Sixth Circuit Affirms Employee’s ERISA Summary Judgment for Promissory Estoppel, Breach of Fiduciary Duty and Anti-Cutback Violation

[Editor's Note: The Sixth Circuit in October subsequently upgraded its Deschamps opinion  to Recommended for Full-Text publication].

This morning, the Sixth Circuit Court of Appeals affirmed summary judgment for an employee on three ERISA claims after the defendant pension plan reduced his pension credits for the 10 years that he worked for the defendant employer in Canada.  Deschamps v. Bridgestone of Americas, Inc. Salaried Employees Pension Plan, No. 15-6112 (6^th Cir. 9-12-16).  The plaintiff had refused to accept the transfer to the U.S. in 1993 unless he was given pension credit for his prior 10 years in Canada.   The HR and plant managers confirmed with corporate HQ that he would receive that pension credit, which was also included on all of his pension written and online pension summaries until 2010, when the employer reinterpreted the terms of the plan and reduced the pension credits previously awarded to him and other expatriate transfers.  He appealed internally with the Plan, but his appeals were denied and the lawsuit followed.  The Court of Appeals agreed that the undisputed issues of fact in the record confirmed that the employer had been grossly negligent, breached its fiduciary duty and violated the anti-cutback rules in leading him to believe that he would receive the pension credit and then revoking those credits more than 17 years after his transfer and after he rejected two job offers from a competitor (which subsequently went bankrupt).   The employer’s convoluted interpretation of the definition of “supervisor” (which was not otherwise defined in the plan) to exclude the plaintiff (who was an hourly maintenance manager) contributed to the Court’s decision.

According to the Court’s opinion, the plaintiff sought and received assurances from the U.S. plant and human resources managers that they had checked with their corporate office and he would receive pension credit for his 10 years working in Canada if he were to transfer to the U.S. facility in 1993 as the plant maintenance manager. (The retired corporate actuary, however, denied ever approving this information).  For his first 16 years of employment, his online and written pension summaries also listed his 1983 seniority date.  Granted, most (if not all) of these documents stated that they were only estimates and that the actual Plan document governed his eligibility for benefits.  In 2010, the company sought to correct the misapplication of the seniority dates for employees who transferred from outside the U.S. and deducted those 10 years from the plaintiff’s pension accrual.  He appealed internally, but the Plan denied his appeal on the grounds that he was not eligible because he had not been salaried or a “supervisor.”  “Supervisor” was not defined in the Plan or SPD, but the Plan defined it to exclude non-exempt managers like him.  The plaintiff brought suit against the Plan, his employer and its parent company alleging promissory estoppel under 29 U.S.C. § 1132(a)(3), breach of fiduciary duty pursuant to 29 U.S.C. § 1104, and an anti-cutback violation pursuant to 29 U.S.C. §1054(g). The trial court granted him summary judgment on all three claims.  The employer, parent and Plan appealed.

Plaintiffs have a long burden of proof when it comes to promissory estopped claims.  They must show:

(1) conduct or language amounting to a representation of material fact; (2) awareness of the true facts by the party to be estopped; (3) an intention on the part of the party to be estopped that the representation be acted on, or conduct toward the party asserting the estoppel such that the latter has a right to believe that the former’s conduct is so intended; (4) unawareness of the true facts by the party asserting the estoppel; and (5) detrimental and justifiable reliance by the party asserting estoppel on the representation. . . . In the case  of an unambiguous pension plan, the plaintiff must also prove three additional elements: “[(6)] a  written representation; [(7)] plan provisions which, although unambiguous, did not allow for  individual calculation of benefits; and [(8)] extraordinary circumstances in which the balance of equities strongly favors the application of estoppel.”

The Court found that the terms of the Plan were ambiguous because of how it interpreted “foremen” and “supervisors” to exclude non-salaried managers like the Plaintiff when those terms were not defined within the Plan itself.   Further, the defendants conceded that the plaintiff could prove elements (1), (3) and (4).

