In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1995

DONALD J. TOMPKINS,

Plaintiff/Counter-Defendant-Appellant,

v.

CENTRAL LABORERS’ PENSION FUND,

Defendant/Counter-Plaintiff-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 4:09-cv-004004—Sara Darrow, Judge.

ARGUED OCTOBER 31, 2012—DECIDED MARCH 13, 2013

Before EASTERBROOK, Chief Judge, and WILLIAMS and

SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. The Central Laborers’ Pension

Fund (the “Fund”) terminated Donald J. Tompkins’s

disability benefits because he became employed

full-time and, therefore, no longer had a “total and permanent disability.” Tompkins, who brought this action
2 No. 12-1995

under the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. §§ 1001 et seq., challenges the

Fund’s interpretation of its definition of “total and permanent disability.” The Fund, which acknowledges that

the relevant definition provision is ambiguous, argues

that its interpretation is entitled to deference under the

arbitrary-and-capricious standard of review. We agree.

Despite Tompkins’s arguments to the contrary, the

Fund based its decision to terminate his benefits on a

reasonable interpretation of the definition provision.

And because none of Tompkins’s remaining arguments challenging that decision has merit, we affirm

the district court’s decision granting summary judgment in the Fund’s favor.

I. BACKGROUND

Tompkins, who began working as a laborer in Illinois

in 1978, is a participant in the Fund, a not-for-profit,

multi-employer pension fund established and administered pursuant to ERISA. In July 1999, Tompkins filed

an application for a disability pension from the Fund

based on chronic asthmatic bronchitis, which he attributed to working with cement dust for twenty-two

years. At that time the Fund was administered pursuant

to the Summary Plan Description, Revised and Effective

July 1, 1995 (“Revised SPD”) and the Restated Plan

Rules and Regulations-Amended and Restated Effective

October 1, 1994 (“First Restated Plan”). The Fund did not

mail or otherwise provide the First Restated Plan to

Tompkins or any other Fund participants, but Tompkins
No. 12-1995 3

did receive a copy of the Revised SPD, which provided in

relevant part that “[d]isability benefits are payable for

life, assuming, of course, that you remain totally and

permanently disabled.” The Revised SPD also referred

participants to the provisions of the First Restated

Plan, which defined “total and permanent disability”

and explained when the Fund could terminate or

suspend benefits.

Amendment 7 to the First Restated Plan, which

became effective in November 1998, included the following provision:

A Total and Permanent Disability shall mean that

the Employee is totally and permanently unable

as a result of bodily injury or disease to engage

in any further employment or gainful pursuit as

a Laborer or other Building Trades Crafts employment in the construction industry for remuneration or profit, regardless of the amount, or

unable to engage in further employment or

gainful pursuit of non-Laborer or other nonBuilding Trades Crafts employment for which

the employment is considered full-time and a

primary source of income. For such non-Laborer

or other non-Building Trades Crafts employment,

provided a physician, selected by the trustees,

considers the disability to be total and permanent,

the Participant may earn up to $14,000 per calendar year in non-Laborer or other non-Building

Trades Crafts employment and be considered

totally and permanently disabled for purposes
4 No. 12-1995

of Section 3.10. Such disability must be considered

total and permanent and will continue during

the remainder of the Participant’s life. The

trustees shall be the full and final judges of Total

and Permanent Disability and of entitlement to

a Disability Pension hereunder.

The Fund did not provide Amendment 7 to Tompkins

or any other plan participant.

Tompkins’s application for a disability pension included an acknowledgment that he agreed to be bound

by all the Fund’s rules and regulations, although he

did not inquire about those rules or make any effort to

find out what they were at the time he applied or before

filing this lawsuit. In August 1999, the Fund approved

Tompkins for “total and permanent disability” benefits

in the amount of $2,115.43 per month, retroactive to

January 1, 1999. The first time Tompkins received his

monthly benefit, he was required to sign a Retirement

Declaration that provided notice of disqualifying employment for plan participants receiving retirement

pensions but did not include the rules and regulations

specific to disability pensioners.

