Case Information
*2 Bеfore EDMONDSON, Chief Judge, BIRCH and COX, Circuit Judges.
BIRCH, Circuit Judge:
This appeal requires us to address, inter alia, whether a fact-based argument first made by plaintiff-appellant, Kimberly Slomcenski upon a motion for reconsideration of the district court’s order granting summary judgment in favor of defendant-appellee Citibank, N.A. (“Citibank”) provides a basis for denial of summary judgment in favor of Citibank. The district court – after refusing to void a provision limiting long-term disability (“LTD”) benefits for conditions related to mental or nervous disorders, which Slomcenski had challenged pursuant to the Employee Retirement Income Security Act оf 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. – determined that Citibank’s denial of Slomcenski’s claim for continued LTD benefits was not arbitrary and capricious. Accordingly, the district court entered summary judgment in favor of Citibank on Slomcenski’s ERISA claim. In addition, the district court entered summary judgment in favor of Citibank on Slomcenski’s claim brought under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. Because we agree with the district court that Slomcenski failed to carry her burden of demonstrating any genuine issue of material fact as to the validity of the limiting provision, we AFFIRM the district *3 court’s grant of summary judgment on Slomcenski’s ERISA claim. The district court’s dispоsition of Slomcenski’s ADA claim is also AFFIRMED.
I. BACKGROUND
Slomcenski was hired as an information technology specialist in Citibank’s human resources department in November 1997. In this capacity, she was required to develop, implement, and maintain high quality systems, interface with managers about the department’s systems needs, and provide training and documentation for system users. This position required an employee with five to ten years of experience and strong analytical, organizational, and communications skills.
As a Citibank employee, Slomcenski was covered by Citibank’s Long Term Disability Plan (“Plan”). The Human Resources Policy Committee of Citibank (“Committee”) was administrator of the Plan. Pursuant to the Plan, the Committee had the authority to “interpret and construe the provision[s] of the Plan and to finally decide any matters arising under the Plan.” R1-33 (Exhibits), Tab A, Exh. 1 at 10. The Plan also specified that the Committee might “at any time, by written notice, amend or terminate th[e] Plan in whole or in part.” Id. at 14. In addition, the Plan provided the Committee with the authority to delegate some or all of its responsibilities as it deemed appropriate. Pursuant to this provision, Citibank entered into an Administrative Services Agreement with Continental Casualty *4 Company (“Continental”) which granted Continental sole responsibility for managing the Plan and making final disability claim determinations. The agreement with Continental remained in effect from 1 January 1998 through 31 December 2001. Thereafter, Citibank entered into a similar Administrative Services Agreement with Metropolitan Life Insurance Company (“MetLife”). This agreement, which has been in effect since January 2002, provided that MetLife had all “discretionary authority for approving or denying Plan Benefits in whole or in part.” Id. Exh. 3 at 6.
A. Eligibility and Coverage Provisions
The Plan was issued and made effective on 1 October 1993. Employees became eligible to receive benefits under the Plan on the first day of their employment at Citibank. If an employee became disabled, then he or she was eligible to receive short term disability benefits (“STD”) for 180 days. If the employee remained disabled after the expiration of the STD period, the receipt of LTD benefits was conditioned on an inability to perform each and every material duty pertaining to his or her regular occupation. After twenty-four consecutive months of disability, inclusive of the initial 180-day STD period, the employee could continue to receive LTD benefits only if unable to perform every occupation for which he or she was or could become qualified.
As required by ERISA, Citibank provided its employees with a summary plan description (“SPD”), which explained benefits options to employees in a straightforward manner. The SPD in place at the time of Slomcenski’s employment explained that a disabled employee could receive 180 days of STD benefits, followed by eighteen months of LTD benefits if the employee was medically unable to perfоrm the material and substantial duties of the employee’s own occupation, followed by continued LTD benefits if the employee was medically unable to perform the essential duties of any occupation for which the employee was or could become reasonably qualified. If the employee was disabled due to a mental or nervous disorder, however, the SPD reflected a limit on disability payments to a total of thirty months from the date the mental or nervous disorder began, unless the employee was confined as an inpatient in a hosрital or other treatment center.
