covered under its health insurance plan. (Doc. 37-2 at 15 (Paula Peterson Deposition)).[3] The company did have over 20 employees total some time in 2012. (Doc. 37-2 at 46).

Sonny had known Oscar Colvin ("Oscar") since he was 4 or 5 years old-they grew up together. Sonny testified that he loved Oscar as a brother. Paula described Oscar as a friend. Oscar and Debbie Colvin ("Debbie") were initially married on June 20, 1994. They later divorced in 2007-08 and remarried on October 11, 2011.

Oscar began his employment with Peterson Industrial when Sonny saw Oscar at a service station and Oscar said that he needed a job. Sonny hired him the next day as a supervisor. Oscar was initially employed at Peterson Industrial from 2004 through January, 2008. In 2008, Oscar got mad about something and quit. Sonny went to Oscar later and requested that he come back. Oscar came back to work in July 2009, and worked until January, 2012, when he was terminated.

Sonny described Oscar as good employee and that he did his job. Sonny testified during his deposition that he gave Oscar "three verbal reprimands about Debbie driving the company truck because she was an uninsured driver and she wasn't on my driver's list, which is a big violation of our company policy, a written policy that Oscar had signed." (Doc. 37-1 at 52). There was also an incident where Oscar drove the company truck to a Bob Seger concert which was against company policy. (Doc. 37-1 at 97). Sonny issued him a written reprimand. In response, Oscar cussed and said that "he wasn't signing the GD thing." (Doc. 37-1 at 54, 97).[4] Debbie has no knowledge "either way about any company policy about personal use of vehicles." (Doc. 42 at 9(28) (Debbie Colvin Deposition)). Sonny would also receive complaints from the employees regarding how Oscar treated them. Sonny would counsel Oscar and try to calm him down.

Peterson Industrial learned of Oscar's cancer in July, 2011. Specifically, Sonny noticed that Oscar was turning yellow and did not look well. As a result, he told Oscar's son, Dewayne Colvin ("Dewayne"), who also worked at Peterson Industrial for a time, about his concerns and that Oscar needed to go to a doctor. Over the next few days, Peterson Industrial learned of Oscar's cancer diagnosis. Peterson Industrial allowed Oscar to take a leave of absence from July 2011, through December 2011. During this time, Oscar was given full pay of $2, 000/week, health insurance, and allowed use of the company truck. In January, 2012, Oscar announced that he had been cleared of cancer and wanted to return to work.

When he came back to work, Oscar was sent to a project in Souderton, Pennsylvania. (Doc. 37-1 at 62). Sonny testified that "Oscar had a really bad attitude on the project. He parked in a no parking zone in a loading entrance to the plant. When our customer[, a man named Taylor Peel, ] asked him to... []move his truck from that parking area, he threatened the customer." (Doc. 37-1 at 62). Specifically, he told the customer, "I'll beat your eyes out you sissy SOB." (Doc. 37-1 at 64).[5] Sonny stated in his deposition that, after the job, someone "had to go back the day after it started up and relocate some piping to equipment." (Doc. 37-1 at 66). He testified that "[o]ur men put them in the wrong place." (Doc. 37-1 at 67).[6]

After the job was done, Peel contacted Sonny and told him what occurred and that he needed to "get a hold of Oscar." (Doc. 37-1 at 66). Sonny then called Oscar into the office to discuss his behavior on the Souderton project. Sonny testified at his deposition as follows:

A. That's when I called Oscar to the office and told him that we couldn't have that attitude and we couldn't be running off - those were our customers and he couldn't talk to people that way.
A. I called him the night before he came into the office.
Q. Okay.
A. I told him that I'd had enough of his bad mouthing the customers and I had had enough of him bad mouthing me with the crews, that we needed to talk the next morning.
A. [The next morning] Oscar walked in. I, again, reiterated that it had to stop. I didn't think that he was well. I wanted him to turn in his company truck, go home, come back and get his paycheck, and I would pay his insurance until he got well, but I couldn't tolerate that type of attitude from him anymore. I knew he was sick.[7]
Q. What did he say?
A. He proceeded to cuss and swear at me and told me he would just gut me. I asked him what he meant. He told me he would cut my guts out and went into another GD blankety blank blank blank.
Q. What did you say?
A. At this point, I told him he needed to calm down, think about what I telling him, and take what I was offering him. He had nothing to lose. He had a job when he got well. He needed his paycheck. He needed his insurance. I knew he was sick.
Q. What did he say?
A. He stood up and again cursed me again and told me he didn't need no pay, no insurance, nothing I had, that I was a sorry SOB and he would kill me in the next two years, watch my back.
Q. So then what happened?
A. I asked him to leave.
Q. Did you curse at him?
A. No, I did not.[8]

(Doc. 37-1 at 64, 68-69). Later in his deposition, when asked if Oscar did more than just verbally threaten him, Sonny stated that Oscar "reached into his back pocket to pull his knife out and told me he would gut me." (Doc. 37-1 at 74).

Dewayne Colvin heard some part of the conversation. He stated that, when he arrived, Sonny Peterson and his father "were standing outside at the doorway yelling and screaming at one another toe to toe write [sic] at each other." (Doc. 42 at 48). He continued:

[T]hey were yelling at each other and I walked between them several times in an effort to stop them from arguing.... I walked back out of the building in between the two of them while... Sonny was telling my [d]ad he did not work there any longer.... Sonny was also yelling that my [d]ad screwed up our last job in which [sic] was not correct because my [f]ather was the reason the job was actually done correctly in the end. In fact, my [f]ather stayed at the plaint for over 24 hours, making sure the work was done correctly.

(Doc. 42 at 48).

It took approximately ten minutes to get Oscar out of the office. (Doc. 37-1 at 72). Sonny testified that Oscar Colvin "stopped at [someone named] Linda's office and threatened to gut her. I asked him to leave again, and some of the employees in the parking lot had made their way to the office. They saw what was going on and was getting him out of the office." (Doc. 37-1 at 72). Sonny stated that Oscar specifically told Linda "I will gut your bulldog ass if you get up, bitch." (Doc. 37-1 at 75).[9]

Debbie testified at her deposition that Oscar acknowledged that he and Sonny Peterson "got ill with each other and said things." (Doc. 37-4 at 9(34)). She described it as a "... mutual thing. [Oscar] quit. Sonny fired him." (Doc. 37-4 at 13(50)). Sonny testified that he was scared by this incident. (Doc. 37-1 at 73).[10] Peterson Industrial called the police and made a report concerning the incident. (Doc. 37-1 at 76-77).[11]

In a subsequent conversation, Oscar's son, Dewayne, acknowledged that Peterson Industrial had done everything that it could. Dewayne continued to work for Peterson Industrial for some time and never mentioned an issue about insurance coverage.[12]

Oscar also told his wife, Debbie, that he did not need the health insurance. Oscar never made a claim for unemployment.

Paula Peterson testified at her deposition that either she or someone named April notified Blue Cross Blue Shield of Oscar's termination. (Doc. 37-2 at 38). Paula Peterson explained in her deposition that she has a practice of documenting everything that happens at the office. (Doc. 37-2 at 39). She testified that she noted on the COBRA election form that it was mailed on January 24, 2014. Paula Peterson documented Oscar Colvin's personnel file that day to note that the COBRA information had been sent to the plaintiff's address at 385 Mountain Springs Road, Ashville, Alabama 35953, by regular mail. (Doc. 37-2 at 40, 58, 64). She testified that she sent the forms herself (doc. 37-2 at 41), and that she mailed them "at Ashville at the box outside" (doc. 37-2 at 42).

Sonny Peterson also has firsthand knowledge of the mailing of the COBRA forms. In his deposition he testified:

A. [Paula] came in and said she had to get Oscar his COBRA form mailed. She filled out the form. Paula files everything in everybody's employee file just like this and signs it and dates it.
When she filled out her form - Paula comes to the office every day approximately noon, we go to lunch, and she mails her items when we do that. I was with her when she mailed this.
Q. You were there when she actually mailed the envelope?
A. Yes. I actually drove to the post office. That's our lunch routine every day.

(Doc. 37-1 at 93-94).[13]

Debbie did come by the Peterson Industrial headquarters one time when Sonny and April were not in the office. Debbie Colvin testified in her deposition that she told "April" at Peterson Industrial that she never received anything about COBRA from Peterson Industrial. (Doc. 42 at 27(97-98)). Debbie states that she is "pretty sure" that this happened in March or April of 2012. (Doc. 40 at 27(100)). Paula states that it occurred in April of 2012. (Doc. 37-2 at 41).[14]

Sonny and Paula never had a conversation with Oscar or Debbie regarding the health insurance.


A. Applicable Law

The applicable law in this case was thoroughly set out by Judge Smith, in this district, in Evans v. Books-A-Million, 907 F.Supp.2d 1284 (N.D. Ala., October 29, 2012) (Smith, J.) (affirmed in part, vacated in part on other grounds). Judge Smith wrote:

The Consolidated Omnibus Budget Reconciliation Act, generally referred to by the acronym "COBRA, " was enacted by Congress during 1985, but not signed into law by President Reagan until April 7, 1986. Among other things, the Act requires "qualifying employers" (generally defined as those persons or entities who or which employed twenty or more full-time equivalent employees during the previous calendar year) to offer "qualified employees" (and members of the employee's immediate family) the option to continue coverage under the employer's group health and dental insurance plans whenever a "qualifying event" causes the employee to lose such coverage. See 29 U.S.C. § 1161; see also, e.g., Brown v. Neely Truck Line, Inc., 884 F.Supp. 1534, 1539 (M.D.Ala.1995). Examples of some of the "qualifying events" listed in the statute include a person's loss of group health or dental insurance coverage due to: (1) the death of the covered employee; (2) a divorce or legal separation of the covered employee that terminates the ex-spouse's eligibility for benefits; (3) a dependent child attaining the age at which she or he is no longer eligible for coverage under the employer's group plans; or (4), as in the present case, the voluntary or involuntary termination of a covered employee for any reason other than "gross misconduct." See 29 U.S.C. § 1162(2); Brown, 884 F.Supp. at 1539; Lloynd v. Hanover, 72 F.Supp.2d 469, 478 (D.Del.1999). COBRA requires that the continuation coverage offered to the qualified employee extend at least eighteen months past the date of the "qualifying event." 29 U.S.C. § 1162(2)(A)(I). In addition to requiring that the qualified employee be given the option to extend coverage under the employer's group health or dental insurance plans for at least eighteen months past the date of a "qualifying event, " COBRA also mandates that the employee be given notice of his or her option to do so. See 29 U.S.C. 1166. The employer must notify the health plan administrator within thirty days of the "qualifying event" that triggered the termination of the group health or dental insurance coverage of the employee; and, the health plan administrator must then notify the employee of his or her option for extended coverage within an additional fourteen days. See 29 U.S.C. §§ 1166(a)(1)-(2), 1166(a)(4), 1166(c); see also 29 C.F.R. §§ 2590.606-2(b), 2590.606-4(b)(1). When, as here, the defendant-employer also is the administrator of the group health and dental insurance plans, those two periods are added together; in other words, the employer/plan administrator is allowed a total of forty-four days within which to provide notice to the former employee. See 29 C.F.R. § 2590.606-4(b)(2). If the former employee is not provided the required notice within the time allowed by statute, he or she is afforded a private right of action. See 29 U.S.C. § 1132(c)(1).

Evans, 907 F.Supp.2d at 1289-90 (emphasis added) (footnotes omitted).

In this case, as in the Evans case, the plaintiff was terminated, and, although it is not specifically made clear by the parties, it appears that the Peterson Industrial is also the administrator of the group health plan it offers through Blue Cross Blue Shield. The plaintiff claims that Peterson Industrial did not provide sufficient COBRA notice to Oscar or Debbie Colvin.

29 U.S.C. § 1166, which sets forth the notice requirements under COBRA, states that notice must be provided, "In accordance with regulations prescribed by the Secretary." Prior to 2004, the Secretary of Labor had not promulgated regulations defining adequate notice under § 1166; in the absence of any regulations, courts reasoned that employers need only "operate in good faith compliance with a reasonable interpretation of what adequate notice entails." Degruise v. Sprint Corp., 279 F.3d 333, 336 (5th Cir.2002) (internal quotations omitted).[15] However, now that regulations have been promulgated, employers, and the court, must turn to them for guidance.29 C.F.R. § 2590.606-4 sets forth the requirements for notice of the right to continuation coverage. As to delivery of notices, the regulation states that any notices required by the regulation "shall be furnished in any manner consistent with the requirements of § 2520.104b-1." The latter regulation provides that "the plan administrator shall use measures reasonably calculated to ensure actual receipt of the material by plan participants, beneficiaries and other specified individuals." 29 C.F.R. § 2520.104b-1(b)(1). Examples of such methods include in-hand delivery to the employee, first-class mail, and electronic delivery under certain conditions. Id.

Griffin v. Neptune Tech. Grp., No. 2:14CV16-MHT, 2015 WL 1635939, at *10-11 (M.D. Ala. Apr. 13, 2015) (Thompson, J.).

B. The Defendant Complied with COBRA Notice Requirements

1. The Undisputed Evidence Demonstrates that COBRA Forms Were Mailed to Oscar and Debbie Colvin

In the instant case, the evidence is undisputed that the COBRA forms were sent to Oscar and Debbie Colvin's address, via a method of delivery, first class mail, that is specifically set forth in the regulations as a means "reasonably calculated to ensure actual receipt of the material." The plaintiff has provided no authority for the proposition that the defendant failed to comply with the statute because she did not receive the materials.[16] Further, the plaintiff's rambling arguments regarding her contacts and discussions with Peterson Industrial, [17] including alleging that she told or were not sent.[18] Finally, the plaintiff argues that "the COBRA form which was alleged to have been mailed to Oscar... does not have the section to be completed by employer' filled out so as to question whether or not this was ever mailed by [sic] Oscar." (Doc. 40 at 12). Whether or not a portion of the form was filled out in no way refutes the evidence in the record that the form was mailed.

2. Debbie Colvin Was Not Entitled to a Separate COBRA Notice

The plaintiff also argues that Debbie Colvin had to receive separate notice from some text messages that she sent to Sonny Peterson (doc. 42 at 12(38-39)). everything and sent them, under separate cover, to Debbie and Oscar Colvin, separately. However, it seems reasonable under the circumstances, that, since it is undisputed that Oscar and Debbie Colvin were married and lived together at the same address to which at least one copy of the documents were mailed, [19] the requirements of the statute were satisfied. As has been noted,

no purpose would be served by requiring a separate mailing to each individual beneficiary or requiring a separate form for each beneficiary. A single notice sent to a household containing more than one beneficiary is reasonably calculated to inform all qualified beneficiaries living at that address of their COBRA rights if the notice allows all beneficiaries to elect coverage.

Conery v. Bath Associates, 803 F.Supp. 1388, 1399 (N.D. Ind. 1992).[20]

C. Even Though the Defendant Complied with the COBRA Notice Requirements, It Had No Duty To Do so Because Oscar Colvin Was Terminated for "Gross Misconduct"

As noted previously, if Oscar Colvin was terminated for gross misconduct, then his termination was not a "qualifying event, " under COBRA. See 29 U.S.C. § 1162(2). In the absence of a "qualifying event, " there is no duty to provide a COBRA notice. Having found that the defendant did in fact comply with the requirement that it send notice to both Oscar and Debbie Colvin, the court also notes, in the alternative, that it had no duty to do so because Oscar Colvin was terminated for gross misconduct.

It has been noted that "COBRA... does not provide a definition of gross misconduct' and federal case law addressing the subject is sparse." Zickafoose v. UB Servs., Inc., 23 F.Supp.2d 652, 655 (S.D. W.Va. 1998). At least one court has found that

Applying an ordinary meaning of the statutory terms, the adjective gross means outrageous, extreme or unconscionable. Accordingly, conduct is gross misconduct if it is so outrageous that it shocks the conscience. Such a definition necessitates a case by case fact-based analysis. One district court described gross misconduct as "misconduct beyond mere minor breaches of employee standards, but conduct that would be considered gross in nature." Collins v. Aggreko, Inc., 884 F.Supp. 450, 454 (D.Utah 1997).