Tompkins received monthly disability benefits

through May 2007. In June, the Fund sent him a letter

suspending his disability pension, claiming that his

full-time employment at Wilman Construction in 2005

and 2006 led the Fund “to believe that [he] no longer

[met] the Fund’s definition of ‘total and permanent disability.’ ” The Fund found that Tompkins began working

forty hours per week beginning in July 2005 and earned
No. 12-1995 5

$10,550 that year and $22,100 in 2006. The letter

informed Tompkins that he had been overpaid $48,654.89

in benefits from July 2005 through May 2007 and that

the Fund would seek to recover that amount through

its recovery process.

The Fund based its decision to terminate Tompkins’s

disability benefits on Section 3.10’s definition of “total

and permanent disability.” Tompkins, who disputed

the Fund’s interpretation of the definition, appealed the

Fund’s decision. He made three arguments. First, he

asserted that his 2005 work did not violate Section 3.10

because the work was “non-laborer” employment that

earned him less than $14,000. He also argued that the

overpayment provisions should only apply once he

earned $14,000 for the year. And finally, he asserted

that he was not notified of the requirement to remain

“totally and permanently disabled” to continue receiving disability benefits.

After the Fund unanimously denied his appeal in

2008, Tompkins filed a complaint in federal court. In

an amended complaint, he alleged: the Fund controverted the plain meaning of the Plan by failing to apply

the $14,000 provision to his full-time employment as a

non-laborer; the Fund breached its fiduciary duty by

failing to provide him with proper notice of the rules

governing suspension of his benefits; and the Fund violated ERISA’s anti-cutback rule. The Fund filed a counterclaim for fraudulent concealment, alleging that

Tompkins hid his full-time employment between 2005

and 2007. Both parties filed motions for summary judg-
6 No. 12-1995

ment. The district court granted the Fund’s motion on

all of Tompkins’s claims and held a two-day bench trial

on the Fund’s counterclaim. After finding that there

was no evidence that Tompkins intended to deceive the

Fund into paying him benefits, the court ruled in favor

of Tompkins on the Fund’s counterclaim. Tompkins

appeals the district court’s summary judgment decisions

on his claims that the Fund controverted the plain

meaning of Section 3.10 and breached its fiduciary duty.

II. ANALYSIS

We review a district court’s summary judgment decisions de novo. Edwards v. Briggs & Stratton Ret. Plan, 639

F.3d 355, 359 (7th Cir. 2011). When we consider a

district court decision following cross-motions for summary judgment, “our review of the record requires

that we construe all inferences in favor of the party

against whom the motion under consideration is

made.” Hendricks-Robinson v. Excel Corp., 154 F.3d 685,

692 (7th Cir. 1998).

A. The Arbitrary-and-Capricious Standard Applies

A district court reviews the denial of ERISA benefits

de novo, “unless the benefit plan gives the administrator

or fiduciary discretionary authority to determine

eligibility for benefits or to construe the terms of the

plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989). When the terms of a plan provide for such discretion, judicial review of the administrator’s decision
No. 12-1995 7

is limited to an arbitrary-and-capricious standard,

under which an administrator’s decision will be upheld

“as long as (1) it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome,

(2) the decision is based on a reasonable explanation of

relevant plan documents, or (3) the administrator has

based its decision on a consideration of the relevant

factors that encompass the important aspects of the

problem.” Hess v. Hartford Life & Accident Ins. Co., 274

F.3d 456 (7th Cir. 2004) (internal quotation omitted).

The parties agree that the Plan grants the Fund’s

trustees discretionary authority to interpret and apply

its terms. Tompkins, however, relies on recent language

from the Supreme Court to argue that the arbitrary-and-capricious standard of review should not

apply. In Conkright v. Frommert, the Court stated that

“[u]nder trust law, a trustee may be stripped of deference when he does not exercise his discretion honestly

and fairly.” 130 S. Ct. 1640, 1651 (2010) (internal quotation marks omitted).

