F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUL 3 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    CATHY J. HORN,

               Plaintiff-Appellant,

    v.                                                  No. 01-5205
                                                  (D.C. No. 00-CV-227-E)
    CENDANT OPERATIONS, INC.;                           (N.D. Okla.)
    CENDANT OPERATIONS, INC.
    LONG TERM DISABILITY PLAN,

               Defendants-Appellees,

         and

    HARTFORD LIFE INSURANCE
    COMPANY,

               Defendant.


                            ORDER AND JUDGMENT          *




Before KELLY , BALDOCK , and LUCERO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiff Cathy Horn appeals the district court’s decision granting summary

judgment in favor of defendants Cendant Operations, Inc. and Cendant

Operations, Inc. Long Term Disability Plan (Cendant). After Cendant denied

Ms. Horn long-term disability benefits because she had not been “actively at

work” at Cendant for at least one full day, Ms. Horn brought suit against Cendant

under the Employee Retirement Income Security Act (ERISA), 29 U.S.C.

§§ 1001-1461, for breach of fiduciary duty, alleging Cendant failed to inform her

of the “actively at work” requirement. In granting summary judgment for

Cendant, the district court held that in light of the information Ms. Horn provided

to Cendant, Cendant did not breach its fiduciary duty under ERISA by failing to

inform her of the “actively at work” provision defining eligibility for long-term

disability benefits. On the record before us, we conclude the grant of summary

judgment in favor of Cendant was not proper and, as a matter of law, Cendant did

breach its fiduciary duty. We therefore reverse and remand for further

proceedings.




                                         -2-
                                         I.

      Ms. Horn worked full-time as a customer service representative for Avis

Rent A Car Systems, Inc. in Tulsa, Oklahoma. On January 1, 1999, certain

operations of Avis, including the division in which she was employed, were

acquired by and merged into Cendant.

      In October 1998, in preparation for the merger, Linda Dovers, the Tulsa

Administrative Manager of Human Resources, attended a benefits presentation at

Cendant’s head office in New Jersey. During the presentation, she neither learned

about nor received information about an “actively at work” requirement for

Cendant long-term disability benefits eligibility. Upon returning to Tulsa,

Ms. Dovers instructed other human resources employees, including Gloria Storey,

a former Human Resources administrative assistant, about Cendant’s benefits.

They, in turn, presented information about Cendant benefit coverages and options

to Ms. Horn and other affected Avis employees. Although, at that time, there was

no summary plan description detailing the available benefits, employees did

receive a benefit planner booklet and an enrollment worksheet. These materials

indicated Cendant benefits included core short- and long-term disability benefits

and optional additional disability benefits, which Ms. Horn elected in early

November 1998. The booklet stated core disability “coverages go into effect on

the first of the month following your date of hire, which is also when you are


                                         -3-
eligible to elect voluntary benefits.” Appellant’s App., vol. 1 at 336. In other

words, these benefits were effective January 1, 1999. Neither the presentation

information nor the materials received included an “actively at work” provision

for long-term disability eligibility.

      On November 30, 1998, The Hartford Life Insurance Co. sent Cendant

copies of the disability plan certificates, which included the “actively at work”

eligibility requirement. Although Hartford directed Cendant to provide the plan

certificates to eligible employees, Cendant did not do so.

      Shortly before the merger, in December 1998, Ms. Horn experienced pain

and swelling in her left ankle. She took unpaid medical leave from her Avis

employment the last week of December due to this condition. On December 28,

Dr. Scott Dunitz indicated she had been under his care since December 25 due to

“Ankle Sprain vs. Infection” with continuing pain.   

Dr. Dunitz

indicated she would be unable to work until further notice.

      On January 1, 1999, the effective date of the merger, Ms. Horn was not

scheduled to work, and the following week she did not work due to approved

vacation leave. After her vacation, she sought medical advice on January 12 from

her new doctor, Dr. Jeff Wright, under the Cendant plan. Pursuant to

Dr. Wright’s instructions, Ms. Horn did not return to work because of her ankle

condition and difficulty ambulating. At a follow-up visit on January 19,


                                           -4-
Dr. Wright again noted she should continue to be off work. Also, he diagnosed

her with rheumatoid arthritis and, based on blood tests, with chronic, active

hepatitis C, and referred her to Dr. Leon Yoder in connection with the hepatitis C.

In February, under Dr. Yoder’s care, she began chemotherapy for the hepatitis C.

During the course of the chemotherapy treatment, she was unable to work due to

side effects of fatigue, fever, diarrhea, myalgia and nausea.

