NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0666n.06
No. 12-4374
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CHRISTOPHER BAILEY; THO MAS A. KR AMER; BRET COLLIE R,
P laintif fs-App ellants,

v. U N I T E D S T A T E S E N R I C H M E N T CORP ORATION; SEVE RANCE P LAN F OR SA LA R I ED EM P LO Y EE S OF U N ITE D ST A TE S ENRICHMENT CORP ORATION.,
Defendan ts-Appellees.
/ ON AP P EAL FR OM THE UNITE D S T A T E S D I ST R

I C T C OU R T F OR T H E SOUTH ERN DISTRICT OF OHIO

BEFORE: SILE R, CLAY, and GIBBONS , Circuit J udg es. CLAY, Circuit Judge. Plaintiffs are w orker s who wer e fire d by Def endant United States Enrichment Corporation (“U SEC”) when Def endant lost a g overnme nt contra ct. Plaintiffs broug ht claims pursuant to the Employ ee Retirement I ncome Security Act, 29 U.S.C. § 1001 et seq. (“ERI SA”). P l ai n t i ff

s alleg e that they wer e wrong fully denied benef its in violation of ERI SA § 502(a) (1) and (3), that Def endant brea ched its fiduc iary duty in violation of ERI SA §§ 502(a) (2) and 404(a) ; and that Def

endant interfe red with protec ted rig hts in violation of ERI SA §§ 502(a) (3) and 510. The district court dismiss ed Plaintiffs’ suit under Fe dera l Rule of Civil Procedur e 12(b)( 6) for failure to state a claim, and dismiss ed Plaintiffs’ motion for class cer tification as moot. For the

rea sons set forth in this opinion, we AF F IRM the judg ment of the district cour t.No. 12-4374 BACK GR OUND Def endant United States Enrichment Corporation (“USEC”) is a pr oducer of nuclea r fuel.
USEC opera ted a Depa

rtment of Energ y (“D OE”) fac ility in Piketon, Ohio, called the Portsmouth
Ga s eous Diffusions Plant (“PORTS”). Plaintiffs are former salarie d employ ees of USEC wh o worke d at t hat facility . USEC established a Sever ance Plan for Salar ied Em ploy ees of the Unit ed
States Enrichment Corpor ation (“Plan” ) as a self-insure d ERI SA Plan eff ective on May 18, 1999.
I n Aug ust 2010, USEC beg an firing worke rs as part of a reduc tion in forc e. USEC had lost
a g overnme nt contrac t for the de contamination and decommissioning of the PORTS facility . The
contra ct had been awa

rded to Fluor-B& W Portsmouth L L C (“F luor”) afte r a competitive bidding
proce ss. Plaintiffs are worke rs who wer e fired and then re- employ ed by Fluor. I n eff ect, Fluor took

over the fac ility and the employ ees of USEC. Plaintiffs thus did not miss any work; when Fluor took

over the fac ility , the worke rs who stay ed with them continued their employ ment at t h e fa cil ity

. Sometime befor e the worke rs wer e actua lly fired (or transfe rre d to Fl u o r), USEC sent a letter
reg arding sever ance benef its, which stated that if a worke r was moving over to Fluor and “re taining

cre dit for prior leng th of service ,” then he or she was g oing to be employ ed under “substantially equal conditions of employ ment” and would not be elig ible for sever ance benef its unde r the Plan. Plaintiffs filed suit in the Southern District o f Oh i o on behalf of themselves and simil arly situated participa

nts in USEC’s Severa

nce Plan. They broug ht three claims, one for benef its under
ERI SA § 502(a) (1) and (3); one alleg ing brea ch of fiduciar y duty under ERI SA §§ 502(a) (2) and 404(a) ; and one alleg ing interfe renc e with pro tected rig hts under ERI SA §§ 502(a) (3) and 510. Def endant moved the court for dismiss al pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6). The