Tompkins first suggests that a heightened standard

of review is warranted under Conkright because the

Fund acted in bad faith by failing to disclose three documents to him: an internal memo sent in 1997 from one

of the Fund’s consultants to an attorney stating that

the general consensus was that the definition of “total

and permanent disability” was too restrictive; a 1997

letter sent from the same consultant to an attorney describing an amendment to the plan that would allow

a disabled person to earn up to $14,000 in non-construc-
8 No. 12-1995

tion work and continue to be eligible for disability

benefits; and a proposed—but not adopted—2005 draft

amendment to the plan that considered incorporating

language that Tompkins argues would have only been

necessary if his interpretation of the $14,000 provision

were accurate. Tompkins alleges that because these

documents support his view that the $14,000 provision

applied to part-time and full-time work in non-laborer

employment, the Fund acted in bad faith by not

disclosing them to him prior to or during his April 2008

appeal hearing.

Tompkins’s bad-faith argument is meritless. After its

adverse benefit termination, the Fund was required to

provide Tompkins with copies of “documents, records,

and other information relevant to [his] claim for benefits.” 29 C.F.R. § 2560.503-1(j)(3). And information is

“relevant” if it: “(i) [w]as relied upon in making the

benefit determination; (ii) [w]as submitted, considered,

or generated in the course of making the benefit determination . . .; (iii) [d]emonstrates compliance with the

administrative processes and safeguards required . . . in

making the benefit determination; or (iv) [i]n the case

of a group health plan or a plan providing disability

benefits, constitutes a statement of policy or guidance

with respect to the plan concerning the denied treatment

option or benefit . . . .” Id. § 2560.503.1(m)(8). Tompkins

does not argue that any of the documents he identifies

were relevant under any of these bases of relevance.

Rather, he asserts that they were available to the

trustees at the time they denied his benefits, and, collectively, they show that the Fund acted in bad faith. But
No. 12-1995 9

we will not characterize the Fund as acting in bad

faith because it did not disclose documents it had no

obligation to disclose.

Tompkins next attempts to convince us that the Fund

is not entitled to the arbitrary-and-capricious standard

of review because a conflict of interest influenced its

decision to terminate his disability benefits. “[A] benefits

determination by a plan administrator is a fiduciary act,

one in which the administrator owes a special duty

of loyalty to the plan beneficiaries.” Raybourne v. Cigna

Life Ins. Co. of N.Y., 700 F.3d 1076, 1081-82 (7th Cir. 2012).

And “if a plan gives discretionary authority to an administrator or fiduciary who is operating under a

conflict of interest, that conflict must be weighed . . . .” Id.

at 1082. We held that a conflicts analysis was not

necessary when the plan at issue was a multi-employer

welfare plan whose trustees consisted of an equal

number of union and employer representatives, whose

union representatives had “no discernible incentive to

rule against an applicant,” and whose trustees were

unanimous in their ruling. Manny v. Cent. States, Se. and

Sw. Areas Pension & Health & Welfare Funds, 388 F.3d 241,

243 (7th Cir. 2004). Tompkins argues that a conflicts

analysis is required here because the trustees, who

ruled unanimously and who are split evenly among

union and employer representatives, had an incentive

to rule against him, as evidenced by the fact that they

evaluated his claims at the same time they were

concerned about the cost of the retirement plan.

Tompkins’s evidence of a conflict of interest is minimal

at best—a 2004 presentation emailed by the Fund’s con-
10 No. 12-1995

sultant to its executive director that included a recommendation that the Fund “ensure all disability pensioners

are disabled” and a 2010 letter to participants and beneficiaries giving notice that the decline in financial

markets put the fund in “endangered status” for the

2009 plan year.

We have previously held that “the arbitraryand-capricious standard may be a range, not a point” and

that “[t]here may be in effect a sliding scale of judicial

review of trustees’ decisions—more penetrating the

greater is the suspicion of partiality, less penetrating the

smaller that suspicion is.” Van Boxel v. Journal Co. Emps.