      Ms. Horn submitted two requests for short-term disability benefits–one for

her ankle problems with a disability date of December 23, 1998, and one for

hepatitis C and rheumatoid arthritis with a disability date of January 12, 1999.

Both claims were processed under, and she received benefits under, the Avis

short-term disability plan. As an Avis employee, however, Ms. Horn had not

elected available optional long-term disability insurance.

      From the onset of her problems, Ms. Horn had twenty to fifty conversations

with Ms. Storey, including discussions about disability benefits. Although both

Ms. Storey and Ms. Dovers knew of the complexity and confusion about benefits

after the merger, neither questioned the treatment of the second disability claim

under the Avis plan. In April or May 1999, Ms. Storey first learned that

Ms. Horn was never an Avis long-term disability plan participant. Thereafter,

Ms. Storey determined Ms. Horn was not eligible for Cendant long-term disability

benefits because she had not been “actively at work” for Cendant for one full day.


                                         -5-
In June 1999, after the Avis short-term disability benefits ended, Cendant

terminated Ms. Horn’s employment and informed her she was ineligible for

Cendant long-term disability benefits because she failed to satisfy the “actively at

work” requirement. Later in June, Cendant issued its summary plan description,

which included the requirement that an employee be “actively at work” at Cendant

for one full day in order to be eligible for long-term disability benefits.

       Ms. Horn filed suit in district court alleging, among other things, that

Cendant breached its fiduciary duty to her under ERISA law by failing to inform

her of the “actively at work” provision in the Cendant long-term disability plan.   1



During the discovery process, Ms. Dovers testified at her deposition that she first

learned of the “actively at work” requirement in June, and at that time did not

have a copy of the plan.    See 

at 717-19. Also, she testified that if she

had known in January of 1999 about the “actively at work” requirement for

Cendant long-term disability benefits eligibility, she might have advised Ms. Horn

to obtain a doctor’s release so that she could work for one day to take advantage

of the Cendant benefits.    See 

see also 

(deposition

testimony of Ms. Storey that she would have conveyed one-day requirement if she



1
       Ms. Horn also claimed that Hartford improperly denied her long-term
disability benefits. The district court rejected this argument, deciding she was not
eligible for coverage under the policy because she had not satisfied the “actively
at work” provision. Ms. Horn does not appeal this decision.

                                            -6-
had known about it). At her deposition, Ms. Horn testified that if Cendant had

advised her about the one-day “actively at work” provision, she would have met

that requirement.     

       Both Ms. Horn and Cendant filed motions for summary judgment. The

district court entered judgment in favor of Cendant, reasoning that

       [u]nder the facts of this case, the disability initially presented, and
       the information provided by [Ms. Horn], the conduct of [Ms.] Dovers
       and [Ms.] Storey does not amount to a breach of fiduciary duty. The
       information provided by them was not only accurate, it was complete
       in light of the facts known by them.

at 1137.

       Ms. Horn filed a timely motion to reconsider.     See Fed. R. Civ. P. 59(e).

The district court denied the motion, reiterating that Ms. “Horn failed to provide

relevant information about her medical condition and applications for disability.”

Appellant’s App., vol. 3 at 1188. This appeal followed.


                                            II.

                                            A.

       As a threshold matter, we consider the jurisdictional issue of whether

Ms. Horn has standing to assert a claim for breach of fiduciary duty.   2
                                                                            See


2
        Although the district court did not address Cendant’s challenge to
Ms. Horn’s standing to bring this action, we must satisfy ourselves both that the
district court had, and we now have, jurisdiction over this case.  Alexander v.
                                                                       (continued...)

                                            -7-
Alexander v. Anheuser-Busch Cos., Inc.      , 

, 538 (10th Cir. 1993). We

conclude that she does. “Pursuant to 29 U.S.C. § 1132, a ‘participant’ has

standing to bring a civil action to enforce [her] rights under the terms of an

ERISA plan or to enforce ERISA’s provisions.”         Alexander , 990 F.2d at 538. A

plan participant includes a former employee with a colorable claim that she will

prevail in a suit for benefits.   

, Firestone Tire & Rubber Co. v.

Bruch , 

, 117-18 (1989));      see also 29 U.S.C. § 1002(7) (defining

participant as “former employee . . . who is or may become eligible to receive a

benefit of any type from an employee benefit plan”).

       Here, there are two questions: is Ms. Horn a former employee and, if so,

has she presented a colorable claim. We answer both questions in the affirmative.

