*1 futile.” ... would insurance acquire JOHNSON, Appellee, Nancy J. plaintiffs these depositions, in earlier But knowl- personal no they had testified v. this rec- On practices. defendants’ edge of BROAD-BASED BANCORP proceedings, earlier lengthy ord, after SEVER IN CONTROL CHANGE in re- justified entirely court district PROGRAM; Severance PAY ANCE contact. of direct showing quiring Appel Committee, Administration that the length argue Plaintiffs lants. accept the required court district Second Revised in allegations No. 04-2656. bare De disagree. We Complaints. Amended Appeals, Court United States of sub lack to dismiss moved fendants Eighth Circuit. to Rule pursuant jurisdiction ject matter Pro Civil Rules 12(b)(1) Federal of the 11, 2005. May Submitted: materi relied plaintiffs When cedure. 9, 2005. Sept. Filed: opposing in pleadings als outside replied that properly motions, defendants En Banc Rehearing Rehearing resolve entitled court was the district 12, 2005. Oct. Denied jurisdiction. determining fact issues States, F.2d v. United See Osborn Cir.1990). district (8th n. 4 728 & until motions on the rule did not
court served defendants after months
fourteen more Thus, had plaintiffs replies.
their sup need notice
than sufficient allegations gesture futile bare
port Complaints. Amended Revised Second interest
Instead, disclaimed plaintiffs evidence.2 further submitting litigation nearly decade
After establish failure repeated
plaintiffs’ prov alleging adequately
standing did district
ing injury-in-fact, dismissing the Re its discretion
abuse Complaints Amended
vised Second Burkhart, 59 Jaramillo See
prejudice. (standard Cir.1995) (8th 78, 79
F.3d judgments
review). Accordingly, affirmed. court are
the district Maha waived.” are brief initial raised first time argue for the Canady plaintiffs 2. The 2n. County, 206 F.3d ney court was Warren reply brief in their evidentiary hearing Cir.2000). to hold an "Claims issues. disputed fact resolve *2 David Hashmall, Leonard argued, Min- neapolis, MN, for appellant. Curi,
John argued, J. Minneapolis, MN, for appellee. in the pay “Plan”) for severance providing BYE, WOLLMAN, Before a result as terminated they were event Judges.
COLLOTON, Circuit that em- provided Plan merger. Judge. COLLOTON, Circuit for “Cause” ployees *3 Plan. the under pay receive severance Welfare Comprehensive Bancorp U.S. as fol- part in relevant defined was Cause Con- Change Benefit Plan/Broadbased ad- lows: and Program Pay trol Severance during Administration willful and ministrator, Severance [G]ross including, ... from (“Committee”), employment appeal of the course Committee assault, battery, summary theft, to, granting order not limited district arson, on property, of Nancy Johnson destruction of in favor malicious judgment harassment, embezzlement, The Plan. sabotage, for benefits claim the Em- violate which or omissions argues acts Committee (such as be- policies summary or rules ployer’s granting erred other confidentiality), or determination of breaches cause not an a cause demonstrates which was fired there- interests and agree, of the disregard We of discretion. reckless abuse .... Circum- Affiliates or its Employer reverse. foi*e de- be shall constituting Cause stances of [U.S. I. sole discretion in the termined Bancorp], employee long-time been a had without terminated who were employment Employees when Bancorp U.S. months twenty-four She within April cause pay- eligible fold merger files in were computer viewing after fired 104 weeks’ Kathy equivalent toupof supervisor, ments by her maintained er salary. contain the folder path The Ashcraft. “*:iTNCFIN01*vol2:* files was
ing the policies had several Bancorp U.S. Ashcraft*personnel.” Shared*CAP*Kathy comput- use of employees’ governing place Johnson, la by accessed the files ac- One time Johnson at technology er Goals,” contained Performance “2002 policy, beled enti- One files. Ashcraft’s cessed other regarding information Security,” performance Information “Computer and tled or future information and employees “[ejnsure that all employees directed files, of the Three changes. ganizational need-to-know is on computer your Wedding for our join us “Please entitled to the limited and is basis guestlist,” “direction,” and “G Rehearsal,” (Appel- job.” your perform required to nature, contained personal aof 77). empha- were also policy This at App. lant’s wedding, di to Aschraft’s