Pension Trust, 836 F.2d 1048, 1052-53 (7th Cir. 1987). The

suspicion of partiality raised by Tompkins’s claim is

negligible, in part because his evidence either predated

the termination decision by four years or did not exist

until nearly two years after it. Furthermore, there is

no reason to suspect from that evidence—or any other

evidence presented by Tompkins—that the Fund was

motivated to improperly administer disability pensions

around the time it made the decision to terminate

his benefits. Tompkins’s arguments are simply not sufficient to change the applicable standard of review. The

range of the arbitrary-and-capricious standard leaves

us more than enough room to take Tompkins’s concerns

into account while still granting the Fund’s trustees

the appropriate amount of deference.

On appeal, Tompkins argues that the district court

should have addressed the conflict-of-interest issue

before responding to his claims that the Fund was acting
No. 12-1995 11

in bad faith. This argument fails for several reasons.

First, Tompkins did not argue for a particular sequence

of review to the district court, and at summary judgment, he presented his bad-faith argument before his

conflict-of-interest one. Additionally, he provides no

authority for his argument that the district court

should have considered the alleged conflict of interest

first. Instead, he merely cites language stating that “a

majority of the Supreme Court Justices consider the

potential conflict of interest of a plan administrator (or

its staff) serious enough to be given weight in judicial

review of the denial of benefits.” Marrs v. Motorola, Inc.,

577 F.3d 783, 788 (7th Cir. 2009). But Marrs does

nothing to advance Tompkins’s cause, since it does

not address the order in which a district court must

consider arguments relevant to the selection of a

standard of review. And ultimately, the order makes

no difference. Tompkins’s evidence of bad faith and

conflict of interest is insufficient to raise suspicions

about the trustees’ actions that warrant raising the applicable standard of review, regardless of which challenge we consider first.

B. The Fund Did Not Act in an Arbitrary or Capricious

Manner

The parties dispute the relevance of the phrase “[f]or

such” in this excerpt from Section 3.10 (emphasis added):

A Total and Permanent Disability shall mean that

the Employee is totally and permanently. . . unable

to engage in further employment or gainful
12 No. 12-1995

pursuit of non-Laborer . . . employment for which

the employment is considered full-time and a

primary source of income. For such non-Laborer . . .

employment, . . . the Participant may earn up to

$14,000 per calendar year in non-Laborer . . .

employment and be considered totally and permanently disabled . . . .

Under Tompkins’s reading of this provision, the “for

such” prefatory phrase, which allows pensioners to

earn up to $14,000 through non-laborer employment,

refers to all the language that precedes it (i.e., “non-Laborer

employment for which the employment is considered

full-time and a primary source of income”), such that

a person employed full-time can remain “totally and

permanently disabled” if he earns less than $14,000. In

contrast, the Fund interprets the “for such” language as

a general reference to the type of work allowed in

the $14,000 provision such that a participant can earn

up to $14,000 through non-laborer employment and

remain “totally and permanently disabled,” but he

cannot do so if he is employed as a laborer. According

to the Fund, the $14,000 provision does not address

the length of time the pensioner works; instead, it

argues that the first sentence of Section 3.10 accomplishes this by prohibiting a “totally and permanently disabled” participant from engaging in full-time

non-laborer employment. According to the Fund, it

intended the $14,000 provision to allow permanently

disabled participants to maintain part-time employment without losing their disability pensions.
No. 12-1995 13

Tompkins asks us to find the meaning of the $14,000

provision so plain that the Fund acted arbitrarily and

capriciously when it relied on it to terminate his benefits. See Hess v. Hartford Life & Accident Ins. Co., 274 F.3d

456, 461 (7th Cir. 2001) (“In some cases, the plain language or structure of the plan or simple common

sense will require the court to pronounce an administrator’s determination arbitrary and capricious.”). The