2No. 12-4374

district court g rante d that motion, and dismi ssed the cla ss-ce rtification motion as moot. Pl aintiffs

now appea l on all three of their claims. A dismiss al pursuant to Rule 12(b)( 6) is a final, appea lable order

. See, e .g. , Tahfs v. Proctor , 316 F.3d 584, 590 ( 6th Cir. 2003).
DISCUSSIO N
A. Stand ard of Review This Court revie ws de novo a district court’s g rant of a motion to dismiss for failure to state

a claim pursuant to F eder al Rule of Civil Procedur e 12(b)( 6). Gunasek era v. Irwin , 551 F.3d 461,
465–66 (6th Cir. 2009). Under Rule 12(b)( 6), this Court “ac cept[s] all the Plaintiffs’ fac tual alleg ations as true and construe[s] the complaint in the light most favor able to the Plaintiffs.” Hill

v. Blue Cross & Blue Shield of M ich. , 409 F.3d 710, 716 (6th Cir. 2005); accord Gunasek era , 551 F.3d at 466. “[T] he complaint ‘does not need detailed fac tual alleg ations’ but should identify ‘more than labels and conclusions.’” Casias v. W al-Mart Stores, Inc. , 695 F.3d 428, 435 (6th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007))

. “To survive a motion to dismiss ,

a complaint must contain sufficie nt fac tual matter, acc epted as true, to ‘state a claim to relief that is plausible on its fac e.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570); accord Casias , 695 F.3d a t 435. Whil e this Court revie ws the decision of a district court under Rule 12(b)( 6) de novo , if the plan g ives the administrator discretionar y authority over deter

minations of benef

its elig ibilit y , then the decisions of a plan administrator as to an entitlement to benef its are revie wed under an arbitra ry and capr icious standard. Shelby Cnty. Health Care Corp. v. S. Council of Indus. W orkers Health and
W elfare Trust Fund , 203 F.3d 926, 933 (6th Cir. 2000). This defe rential standard is only appropr iate

3No. 12-4374

wher e there is clea

r lang uag e g ranting such discretionar y authority to the administrator of the plan. Id.
B. Analysis Plaintiffs have made three claims under ERI SA. First, they all ege t hat under ERI SA § 502(a) (1) and (3), they wer e entitled to benef its under t h e Plan. Next, they alleg e that USEC brea ched its fiduciar

y obliga tions under ERI SA § 502(a) (2) pursuant to ERI SA § 404(a) , and finally , they alleg e that USEC interfe red with pr otected rig hts in violation of ERI SA §§ 502 and 510. We addre ss eac h of these c laims in turn.

1. Benefits Und er ERISA 1
Plaintiffs’ first claim i s for denial of benefits. Under ERI SA § 5 0 2 (a )( 1 ), “[a] civil action
may be broug ht by a participa nt or benef

iciary

. . . to rec over benef its due to him under the terms of his plan

. . . .” 29 U.S.C. § 1132(a) (1)( B)

. Plaintiffs essentially alleg e that they wer e entitled to

rec eive sever ance pay under the terms of the Plan, and that USEC did n o t have the discretion to ref use to pay sever ance benef its to worke rs who wer e fired during an involuntary reduc tion in forc e.

The district court and the parties fra me this arg ument in terms of whether Plainti ff s ar e 1 “par ticipants” within the plan, but this discussion is better understood as a simple claim for benef its. Under ERI SA, a participa nt is “any employ ee . . . who is or may become elig ible to rec eive a benef it of any ty pe from an employ ee benef it plan