Apart from the long-term disability benefits denial, Cendant consistently treated

Ms. Horn as an employee, including providing her with Cendant medical benefits,

notifying her of her employment termination and offering her COBRA          3
                                                                                insurance

upon termination from employment.         See Appellant’s App., vol. 2 at 760A

(deposition testimony of Ms. Storey that Ms. Horn was Cendant employee on

January 1, 1999). Thus, Ms. Horn is a former Cendant employee.


2
 (...continued)
Anheuser-Busch Cos., Inc. , 

, 538 (10th Cir. 1993).
3
      Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C.
§§ 1161-1168.

                                             -8-
       “[T]he requirements for a colorable claim are not stringent; [Ms. Horn]

need have only a nonfrivolous claim for the benefit in question.”        Kamler v. H/N

Telecomm. Servs., Inc. , 

, 678 (7th Cir. 2002),     cert. denied , 

(2003). As discussed below, she does have a nonfrivolous, colorable claim

for long-term disability benefits.   See generally Shea v. Esensten , 

,

628 (8th Cir. 1997) (holding that “if the fiduciary’s alleged ERISA violation

caused the former employee to lose plan participant status, the former employee

will nonetheless have standing to challenge the fiduciary violation”);      Swinney v.

Gen. Motors Corp. , 

, 519 (6th Cir. 1995) (holding “that so long as a

former employee would have been in a class eligible to become a member of the

plan but for the fiduciary’s alleged breach of duty, he ‘may become eligible’ for

benefits under the plan, and is therefore a ‘participant’ under § 1002(7) for the

purposes of standing”). Thus, Ms. Horn has standing to assert a claim for breach

of fiduciary duty.

                                            B.

       Turning to the merits, Ms. Horn argues the district court erred in granting

Cendant’s motion for summary judgment and in denying her motion for summary

judgment, because that court erred in determining Cendant’s acts and omissions

did not constitute a breach of fiduciary duty. Specifically, Ms. Horn contends

(1) the district court too narrowly considered Cendant’s acts and omissions by


                                            -9-
focusing only on Ms. Dovers’ and Ms. Storey’s conduct; (2) the district court

erred in limiting the scope of Cendant’s fiduciary duty to facts known to

Ms. Dovers and Ms. Storey; and (3) the district court erred in excusing Cendant’s

breach of fiduciary duty by blaming Ms. Horn for failing to provide relevant

information about her medical condition and applications for disability.

              We review the grant of summary judgment        de novo , taking the
       facts and the reasonable inferences to be drawn from them in the
       light most favorable to the nonmoving party. Under Rule 56(c), the
       moving party bears the initial burden of presenting evidence to show
       the absence of a genuine issue of material fact. In our circuit, the
       moving party carries the burden of showing beyond a reasonable
       doubt that it is entitled to summary judgment. Once this burden is
       met, Rule 56(e) requires the non-moving party to set forth specific
       facts showing there is a genuine issue for trial. . . . [T]he moving
       party . . . has both the initial burden of production on a motion for
       summary judgment and the burden of establishing that summary
       judgment is appropriate as a matter of law. The moving party may
       carry its initial burden either by producing affirmative evidence
       negating an essential element of the nonmoving party’s claim, or by
       showing that the nonmoving party does not have enough evidence to
       carry its burden of persuasion at trial.

Trainor v. Apollo Metal Specialities, Inc.    , 

, 979 (10th Cir. 2002)

(citations and quotations omitted).

       Ms. Horn argues Cendant breached its fiduciary duty by failing to inform

her about the “actively at work” requirement for long-term disability plan

eligibility, thereby failing to provide her complete and accurate material

information concerning her eligibility. She maintains Cendant and its Human

Resources employees together acted as fiduciaries. Although the district court did

                                             -10-
not address the fiduciary issue, we do so before addressing whether any fiduciary

duty had been breached. “[A] ‘person is a fiduciary with respect to a plan,’ and

therefore subject to ERISA fiduciary duties, ‘to the extent’ that . . . she ‘exercises

any discretionary authority or discretionary control respecting management’ of the

plan, or ‘has any discretionary authority or discretionary responsibility in the

administration’ of the plan.”   Varity Corp. v. Howe , 

, 498 (1996)

(quoting 29 U.S.C. § 1002(21)(A)). Cendant, through its Employee Benefits

Committee, was the plan administrator. Thus, it was a fiduciary, owing

obligations to plan participants, such as Ms. Horn.    See Fischer v. Phila. Elec.

