Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2005

Vitale v. Latrobe Area Hosp
Precedential or Non-Precedential: Precedential

Docket No. 04-3243




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                                                  PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                             No. 04-3243


                          JOYCE VITALE

                                  v.

                   LATROBE AREA HOSPITAL,

                                   Appellant




           On Appeal from the United States District Court
               for the Western District of Pennsylvania
                        (D.C. Civ. No. 03-1117)
           District Judge: The Honorable Gary L. Lancaster




                       Argued: July 11, 2005

 Before: ALITO and BECKER, Circuit Judges, and SHADUR,
                     District Judge.*

                      (Filed August 29, 2005 )


TERRENCE H. MURPHY
WILLIAM M. HASSAN (ARGUED)
Klett Rooney Lieber & Schorling
One Oxford Centre, 40th Floor


       *
        The Honorable Milton I. Shadur, United States District Judge for
the Northern District of Illinois, sitting by designation.
Pittsburgh, PA 15219
Attorneys for Appellant

JOHN E. QUINN (ARGUED)
SHARON J. NEWBRANDER
Evans Portnoy Quinn & O’Connor
1 Oxford Centre, 36th Floor
301 Grant Street
Pittsburgh, PA 15219
Attorneys for Appellee




                      OPINION OF THE COURT




BECKER, Circuit Judge.

       Latrobe Area Hospital (“Latrobe”) appeals from a judgment
against it in a dispute over ERISA retirement benefits.1 Latrobe
denied early retirement benefits to plaintiff Joyce Vitale after
determining that, because she was on long-term disability leave,
she was not accruing benefits and so did not qualify for the early
retirement incentive under the terms of the plan. After a bench trial,
the District Court ruled in favor of Vitale, finding that Latrobe’s
decision to deny benefits was arbitrary and capricious. The District
Court relied on the fact that two other employees, who were out on
short-term disability leave at the relevant time, had received early
retirement benefits; the Court determined that these other
employees were similarly situated to Vitale and that the decision to
deny her benefits was therefore arbitrary and capricious.
       We will reverse. The plain language of Latrobe’s retirement
plan required Latrobe to deny benefits to Vitale. And its decision
to do so, while granting benefits to two employees in what we find
to be distinguishable circumstances, was not arbitrary and

       1
        Latrobe’s retirement plan is governed by provisions of the
Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et
seq. (“ERISA”).

                                  2
capricious.

                I. Facts and Procedural History

        Vitale worked as a food service aide at Latrobe until July 1,
1999, when she was severely injured in a car accident. Latrobe
offers its employees ninety days of short-term disability leave, and
Vitale used her full allowance. When this expired in September
1999, she went on long-term disability leave.
        On February 28, 2000, Latrobe adopted an amendment to its
ERISA retirement plan (“the Plan”) to encourage early retirement.
Under the amendment, early retirement benefits would be paid out
of the Plan, which was then overfunded, allowing the hospital to
reduce staffing costs, which are paid out of operating funds. In
discussions prior to adopting the new benefit, the hospital decided
that employees on long-term disability leave would not be eligible,
because encouraging them to retire early would not achieve the
goal of reducing active staff. On the other hand, employees on
short-term disability leave would be eligible, because they still had
an open position at the hospital. The language of the incentive plan,
as it was adopted, allowed employees “currently accruing a
benefit” and meeting other requirements to receive early
retirement.
        Vitale applied for early retirement in April 2000, while she
was on long-term disability leave. She was informed that she had
been denied benefits because, being on long-term disability leave,
she was not “actively employed” at the time. Vitale was terminated
from her job on August 6, 2000, because her employment had been
“inactive” for twelve months.
        She then brought this suit under 29 U.S.C. § 1132(a)(1)(B),
alleging that Latrobe’s denial of benefits was arbitrary and
capricious. As evidence, she pointed to the fact that two other
employees, Donna McCullough and Margaret Sommerville, were
awarded early retirement benefits under the Plan even though they
too were out on medical leave. Vitale argued that McCullough and
Sommerville were similarly situated employees, and that it was
arbitrary and capricious of Latrobe to grant them benefits while
denying the same benefits to her. Latrobe’s response was that
McCullough and Sommerville, who were on short-term disability
leave protected by the Family and Medical Leave Act of 1993, 29

                                 3
U.S.C. § 2601 et seq. (“FMLA”), were not similarly situated to
Vitale.
        After a bench trial in July 2004, the District Court filed an
opinion and order finding that the denial was arbitrary and
capricious, and requiring Latrobe to award Vitale benefits under
the Plan. Latrobe timely appealed.