The defendants attempted to dispute that the Plaintiff could prove that the defendants were aware of the “true facts” because he did not inquire of the corporate HQ pension officials himself, but instead, relied on the plant managers to contact corporate HQ for him.  The Court described this element to require the plaintiff to show “either intended deception or such gross negligence as to amount to constructive fraud.”  The Court construed prior precedent and found that the employer was grossly negligent in assuring the plaintiff for 16 years that he would receive the pension credit and not attempting to correct that mistake (if it was a mistake) shortly after making it in response to his specific inquiries.  Further, the plaintiff could not be held responsible for earlier realizing the mistake in light of the convoluted interpretation of “supervisor” which the Plan adopted (to exclude managers).  Thus, the Court found that the employer could be found liable for “constructive fraud.”

The employer also disputed whether the plaintiff could prove that he detrimentally relied upon the employer’s assurances.  In particular, the plaintiff had rejected attractive job offers from a competitor which subsequently went bankrupt and laid off thousands of employees.   The Court rejected the employer’s argument because there was no evidence that the plaintiff would definitely have been laid off by the competitor.   In addition, there was no legal requirement that the competing job offer be economically better, as long as it was an opportunity which the plaintiff rejected in reliance on his employer’s representations about his pension status.   Further, the plaintiff’s reliance for 16 years on the employer’s written and oral (mis)representation were reasonable when he rejected the competitor’s offer of a higher salary.

As for the breach of fiduciary duty claims, the plaintiff was required to show

(1) Bridgestone acted in a fiduciary capacity in making misrepresentations to Deschamps, (2) those misrepresentations were material, and (3) Deschamps detrimentally relied on the misrepresentations. . . . The second element [was] not disputed. 

The disputed issue was whether the employer was a fiduciary:

A fiduciary is defined by ERISA to include a corporation10 who “exercises any discretionary authority or discretionary control respecting management of [a] plan” or “has any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A).  In determining whether a corporation is a fiduciary, rather than looking to the formal title, we use a functional approach, looking to whether it acts in a fiduciary capacity with respect to the conduct at issue.

 While making business decisions which have a collateral effect on employee benefits (such as terminating a plan), processing claims, applying eligibility rules or calculating benefits are not fiduciary  functions, explaining the terms of the plan, and conveying information about likely future plan benefits are fiduciary functions.  Accordingly, in this case, conveying information to the Plaintiff about receiving pension credits and the likely benefits he would receive in the future were fiduciary functions.  The Court also found that the plant and HR managers had apparent authority to bind the employer: “Bridgestone acted as a fiduciary when it, through its agents with apparent authority, misrepresented to Deschamps the status of his pension benefits.”

The employer disputed that it had ever construed the Plan to cover the plaintiff, and, therefore, could not have violated the anti-cutback provisions when in 2010 it retracted his credit for the 10 years he worked in Canada between 1983 and 1993.  It construed the contrary assurances to the plaintiff as a “clerical error.”

ERISA prohibits plan amendments that decrease a participant’s accrued benefits, with two exceptions that do not apply here.  29 U.S.C. § 1054(g).  At issue is whether we look to the text of the Plan or the administrator’s interpretation of the Plan in determining if Deschamps accrued a benefit prior to 1993.  

In essence, an employer can illegally cut-back benefits if it changes or reinterprets the terms of the plan to reduce benefits that a plaintiff reasonably believed provided higher benefits based on a different and plausible interpretation of the plan.

As discussed above, the text of the Plan is at worst ambiguous, but at best, favors Deschamps’s argument that he was a covered employee in 1983 under the classification of  “supervisor.”  It is not untenable that Deschamps, in his capacity as a maintenance manager, was a supervisor under the language of the Plan.  Further, it is undisputed that as a result of the [2010] change in the interpretation of this provision that excluded foreign employees from being classified as covered employees, Deschamps’s benefits were decreased. Therefore, Deschamps has established an anti-cutback violation . . .

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Pre-2002 ERISA Plan Need Not Inform Beneficiary of Shortened Statute of Limitations to Seek Judicial Review

Last week, the Sixth Circuit Court of Appeals affirmed the dismissal of an ERISA claim brought more than eight years after the plaintiff’s claim for long-term disability had been denied because the Plan only permitted claimants three years to seek review in federal court.  Engleson v. Unum Life Ins. Co. of Am., No. 12-4049 (6^th Cir. 7-3-13).  The Court rejected the plaintiff’s argument that ERISA at that time required the Plan to disclose the shortened limitations period in its claim denial letters or the summary plan description.  It was not until 2002 that the Plan was required to disclose information in claim denial letters about the claimant’s right to seek federal court review. “Because SPDs lack controlling effect in the face of plan language to the contrary, we do not feel compelled to read the regulation in a manner that requires sweeping, comprehensive disclosure, as [the plaintiff] asks us to do.” Finally, the Court rejected the plaintiff’s waiver and equitable tolling arguments.
 