Co. , 

, 135 (3d Cir. 1993).

       Cendant disputes that Ms. Storey and Ms. Dovers acted as fiduciaries on

behalf of Cendant at the times they conferred with Ms. Horn about long-term

disability benefits. As is more fully discussed below, when presenting the

benefits available under Cendant, Cendant spoke through these Human Resources

employees as plan administrator, and it acted as a fiduciary when it conveyed

incomplete information about the long-term disability benefits plan.     See Varity ,

516 U.S. at 501, 502-03. Cendant relied on Ms. Dovers and Ms. Storey to present

information about Cendant benefits and to provide eligibility information to

Ms. Horn. Cendant’s fiduciary “obligations cannot be circumvented by building a




                                           -11-
‘Chinese wall’ around those employees on whom plan participants reasonably rely

for important information and guidance . . . .”        Fischer , 994 F.2d at 135.

       Having decided Cendant, itself and speaking through its Human Resources

employees, acted as a fiduciary, we next consider the scope of those fiduciary

duties. As an ERISA plan administrator, Cendant had a fiduciary duty to act

“solely in the interest of the participants and beneficiaries” for purposes of

providing benefits and administering the plan. 29 U.S.C. § 1104(a)(1)(A).

Cendant was required to conduct its duties “with the care, skill, prudence, and

diligence under the circumstances then prevailing that a prudent man acting in a

like capacity and familiar with such matters would use in the conduct of an

enterprise of a like character and with like aims.”        

Congress,

however, did not enumerate all powers and duties for fiduciaries when enacting

ERISA; instead, it invoked the common law of trusts to define the general scope

of authority and responsibility of fiduciaries.       Ershick v. United Mo. Bank of Kan.

City, N.A. , 

, 666 (10th Cir. 1991) (citing       Cent. States, S.E. & S.W.

Areas Pension Fund v. Cent. Transp., Inc.         , 

, 570 (1985));   see also

Varity , 516 U.S. at 496-97, 502, 506.

       “[A] fiduciary has a legal duty to disclose to the beneficiary only those

material facts, known to the fiduciary but unknown to the beneficiary, which the

beneficiary must know for its own protection.”          Glaziers & Glassworkers Union


                                             -12-
Local No. 252 Annuity Fund v. Newbridge Sec., Inc.          , 

, 1182 (3d Cir.

1996); see also Jordan v. Fed. Express Corp. , 

, 1015 (3d Cir.

1997); Restatement (Second) of Trusts § 173, cmt. d (1959).           “The duty to

disclose material information is the core of a fiduciary’s responsibility . . . .”

Eddy v. Colonial Life Ins. Co. of Am.       , 

, 750 (D.C. Cir. 1990);      see

also Harte v. Bethlehem Steel Corp.     , 

, 452 (3d Cir. 2000);         Shea ,

107 F.3d at 628. A fiduciary’s misrepresentation or failure to disclose is material

“if there is a substantial likelihood that it would mislead a reasonable employee in

making an adequately informed . . . decision.”         Jordan , 116 F.3d at 1015

(quotation omitted); see also Harte , 214 F.3d at 451 (“ERISA was enacted, in

part, to ensure that employees receive sufficient information about their rights

under employee benefit plans to make well-informed employment . . .

decisions.”). Without sufficient information, plan beneficiaries may not be

alerted that they should inquire further.      See Glaziers & Glassworkers Union

Local No. 252 Annuity Fund , 93 F.3d at 1181.

       A plan administrator must furnish a summary plan description to all plan

beneficiaries and participants. 29 U.S.C. § 1022(a). Employees cannot be bound

to policy terms for which they received no notice.         See Member Servs. Life Ins.

Co. v. Am. Nat’l Bank & Trust Co. of Sapulpa          , 

, 956 (10th Cir.




                                               -13-
1997); Bartlett v. Martin Marietta Operations Support, Inc. Life Ins. Plan    ,

, 517 (10th Cir. 1994).

      Cendant provided only the benefits booklet and enrollment worksheet at the

time Ms. Horn made her benefits elections. Cendant therefore failed to provide

material information at the enrollment time. Although the booklet described

eligibility for benefits, it did not qualify long-term disability benefits with an

“actively at work” requirement. Cendant published and distributed its summary

plan description, including the “actively at work” provision, only after Ms. Horn’s

termination.