It is undisputed that this mental or nervous disorder benefits limitation was not included in the Plan when it was issued in 1993. Because the issue of Committee activity was raised for the first time after the summary judgment record had closed, that record contains no direct evidence of Committee activity or lack thereof in connection with the adoption of a mental or nervous disorder limitation or its inclusion in the SPD. The district court found that Citibank first gave its *6 employees notice of the new limitation by way of a summary of material modifications (“SMM”) issued in 1997. The amendment was inсluded in the SPD issued in March of 1997, which was subsequently filed with the Department of Labor in compliance with 29 C.F.R. § 2520.104a-3 (1997). All SPD’s issued from 1997 on, including the 1998 SPD issued to Slomcenski, contained the mental or nervous disorder limitations provision.
B. Slomcenski’s Disability
On 21 July 1999, Slomcenski applied for disability benefits. She claimed that she suffered from headaches, nausea, insomnia, depression, loss of caring, loss of interest, and allergies. According to Slomcenski, these conditions developed following a change of management at her work. Dr. Gilson Webb, a psychiatrist who examined Slomcenski, diagnosed her with major depressivе disorder. On the basis of Dr. Webb’s diagnoses and Slomcenski’s failure to respond to antidepressants and psychotherapy, Continental awarded Slomcenski disability benefits under the Plan.
Following this initial benefits determination, Slomcenski’s condition was routinely monitored and re-evaluated. In December 1999, Continental referred Slomcenski to Dr. Daniel Sprehe for an independent psychiatric medical evaluation. Dr. Sprehe confirmed that Slomcenski still suffered from severe *7 depression. Under a category for physical medical problems, Dr. Sprehe diagnosed Slоmcenski with Hashimoto’s Thyroid Disease. In March 2000, Continental arranged for Dr. Charles Paskewicz, a licensed psychologist, to conduct an independent review of Slomcenski’s file. Paskewicz found that all the available evidence indicated that Slomcenski was continuing to suffer from severe depression. As a result of these diagnoses, Continental informed Slomcenski that she would continue to receive benefits. However, in the benefits award letter, Continental stated that, if Slomcenski remained disabled, her receipt of benefits would be limited to thirty months because her disability was the result of a mental or nervous disorder. According to the letter, her benefits would terminate in January 2002.
In October 2000, Dr. Robert Gilbert diagnosed Slomcenski with irritable bowel syndrome. In January 2001, Dr. Webb re-examined Slomcenski and found that, while Slomcenski continued to suffer from major depressive disorder, “some of [her] symptoms [appeared to be] related to her physical condition.” R1-31 (Exhibits) at SYN00035. In September 2001, Dr. Paul Winters examined Slomcenski after she complained of fatigue, numbness on part of her foot, and lower back pain. Dr. Winters noted that Slomcenski was scheduled to be evaluated for fibromyalgia. During this time, Slomcenski was also evaluated by a *8 rheumatologist, Dr. Michael Burnette, for her complaints of persistent joint pain and chronic fatigue. Dr. Burnette found that Slomcenski had some trigger points for pain in her upper back and some pain with the movement of her spine. Dr. Burnette concluded that Slomcenski “ha[d] manifestations of a fibromyalgia disorder, and [that] her history suggest[ed] chronic fatigue.” Id. at SYN00038. Following Burnette’s evaluation, Slomcenski sent a letter to Continental which indicated that she had been diagnosed with fibromyalgiа and chronic fatigue syndrome. Slomcenski also reported that she experienced severe pain on a daily basis. In December 2001, Continental responded that Slomcenski’s letter and supporting documentation were insufficient to support the finding that Slomcenski suffered from a physical impairment. Accordingly, Continental maintained that Slomcenski’s benefits would be terminated in January 2002 pursuant to the thirty- month mental or nervous disorder limitation.
Slomcenski appealed Continental’s determination and argued that her depression stemmed from the fibromyalgia, which was a physical condition. By this time, MetLife had assumed responsibility for making benefits determinations under the Plan and referred Slomcenski’s file to Dr. Amy Hopkins for an independent review. Based on her review of all the diagnoses in Slomcenski’s file, Dr. Hopkins observed that Slomcenski “ha[d] major depression, and all of her *9 [symptoms] can be explained on [that] basis.” Id. at SYN0009. She concluded that Slomcenski did not have an “objectively documented physical impairment” and that her disability was related to a mental disorder. Id. at SYN00010. Accordingly, the original determination by Continental that Slomcenski’s benefits would terminate in January 2002 was affirmed.
C. Procedural History
Slomcenski filed suit against Citibank and related entities in September 2002. In an amended complaint, Slomcenski alleged that Citibank had violated ERISA and the ADA by denying her claim for continued LTD benefits under the Plan pursuant to the mental or nervous disorder benefits limitation provision. The limitations provision appeared in the copies of the SPD attached to the original and the amended complaints. Neither complaint challenges the validity of the provision. Both in her response to Citibank’s motion for summary judgment on the ERISA claim and in her cross-motion for summary judgment, however, Slomcenski argues that the provision was not properly part of the Plan because it appears only in the SPD, not in the original Plan document. Citibank responded with a supplemental affidavit by Phyllis Wade, a Citigroup, Inc. Benefits Manager, stating that the Plan had been properly amended to include the provision through an SMM giving notice to employees, the 1997 revision of the SPD adding the *10 provision, and the filing of that new SPD with the Department of Labor. The court found that Slomcenski, far from showing the invalidity of the provision for the purpоses of her own motion for summary judgment, had not raised a genuine issue of material fact as the validity of the provision for the purposes of Citibank’s motion. Accordingly, taking the mental or nervous disorder limitation into consideration, the court determined that Citibank’s denial of benefits was not arbitrary and capricious and therefore entered summary judgment in favor of Citibank on Slomcenski’s ERISA claim. In addition, the district court entered [1]
summary judgment in favor of Citibank on Slomcenski’s ADA claim because it found that she was unable to perform her job function, and was, therefore, not a “qualifiеd individual” for the purposes of bringing an ADA claim.
Slomcenski filed a motion to reconsider, for the first time arguing that the provision was void because none of the documents in which it is included refer to any Committee action in relation thereto. The court observed that neither ERISA [2]
*11 nor the Plan’s own amendment procedures required reissuance of the original plan document subsequent to an amendment and that the Plan’s provision for written notice of any amendment to Plan participants did not require reference to Committee action. Accordingly, the court ruled that in light of Wade’s affidavit stating that the provision had beеn properly added to the Plan, Slomcenski’s bare contention that the Committee had not participated in the amendment failed to raise a genuine issue of material fact. The summary judgment order remained undisturbed.
On appeal, Slomcenski argues that the district court erred in entering summary judgment in favor of Citibank on her ERISA claim by finding that the mental or nervous disorder benefits limitation provision could be considered in determining whether the denial of her claim for LTD benefits was arbitrary and capricious. Alternatively, assuming the benefits limitation provision was properly [3]
cоnsidered, Slomcenski argues that Citibank’s denial of her claim for benefits was arbitrary and capricious because Citibank based its denial on the lack of objective *12 evidence of a physical impairment, a “proof requirement” not found in any Plan document. Appellant’s Br. at 16-17. Slomcenski also challenges the district court’s disposition of her ADA claim.
II. DISCUSSION
A. ERISA Claim
We review de novo the district court’s grant of summary judgment in a case
involving a claim for benefits governed by ERISA. See Williams v. BellSouth
Telecomms., Inc.,
Ct. 2548, 2553 n.4 (1986).
“We exercise a complete and independent review of the district court’s grant
of summary judgment to determine whether there are any genuine issues of
material faсt which preclude judgment as a matter of law in favor of the moving
*13
party.” Sutton v. BellSouth Telecomms., Inc.,
1. Limitations Provision
ERISA requires that every employee benefits plan “provide a procedure for
amending such plan, and for identifying the persons who have authority to amend
the plan.” 29 U.S.C. § 1102(b)(3). In addition, once a company sponsoring a
benefits plan has adopted a procedure for amending it, the company must follow
that procedure when purporting to amend its benefits plan. See Curtiss-Wright
Corp. v. Schoonejongen,
In addition to the requirement that amendment procedures, once adopted,
must be followed for any amendment to be valid, ERISA imposes restraints on the
amendment procedures that can be adopted. For instance, we have determined that
the ERISA requirement that “[e]very employee benefit plan shall be established
and maintained pursuant to a written instrument,” 29 U.S.C. § 1102(a)(1), makes
informal written notice memorializing an oral amendment, such as a posted notice,
memo, letter, or brochure, an impermissible amendment mechanism. Smith v.
Nat’l Credit Union Admin. Bd.,
Based on this precedent and the summary judgment record currently before us, we conclude that Slomcenski has failed to raise a genuine issue of material fact as to the validity of the amendment adding the LTD benefits limitation provision. Although Slomcenski contends that Citibank did not follow the Plan’s amendment procedures in purporting to adopt the mental or nervous disorder benefits limitation, the only support she offers for this contention is the absence of any mention of Committee action in either the SMM or the SPD. Under the terms of [4] the Plan, only the Committee was vested with the authority to amend the Plan. The Plan’s amendment procedure provision required that written notice of any amendment be given to participant employees. The procedurе provision did not require, however, that such notice be in any particular form or that it include any specific information. Particularly, it did not require any reference to Committee action. Citibank has not specifically contended that the Committee ever took any action with regard to the inclusion of a mental or nervous disorder benefits *16 limitation, but it has offered, in the form of the supplemental Wade affidavit, more general evidence that the amendment was properly made.
Alternatively, assuming the Committee had followed the Plan’s amendment prоcedures, Slomcenski also argues, relying on Smith, that SMMs and SPDs are insufficiently formal plan documents to amend a Plan pursuant to the requirement of 29 U.S.C. § 1102(a)(1) that “[e]very employee benefit plan . . . be established and maintained pursuant to a written instrument.”
A distinction between formal “written instruments” and informal documents
has been maintained so that plan participants can always effectively decipher their
rights and obligations. Smith,
SPDs, on the other hand, as mandatory written instruments, required by
ERISA to be “sufficiently accurate and comprehensive to reasonably apprise . . .
*17
participants and beneficiaries of their rights and obligations under the plan,” are
sufficiently formal to meet the rеquirements of § 1102. See 29 U.S.C. § 1022(a);
Alday v. Container Corp. of Amer.,
Accordingly, because no genuine issue of fact has been raised as to whether the Committee was involved in drafting and imposition of the limitations provision and the issuance of the SMM and SPDs and because an SPD is sufficiently formal to meet the amendment procedure requirеments of the both ERISA and our circuit, we find that the district court’s grant of summary judgment based on consideration of that provision should be affirmed. [5]
2. Denial of Benefits
The standard of review applied to a plan administrator’s determination of an
employee’s claim for benefits is based on whether the plan vested the administrator
*18
with discretionary authority to make benefits determinations and whether the
administrator had a conflict of interest in making such determinations. See Shaw,
Giving more weight to the opinions of some experts than to the opinions of
other experts is not an arbitrary or capricious practice. See Black & Decker
Disabil. Plan v. Nord,
Here, the Plan administrator appears to have made the decision to deny benefits by giving more weight to the opinions of Drs. Webb, Sprehe, and Paskewicz than to that of Dr. Burnette. Drs. Webb, Sprehe, and Paskewicz each diagnosed Slomcenski with major depressive disorder and noted no physical ailments. Even Dr. Burnette, who diagnosed fibromyalgia, recognized that both fibromyalgia and chronic fatigue disorder are related to depression. Accordingly, as the district court concluded, it was not unreasonable for the Plan administrator to conclude, based on this information, that Slomcenski’s disability was related to a mental or nervous disorder. Because there was a reasonable basis for the conclusion, it cannot be deemed arbitrary or capricious.
B. ADA Claim
We review de novo a district court’s grant of summary judgment on a claim
brоught under the ADA. See Higdon v. Jackson,
Based on this precedent, we reject Slomcenski’s argument that she could sue
Citibank under the ADA for its purported adoption and enforcement of the mental
or nervous disorder benefits limitation. A plaintiff may seek redress for
discrimination under the ADA if that individual is a “qualified individual with a
disability.” 42 U.S.C. §§ 12112(a), 12117(a). At the time Citibank employees
*21
received notice of the mental or nervous disorder benefits limitation through the
1997 SMM and subsequent SPDs, however, Slomcenski was not yet disabled. In
her initial brief, Slomcenski represented that she “began to suffer fibromyalgia
symptoms in 1999” and therefore applied for disability benefits in July 1999.
Appellant’s Br. at 4. Slomcenski asserted that, prior to this onset of symptoms in
1999, she “fully met Citibank’s job expectations.” Id. She had no prior record of
impairment and there is no evidence that anyone at Citibank regarded her as
disabled prior to July 1999. Accordingly, there is no evidence in the record that
she had a disability as defined by 42 U.S.C. § 12102(2) at the time the mental or
nervous disorder limitation was purportedly adopted, and therefore she was not a
qualified individual with a disability at that time. Additionally, Slomсenski could
not have been considered a qualified individual with a disability when Citibank
attempted to enforce the mental or nervous disorder limitation provision against
her in January 2002 because her claim for LTD benefits was premised on her
representation that she was unable to perform every occupation for which she was
qualified or could become qualified. See 42 U.S.C. § 12111(8) (requiring that an
ADA plaintiff be able to perform the “essential functions of the employment
position that such individual holds or desires”); Cleveland,
III. CONCLUSION
In her appeal, Slomcenski has pursued a set of arguments, raised late in the summary judgment proceedings before the district court, that Citibank failed to follow proper procedures for amending its employee benefits plan under ERISA. We conclude that an SPD is a sufficiently formal plan document to have effected an amendment in this case and that Slomcenski has failed to carry her burden as to raising any genuine issue of material fact as to the mеntal or nervous disorder benefits limitation amendment. Accordingly, the district court properly considered the mental or nervous disorder limitation in its grant of summary judgment; we agree with its finding that the Plan administrator’s decision to deny benefits was not arbitrary or capricious; and we AFFIRM its grant of summary judgment as to the ERISA claim. Further, because the district court properly concluded that Slomcenski was not a “qualified individual with a disability” under the ADA, the *23 district court’s grant of summary judgment on Slomcenski’s ADA claim is also AFFIRMED .
Notes
[1] This order contains the first mention of the Plan provision requiring Committee action for valid amendmеnt.
[2] The motion also rehashed her arguments about the absence of the provision in the original plan document and challenged the propriety of the court’s consideration of the Wade affidavit. The court correctly rejected the first argument on the ground that it had been properly disposed of the first time around and Slomcenski had failed to “‘set forth facts or law of a strongly convincing nature to induce’ reversal denying her motion for summary judgment.” R2- 74 at 4. The court also concluded that, because Slomcenski had failed previously to challengе the Wade affidavit, the argument that it ought not to have been considered could not form a basis for reconsideration. Notwithstanding that, the court further observed that because the affidavit did not contradict Wade’s prior testimony, it had been properly considered anyway.
[3] Citibank argues that Slomcenski waived her ability to make this argument because she
raised it for the first time in her motion for summary judgment in district court. Although the
court referred to the argument as “arguably untimely” and an “inappropriate attempt to inject a
new theory into the case” without foundatiоn in the complaint, it did address whether the mental
or nervous disorder limitation could be properly considered in evaluating the denial of LTD
benefits in both its orders regarding summary judgment of the claim. R2-74 at 2; R2-62 at 15-
16. Therefore, we may consider Slomcenski’s argument that the Committee did not approve the
limitation provision. See Local 92, Int’l Ass’n Bridge, Struct. Ornam. Ironwks. v. B&B Steel
Erectors, Inc.,
[4] To the extent she reasserts her earlier argument that the provision is invalid because it does not appear in the original Plan document, we agree with and adopt the reasoning of the district court.
[5] We do not reach the issue of whether the rule in Loskill v. Barnett Banks, Inc. Severance
Pay Plan,
[6] Because we conclude that Slomcenski was not qualified to bring an ADA claim, we
decline to reach the merits of her claim that the reasoning in our opinion in Johnson v. Kmart
Corporation,