*1 estate; Titchener’s trix of Gerald Stariha, Plaintiffs-Appel George D. testimo- acknowledging the chemist’s spite lants, reports have the lab ny, “he didn’t because v. him, I did” and because in front of BURLINGTON NORTHERN/SANTA drug quantity] was weight [of “the net Burlington FE COMPANY f/k/a find noth- reports.” We noted in those lab Co.; Burlington Northern Railroad shows clear error7. in the record which ing Sep Company Railroad Northern sentence. affirm Gibb’s We therefore Pay Plan; Trustees of the aration Burlington Railroad Com Northern conclusion, and sen- Gibb’s conviction Pay Plan; Separation pany The district court did are affirmed. tence Northern Trustees of refusing to allow abuse its discretion Voluntary Company 1995 Railroad a witness to cross-examine Gibb’s counsel Plan; Burlington Separation North Nor prior misdemeanors. regarding his ern, Plan; Burlington Inc. Pension commit clear error did the district court Sharing Thrift and Profit Northern of cocaine to be determining the amount Plan; Trustees sentencing Gibbs. used Sharing Thrift and Profit
Plan; Speaker; Mi Alan W. Jeanne Scott, chalski; Defen and Donald CONCLUSION dants-Appellees. No. 99-11147. of all convictions and sentences sev- hereby AFFIRMED. Appellants en Appeals, United States Court
Fifth Circuit. 26, 2000. Dec. McCALL; al., Plaintiffs, D. et James Collins; McCall; Stanley D. R. E.
James Bowman; Huff; Mi
E. J. William Dana; Norman;
chael N. O. J. Murl C.
Linke; Roberts; Joseph R. Lawrence Kiser; Brehm; Norman D.
S. William Branch; O’Connor; P.
S. Jerome Wil Davidson; Wiesley;
liam T. Bart A. Ticen; Betty Titchener, H. execu
W.
v,
(1991);
Pa-
Alternatively,
purity analyses
we note that a
Tillotson & for Plain- tiffs-Appellants.
Steven (argued), W. Sloan Thompson & TX, Knight, Dallas, Charles Wade Shew- make, Burlington Northern & Santa Fe Ry. Worth, TX, Fort for Defendants- Appellees. *4 KING, PARKER,
Before Judge, Chief *, Judge, Circuit and KAZEN District Judge. PARKER,
ROBERT M. Circuit Judge: McCall, Plaintiffs James D. Stanley R. Collins, Bowman, Huff, E.E. J. William Dana, Norman, Michael N. O.J. Murl C. Linke, Roberts, Joseph R. Lawrence S. Kiser, Brehm, Norman D. William S. Branch, O’Connor, P. Jerome William T. Davidson, Ticen, Bart A. Wiesley, W.H. Titchener, Betty George D. Stariha appeal the summary judgment entered for (collectively defendants referred to “Bur- Northern”) lington on claims brought pur- suant to the Employee Retirement Income Security (“ERISA”), Act of 1974 as amended, et seq. We § 29 U.S.C. affirm.
I. FACTS AND PROCEDURAL HISTORY In Burlington Northern deter- mined that it necessary to reduce its workforce 500 individuals. Burlington Northern first attempted to reach its tar- geted workforce level through voluntary separation pay plan. Scott, Donald W. Burlington Northern’s Senior Vice Presi- Resources, dent of Human was charged designing with implementing the 1991 Burlington Northern Separation Railroad (“1991 Plan”). Pay Plan employees with than more ten Heizer, Seserman, Dean C. David Brian years years of service and who were 55 Timothy older, (argued), age J. Parsons Gorsuch Kir- eligible participate or were to Denver, CO, Pinker, gis, Lynn, Eric Wolf primary the 1991 benefit oí- * as, Judge sitting by designation. District of the Southern District of Tex- particular, in the 1991 those Plan. lump was a sum Plan by the 1991
fered eligi- pay for separation Plan offered to the follow- 1995 pursuant computed payment years’ base salary equal times to two employees base “2 ble ing formula: weeks requested of two benefits under salary. a maximum Plaintiffs to years of service No Better salary.” upon base the 1995 based times annual Q&A. Burlington Northern de- Benefits with volun- experience prior In Scott’s brought suit requests. nied at pay plans tary separation fiduciary- claims for breach asserting Northern, unwilling seemed ERISA, of benefits duty under denial they because advantage plans of the take ERISA, and interfer- estoppel, violation another, might be there assumed § under 510 of with plan ence adopted generous pay more ERISA, 1140. The district § 29 U.S.C. adopting recommended future. Scott near De- summary judgment court entered generous possi- as as that would be timely appealed. fendants and Plaintiffs ble, targeted accomplish in order without re- reduction voluntary workforce layoffs. Bur- involuntary Other