      We recognize that plan language typically controls.      See Alexander ,

990 F.2d at 539. Here, however, Cendant failed to make its plan or a summary

plan description available to Ms. Horn. Under the materials she received,

Ms. Horn was eligible for benefits on January 1, 1999, and we cannot fault her for

failing to request information about an undisclosed “actively at work”

requirement.

      Cendant’s failure to disclose material information continued beyond the

point of enrollment for benefits. Ms. Horn spoke to Ms. Storey between twenty

and fifty times about her health problems and disability benefits. Even if

Ms. Horn should have told Cendant she had not elected Avis long-term disability

benefits, that information was available to Cendant and its Human Resources


                                          -14-
personnel. The Human Resources personnel knew the merger complicated

employee benefits issues, yet they did not question whether the second short-term

disability claim should be treated under the Avis or Cendant plans. Nor did they

timely investigate long-term disability eligibility. Once Ms. Horn informed

Cendant about her health problems and inquired about disability benefits, Cendant

had an affirmative duty to provide complete and accurate eligibility information,

including the “actively at work” requirement, that Cendant knew or should have

known as a fiduciary which was material to Ms. Horn’s circumstances.          See Bixler

v. Cent. Pa. Teamsters Health & Welfare Fund        , 

, 1300 (3d Cir.

1993); Eddy , 919 F.2d at 751. Even if Ms. Horn’s questions concerning disability

benefits were not precise, Cendant still had a duty to communicate the eligibility

requirement, of which it knew or should have known.          See Eddy , 919 F.2d at 751.

This is especially so, because, as noted above, no information she received would

have led her to ask about the “actively at work” requirement.        See Harte , 214 F.3d

at 453.

       Ms. Horn cannot be bound by policy terms for which she had no notice.

See Member Servs. Life Ins. Co. , 130 F.3d at 956. Cendant therefore breached its

fiduciary duty, and misled Ms. Horn by failing to disclose the material “actively

at work” eligibility requirement of the long-term disability plan.




                                            -15-
       Cendant argues that because Ms. Horn repeatedly contended she was unable

to work due to disability she cannot argue that she could have returned to work

for at least one day.   4
                            The critical issue at this juncture is whether Cendant

adequately disclosed the “actively at work” requirement.         Cf. Rhorer v. Raytheon

Eng’rs & Constructors, Inc.       , 

, 644 (5th Cir. 1999) (holding

satisfaction of active work requirement was irrelevant because summary plan

description did not adequately disclose requirement). Clearly, it did not. If

Ms. Horn had been aware of the “actively at work” requirement, she could have

made an informed decision about returning to work for one day.          See Appellant’s

App. vol., 2 at 871-72 (affidavit of Dr. Wright stating that before chemotherapy,

Ms. Horn could have gone back to her sedentary job if necessary to do so, but it

was in her best interest to be off work). Although Ms. Horn may not have been

able to return to work permanently, she may have been able to work for one day

in order to receive long-term disability benefits, and Cendant may have

accommodated her need to do so, provided her doctor would give her permission

to return to work for one day.


4
       Cendant suggests that Ms. Horn’s acceptance of short-term disability
benefits if she could work for one day necessarily amounts to insurance fraud.
We reject this argument.    See generally Cleveland v. Policy Mgmt. Sys. Corp. ,

, 797-98, 806 (1999) (holding receipt of social security disability
benefits does not automatically estop recipient from pursuing Americans with
Disabilities Act claim, but recipient must explain apparent contradiction arising
out of earlier social security total disability claim).

                                              -16-
       Viewing the evidence in the light most favorable to Ms. Horn, we conclude

the district court erred in deciding Cendant did not breach its fiduciary duty to her

when it failed to inform her about the long-term disability plan’s “actively at

work” provision. On the record before us, we further conclude as a matter of law

that reasonable minds could not differ that Cendant made material

misrepresentations and omissions to Ms. Horn concerning eligibility for long-term

disability benefits.   See Fischer , 994 F.2d at 135 (indicating that whether

misrepresentation is material is mixed question of law and fact). Thus, we hold

Cendant breached its fiduciary duty to Ms. Horn. Because unanswered questions

remain, we remand to the district court for further proceedings addressing

whether Ms. Horn qualified for long-term disability benefits, with no “actively at

work” eligibility requirement.

                                            C.

       In light of our holding that the district court erred in granting summary

judgment for Cendant, we need not address Ms. Horn’s claim that the district

court erred in denying her motion to reconsider.




                                           -17-
                                       III.

      The judgment of the United States District Court for the Northern District

of Oklahoma is REVERSED, and the action is REMANDED for further

proceedings.



                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




                                       -18-