                          II. Jurisdiction

         The District Court had subject matter jurisdiction under 28
U.S.C. § 1331. This Court has appellate jurisdiction over the final
judgment of the District Court under 28 U.S.C. § 1291.
         Although the District Court’s order did not specifically fix
damages, instead referring the matter to Latrobe for calculation of
benefits, it is nonetheless a final judgment subject to appellate
review. In general, “[a] finding of liability that does not also
specify damages is not a final decision.” Marshak v. Treadwell,

, 190 (3d Cir. 2001). However, the “practical finality
rule . . . permits appellate review of an order that is not technically
final but resolves all issues that are not purely ministerial.” 

elaborated on this standard, stating that

       even when a judgment fails to fix the amount of
       damages, if the determination of damages will be
       mechanical and uncontroversial, so that the issues
       the defendant wants to appeal before that
       determination is made are very unlikely to be mooted
       or altered by it—in legal jargon, if only a
       “ministerial” task remains for the district court to
       perform—then immediate appeal is allowed.

Skretvedt v. E.I. DuPont De Nemours, 

, 201 n.8 (3d
Cir. 2004) (quoting Prod. & Maint. Employees’ Local 504 v.
Roadmaster Corp., 

, 1401 (7th Cir. 1992) (internal
quotation marks omitted)).
       This case is closely analogous to Skretvedt. The parties
agree that the benefits calculation required by the District Court
would be entirely mechanical: the Plan contains a precise
mathematical formula for calculating the monthly retirement
benefit, and the inputs to the formula are all undisputed facts. As

                                  4
the only remaining issues remaining before the District Court were
“purely ministerial,” we have jurisdiction over Latrobe’s appeal.

                     III. Standard of Review

        Our standard of appellate review is straightforward. In an
appeal from an ERISA bench trial, we review findings of fact for
clear error but have plenary review over the District Court’s
conclusions of law. Kosiba v. Merck & Co., 

, 64 (3d
Cir. 2004). The parties dispute, however, the proper standard of
judicial review to be applied to the Plan administrator’s decision to
deny benefits. The District Court employed a “slightly heightened
level of scrutiny under the touchstone arbitrary and capricious
standard of review.” Latrobe contends that this was error, and that
the normal arbitrary and capricious standard applies.
        Courts review a denial of ERISA benefits de novo unless the
plan documents give the administrator discretionary authority to
determine eligibility or to construe the terms of the plan. Firestone
Tire & Rubber Co. v. Bruch, 

, 115 (1989). Where, as
here, the plan gives the administrator discretionary authority, we
review the administrator’s exercise of that authority under an
“arbitrary and capricious” standard, and the administrator’s
decision “will be overturned only if it is ‘clearly not supported by
the evidence in the record or the administrator has failed to comply
with the procedures required by the plan.’” Orvosh v. Program of
Group Ins. for Salaried Employees of Volkswagen of Am., Inc., 

, 129 (3d Cir. 2000) (quoting Abnathya v. Hoffmann-La
Roche, Inc., 

, 41 (3d Cir. 1993)).
        In certain cases, however, we have applied a heightened
standard of review. The leading case is Pinto v. Reliance Standard
Life Insurance Co., 

(3d Cir. 2000), in which we
considered plan administrators’ possible conflicts of interest. To
address those conflicts, we employ “heightened scrutiny . . . when
an insurance company is both plan administrator and funder.” 

The District Court interpreted Pinto and its progeny to mean
that any fiduciary who both administers and funds a plan operates
under a conflict of interest and is therefore subject to a heightened
standard of review.
        In Pinto, however, we specifically distinguished insurance
companies that both administer and fund plans from

                                 5
employers who perform those roles. Insurance companies pay plan
benefits out of funds that would otherwise be available as profits,
creating a direct incentive for them to withhold benefits. See 

. In contrast,

       the typical employer-funded pension plan is set up to
       be actuarially grounded, with the company making
       fixed contributions to the pension fund, and a
       provision requiring that the money paid into the fund
       may be used only for maintaining the fund and
       paying out pensions. As we explained in Abnathya
       and Mitchell, the employer in such a circumstance
       “incurs no direct expense as a result of the allowance
       of benefits, nor does it benefit directly from the
       denial or discontinuation of benefits.”