According to the Court’s opinion, the plaintiff had filed his LTD claim in August 2001, but it and his subsequent appeal were denied, most recently in November 2001.  He filed a new claim in August 2008, which was granted.  He then sought review of his 2001 claim and when it was denied again, he filed suit in federal court in December 2009. The district court concluded that “[t]he plan requires participants to file an ERISA claim within “3 years after the time proof of claim is required.” Therefore, his lawsuit was untimely in March 2005.  

The Sixth Circuit rejected the plaintiff’s contention that the 2000 version of 29 C.F.R. § 2560.503-1(f) required the Plan to disclose the shortened statute of limitations in its claim denial letters.   Instead, the Court “construe[d] the phrase “appropriate information” as requiring only the disclosure of information pertaining to internal processes, not judicial review.”  (emphasis in original).  The ERISA regulations were amended effective January 1, 2002 at 29 C.F.R. § 2560.503-1(g)(1)(iv) to require the disclosure of “a description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action” to challenge adverse benefit determinations.” 

Moreover, the Court rejected the plaintiff’s argument that the Plan’s 2008 invitation to submit additional information about his 2001 claim and then refusal to reconsider the 2001 claim re-started the limitations period.  “When an adverse benefit determination is justified in the first instance and later denials are premised on the initial reason, there has been a “full and fair review” that satisfies § 1133 and its regulations.”

The plaintiff also argued that the SPD did not comply with 29 C.F.R. § 2520.102-3 because it failed to disclose the shortened statute of limitations for seeking judicial review even though it was required to address “applicable time limits” and remedies for the claimant to seek redress of claims.  “Because SPDs lack controlling effect in the face of plan language to the contrary, we do not feel compelled to read the regulation in a manner that requires sweeping, comprehensive disclosure, as [the plaintiff] asks us to do.”  Instead, the Court interpreted the regulation’s general phrase “applicable time limits” to extend “only to the terms that precede it, i.e., time limits need only be disclosed with respect to the processing of claims.” 

Mindful of this interpretation, we conclude that Unum’s SPD complied with the regulation. The SPD provided “applicable time limits” as to certain parts of the claims process, such as the plan administrator’s obligation to provide a claim response within 90 to 180 days and the claimant’s right to seek plan documents by filing suit in federal court after 30 days of noncompliance. Unum complied with the requirement of disclosing the time limits for the “remedies available under the plan for the redress of claims” by (1) explaining the internal appeals process; and (2) noting the claimant’s right to “file suit in a state or federal court” for claims that have been denied or ignored.

In addition, the Court rejected the claimant’s common law waiver argument based on the Plan’s  offer reconsider his 2001 claim if he submitted additional information. 

As there is no established federal common law in this circuit that governs the question of whether a plan administrator has affirmatively waived a contractual limitations provision, we “look to state-law principles for guidance.”  . . . While contractual limitations periods are generally enforced irrespective of state law so long as they are reasonable . . .  the present case does not raise the question as to whether the period is reasonable, but whether the period was waived.

The Court had previously relied on Hounshell v. American States Insurance Co., 424 N.E.2d 311, 314 (Ohio 1981) where 

“[a]n insurer . . . loses the right to assert its contractual statute of limitations if, ‘by its actions or declarations, it evidences a recognition of liability under the policy, and the evidence reasonably shows that such expressed recognition of liability and offers of settlement have led the insured to delay in bringing an action on the insurance contract.’”  . . .  An insurer’s decision to reconsider the validity of a claim, however, “does not constitute a waiver of the limitations clause.

While there may be alternatives to waiving a right than as discussed in Hounshell, the Court required “more than mere relinquishment—the waiver must be “a clear, unequivocal, and decisive act of the party against whom the waiver is asserted.”  The Plan’s “December 2008 letter lacks the clarity, directness, and decisiveness that the general waiver rule demands.”  More importantly, it “says nothing about waiving the limitations period.”

Finally, the Court rejected the equitable tolling argument on the grounds, among other things, that the plaintiff was not diligent in pursuing his rights.  Moreover, there was no evidence of bad faith.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.