sorting to II. ANALYSIS concurred. managers lington Northern grant review the district court’s We *5 Summary Plan De- Included with the novo, viewing all summary judgment de (“SPD”) questions a series of scription to Plaintiffs. light facts in the favorable most designed anticipat- to answer and answers Inc. v. RxP itt-Campbell, Merr about the 1991 employee questions ed Inc., 957, Prods., 164 F.3d 961 Cir. the and answers questions Plan. One of 1999). (referred Better Benefits to as the “No following: Q&A”)was the Duty Fiduciary A. Breach of Q: opportunity be another Will there bring suit participant may A plan separation pay plan in a participate fiduciary duty “ap to obtain for breach of after this one? to redress viola propriate equitable relief’ offering plan this company A: The is Howe, Varity Corp. v. tions of ERISA. expenses its due an effort to reduce 1065, 489, L.Ed.2d 516 U.S. S.Ct. At this to business conditions. (1996). that three alleged Plaintiffs time, company’s management give rise to by Burlington acts will not decided whether there has which the district their causes of action voluntary separa- any be additional fiduciary breach of court characterized as However, management plans. tion (1) distributing and duty drafting claims:1 if there are has decided that (2) section, Q&A enacting the 1991 Plan plans, the benefits would additional (3) Plan, denying their claims the 1995 good as as those contained be Plan. for benefits under the 1995 this of Bur- are former Plaintiffs Drafting 1. the 1991 the 1991 lington accepted Northern who Providing benefi in return for information compensation Plan’s offer of likely plan future benefits ciaries about voluntarily ending employment. their statutory definition adopted an ad- falls within ERISA’s Burlington Northern (“1995 at 502- fiduciary Varity, a act. U.S. voluntary separation plan ditional plan Plan”) 1065. an ERISA than 116 S.Ct. When provided that better benefits analyze plaintiffs' We contentions identify the stat- tions. will appeal, 1. On do not arguments. utory specific for of their ERISA civil basis some within the framework They are “bound” assert that defendants by their provisions invoked enforcement Q&A, the No Better but do not artic- Benefits pleadings the district court. and ruled on protec- ulate that claim in terms of ERISA's
5H fiduciary them, in its speaks capac- administrator business and for implementing we ity concerning aspect a material of the genuine find no issue of material fact re- plan, speak truthfully. it must Fischer v. garding truth of the statement that Co., Philadelphia Elec. 96 F.3d 1538 management had made the decision. Cf. (3d Cir.1996).2 Fischer v. Philadelphia Elec. (3d 1533, 1540 Cir.l996)(reciting the test The district court determined that determining a change whether has re- genuine
there was no issue of fact in the consideration,” ceived “serious limiting summary judgment concerning record management” “senior to those individuals whether statements contained responsibility who have for the benefits Q&A No Better Benefit were truthful business, area of the and who will ulti- when made. Plaintiffs contend that mately make genuine evidence raises a issue of recommendations to the material concerning fact board regarding operation). truthfulness of the management statement that had a made Because we conclude that the No Better regarding decision future benefits. Specif Q&A made, Benefit was truthful when it Scott, ically, the evidence shows Don support cannot against cause action Burlington Northern’s Vice Senior Presi Burlington Northern for breach of fiducia- Resources, dent of Human" made the deci ry duty based on a material misrepresen- sion that Northern would not tation. offer future with better benefits understanding manage based on his of the ment group’s intention that the 1991 Plan Adopting the 1995 Plan voluntary separa should be the last time a Plaintiffs next contend that Bur tion would have to be offered for the *6 lington fiduciary Northern breached its purpose voluntary of a workforce reduc duty by adopting signif the 1995 Plan with
tion.
point
Plaintiffs
to evidence that Bur
icantly better benefits than those con
lington Northern’s Executive Committee
Plan,
tained in the
relying
1991
on the rule
specifically
did not
discuss or decide
that
unambiguous
“clear and
statements
whether there were to be
future volun
summary
description
the
plan
are bind
so,
tary separation plans and if
or
whether
Co.,
ing.” Wise v. El Paso Natural Gas
not the benefits would be better than those
(5th Cir.1993).
929,
986 F.2d
938
An em
offered in the 1991 Plan. Plaintiffs take the
ployer
adopts,
who
amends or terminates
position that Scott’s decision was inaccu
employee
an
plan
acting
benefit
is not
as a
rately
management’s
characterized as the
fiduciary.