invitation familiar important “[i]t sized list, guest event, and to the sys- rections concerning policies with respectively. pol- These privacy. tems, information or from intranet on the are available termi- icies of Johnson’s time Around supervisor manager your in a involved nation, Bancorp U.S. (Id). carefully.” reviewed U.S. Corporation. Firstar merger “[ejnsure infor- employees exhorted also a number retain effort in an Bancorp, Company valuable as a is treated mation uncer- in the face employees valued on a need-to- only disclosed and is of- asset merger, pending tainty caused attempt “not basis,” and to (the know a severance themof fered certain data that you are not authorized to ac- violated, sions according to Committee, (Id). cess.” Another policy on “Use of included Computer and Information Bancorp U.S. Technology” required “[a]ll Security policy, which mandates that all employees who use U.S. Bancorp’s tech- employee “computer access is on a need- nology resources become [to] familiar with to-know basis and is limited to information and understand the Bancorp Informa- to perform your job,” and the tion Security policies Services and stan- Code of Ethics and Conduct Job, on the dards support their enforcement.” requires “[t]he use of infor- (Id. mation stemming your employment shall be restricted that which is abso- In April notified man- *4 lutely necessary for legitimate agement at U.S. Bancorp rumors proper purposes business of U.S. Ban- about organizational changes resulting corp,” that “employee information ... be from the pending merger with Firstar treated as highly in cases,” confidential were circulating in the Finance Division. and that “employees treat all company re- Bancorp’s U.S. Information Security divi- sources with the respect befitting a valu- sion investigated whether employees had able assert [sic] and ... that such re- accessed computer files that would have sources should never be ways used in contained such information. The investi- could be interpreted as imprudent or im- gators determined that several employees, proper.” (Appellant’s 87). App. at Johnson, including had accessed the com- puter file entitled “2002 Performance appealed Johnson for reconsideration of Goals.” When confronted a Human determination, Committee’s but in a representative Resources about accessing decision issued 29, on 2002, October in files Ashcraft’s directory, Johnson upheld Committee its earlier determina- admitted that she “had no business tion. reason The rejected Committee Johnson’s for accessing and viewing the files in ques- argument that she did not know the files tion.” U.S. Bancorp’s Controller, Ter- she accessed confidential, were reasoning Dolan, rance then made the decision to fire that the location the files in Aschcraft’s Johnson. Johnson presented personnel with a file and the labels on these files “Notice of Termination” stating that her made it “obvious” that Johnson not termination was “deemed termination for authorized to view them. (Appellant’s cause” Plan, as defined in the and that 130). App. The Committee wrote that therefore would not receive pay. severance in addition to viewing Johnson’s conduct as The Notice cited “unethical conduct” misconduct,” it believed violated U.S. Bancorp’s Code of Conduct that her actions a willful “demonstrated as the basis for Johnson’s termination. disregard reckless Bancorp’s U.S. inter- (Id.). ests.”
Despite the disclaimer, Notice’s Johnson applied for pay severance under the Plan Following the denial of her June arguing that her appeal, termi- Johnson brought a civil action nation not for cause. The Committee the District of pursuant Minnesota to 29 denied her request on August § 1132(a)(1)(B), U.S.C. alleging that reasoning that Johnson’s conduct in ac- Committee had abused its discretion cessing personnel information in denying Ash- Johnson pay. severance The dis- craft’s directory “violated U.S. Bancorp’s trict court agreed, granting summary policies in its Employee (Ap- Handbook.” judgment for Johnson on August 87). pellant’s App. at The provi- 15, 2004, On June the district court award- reviewed should decision wage Committee’s $122,399.18 Johnson ed court, howev- The of discretion. for abuse $20,211.75 wel- interest, plus benefits person that no er, concluded $42,090.00 pre- benefits, and
fare
Bancorp had
that U.S.
have found
could
attorney’s fees.
post-judgment
employment.
Johnson’s
terminate
cause
Bancorp had
because
It reasoned
II.
pre-
in place
safeguards
“absolutely no
participant
permits
viewing
so-called
vent
a civil
bring
plan
ERISA-regulated
”
information,’
‘confidential
[her]
due
benefits
recover
“to
action
(Add. at
been confidential.
could
have
to enforce
plan,
[her]
the terms
under
that Johnson
also concluded
court
The
plan,
the terms
under
rights
[her]
files she
authorized
benefits
future
rights
clarify [her]
her ac-
“nothing prevented
because
viewed
U.S.C.
plan.”
terms of
held
(Id.).
The
cess whatsoever.”
re
1132(a)(1)(B).
§
nosy,
have been
“may
that while
novo,
is de
plan determinations
view
pre-
have
sense
common
and her
discretionary au
grants
plan
unless
did
access,”
vented
deter
“to
administrator
thority to the
*5
willful
gross
to
and
amount
or to construe
benefits
eligibility for
mine
Plan,
that Johnson
and
the
under
&Tire
Firestone
the plan.”
of
terms
the
(Add.
cause.
without
therefore
115,
Bruch,
U.S.
489
Co. v.
Rubber
of the district
8-9).
novo review
On de
at
(1989). In
80
L.Ed.2d
103
109 S.Ct.
Pen
decision,
SBC
see Hebert
required
court is
case, the district
such
(8th
Plan,
F.3d
sion Benefit
inter
administrator’s
plan
review
to
court
the district
Cir.2004),
hold that
we
the plan
the terms of
of
pretation
benefits, and
of
ordering an award
erred
Bancorp’s
Id. U.S.
discretion.
of
abuse
be entered
that
to
full discretion
the Committee
gives
Plan
Committee.
and
the terms
administer
“interpret
Plan,
questions
decide
of
conditions
interpre
A
administrator’s
plan
to
any persons
of
eligibility
concerning
not constitute
does
plan
tation
“
deny
Plan,
grant
[and]
participate
‘rea
it is
long as
discretion so
abuse
App.
Plan,” (Appellant’s
under
benefits
dis
reviewing court
sonable,’
if the
even
to
court was
35),
so the
at
Neu
interpretation.”
agrees
interpretation
the Committee’s
Inc.,
review
Communications,
T
v. AT &
mann
Fire
See
of discretion.
abuse
Plan for
Cir.2004).
(8th
773, 781
F.3d
948; King
115, 109 S.Ct.
stone,
at
489 U.S.
Bancorp’s
is defined
“Cause”
Co., 414
Ins.
Accident
&
and willful miscon
“gross
Life
Hartford
Plan to include
banc).
Cir.2005) (en
(8th
994, 999
F.3d
employment.”
the course
during
duct
to
application
The Committee’s
fur
Plan
App.
(Appellant’s
is reviewed
situation
factual
Johnson’s
willful miscon
“gross
defines
ther
by sub
supported
it is
determine
acts or omissions
...
“includ[e]
duct”
is,
relevant
evidence,
“such
that
stantial
pol
rules
Employer’s
violate
ac
might
mind
aas
evidence
of confidentiali
(such
breaches
as
icies
a conclusion.”
support
adequate
cept as
(Id.).
Because
ty).”
omitted).
(internal quotation
Id.
defined
specifically
a term
misconduct”
was not
Plan,
the administrator
Order,
in the
Opinion and
In its Memorandum
phrase
definitions
apply
bound
acknowledged
the district
that govern in other contexts. See
ny
Jack
policy, regardless of the employee’s
Metropolitan
Co.,
son v.
Ins.
303 knowledge or intent. The absence
Life
(8th
Cir.2002) (consider
F.3d
888-89
limitation on which violations of company
ing plan’s “highly-specific definition of policy constitute “gross and willful miscon-
”
‘disabled,’ and holding that administra
duct” leaves uncertain the precise contours
tor was
not bound
determination
of the defined term in this Plan. In this
participant was
similar,
“disabled” under
instance,
the administrator
found that
different,
definition employed by So-
Johnson acted both knowingly and willfully
cial Security Administration); Lickteig v. when she violated company policy, thus
Am.,
Business Men’s Assurance Co.
61 applying the standard more narrowly than
Cir.1995)
F.3d
583-85
(rejecting
plain
language of the Plan might sug-
contention
trustee
could construe
gest.
think
We
this was a reasonable ex-
term “active employee”
based
“ordi-
ercise of the administrator’s discretion in
nary understanding” of “actively at work”
applying uncertain terms of
Plan,
when “active employee”
specifically
we find no basis in the language of the
defined
plan).
in the
Nor do we discern plan, or
the federal common law of
a “federal common
requires
law” that
ERISA,
require
administrator
administrator with discretion to
apply
narrow the definition further based on the
particular definition of “gross and willful meaning of “gross” misconduct in other
misconduct” under this Plan. Interpreta-
contexts, particularly given the lack of a
phrase
tions of that
as it appears in fed- generally applicable interpretation of that
statutes,
eral
or even interpretations of
rather nebulous term.1
this very Plan that a court might adopt
Substantial evidence also supported
review,
on de novo
*6
do not bind an admin-
the Committee’s determination that John
istrator with discretion
interpret
to
un-
son’s actions violated
policies,
those
and
certain terms in a plan,
long
so
as the
that her actions
knowing
willful,
were
and
administrator’s
interpretation is reason-
as those terms
reasonably
are
construed.
able. King,
Given the definition of included that testimony Johnson, when “gross and willful Plan, misconduct” in the about confronted accessing the files, ad the Committee reasonably interpreted mitted to having no “business reason” for “Cause” to include violations of U.S. Ban- accessing and viewing them. Johnson, corp’s policies forbidding an employee moreover, does not deny accessing the files “access that you data are not authorized to and inapplicable admits “the nature of the access,” and requiring an employee to job to her duties.” (Appellee’s “[ejnsure that all your computer access Br. at It was reasonable for the is on a need-to-know basis and is limited to Committee to conclude that Johnson acted the information required perform your knowingly, because a reasonable mind job,” at least where such violations are could conclude that the name and location knowing and face, willful. On its the Plan of the file concerning performance goals defines “Cause” and willful mis indicated that it a document to conduct” to include all violations of compa- which Johnson required perform access to holding Our that the Committee acted with- would be the Committee to in its discretion to find "Cause” in the case of reach the same conclusion in the case of an a knowing and willful company violation of inadvertent and unknowing violation. Cf. not, course, does speak post, whether it at 740-41. explains Johnson’s brief about interviewed when job, and
her many received who long-term lack never asserted incident, Johnson over reviews performance favorable There also a defense. knowledge as accessing her Whether years. support ample evidence discharge files warranted computer these and in- voluntarily conclusion judg- business a matter as is files, debatable estab- thus accessed tentionally to make empowered are not But we ment. acci- conduct, opposed as lishing willful deciding in judgment, of business that sort Law Black’s acts. See negligent dental de- whether instance ed.1999) the first (defining Dictionary 1593 all of intentional,” served “voluntary and as “willful” of review context In the circumstances. malicious); States United necessarily discretion- plan administrator’s 54 S.Ct. Murdock, 290 U.S. determining decision, are limited we ary (1933) (explaining 78 L.Ed. have could person a reasonable an act denotes “often willfully word plan the ERISA applied interpreted volun knowing, or intentional, or is did, and the administrator accidental”), way that distinguished tary, as yes. the answer here Mur grounds, on other part overruled Com’n, 378 U.S. phy judgment of we reverse Accordingly, Waterfront (1964). The L.Ed.2d 678 S.Ct. entry of remand court and the district files, John- shows record appellants. favor delib- discrete take several had to son dissenting. BYE, Judge, have could not Circuit that she steps, erate click accidental way of an them viewed I believe dissent. respectfully I equipment. computer Committee Administration Severance discretion (Committee) clearly abused determi- court’s view, In our Nancy Johnson’s it determined when authorized to “Johnson nation that on a shared located accessing files duct “nothing pre- files,” because access “cause” under drive constituted whatsoever,” mistakenly vented (Plan). I the terms au- a file with ability to access equated the district affirm therefore *7 inter- file. This the thorization in favor summary judgment grant extralegal effectively imposed pretation Nancy Johnson. Bancorp secure that U.S. requirement “cause,” required the Plan constitute To employees information fidential “gross both misconduct through Johnson’s access preventing affirmatively lacking from Glaringly and willful.” through means, than rather technological any discus- is determination Bancorp employees policies. written constituted how sion of Johnson’s poli- company’s under the responsible are Plan de- Wfiiile misconduct. “gross” limits on maintaining appropriate cies in- to willful” “gross and fines ability to use. Johnson’s their violate which or omissions “acts clude thus does file personnel access cannot follow it policies,” rules Employer’s do so. to was authorized indicate or policy a rule every violation instructing Indeed, misconduct. and willful” “gross constitutes to computer access limit to violations rule Otherwise, inadvertent job seems perform is violations, “willful” considered be informa- to other presume “will- word inclusion Plan’s and the prohibited. possible, is tion
741 M” would be rendered meaningless. By pearance policy to “gross constitute token, the same “gross” word is ren- willful misconduct” which justi- that would meaningless dered if minor rule fy violations a denial severance benefits. “gross” constitute misconduct. view, my In because the Plan does not The Court specifically contends the “gross” define Committee was a violation, rule bound a apply definition term should of the term given its ordinary “gross and meaning. might misconduct” Mansker v. Co., TMG Ins. Life govern 1322, (8th 54 Cir.1995). F.3d other contexts. 1327 agree, While I I In in do not view terpreting that as the meaning relevant of an inquiry. plan, ERISA we The relevant should also inquiry is look to the Com- “federal com mon law.” neglected mittee Reid v. give any meaning Connecticut Gen. Life Co., Ins. 1092, (8th 17 “gross” term F.3d Cir.1994). in the Plan. 1098 When re- Turning to viewing the analogous Committee’s decision federal we must statutes which employ necessarily consider undefined “interpre- whether its terms “surely a promising tation renders source language in search for the Plan the federal meaningless common law.” or internally Camelot Care inconsistent.” Ctrs., Inc. v. Co., Planters Torres Am., UNUM Ins. Co. 836 405 Lifesavers Life F.Supp. (N.D.Ill.1993). 548 Cir.2005) F.3d 680 (citing Shelton Cos., Inc., v. ContiGroup 285 F.3d There is a relatively large source of (8th Cir.2002)). An fiduciary federal common interpreting law what con- abuses discretion when it renders Plan “gross stitutes misconduct.” Under the language meaningless. Id. Consolidation Budget Omnibus Reconcilia- tion Act of employer covered has The Court’s conclusion the Committee an obligation provide an employee free to interpret “gross and willful” continued health care coverage unless the misconduct to include all violations of com- employee is terminated for “gross miscon- pany policy necessarily renders the terms 1163(2). duct.” § U.S.C. Because “gross” and “willful” meaningless, and of- 1163(2) § does not otherwise define what my fends justice. sense of To every call constitutes misconduct,” courts inadvertent