. . . .” 29 U.S.C. § 1002(7). As the Supreme Court ha s held, this means that a “par ticipant” is one with a colora ble claim to benef

its. F i r es t o n e T

ire & R u bber Co. v. Bruch , 489 U.S. 101, 117–18 (1989). The distinction betwee n a parti ci p an t an d a benef iciary , while sometimes g lossed over in the case law, appea rs t o be that a benef

iciary is one who h as re ceive d or will rec eive benef its, while a participa

nt is mere ly someone who might be elig ible for them. Id. The Plan summary also elides the distinction, stating that “[i ] f y o u ar e an elig ible employ ee (as identified above) , y ou will become a ‘Par ticipant’ in the Plan, and therefor e entitled to rec eive benefits from the P lan.” (R. 26, Second Amended C omplaint, Ex h. A, Feb. 21, 2012, at 1.) Howeve r, for the rea sons discussed infra , the terms of the Plan itself fore close Plaintiffs’ claim for be nefits re g ardle ss of whethe r they are found to be pa

rticipants or not. 4No. 12-4374

“When interpre ting ERI SA plan provisions, g ener al principles of contra ct law apply ; unambig uous terms are g iven their ‘plain meaning in an ordinary and popular sense.’ ” Lipker v. AK Steel Corp. , 698 F.3d 923, 928 (6th Cir. 2012) (quoting Farhner v. United Transp. Union Discipline
Incom e Protection Program , 645 F.3d 3 3 8 , 3 4 3 (6th Cir. 2011)). Under the Plan, the summary provisions state:
You m ay be elig ible for sever ance benef its under the Plan, including sever ance pay , if y ou are a salaried employ ee, as defi ned by the Company , who i s voluntarily or i n voluntarily terminated for rea sons other than cause and solely as a resul t o f a Reduction in For ce. You m ay also be elig ible for sever ance benef its under the Plan, including termination pay , if (i) y ou are a salarie d employ ee w ho has re ceive d long term disabil i ty benef

its from the Company for 24 months, (ii) the Company deter mines, in its discretion, that y ou are totally disabled, and (iii) y ou are voluntarily or involuntarily terminated for rea sons other than cause as a result of a Reduction in For ce. The Com pany h as the sole discret ionary authority to dete rm ine w ho is eligible for sever ance benefi ts. I f y ou are an elig ible employ ee (as identified above) , y ou will become a "Par ticipant" in the Plan, and there fore entitled to rec eive benef its from the Plan, only if y ou elec t to partici p at e b y signing and returning the Gene ral Relea se as de scribed he rein. (R. 26, Second Amende d Complaint, Ex h. A, Fe b. 21, 2012, at 1 (e mphasis in origina l).) There fore , the plain lang uag e of the Plan states that USEC had discretion as to who rec eived

sever ance benef

its. I n addition, Plaintiffs conce de that the Plan g ives USEC discretion to deter mine

an employ ee’ s elig ibilit y for sever ance benef its. And there is no question that em p l o y ers are permitted to set up plans that g ive them complete discretion over whether or not to awa rd sever ance benef its. S ee, e .g ., Grave lle v. Bank One Corp. , 333 F. App’ x 955, 959–60 (6th Cir. 2009). Next, Plaintiffs rely heavily on an employ ee handbook called “Te rmination of Employ ment” (“H R document”) , published by USEC’s human resour ces administration. Plaintiffs alleg e that this document modifies the discretion aff orded to USEC’s deter

minations o f elig ibilit y for benef its.

5No. 12-4374

Howeve r, even if this Court acc epts Plaintiffs’ contention that the HR document was incorporated by ref ere nce into the terms of the Plan—a question that the district court n oted has not been satisfac torily resolved—the HR document does not help P l ai n t i ffs’ arg ument. The HR document
states that “[s] ever ance pay benef its are not pay able when an employ ee is e mploy ed by or rec eives

an offe r of employ

ment wher e continuity of employ ment wit h cr edit for prior leng th of service is
prese rved under substantially equal conditions of employ ment.” Her e, Plai n t i ffs continued at the

same jobs, in the same fac ility , on the same projec t, without any period of unemploy ment, just under a differe nt employ er. There fore the j obs wer e “substantially equal,” and under

the HR document, the Plan had the discr etion to determine tha t Plainti ffs we re not e ntitled to benefits. Plaintiffs alleg e that even if USEC had the discretion to distinguish betwee n employ ees who

rec eived substantially equivalent offe rs of employ ment and those who did not, sever al members of the putative class wer e denied benef its despite havin g r e c e iv e d jobs at Fluor that wer e not equivalent.
As the district court found, Plaintiffs’ alleg ations of unequal employ ment benef

its are based entirely

on benef its, such as pensions, rathe r than responsibilities and employ ment duties. But the plan never mentions benef

its, only cre dit for prior leng th of service , which is acc ounted for as a matter of salary , position, an d responsibilities. And while other forms of workplac e protec tions define terms like “equiva lent position,” the plan does not h av e a definition for “substantially equal conditions of 2

For example, under the Family Medica l L eave Act, 29 U.S.C. § 2601 et seq ., an “equiva lent 2 position” is define d as “one that is virtually identical to the employ ee’ s former position in terms of pay , benef

its a nd working conditions, including privileg es, per quisites and status. I t must involve the same or s u b stantially simil ar duties and responsibilities, which must entail substantially equivalent skill, eff

ort, responsibility , and author ity .” 29 C.F.R. § 825.215(a ).

6No. 12-4374

employ ment,” and we will uphold any definition supplied by the pl an so long as it is not arbitra ry

or capr icious. Shelby Cnty. Health Care Corp. , 203 F.3d at 933; Easterly v. Philips Electronics N.
Am. Corp. , 37 F. App’x 166, 168 (6th Cir. 2002) (“The parties ag ree Phili ps’s decision to deny benef its under the [p] lan is subject to the ‘ar bitrary and capr icious’ standard of revie w. ‘A decision is not arb i t ra ry and capr icious if it is based on a rea sonable interpre tation of the plan.’” ) (quoting Shelby Cnty. He alth Care Corp. , 203 F.3d a t 933).
USEC made a rea sonable distinction betwee n employ ees who wer e picked up by Fluor and tho s e wh o we re not, and was rea sonable in using that distinction in deter mining whom to awa

rd

sever ance pay . That dec ision was supported by the plain lang uag e of the Plan and by the terms of the HR document. Ac cording ly , the judg ment of the district cour t must be affirme d. Plaintiffs also claim that they are entitled to benef its under ERI SA § 502(a) (3), which entitles participa nts or benef

iciarie s of the Plan to obtain other equitable relief

. Howeve r, that provision is

a reme dial rathe r than substantive expansion of § 502(a) (1)( B)

. See Varity Corp. v. Howe , 516 U.S. 489, 512 (1996). I t exis ts so that a court has other reme dies at its disposal but does not e x pand the

cause s of action available to plaintiffs under ERI SA. See Mertens v. Hewitt Assocs., 508 U.S. 248,
253–54 (1993). Acc ording ly , beca use Plaintiffs have failed to state a claim under ERI SA § 502(a) (1(B ), they

cannot a vail themselves of the equitable r emedies a vailable in § 502(a )(3)

. Finally , Plaintiffs arg ue that they are entitled to equitable estoppel under § 502(a) (3). They
arg ue that this is not an attempt to expand the cause s of action permitted under ERI SA, but instead,

an alterna tive reme dial approa ch that this Court could adopt. But this arg ument does not addre ss the fac t that they have no claim ag ainst USEC, beca use they wer e not deprive d of a benef it to which they

7No. 12-4374

wer e entitled. Whil e “equitable estoppel may be a viable t h eo ry i n E R I SA case s,” Marks v. Newcourt Credit Group, Inc. , 342 F.3d 444, 456 (6th Cir. 2007)(quoting Spra g u e v. Gen. Motors Corp. , 133 F.3d 388, 403 (6th Cir. 1998) (en b an c) (i n t erna l quotation marks omitted), Plaintiffs have failed to state a case for it. Under an ERI SA plan, a Plaintiff seeking equitable estoppel must plead five elements: a repr esenta tion of a materia l fac t, awa rene ss by the defe ndant of the true fac ts, intent by the defe ndant to act upon that misrepre sentation, unawa rene ss by plaintiff of the true fac t, and justifiable relianc e by plaintiff on the mispresentation. Id. I n this case , Plaintiffs have not shown any misrepre sentation, and even had they shown as much during the re d u ct i o n in forc e, “[w]hen a party seeks to estop the applica t i o n of an unambig uous plan provision, he by nece ssity
arg ues that he rea sonably and justifiably relied on a repr esenta tion that wa s i n co nsistent with the clea r terms of the plan.” Id. (citation omitted). Plaintiffs ha ve not ple aded fac ts that sug g est there