Corp.
Spink,
Lockheed
v.
517
decision. Because it is
that
undisputed
882, 889-90,
1783,
was the
U.S.
116 S.Ct.
135
manage
Scott
member of senior
(1996). Therefore,
charged
ment
with
L.Ed.2d 153
Plaintiff
responsibility for mak
ing
decisions
the
area of the
not
has
stated a cause of action for breach
Co.,
399,
yet
2. The Fifth Circuit has not
set out
v.
the
Southwestern Bell Tel.
55 F.3d
405
(8th
539,
1995);
fiduciary’s legal obligation
Lacy,
boundaries of a
to
Cir.
Barnes v.
927 F.2d
Circuit,
(11th
1991).
truthfully
possible
inform
about
fu-
544
Cir.
The Second
on
hand,
employee
plans.
ture
benefit
Seven of our
the other
to treat
declined
serious con-
indicator,
sister circuits have held that
there is no
sideration as a “talismanic”
but
fiduciary duty
failing
materiality inqui-
breach of
to inform
listed it as one factor in the
Co.,
plan
ry.
about a
beneficiaries
future
until and
Ballone v. Eastman Kodak
109 F.3d
117,
Cir.1997).
(2d
plan
unless
undisputed,
that
is under "serious consider-
122-23
It is
Co.,
929,
record,
ation.” Bins v. Exxon
189 F.3d
in this
that the 1995 Plan was not
(9th
1999);
years
934-37
Cir.
Vartanian v. Monsanto
conceived until several
after Plaintiffs
Co.,
(1st Cir.1997);
Finding
of legally construction is administrator’s of the 1995 sound, of discretion oc- then no abuse 1995 the Denial Under S. But if ends. Id. inquiry curred and the of Benefits the administrator concludes that the court legally the correct given plan the has argue court must then deter- the interpretation, owed fiduciary duty a Northern breached interpre- mine whether administrator’s claims for bene denying their to them an abuse of discretion. tation constitutes a beneficia the 1995 Plan. When fits under abuse of discretion A decision is not an Id. to have been supposed ry wants what person could have reached if a reasonable plan, appropriate a under distributed decision, evidence be- given the a similar denial of benefits remedy is a claim for Group Wal-Mart him. Cash v. fore 502(a)(1)(B) ERISA rather § of under (8th Plan, 641 Cir. 107 F.3d Health brought pursu fiduciary duty claim than 1997). 502(a)(3). § Corcoran v. United ant Healthcare, Inc., 1335 965 F.2d examining proper inter Cir.1992). reject Plaintiffs’ We therefore Plan,.we guided 1991 pretation of the on fiduciary duty claim based breach First, binding by three rules. the SPD is denial benefits. between the SPD and if there is conflict itself, plan the SPD and the terms of Under B. Denial Benefits Rhorer, F.3d at 640. Sec controls. 502(a)(1)(B). § ond, in the must be any ambiguities SPD a civil action ERISA authorizes Id. at employee’s in the favor. resolved benefits due participant “to recover Third, read as a the SPD must be plan.” him the terms of his under Ins. Hansen v. Continental whole. 1132(a)(1)(B). § review Bur We U.S.C. (5th Cir.1991). It would in administrator’s lington plan Northern’s only paragraph, attend to one be error to of dis of the for abuse terpretation plan summary. Id. page, portion or cretion, on in both the language based admin plans and 1995 giving ad *7 plan review terms istrator discretion to that Plaintiffs ministrator determined Pierre v. and decide claims for benefits.3 benefits under were not due the enhanced Co., F.2d Ins. 932 Connecticut Gen. Life plans. and the terms of the 1991 1995 Cir.1991). (5th 1552, plan 1555-62 in Plaintiffs were not active determinations are administrator’s factual they that were argue 1995 and do not of discretion. likewise reviewable for abuse 1995 eligible plain under the terms of the Id. arising voluntary from Plan for benefits from Northern em separation a two- employs This Circuit Instead, they argue in 1995. ployment whether a step analysis determining dis in Plan abused its its discretion that the Administrator plan administrator abused failing interpret to the statement Rhor cretion in denying participant plan benefits. Const’rs, Inc., if has decided that there “management and Raytheon Eng’rs er v. (5th Cir.1999). 634, would any plans, additional the benefits First we 181 F.3d contained in this good inter not be as as those legally determine the correct must any plans “if the ad mean there are ever pretation plan plan” of the and whether to plan, current with with better than the accords interpretation ministrator’s right plan, and plan provide of the the determination [and] and 1995 SPDs both The 1991 plan ''[r]esponsible payment any person is the of that administrator of to benefits and plan, general for including interpretation administration of benefits.” communication and will to benefits that you estoppel,” be entitled under “ERISA citing Curdo v. John plan.” Hancock Mut. Ins. 33 F.3d Life (3d Cir.1994). 