Fund responds that the language in the $14,000 provision is ambiguous. We agree. There are certainly more

efficient ways to communicate the Fund’s definition

of “total and permanent disability.” And the “for such”

preface seems unnecessarily confusing. In addition,

Tompkins’s need to resort to extrinsic evidence, such

as the 1997 memo and letter and the 2005 draft amendment, also suggests that the provision is, in fact, ambiguous. See Swaback v. Am. Info. Techs. Corp., 103 F.3d

535, 541 (7th Cir. 1996) (with ERISA plans, “[e]xtrinsic

evidence should not be used where the contract is unambiguous” (quoting GCIU Emp’r Ret. Fund v. Chi. Tribune

Co., 66 F.3d 862, 865 (7th Cir. 1995)). Because of that

ambiguity, the Fund’s interpretation of the $14,000 provision is entitled to deference. That interpretation rests

on a reasoned understanding of “total and permanent

disability”: once a participant is engaged in full-time

employment, regardless of how much he makes, he is

no longer totally and permanently disabled. Given the

required level of deference to the Fund’s interpretation of its own plan, we cannot say the Fund acted arbitrarily or capriciously when it denied Tompkins benefits for the time he was employed full-time.
14 No. 12-1995

C. The Fund Did Not Breach Its Fiduciary Duty

Breaches of fiduciary duty occur when fiduciaries

“mislead plan participants or misrepresent the terms

or administration of a plan.” Anweiler v. Am. Elec. Power

Serv. Corp., 3 F.3d 986, 991 (7th Cir. 1993). However,

“while there is a duty to provide accurate information

under ERISA, negligence in fulfilling that duty is not

actionable.” Vallone v. CNA Fin. Corp., 375 F.3d 623, 642

(7th Cir. 2004). Rather, there must have been an intent

to “disadvantage or deceive” plan participants. Vallone,

375 F.3d at 642.

ERISA requires trustees to discharge their duties “in

accordance with the documents and instruments governing the plan . . . .” (the “plan document rule”). 29

U.S.C. § 1104(a)(1)(D). Tompkins argues that the Fund

breached this duty by not providing him with the Plan

Rules Governing Suspension, a document he argues set

limits on his subsequent employment. Although the

Plan acknowledges its failure to provide Tompkins with

this document, Tompkins’s argument nonetheless fails

because the Plan Rules Governing Suspension does not

apply to disability benefits; rather, it details the suspension of regular pension benefits, as evidenced by its

prohibition on pensioners receiving “any type of compensation” and the ability of pensioners to begin

receiving benefits again after terminating disqualifying

employment. It would not be logical for these provisions

to apply to someone who is totally and permanently disabled. And given the deference that courts must give

funds interpreting their own plan documents, it was not
No. 12-1995 15

arbitrary or capricious for the Fund to fail to give

Tompkins a document that it believed did not apply to

him.

Tompkins also argues that the Fund breached its fiduciary duties of care, skill, prudence, and diligence by

providing him with incorrect or insufficient notice of

the terms of his disability benefits, pointing specifically

to the Retirement Declaration that was not tailored to

disability beneficiaries. Assuming that the Fund provided inaccurate information to Tompkins by giving

him the Retirement Declaration rather than one tailored

to disability pensioners, there is no evidence of intent

to deceive or disadvantage him. First, it was the

Fund’s standard practice to provide that declaration

to disability pensioners. And more importantly, the requirement that disability pensioners like Tompkins

remain “totally and permanently disabled” was set out

elsewhere, including in the Revised SPD, which

Tompkins received.

Finally, Tompkins suggests that the Fund breached

its duty by not suspending his benefits in January 2004,

when it discovered that he had earned $7,144.00 in

2001 and $4,037.50 in 2002. This argument is meritless.

When the Fund asked Tompkins to explain the nature

of his 2001 and 2002 work, he responded that he worked

eight to ten hours a week repairing nail guns and performing light office duties. This work was neither

full-time nor connected to more than $14,000 in compensation, so it would not have triggered the termination of benefits under either interpretation of the
16 No. 12-1995

$14,000 provision. Thus, the Fund’s failure to terminate

his benefits was not a breach of its fiduciary duty.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the judgment of the district court.

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