2 F.3d at 45 n.5, and Mitchell v. Eastman
Kodak Co., 

, 437 n.4 (3d Cir. 1997)). Furthermore,
employer fiduciaries have “incentives to avoid the loss of morale
and higher wage demands that could result from denials of
benefits,” Nazay v. Miller, 

, 1335 (3d Cir. 1991);
these incentives are absent, or at least attenuated, when an insurer
serves as an ERISA fiduciary.
       We have therefore repeatedly stated that a typical employer-
funded ERISA benefits plan does not create the sort of conflicts of
interest that demand a heightened arbitrary and capricious review.
See, e.g., Bill Gray Enters., Inc. Employee Health & Welfare Plan
v. Gourley, 

, 216-17 (3d Cir. 2001); 

; 

& n.5. As Latrobe both administers
and funds its own pension plan, it falls squarely within the rule of
these cases.
       That said, we hasten to observe that an employer-fiduciary
may be subject to a conflict of interest requiring heightened
scrutiny when its plan is “unfunded,” that is, when it pays benefits
out of operating funds rather than from a separate ERISA trust
fund. See Smathers v. Multi-Tool, Inc., 

, 197-98 (3d
Cir. 2002); Stratton v. E.I. DuPont de Nemours & Co., 

250, 254-55 (3d Cir. 2004).2 But Latrobe’s Plan is “funded”:
benefits are paid out of a separate trust fund, and Latrobe’s
contributions to the fund are determined by an actuarial formula
and are not directly influenced by individual benefits decisions. In
fact, at the relevant times, the Plan was significantly overfunded.
        There are other circumstances in which a heightened
standard of review of employer-funded plans will be appropriate.
For example, “demonstrated procedural irregularity, bias, or
unfairness in the review of the claimant’s application for benefits”
can trigger a heightened standard of review. 

. There is no evidence of procedural irregularity or bias here. The
Plan at issue here is a typical employer-funded ERISA plan subject
only to arbitrary and capricious review. It was therefore error for
the District Court to employ a heightened level of review.

                             IV. Analysis

                        A. The Plan Language

        The early retirement incentive at issue here is found in
Section 4.10 of the Plan, entitled “Voluntary Early Retirement
Incentive Program.” It allowed “[a]ny eligible Participant or
Retired Participant” to elect to retire under the incentive program
if he or she elected to do so between March 15 and April 30, 2000.
The eligibility requirements, found in Section 4.10(a)(i)-(iv),
included (i) that “the Participant is currently accruing a benefit
under the Plan and was not receiving Monthly Retirement Income
payments from this Plan by reason of retirement prior to January 1,
2000,” (ii) that the participant was at least 58 years old, (iii) that he
or she had at least 75 years combined age and credited service, and
(iv) that he or she was not a physician. It is undisputed that Vitale


       2
         Vitale seems to read Stratton for the proposition that a
“sophistication imbalance” between the parties may lead to heightened
scrutiny. Stratton did apply the Pinto sliding scale analysis, which
includes an inquiry into sophistication imbalances, to determine what
level of heightened scrutiny was appropriate, but did so there because the
DuPont plan’s unfunded status rendered some level of heightened
arbitrary and capricious review necessary. See 

-
55.