235-38 The Fifth Circuit While Northern is has adopted estoppel,” never “ERISA by statements in the Plan docu bound expressed has fact doubt as to whether ments, they are not silence. bound a cause of action for estoppel cognizable is Wise, F.2d at 938. Contractual vest under ERISA based upon written state- ing prevail, is a narrow doctrine. Id. To ments. Weir v. Federal Disposition Asset strong Plaintiff must assert prohibitory or Ass’n, Cir.1997). Id. granting language. The 1991 Plan is need We not consider the avail any potential remedy silent as to for the ability because, of ERISA estoppel if even violation the alleged promise never to we assume the cause of action is available Therefore, offer better there is no Plaintiffs, to they cannot establish the ele binding obligation pay 1995 Plan bene (1) ments necessary prevail: a material fits to Plaintiffs. (2) misrepresentation, reasonable and det Moreover, proposed Plaintiffs’ rimental reliance upon representation, reading assumption relies on the that man (3) extraordinary circumstances. Id. agement has committed itself never to Having already concluded that Burlington change the decision announced representations, Northern’s which were Q&A. interpretation That is belied true when made are not misrep material statement, appearing pages two earlier in resentations, we affirm the district court’s SPD, Company the same that “[t]he re grant of summary judgment on Plaintiffs’ right serves the to amend terminate and/or claim. estoppel plan any purpose.” this at time for It is clear that ERISA allows an employer to D. with Attainment Bene- Interference amend beneficiary plan explicit its without fits ly reserving right that in its at SPD. Id. Plaintiffs alleged a claim for 936. The combined force of ERISA’s stat interference with the receipt plan bene utory allowance of amendments and § fits violation of ERISA 29 U.S.C. Burlington Northern’s reservation § premised 1140. The claim is on the right in the 1991 forces us to conclude allegation that the 1991 Plan SPD con that the interpretation administrator’s misrepresentations tained intentionally cal legally of the 1991 Plan was correct. culated to cause to leave their Therefore, we find no abuse of discretion employment, giving up compensation thus in the denial of Plaintiffs’ claims for bene they and benefits otherwise would have fits under the 1995 Plan. they earned had working. continued Sec tion prohibits employers 510 of ERISA *8 Estoppel C. discharging employees pur from for the allege Plaintiffs that Burlington pose interfering North- with their attainment of estopped denying ern is from any right they their claims to which are entitled under Id.; employee benefits under the 1995 Plan. The dis- an benefit Perdue v. trict estoppel court held that Plaintiffs’ Burger King Corp., 7 F.3d Cir.1993). cognizable cause of action is not because Burling contend that party when a seeks to recover benefits ton Northern’s statement in the No Better plan, Q&A owed under an resign ERISA state law Benefits caused them to when estoppel preempted by they claims are ERISA. done would have otherwise so and Transitional v. Hosps. Corp. resignations Blue Cross therefore their should not be Inc., Texas, and Blue voluntary. Shield 164 F.3d considered The success of this (5th Cir.1999). appeal, Plain- that depends upon finding Burling On claim a they tiffs contend that asserting misrepresented are ton Northern the truth in in which he management Plan to senior Q&A. The district Benefit No Better trying to do “that what we were explained genuine issue of there is no held that court that if a comfort to was to offer Burling- whether concerning material fact benefit, going that it was they took this facts present misrepresented ton Northern available, that there wasn’t the best be ques- in they made the statements when be- plan immediately to be another going therefore affirm the agree and tion. We value.” On the other higher hind it of a summary judg- grant district court’s hand, acknowledged court tes- the district ment. manage- other members of timony of discuss, re- they “that did not ment team III. CONCLUSION in view, verbiage” included approve or Nevertheless, the district foregoing, we affirm 1991 Plan. on the Based held, majority apparently and the court in favor of summary judgment can that unilateral decision agrees, Scott’s Northern. by a decision truthfully be labeled as AFFIRMED. a plan under the test that “management” only by “those mem- need be considered KAZEN, Judge, dissenting: District responsi- management of senior with bers reflects, majority Bur- opinion theAs business, area of the bility for the benefits Sepa- designed the 1991 lington make recom- ultimately who would (“the Plan”) to as Pay regarding Plan entice bene- ration mendations to the board accept operations.” vol- fits many employees possible as end, that the Sum- untary separation. To language is taken from the quoted The (“SPD”) explicitly mary Description Philadelphia in Fischer v. Electric opinion (3rd stated that: Cir. Company, 1996). That dealt with the common case Plan in offering is this company “The that complaints by employees scenario expenses due to an effort to reduce its “serious employer actually giving their time, At conditions. this business plan while consideration” to retirement has not decided company’s management failing to disclose that denying