Zickafoose, 23 F.Supp.2d at 655. Gross misconduct has been found where an employee used a company vehicle without authorization and while intoxicated. Aggreko, 884 F.Supp. at 454 ("Such conduct is wanton and a deliberate disregard of his employer's interest."). Certainly if the conduct in Aggreko constitutes gross misconduct, then threatening to "gut" your employer, while physically reaching for a knife, and/or telling a female employee that he will "gut your bulldog ass if you get up, bitch, " also constitutes a "wanton and deliberate disregard of [the] employer's interest."[21]

The plaintiff contends that, even if Oscar was guilty of "gross misconduct, " that would not affect her right to notice. In support of her argument she cites Cabral v. Olsten Corp., 843 F.Supp. 701 (M.D. Fla. 2010), in which the Florida district court stated that "Congress enacted COBRA as a remedial statute to provide insurance coverage to terminated employees and their families or to the employee's spouse and dependents regardless of the circumstances of the employee's termination." Cabral v. Olsten Corp., 843 F.Supp. 701, 704 (M.D. Fla. 1994) ( citing Mlsna v. Unitel Communications, Inc., 825 F.Supp. 862, 864 (N.D.Ill.1993) aff'd in part, rev'd in part, 41 F.3d 1124 (7th Cir. 1994)). In Mlsna, the district court wrote:

There is no case law to support the conclusion that when an employer terminates an employee for gross misconduct, the employer's duty to provide the employee's spouse with COBRA notification is excused. This interpretation seems unlikely in the context of the legislative history. Congress wanted to protect spouses and dependents of employees from abruptly losing health care coverage. It appears unreasonable that the action of the employee could excuse the COBRA protection of the spouse. Furthermore, section 1163 defines a qualifying event as an event that but for COBRA would result in the loss of coverage of a qualified beneficiary. 29 U.S.C. § 1163. Clearly, Eileen Mlsna is a qualified beneficiary who but for COBRA would lose health care coverage after her spouse's employment terminated.
"Indeed, in applying COBRA, federal courts should take care to apply equitable principles and fashion remedies to make injured parties whole." [ Swint v. Protective Life Ins. Co., 779 F.Supp. 532, 553 (S.D. Ala. 1991)]. Congress did not intend COBRA to be "exhaustive, inflexible rules concerning one's right to elect such coverage." Id. at 553 n. 53. Interpreting COBRA in light of Congressional intent, it logically follows that an employee's spouse should, at the very least, receive COBRA notification before her health care coverage terminates. Therefore, Unitel should have notified plaintiff of her COBRA rights before terminating her health care coverage.

Mlsna, 825 F.Supp. at 865.

On appeal, the Seventh Circuit reversed, writing:

the district court held that even if Mallin had fired Theodore for gross misconduct Unitel still had to notify Eileen of her right to elect continuation coverage. The court stated that Congress had enacted COBRA to "protect spouses and dependents of employees from abruptly losing health care coverage" and "[i]t appears unreasonable that the action of the employee could excuse the COBRA protection of the spouse." 825 F.Supp. at 865. We find that the court's holding conflicts with the plain language of the statute and cannot be supported. Under COBRA, an employer must give notice and extend continuation coverage only after the occurrence of a qualifying event. 29 U.S.C. §§ 1161(a), 1166(a)(4). The statute explicitly excludes termination for gross misconduct as a qualifying event. 29 U.S.C. § 1162(3). Nowhere does the statute indicate that a qualified beneficiary has a right to notice in any circumstance other than a qualifying event. We cannot look to legislative history to demand more of employers than Congress has seen fit to require.

Mlsna v. Unitel Commc'ns, Inc., 41 F.3d 1124, 1129 (7th Cir. 1994). In the absence of Eleventh Circuit authority on this issue, [22] the court agrees with this interpretation and holds that there is no requirement that Debbie Colvin receive a COBRA notice since Oscar Colvin was fired after having committed gross misconduct.


Based on the foregoing, the motion for summary judgment will be GRANTED, and this case will be DISMISSED with prejudice. A final order will be entered.


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