                                    7
met criteria (ii) through (iv).
        It is also undisputed, however, that Vitale was ineligible for
the early retirement benefit under the first criterion, which limits
eligibility to those employees who are “currently accruing a
benefit” under the Plan. The parties and the District Court all
agreed that Vitale was not “currently accruing a benefit” at the
relevant time, because she was out of work on long-term disability
leave.3 Nor has either party suggested any reading of the Plan that
does not require an employee to be “currently accruing a benefit”
in order to be eligible. Because the clear and unambiguous terms
of the Plan allow Latrobe to provide early retirement only to those
employees who are currently accruing benefits, and because Vitale
has conceded that she was not currently accruing a benefit when
she applied for early retirement, it was not arbitrary and capricious
for Latrobe to deny her early retirement.
        Indeed, had Latrobe granted Vitale’s request for early
retirement, it would have been in violation of its fiduciary duty to
administer the Plan according to its terms. Latrobe was obligated
by statute to administer the plan “in accordance with the documents
and instruments governing the plan.” 29 U.S.C. § 1104(a)(1)(D).
“An award inconsistent with the plan’s valid provisions would be
a breach of [an administrator’s fiduciary] duties. . . . ‘An
administrator who strictly adheres to the lawful terms of an
employee benefit plan may not be found to have acted arbitrarily
and capriciously.’” Hlinka v. Bethlehem Steel Corp., 

,
286 (3d Cir. 1988) (quoting Foltz v. U.S. News & World Report,

, 639 (D.D.C. 1985)).

                  B. Similarly Situated Employees

       Nonetheless, Vitale argues that Latrobe acted arbitrarily and


       3
         While the meaning of “currently accruing a benefit” is not
completely clear, the Plan contains an “Accrued Benefit Formula” under
which retirement income is based on average monthly earnings and years
of credited service. The parties represented at oral argument that a
participant accrues benefits by performing credited service, i.e., by
working full-time at Latrobe, and this comports with our reading of the
Plan. Thus, because Vitale was not actively working during her disability
leave, she was not “accruing a benefit.”

                                   8
capriciously in that it granted benefits to two similarly situated
employees, McCullough and Sommerville, while denying benefits
to her. The District Court accepted this argument in ruling for
Vitale. The parties agree that McCullough and Sommerville, like
Vitale, were not actively accruing benefits when they were granted
early retirement.

  1. Can We Look to Similarly Situated Employees Despite the
                    Clear Plan Language?

        Neither Vitale nor the District Court has explained why
Latrobe’s asserted errors in administering the Plan as to
McCullough and Sommerville should require it to make similar
errors in administering the Plan as to Vitale.4 And Vitale has cited
no case holding that an employee who is unambiguously ineligible
for a benefit under the terms of an ERISA plan can nonetheless
receive that benefit because the administrator granted it to other
ineligible participants.
        Indeed, if Vitale is correct that McCullough and
Sommerville were ineligible for early retirement benefits, her cause
of action would appear to be under 29 U.S.C. § 1132(a)(3), which
allows a participant to sue to enforce the terms of the plan. The
remedy under such a suit would presumably be for Latrobe, as the
Plan’s fiduciary, to compensate the Plan for amounts paid out
incorrectly, not for the Plan to pay out additional money to Vitale.
See Mertens v. Hewitt Assocs., 

, 262-63 (1993);
Steven J. Sacher et al., Employee Benefits Law 903-04 (2d ed.
2000). Vitale’s theory seems to be, however, that if Latrobe made
a mistake in granting benefits to some employees, it must continue


       4
         In particular, Vitale has not argued that Latrobe’s grant of
benefits to McCullough and Sommerville is evidence that the phrase
“currently accruing a benefit” means something other than “currently
actively employed,” or that Latrobe’s interpretation of that requirement
was incorrect. Instead, Vitale has conceded that she did not meet that
requirement. Nor has she advanced any argument of estoppel, see, e.g.,
Cleary v. Graphic Communications Int’l Union Supplemental Ret. &
Disability Fund, 

, 447-49 (1st Cir. 1988), or of reasonable
expectations, see, e.g., Saltarelli v. Bob Baker Group Med. Trust, 

, 387 (9th Cir. 1994).

                                   9
to repeat that mistake: if one employee wrongfully gets benefits, so
must everyone else. We reject this theory: the payment of benefits
to other allegedly ineligible employees does not by itself give
another ineligible employee a cause of action for benefits under 29
U.S.C. § 1132(a)(1)(B).
          We addressed a similar contention in Foley v. International
Brotherhood of Electrical Workers Local Union 98 Pension Fund,

(3d Cir. 2001). Foley was denied certain benefits
because he failed to meet eligibility requirements; he sued,
claiming that the administrators had improperly denied him an
exception from those requirements. The district court found that the
decision to deny the exception was arbitrary and capricious because
other employees had been granted the exception. We reversed,
chiding the district court for “focusing on the fact that credit under
the . . . exception had been granted liberally in the past rather than
examining whether the Trustees’ decision was contrary to Plan
language or whether it was rationally related to a legitimate Plan
purpose.” 