either or any will be additional vol- whether there The employees. circumstance to the However, untary separation plans. with when a court was concerned Fischer that if there management has decided future is under “serious consider- plans, additional the benefits typically recognized Fischer ation.” good not be as as those contained would actually Board of Directors can only the in this plan.” package, implement changes a benefit making this majority concludes that concluded that for the “serious consid- but Northern did representation, Burlington test, that the only necessary it is eration” fiduciary duty an not breach its as ERISA being considered those members plan is because the statements plan administrator management responsible for of senior holding ini- were true when made. That to the Board. making recommendations tially was made the district court as view, my qualitative there is a distinc- summary judgment matter of law in a determining whether some- tion between genu- I that there is a proceeding. believe “seriously management is con- high one The evi- dispute ine fact on this issue. determining sidering” a future *9 that Don alone made the dence is Scott actually made an company a has whether no quoted decision that there would be about a important unequivocal decision in also better benefits the future. There is plan. already promulgated of an feature all important evidence that decisions were testimony by deposition face of In the by other of senior they to be reviewed members members that management senior saw, discussed, the management. deposition testimony, much less never even above, quoted it cannot be language the presentation recalled a about SPD Scott “management said as a matter of law that company had issued early SPDs as as 1977 has decided” that no future would which, in but 1985 issued new SPDs truth have better benefits. The of that time, the first explicitly stated that the representation by should be decided the company alter, amend, had the right to or fact finder. change otherwise the In October company the announced that it would disagree I also that the plaintiffs cannot previous continue only for employ- sue to recover benefits due under the 1991 1, 1986, ees who retired before March and in majority opinion, Plan. As stated the the anyone retiring day after that would forfeit binding SPD is and any controls over con- company-paid coverage. at Id. 933. -The Further, flict any with the Plan itself. litigation brought by was employees who in ambiguities the SPD must be resolved retired after the cutoff date of March in employees’ favor. majority The 1986, contending rights previ- that their in although Burlington holds that Northern is plans ous had somehow vested earlier. by bound statements in the Plan docu- Wise ments, specifically silence,” only concerned with it is “not bound citing “employees who had not retired as of Wise v. El Paso Natural Gas (5th Cir.1993). date of the disputed change.” Id. at 936. precise language The Under the instant plan, employees opinion from the Wise is: “While could clear participate elect to unambiguous between summary statements June plan description August If binding, plaintiffs the same is these had attempted participate time, not true of silence.” Id. at 938. The after that or if instant case not the company attempted does involve silence but had to amend statement, unambiguous rather a clear and the Plan sometime before the plaintiffs namely election, that no future plan would have made their might legit- there be a majority better benefits. The states that is, imate issue of vesting rights. As it however, because the Plan is silent as to a potential there was no amendment to the remedy, it is time, somehow unenforceable. The any Plan at and there is no doubt itself, remedy provided by is statute 29 that the plaintiffs voluntarily left their em- 1132(a). § majority U.S.C. The also char- ployment language while the at issue was plaintiffs’ argument being acterizes the as in effect. management had committed “never to reasons, foregoing For the I respectfully change Q the decision announced the & dissent.
A” and that assumption this was belied language giving
other the Company the
right to amend terminate the Plan and/or
at any any purpose. time for Plaintiffs do dispute right Northern’s Plan,
amend the 1991 but Rodger SMITH, Jr., Nelson Northern never attempted to exercise that Plaintiff-Appellee, Moreover, right. plaintiffs do not con- tend that Burlington Northern could never v. again design a voluntary separation plan. CO., LADDER LOUISVILLE Indeed, disputed language in the SPD Defendant-Appellant. specifically open option left of future No. 99-41038. plans. is at un- positive, What issue is equivocal that “management statement has Appeals, United States Court of decided that if there are additional Fifth Circuit. plans, the good benefits would not be as as 11, 2001. Jan. plan.” majori- those contained this ty again relies on for the proposition Wise
that “contractual vesting is narrow doc- Wise,
trine.”