was any such relianc e. They only claim relianc e on the HR d ocument, but the terms of that document are not incon s i s t en t wi th the terms of the Plan as interpre ted by USEC. Acc ording ly , Plaintiffs fail to state a c laim for equitable estoppel.

2. F idu ciary Duty Plaintiffs add i t ionally alleg e that USEC brea ched its fiduciar y duty under 29 U.S.C. §§ 1101–04. Under

ERI SA, any one who a dminist ers a plan is a fiducia

ry : [ T]o the extent (i) he exercises any discretionar y authority or discretionar y control respe cting manag ement of such plan or exercises any authority or control respe cting manag ement or d i s position of i ts assets, (ii) he renders investment advice for a fee or other compensation, direc t or indirect, with respe ct to any money s or other proper ty of such plan, or has any authority or responsibili ty to do so, or (iii ) he has any discretionar

y authority or discretionar y responsibility in the administration of such plan.

8No. 12-4374

29 U.S.C. § 1002(21)(A)

. There is no question that USEC was a fiduciar y of this Plan, and neither party sug g ests that there was no fiduciar

y duty

. Howeve r, the district court found that USEC did not act as a fiduciar y in deter mining elig ibilit y for benef its. Put another way , while USEC had a fiduciar y duty to the Plan, that duty was rela ted to its manag ement of the assets of the Plan, rathe r than to its deter minations of benef it-elig ibilit y . The standa

rd of c are under ERI SA is that: [A] fiduciar

y shall discharg e his duties with respe ct to a plan solely in the interest of the par ticipants and bene ficiar ies and– (A) f or the e x clusive purpose of: (i) providing benef

its to participants and their be nefic iaries; and (ii) def ray ing r easona

ble expenses of a dminist ering the plan; (B ) with the car e, skill, prudenc e, and diligenc e under the circ umstances then preva iling that a prudent man acting in a like capa city and familiar with such matters would use in the conduc t of an e nterprise of a like c hara cter and with like aims; (C) by diversify ing the investmen t s o f t h e p lan so as to minimi ze the risk of larg e losses, unless under the c ircumstance s it is clearly prudent not to do so; and (D) in acc ordanc e with the documents and instruments g overning the plan insofar as such documents and instruments are consistent with the provisions of this subchapte r and subcha

pter I I I of this chapter

. 29 U.S.C. § 1104(a)(1)

. The district court found that this lang uag e ref ers only to the asset manag ement of the plan.
As a matter of law, the district c ourt was corr ect. An employ er’ s fiduciar y duty to a plan is r elated
to its manag ement of assets and its administration of the terms of the plan. I t is not applicable to decisions to cre ate, amend, or end a benef its plan. See Curtis s-W

right Corp. v. Schoonejonge n , 514
U.S. 73, 78 (1995). An employ er is there fore not acting in its fiduciar y capa city with respe ct to the 9No. 12-4374

plan when it makes a benef its-eligibility deter

mination. Lockhee d Corp. v. Spink , 517 U.S. 882, 890 (1996). More over, a s the Supreme Court has state d, “ERI SA’s fiduciar y duty require ment simply is not implicated wher e . . . the [p] lan’s settlor, makes a decision reg arding the form or structure of the [p] lan such as who is entitled to rec eive [p] lan benef i t s an d i n wh at amounts, or how such benef its are c alculate d.” Hughes Aircraft Co. v. Jac obson , 525 U.S. 432, 444 (1999). The be st arg ument for Plaintiffs is their ar g ument that USEC violated its fiduciary duty by “attempt[ing] to collude with third parties to develop strategie s t o avoid or lessen the pay ment of