or unknowing violation a “will- have had to fashion “federal common law” ful” violation is Likewise, absurd. it is to address the issue. absurd to call every violation, no matter how trivial or insignificant, “gross” viola- While there is no generally applicable or tion. For example, the same area of the judicial binding interpretation gross Employee’s Handbook containing misconduct, Bryant v. Inc., Food Lion Computer and Information Security policy F.Supp.2d (D.S.C.2000), upon relied by the deny Committee to agree courts mere lapses good *8 Johnson’s substantial severance benefits on isolated occasions cannot constitute also a policy contains on Business Appear- gross misconduct. See Richard v. Indus. ance. The Appearance Business policy re- Commercial Elec. Corp., 337 F.Supp.2d quires employees “to good use judgment (D.Mass.2004) (indicating gross and dress in a professional manner that is misconduct to be something “flagrant and appropriate your work surroundings extreme” and measure; “out all of beyond your suited to particular job.” allowance; Under excused; not to be flagrant; view, the Court’s the Committee would not shameful” and something “more than that have abused its if it discretion determined conduct which comes about reason of any and all violations of the Ap- Business error of judgment or lack diligence.”) of would which “gross misconduct” sidered omitted); v. Coo Cotte (internal citations care health continuing for Yabucoena, disqualify y Credito de Ahorro
perativa concluding no, said The court coverage. (D.P.R.1999) 237, 241 F.Supp.2d Paris showing a misconduct gross or extreme outrageous, (“[G]ross means injure Korbel” design’ an ‘evil “had miscon gross is unconscionable, conduct occa- on one judgment” exercising “poor that it shocks outrageous if it is so duct Similar- enough. Id. at not was quota sion (internal conscience.”) citation poor shown may here, have Services, ly, omitted); UB tions Zickafoose files at the briefly peeking (S.D.W.Va. judgment 652, 656 Inc., F.Supp.2d drive. shared on located “gross” not 1998) is (indicating misconduct even no evidence there to the But harm intended employee “the unless employ- other with this shared the conduct of the nature employer [and] judg- poor instance Her isolated the em- ees. outrageous reasonably is itself injure design” to no “evil Inc., evinced 884 ment Aggreko, Collins ployer.”); flagrant, clearly not (“Gross Bancorp, 1995) (D.Utah 450, 454 F.Supp. measure, outra- soor extreme, out of wanton, intentional, may be the conscience. it shocks geous deliberate, deliberate willful, reckless It interest. employer’s indifference governing law common The federal breaches minor mere beyond is misconduct mis- employee’s mandates plans standards, but conduct employee severe, i.e., ex- flagrant, must be conduct nature.”). gross considered would be outrageous measure, or so treme, all out Bros., Inc., 751 & v. F. Korbel Paris In conscience, considered it shocks the ad- (N.D.Cal.1990), F.Supp. 834 lapses Isolated “gross.” confidentiality some- a breach dressed impact significant have a do not Leigh conduct. to Johnson’s similar what No suffice. clearly do not employer given winery and a for worked Paris John- conclude would person where place “poolhouse,” to the more anything amounted conduct son’s discussed and sometimes met executives violation, little with rule a minor than whatever instructed Paris was employees. Bancorp. Her on U.S. impact adverse no poolhouse may overhear outrageous or clearly was it. to share confidential, and she was contrary, what To the science-shocking. dis- occasion, executives she heard On one Plan that the my conscience shock does had who employee particular cussing minor such enforcing upon insist rea- part personal time work asked precluding it justify as to violation so rule be friends Paris, happened to who sons. fi-a exemplary long-term, this wife, her friend told employee’s $150,000 approximately benefit nancial hus- to allow going company was pay. executives time. The part to work band dissent. respectfully I upset with employee was discovered informa- personal sharing his his boss source as the identified
tion. Paris was Paris, 751 leak, and terminated. at 835-36.
F.Supp. *9 benefits for COBRA applied Paris
When 1163(2), issue was § confidentiality
her breach