We also pointed out that “the district court’s
holding binds the Trustees to a result that was a consequence of
poor administrative practices, that the Trustees later corrected. In
effect, the district court’s decision improperly ‘straightjackets’ the
Trustees into granting benefits simply because of their past
practices.” Id.; see also 

(finding that a
plan administrator’s refusal to waive a plan requirement was not
arbitrary and capricious).
          Other courts have dealt with similar claims. In Cleary v.
Graphic Communications International Union Supplemental
Retirement & Disability Fund, 

(1st Cir. 1988), the
First Circuit considered the claims of plan participants for
supplemental benefits. These participants had attempted to preserve
their eligibility for benefits by working part-time for the local
union. Although this practice was clearly contrary to the plan’s
written rules, plan administrators had allowed it in the past. 

The plaintiffs in Cleary, however, were denied benefits
because the administrators had terminated their practice of granting
benefits to part-time workers. The court described the
administrators’ dilemma as follows:

       The trustees realized late in 1984 that a practice
       contrary to Fund rules was widely in use. . . . The

                                 10
       Board realized its potential liability to Fund
       participants if they continued disbursing funds to
       persons who were not entitled to benefits under Fund
       rules. Furthermore, they weighed the Fund's
       exposure to successful lawsuits and concluded that
       beneficiaries who were already receiving benefits
       would present a greater risk than those who were not
       yet receiving benefits. In order to limit Fund liability
       while at the same time lessening the possible harsh
       effect of enforcing the rule, the trustees made a
       rational, reasonable decision [to discontinue the
       practice of awarding benefits contrary to plan rules,
       while grandfathering in those currently receiving
       benefits].

The court thus deferred to the administrators’
decision. It further found that the their choice to stop awarding the
erroneous benefits as of an arbitrary fixed date was rational, noting
that “[d]rawing a line to define the extent of the remedial action is
clearly within the discretion of the trustees.” 

        Finally, in Oster v. Barco of California Employees’
Retirement Plan, 

, 1219 (9th Cir. 1988), the Ninth
Circuit affirmed plan administrators’ refusal to grant benefits in the
form of a lump-sum distribution.5 The plan documents allowed
only an annuity benefit, not a lump sum, but the administrators had
in the past followed an informal policy of routinely granting
accelerated lump-sum payments. Before Oster requested benefits,
however, the administrators had “phased out” that policy based on
the advice of an actuary. The Ninth Circuit concluded that “[i]f this
decision was a reasonable one, we will not substitute our judgment
for that of the Plan’s trustees.” 

fact that all prior
applicants had been granted a lump-sum distribution, the court
refused to find the modification of the policy arbitrary and
capricious. The court did not inquire into whether the other
employees were similarly situated to Oster; instead, the fact that the


       5
        Oster was superceded in part by a Treasury Regulation, for
reasons not relevant to its analysis of similarly situated employees. See
McDaniel v. Chevron Corp., 

, 1119 (9th Cir. 2000); Treas.
Reg. 1.411(d)-4.

                                   11
change in policy was rational was enough to insulate the
administrators from judicial second-guessing.
        The cases thus counsel that Vitale’s argument from similarly
situated employees should be given minimal, if any, weight. Where
an ERISA plan mandates a denial of benefits, the mere fact that
administrators have in the past granted benefits is no reason to
impose a straightjacket requiring them to do so forever. Both the
clear requirements of ERISA and obvious reasons of policy suggest
that administrators should be allowed to correct their mistakes and
deny benefits to those participants who are not eligible for them
under the unambiguous terms of their plan.

   2. Were McCullough and Sommerville Similarly Situated?

       Even if we agreed with Vitale that Latrobe’s decision to
grant benefits to some employees obligates it to grant benefits to all
similarly situated employees, we nonetheless could not find its
decision to deny Vitale benefits arbitrary and capricious.
       Latrobe argues that it distinguished Vitale from McCullough
and Sommerville based on the fact that the latter two employees,
unlike Vitale, were protected by the FMLA. Latrobe determined
that, under the provisions of the FMLA, it was obligated to treat
McCullough and Sommerville as though they were “actively
accruing benefits,” although in fact they were not. Latrobe cites
regulations promulgated under the FMLA that seem to support its
position. Vitale disputes Latrobe’s interpretation of those
regulations, claiming that they did not require Latrobe to treat
McCullough and Sommerville as though they were accruing
benefits. We describe the disputed regulations in the margin.6


       6
           These regulations require in part that:

       With respect to pension and other retirement plans, any
       period of unpaid FMLA leave shall not be treated as or
       counted toward a break in service for purposes of vesting
       or eligibility to participate. Also, if the plan requires an
       employee to be employed on a specific date in order to be
       credited with a year of service for vesting, contributions
       or participation purposes, an employee on unpaid FMLA
       leave on that date shall be deemed to have been

                                     12
       There is no need to resolve this dispute, however, as the
correctness of Latrobe’s interpretation is not at issue here. We ask
only whether it was arbitrary and capricious of Latrobe to draw a
distinction, based on its perceived FMLA obligations, between
Vitale on the one hand and McCullough and Sommerville on the
other. Under this standard of review, a “court is not free to
substitute its own judgment for that of the defendants in
determining eligibility for plan benefits.” 

(quoting Lucash v. Strick Corp., 

, 434 (E.D. Pa.
1984)).
       Latrobe’s decision to treat McCullough and Sommerville as
“currently accruing a benefit,” based on its belief that the FMLA
required this treatment, was plainly rational. While Vitale has
argued that it was mistaken, she has not given us any reason to
believe that it was arbitrary and capricious. Even if Latrobe was
overly generous in its interpretation of the FMLA, it has articulated
a rational and sensible distinction between Vitale and those who
were given benefits.7 For this Court to second-guess that



       employed on that date.

29 C.F.R. § 825.215(d)(4). Similarly, “[e]mployees on unpaid FMLA
leave are to be treated as if they continued to work for purposes of
changes to benefit plans.” 

Latrobe interprets this
language as requiring it to hold open the early retirement benefit to all
employees who were on short-term leave covered by FMLA.
        Vitale responds that the regulations also provide that “unpaid
FMLA leave periods need not be treated as credited service for purposes
of benefit accrual, vesting and eligibility to participate.” 

Vitale believes that this sentence means that employees
on FMLA leave need not be treated as though currently employed when
a benefits decision is made; Latrobe believes that it means only that the
period during which the employee is on leave need not be credited to the
employee’s total term of service. As explained in the text, however, we
need not resolve this dispute here.
       7
         At oral argument, Vitale’s attorney suggested that this
distinction was a post hoc rationalization, pointing out that the notice
Vitale received denying her benefits did not mention the FMLA. This
argument is without merit: the notice did not mention the FMLA because
Vitale was not covered by the FMLA. Latrobe’s interpretation of the

                                   13
determination based on a close reading of the FMLA would
overstep our “arbitrary and capricious” standard of review.8

                            V. Conclusion

       Because Latrobe’s decision to deny benefits to Vitale was
compelled by the plain language of the Plan, it was not arbitrary
and capricious. Vitale’s argument from similarly situated
employees is legally insufficient, and Latrobe has articulated a
reasonable distinction between Vitale and those employees who
were granted benefits. We will therefore reverse the judgment of
the District Court and remand with the direction to enter
judgment in favor of Latrobe.




FMLA was relevant only to its decision to grant McCullough and
Sommerville benefits, not to its decision to deny Vitale benefits. An
ERISA plan administrator is not obligated, when denying one employee
benefits, to explain why every other employee received benefits.
       8
         Such second-guessing would also put ERISA fiduciaries
between a rock and a hard place: if Latrobe was overly restrictive in its
interpretation of the FMLA, McCullough and Sommerville would have
a cause of action under the FMLA; if it was overly generous, Vitale
could bring an ERISA action like the one at bar. Latrobe’s laudable
efforts to obey both the letter and the spirit of the FMLA should not be
punished by making it liable for additional benefits not required by that
statute.

                                   14