sever ance benef

its to putative class members.” (Pl.’s Br

. at 28.) But this alleg ation is insufficiently supported by their fac tual alleg ations. There are simply not enoug h fac ts in Plaintiffs’ pleading s for

a court to draw the infere nce that USEC colluded to deprive Plaintiffs of their benef its under the Plan
in any way that would support a claim made under US EC’s fiduciar y duty to the P l an . See Iqbal , 556 U.S. at 678 (2009). Acc ording ly , Plainti ff s fail to state a claim for relief based on USEC’s alleg ed bre ach of

fiduciar y duty

. 3. Interfere nce with Prot ect ed Rights Plaintiffs’ final claim is tha t U SEC interf ere d with the ir entitlement to se vera nce pay . The district court found that “[e]ven if they wer e participa nts, Plaintiffs’ alleg ations fail to state a claim.” Under ERI SA § 510:
I t shall be unlawful for a

ny person to discha

rg e, fine , suspend, expel, discipline, or discriminate ag ainst a participa nt or benef

iciary for exercising any rig ht to which he is entitled under the provisions of an employ ee benef it plan, this subchapte r, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act or for the purpose of interfe ring with the attainment of any rig ht to which such participa nt may become entitled under the plan.

10No. 12-4374

29 U.S.C. § 1140 (internal citation omitted).
To state a prima facie case fo r interfe renc e under ERI SA, a plaintiff “must show: ‘(1) prohibited employ er conduct (2) taken for the purpose of interfe ring (3) with the attainment of any rig ht to which the employ ee may become entitled.’” Clark v. W algreen Co. , 424 F. App’x 467, 474 (6th Cir. 2011) (

per curiam ) (quoting Humphrey s v. Bellaire Corp. , 966 F.2d 1037, 1043 (6th Cir. 1992)). Plaintiffs have fa i l ed t o s t ate a prima facie case . Taking all of the alleg ations in their complaint as true, Plaintiffs have still failed to demonstrate either an adver se action or the requisite intent. Plaintiffs alleg ed that ag ents of USEC wer e instructed to misrepre sent the status of Plaintiffs’ benef its and threa

tened to withhold benef

its until Plaintiffs signe d resig nation letters. But Plaintiffs have not provided any fac tual basis for these alleg ations. Moreove r, Plaintiffs arg ue that they wer e forc ed to s i gn re s ignation letters, but the provisions of the Plan that establish the possibili ty of

sever ance pay do not d i stinguish betwee n voluntary and involuntary reduc tions in forc e. Those provisions only distinguish betwee n individual firing s for cause and lay -off s of the ty pe at issue here

. Fur thermore , there are no plausible and supported alleg ations of intent to deprive Plaintiffs of t heir benefits throug h interfe renc e. As Def endant arg ues, P laintiffs’ allegations do not support

a theory that the employ ees wer e fired in order to preve nt them from rec eiving benef its. I f any thing, the adver se action of firing them would have led to the awa rd of be nefits. See I

ngersoll-Rand Co.

v. McClendon , 498 U.S. 133, 1 4 3 (1 9 9 0 ) (“B y its terms § 510 protec ts plan participa nts from termination motivated by an employ er’ s desire to preve nt a pension from vesting .”). Acc ording ly , Plaintiffs cannot show that USEC took any action that was motivated by a desire to deprive them of

11No. 12-4374

benef its. Plaintiffs have also conce ded that they wer e terminated beca use of the loss of a g overnme nt
contra ct. There fore , the distri ct co u rt wa s corr ect to dismiss Plaintiffs’ claims on the basis of an interfe renc e theor

y .

CONCLUSION
For the fore g oing r easons, we AF F IRM the judg ment of the district cour t.

12