UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-2382

MICHELE DAMIANO,

Plaintiff - Appellant,

v.

INSTITUTE FOR IN VITRO SCIENCES,

Defendant - Appellee, 

and

PAYCHEX INSURANCE AGENCY, INC.,

Defendant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. 

Paula Xinis, District Judge. (8:16-cv-00920-PX)

Submitted: March 19, 2020 Decided: March 26, 2020

Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Denise M. Clark, CLARK LAW GROUP, PLLC, Washington, D.C., for Appellant. 

Theodore P. Stein, OFFIT KURMAN, P.A., Bethesda, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Michele Damiano appeals the district court’s order granting summary judgment to

the Institute for In Vitro Sciences on her breach of fiduciary duty claim under the Employee 

Retirement Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461 (2012). She also 

appeals the court’s order denying her motion for reconsideration. Damiano contends that 

the district court erred in ruling that she failed to show that IIVS’ material 

misrepresentation actually harmed her. We affirm the district court’s orders.

We “review[] de novo the district court’s order granting summary judgment.” 

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A 

district court ‘shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” 

Id. at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury could 

return a verdict for the nonmoving party.” Id. (internal quotation marks omitted). In 

determining whether a genuine dispute of material fact exists, “we view the facts and all 

justifiable inferences arising therefrom in the light most favorable to . . . the nonmoving 

party.” Id. at 565 n.1 (internal quotation marks omitted). However, “the nonmoving party 

must rely on more than conclusory allegations, mere speculation, the building of one

inference upon another, or the mere existence of a scintilla of evidence.” Humphreys & 

Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) 

(internal quotation marks omitted).
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Section 502(a)(3)(B) allows a participant, beneficiary, or fiduciary “to obtain other 

appropriate equitable relief” to redress violations of ERISA or enforce “the terms of the 

plan.” 29 U.S.C. § 1132(a)(3)(B). In CIGNA Corp. v. Amara, the Supreme Court 

reiterated that “the term appropriate equitable relief in § 502(a)(3) . . . refer[s] to those 

categories of relief that, traditionally speaking (i.e., prior to the merger of law and equity)

were typically available in equity.” 563 U.S. 421, 439 (2011) (emphasis and internal 

quotation marks omitted). Although § 502(a)(3)(B) provides that the district court may 

order any appropriate equitable relief, it does not provide any particular standard for 

determining harm. Id. at 443. Instead, we must look to the law of equity, under which the 

form of relief requested determines the appropriate standard for analyzing harm. Id. 

Because Damiano seeks the equitable remedy of surcharge, she need only show actual 

harm by a preponderance of the evidence. Id. at 444.

In Retirement Committee of DAK Americas LLC v. Brewer, 867 F.3d 471 (4th Cir. 

2017), we examined whether former employees seeking surcharge established sufficient 

evidence of actual harm to survive summary judgment. There, the employer announced a 

plant closure and amended its retirement plan to allow employees affected by the closure 

to take a lump sum early retirement benefit. Id. at 476-77. When announcing the changes 

to its employees, the employer inflated the amount of the benefit. Id. at 477. The employer 

notified its then-former employees when it learned of the error and requested return of the 

overpayment; the employer also offered a new opportunity to make a retirement election. 

Id. at 478. The employer sued the former employees who failed to return the overpayment, 

and the employees filed a counterclaim alleging a breach of fiduciary duty. Id.
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The employees argued that they were entitled to a surcharge remedy on their breach 

of fiduciary duty counterclaim. Id. at 485. We determined that most of the former 

employees failed to make a showing of actual harm. Id. at 486. We explained that their 

assertions that they made “life altering decisions, including further employment and 

investment decisions,” were too conclusory. Id. (internal quotation marks omitted). While 

recognizing that the employees suffered adverse tax consequences from receiving the 

overpayment, we noted that the employer warned them of these consequences when it 

notified them of the overpayment and that the liability accrued after the warning. Id.

However, we concluded that one employee made a sufficient showing of actual 

harm to survive summary judgment. Id. That employee had “contend[ed] that he relied 

on the erroneous lump sum calculation when he declined an offer to transfer to another . . . 

facility.” Id. The employee supported his assertion with a sworn declaration from the 

decisionmaker, who stated that he would have hired the employee if the employee had 

accepted his offer. Id.

We conclude that Damiano’s alleged harm is too conclusory under Brewer. 

Damiano does not dispute that she was not entitled to benefits under the disability policies 

at issue. Like the employees in Brewer whose showing of actual harm was insufficient, 

Damiano failed to present specific facts demonstrating how she would have acted 

differently had IIVS not misrepresented the continuation of her disability insurance. As 

the district court correctly recognized, Damiano failed to state that she would have sought 

disability insurance from another provider had she learned that she did not have coverage 

under IIVS’ policies. And, while the employee in Brewer who successfully created a 
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genuine dispute of material fact included a sworn declaration to support his claim, Damiano 

offers nothing but a conclusory assertion that she would have negotiated a higher 

severance. Damiano did not negotiate her severance; IIVS offered it as a matter of goodwill, and Damiano provided no evidence that IIVS would have considered offering her a 

higher severance had it realized she was not eligible for continuing disability coverage.

Accordingly, we affirm the district court’s orders. We dispense with oral argument 

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED