UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES C. RAINES,

Plaintiff-Appellant,

v.

No. 97-2431

OWENS-BROCKWAY GLASS

CONTAINERS, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Joseph Robert Goodwin, District Judge.

(CA-94-1039-3)

Argued: September 22, 1998

Decided: December 29, 1998

Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James William St Clair, ST CLAIR & LEVINE, Huntington, West Virginia, for Appellant. Robert Kemp Morton, III, HUDDLESTON, BOLEN, BEATTY, PORTER & COPEN, Huntington,

West Virginia, for Appellee. ON BRIEF: Daniel J. Konrad, HUDDLESTON, BOLEN, BEATTY, PORTER & COPEN, Huntington,

West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

James C. Raines (Raines), a former employee of Owens-Brockway

Glass Containers, Inc. (Owens), brought this action against Owens

pursuant to § 502(a)(1)(B) of the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B), seeking to

recover (1) early retirement benefits under the Sixth Amended and

Restated Owens-Illinois Salary Retirement Plan (the Retirement Plan)

and (2) severance pay benefits under a document entitled "Termination Benefits For Salaried Employees due to the closing of the Huntington, West Virginia Owens-Brockway Glass Container Plant" (the

Termination Document). (J.A. 37). The district court subsequently

granted summary judgment in favor of Owens, and we now affirm.

I.

Owens owns and operates several glass manufacturing facilities in

the United States. Until December 31, 1993, one of these manufacturing facilities was located in Huntington, West Virginia. Raines began

his employment with Owens in May of 1961 at its facility in Huntington and continued his employment at the Huntington facility for

thirty-two and one-half years until March of 1994. Raines began his

career with Owens as a controller in charge of the accounting department at the Huntington facility. For the last year of his career with

Owens, however, Raines worked as an administrative manager in

charge of the accounting, purchasing and service departments at the

Huntington facility.

On September 28, 1993, Owens announced its decision to close its

facility in Huntington. The facility was scheduled to and did officially

close on December 31, 1993, although Owens asked a few employees

to remain at their jobs past that date to clear the inventory and transfer

the fixed assets of the Huntington facility to other facilities owned by

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Owens. Raines was one of the employees asked to stay on after the

plant closed.

As part of the closure process, Owens distributed to its Huntington

employees the Termination Document, which outlined the benefits to

which the employees were entitled upon their departure from the

company, including early retirement benefits as provided by the terms

of the Retirement Plan and severance pay. The Termination Document consisted of a number of commonly asked questions with

answers. Question and Answer four addressed the issue of severance

pay:

What if I am offered a transfer to another Company facility,

but I refuse?

Normally, if you are offered another job of an equal or

higher evaluation level but refuse, no severance payment is

permitted. However, since this is a plant closing, you will be

eligible for severance pay regardless of your decision.

(J.A. 39). Under the Retirement Plan, early retirement benefits were

available

to any Participant with ten or more years of Credited Service

whose employment with an Employer is terminated as a

result of a change in the organization or operation of the

Employer or as a result of a Reduction in Force and whose

combined age and Years of Credited Service equals the

number 65 or greater.

(J.A. 53-54). Early retirement benefits were not available if an

employee voluntarily resigned from Owens. The parties agree that the

Retirement Plan vested the Benefits Committee with discretion to

determine an employee's eligibility for early retirement benefits.

While Owens terminated many of its Huntington employees, it

offered to transfer Raines to a similar position, which he accepted, at

its manufacturing facility in Zanesville, Ohio. Accordingly, on October 17, 1993, Owens posted a notice at the Zanesville facility that

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read "Jim Raines will be transferring from Huntington and will

assume the Plant Controller Position. Jim will be traveling between

Zanesville and Huntington for a period of time." (J.A. 42). The transfer became effective on November 1, 1993.

From October 1993 until March 1994, Raines split his time

between the Huntington and Zanesville facilities, working a few days

each week at the Huntington facility transferring inventory and fixed

assets to other manufacturing facilities owned by Owens and working

the remainder of the week at the Zanesville facility receiving training

from the out-going controller. In Zanesville, Raines occupied the outgoing controller's office. During this same time, Raines applied to

receive a relocation allowance from Owens, which Owens granted.

Accordingly, Owens paid Raines' moving expenses and advanced

him the equity in his Huntington home subject to repayment upon his

selling the home, in order that he could promptly purchase a home

near the Zanesville facility. Raines did promptly purchase a home

near the Zanesville facility.

On March 1, 1994, Owens transferred Raines from the Huntington

payroll to the Zanesville payroll. Raines remained on the Zanesville

payroll for two pay periods. On Tuesday, March 15, 1994, Raines

informed the Zanesville plant manager, Jim Kunkle, that he "was not

going to move to Zanesville." (J.A. 115). This conversation was

memorialized in a letter sent by Kunkle to Raines on March 18, 1994.

Owens treated Raines' statement as his resignation from the company.

Raines never returned to either the Huntington or Zanesville facility.

On April 7, 1994, Raines wrote Owens requesting the paperwork

necessary to apply for early retirement. Additionally, he stated his

belief that he "was still on the Huntington plant's payroll when [he]

decided not to go to Zanesville." (J.A. 56). Further, he stated that he

"was suppose [sic] to be on Huntington's payroll until [he] cleared the

inventories and transferred all fixed assets." Id. Later in the same letter, Raines stated that "[a]ny monies [he] received for relocating to

Zanesville is [sic] being repaid [and he] would like to be given the

same options that the rest of the salary employees received when the

plant closed." Id.

On April 15, 1994, Owens denied Raines' request for early retirement benefits under the Retirement Plan on the ground that Raines'

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acceptance of the transfer to Zanesville and subsequent resignation

from that position made him ineligible for such benefits. Specifically,

Owens informed Raines by letter,

Since you are under 55 years of age, the only way in which

you would be able to retire under the plan would be as a

result of a reduction in force where you had not been offered

or accepted an assignment elsewhere. In checking our

records, I understand that you had accepted assignments in

Zanesville and, in fact, had transferred to the Zanesville salary payroll on March 1, 1994. Your subsequent resignation

would make you ineligible for any benefit that you might

have received as a result of the Huntington plant closing.

(J.A. 57).

Raines appealed to Owens' Benefits Committee, arguing by letter

dated May 6, 1994,

I did not resign and was not an employee of the Zanesville

plant. If I had resigned, I would have written a letter saying

so. . . . I was told that I had been put on the Zanesville plant

as of March 1, 1994. Why was this done? I was told that I

was to be on Huntington's payroll until all accounting,

inventories and fixed assets were closed out. I was still

working several days in Huntington each week doing this.

* * * *

I did accept the transfer to Zanesville but after working

there I found out I had made a mistake. . . . I could not withstand the pressures required in the job. It was not the job I

expected when I accepted the transfer.

* * * *

My transfer was not completed when I turned down the

transfer. Relocation expenses were not completed. . . . If I

had transferred, these transactions would have been com-

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pleted. I did get an advance on my old home to purchase a

house in Zanesville. I am in the process of paying this back

to Owens as I sell the two houses.

(J.A. 59-60) (emphasis added).

On May 18, 1994, Owens' Benefits Committee held a meeting to

discuss, among other matters, the issues raised in Raines' letter. The

minutes of the meeting read as follows:

The Committee reviewed James C. Raines' request for

Reduction In Force for retirement benefits and concluded

that Mr. Raines had transferred to the Zanesville location

and had resigned on his own volition; therefore, was not

entitled to this provision of the plan. REQUEST DENIED.

(J.A. 63). The Benefits Committee informed Raines of its denial by

letter dated May 19, 1994.

Raines subsequently filed this action against Owens to recover

under ERISA early retirement benefits under the Retirement Plan and

severance pay under the Termination Document.* According to

Raines' complaint, he is entitled to a total of $400,000.00. Both parties subsequently moved for summary judgment. On September 17,

1997, the district court granted Owens' motion and denied Raines'

motion. This appeal followed.

II.

Raines first contends that the district court erroneously granted

summary judgment in favor of Owens on his claim for early retirement benefits under the Retirement Plan. We review the district

court's grant of summary judgment in favor of Owens de novo,

employing the same standards applied by the district court. See

Sheppard & Enoch Pratt Hosp. v. Travelers Ins. Co. , 32 F.3d 120,

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*Raines initially brought this action in the Circuit Court of Cabell

County, West Virginia. Owens subsequently removed the case to the

United States District Court for the Southern District of West Virginia

on the basis of federal question jurisdiction. See 28 U.S.C. § 1331.

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123 (4th Cir. 1994). That we should only review the Benefits Committee's decision to deny Raines early retirement benefits for abuse

of discretion is not in dispute. See Ellis v. Metropolitan Life Ins. Co.,

126 F.3d 228, 232 (4th Cir. 1997) (holding that where the benefit plan

grants the administrator or the plan fiduciary discretionary authority

to determine eligibility or to construe the terms of the plan, the decision to deny benefits must be reviewed for abuse of discretion).

Accordingly, as long as the Benefits Committee's decision to deny

Raines' claim for early retirement benefits is the result of "a deliberate, principled reasoning process and if it is supported by substantial

evidence," we must affirm the district court's grant of summary judgment in favor of Owens with respect to that claim. Brogan v. Holland,

105 F.3d 158, 161 (4th Cir. 1997).

Under the Retirement Plan, early retirement benefits were available

to any Participant with ten or more Years of Credited Service whose employment with an Employer is terminated as

a result of a change in the organization or operation of the

Employer or as a result of a Reduction in Force and whose

combined age and Years of Credited Service equals the

number 65 or greater.

(J.A. 53-54). The Retirement Plan further provided that if an

employee resigns, such employee is not eligible for early retirement

benefits. From the record before it, the Benefits Committee found that

Raines accepted a transfer to Owens' Zanesville facility as controller

and subsequently resigned from that position, thus making himself

ineligible for early retirement benefits under the terms of the Retirement Plan.

Raines argues that the Benefits Committee abused its discretion in

finding that his transfer to Zanesville became effective prior to his

informing Kunkle that he no longer desired to work at the Zanesville

facility. According to Raines, the only plausible findings the Benefits

Committee could have made from the evidence is that he either

revoked his acceptance of the transfer offer prior to such transfer

becoming effective or that he never actually completed the transfer.

If the transfer never became effective, Raines reasons, he could not

have possibly tendered a resignation from Owens when he informed

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Kunkle that he no longer desired to work at the Zanesville facility.

Raines' arguments are without merit.

The Benefits Committee's decision to deny Raines' claim for early

retirement benefits is the result of a deliberate, principled reasoning

process and is supported by substantial evidence. The Benefits Committee had before it evidence that at or near the time of the closure

of the Huntington facility, Raines split his time between that facility

and the Zanesville facility. Indeed, on October 17, 1993, Owens

posted a notice at the Zanesville facility stating that Raines' transfer

would be effective as of November 1, 1993. At the Zanesville facility,

Raines occupied an office held by the former controller at that facility

and the former controller trained Raines in the duties of that position.

Raines applied for relocation expenses and purchased a home in the

Zanesville area. Finally, in his May 6, 1994 letter to the Benefits

Committee, Raines twice admits that he accepted a transfer to the

Zanesville facility. Because Raines accepted the transfer to Zanesville

in October 1993 and informed Kunkle that he no longer desired to

work in Zanesville in March 1994, such admissions, taken with the

other evidence, support the Benefits Committee's finding that Raines

resigned from Owens. Accordingly, the Benefits Committee did not

abuse its discretion by concluding that Raines was not entitled to

early retirement benefits under the explicit terms of the Retirement

Plan.

III.

Raines also contends that he is entitled to severance pay under the

terms of the Termination Document distributed at the time of the

Huntington facility's closing. Again, we review the district court's

entry of summary judgment de novo, applying the same standards as

the district court. See Sheppard, 32 F.3d at 123. The parties agree that

the Termination Document does not confer discretion on the Benefits

Committee with respect to determining an employee's eligibility for

severance pay under that document. Accordingly, we review the Benefits Committee's decision denying Raines' claim for severance pay

under the Termination Document de novo. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 114-15 (1989)("[A] denial of benefits

. . . is to be reviewed under a de novo standard unless the benefit plan

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gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.").

Of significance here, Question and Answer Four of the Termination Document provides,

What if I am offered a transfer to another Company facility,

but I refuse?

Normally, if you are offered another job of an equal or

higher evaluation level but refuse, no severance payment is

permitted. However, since this is a plant closing, you will be

eligible for severance pay regardless of your decision.

(J.A. 39). The Benefits Committee concluded that this language limits

severance pay to Huntington employees who either declined transfers

and thus left Owens, or who were never offered transfers, and were

thus terminated by Owens. The issue before this court is whether the

Benefits Committee's decision to deny Raines severance pay conflicts

with the plain language of the Termination Document in its ordinary

sense. See Jenkins v. Montgomery Indus., Inc. , 77 F.3d 740, 743 (4th

Cir. 1996) ("Federal courts interpret ERISA regulated benefit plans

without deferring to either party's interpretation, by using `ordinary

principles of contract law and enforcing the plan's plain language in

its ordinary sense.'" (internal citations omitted)) (quoting Bailey v.

Blue Cross & Blue Shield of Virginia, 67 F.3d 53, 57 (4th Cir. 1995)).

In addressing this issue, we must consider the Termination Document

in its entirety, being careful not to read any of its language out of context. Alexander S. v. Boyd, 113 F.3d 1373, 1383 (4th Cir. 1997).

We hold that the Benefits Committee's decision does not conflict

with the Termination Document in its ordinary sense, inasmuch as

such language can only be read to provide that severance pay is not

normally given to employees who are offered another job of equal or

higher value but, since the Huntington plant was closing, employees

offered lateral employment with Owens would not forfeit their severance pay benefits if they did not accept such an offer to transfer. To

accept Raines' argument requires us to wholly ignore the meaning of

the term "severance" in its ordinary sense, which New Webster's Dictionary of the English Language 883 (1985), defines as "the act of

severing." Indeed the root word of severance,"sever," means "to part

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or divide." Id. Obviously, Raines' remaining employed by Owens is

at complete odds with these definitions.

The Termination Document, when viewed in its entirety, is clear

that the severance pay provisions are meant to compensate displaced

employees who either did not receive or did not accept offers of

employment in other Owens facilities. Question and Answer Two of

the same Termination Document states,

What if I obtain other employment and have to leave prior

to December 31?

In order to qualify for severance and a part of next year's

vacation pay as well as notice pay, you are expected to work

until you are officially released. Based upon individual situations, you may be able to arrange an early release date with

your supervisor. . . . In this case, you would qualify for severance, vacation payment and notice pay only up to the last

day you worked.

(J.A. 39) (emphasis added). Obviously, for an employee to qualify for

severance pay, Owens must sever the employment relationship with

that employee by means of an official release. Viewing both Question

and Answer Two and Four together, in accordance with our duty to

view the Termination Document in its entirety, the Termination Document clearly provides that severance pay is meant only for displaced

employees and not for employees like Raines who remained

employed with Owens, albeit for a short period of time. Raines was

not officially released from Owens, he accepted a transfer to its

Zanesville facility and subsequently voluntarily resigned from Owens.

Accordingly, under the explicit terms of the Termination Document,

he does not qualify for severance pay.

In sum, we conclude that the district court properly granted summary judgment in favor of Owens on Raines' claim for severance pay

under the Termination Document.

IV.

For the reasons stated herein, the judgment of the district court is

affirmed.

AFFIRMED

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NIEMEYER, Circuit Judge, concurring in part and dissenting in part:

In connection with the closing of its Huntington, West Virginia,

plant, Owens-Brockway offered its employees at that plant various

options with respect to benefits, including its retirement plan and severance plan. Ordinarily when an employee of Owens-Brockway was

transferred from one plant to another, the employee was not entitled

to receive severance pay. But in connection with the closing of its

Huntington plant, Owens-Brockway modified its standard policy to

provide a special benefit. In the Termination Document that OwensBrockway circulated to the Huntington plant employees, it stated that

the employees there would receive severance pay whether or not they

elected to transfer to another plant. The document provided explicitly:

 What if I am offered a transfer to another Company facility, but I refuse?

 Normally, if you are offered another job of an equal or

higher evaluation level but refuse, no severance pay is permitted. However, since this is a plant closing, you will be

eligible for severance pay regardless of your decision.

(Emphasis added).

I agree with the majority opinion that in this case Raines accepted

a transfer to Owens-Brockway's Zanesville, Ohio, facility and continued there as an employee of Owens-Brockway. Accordingly, I concur

in Part II of the majority opinion that denies Raines early retirement

benefits. However, the conclusion that Raines transferred from West

Virginia to Ohio does not deny him the special plant-closing severance pay provided to all employees, "regardless of [the employee's]

decision" to accept a transfer or not. Denying Raines the benefits

promised by Owens-Brockway's Termination Document is particularly unfortunate for him given ERISA's mandate that any summary

description of an employee benefit plan "be written in a manner calculated to be understood by the average plan participant, and . . . be

sufficiently accurate and comprehensive to reasonably apprise such

participants and beneficiaries of their rights and obligations under the

plan." 29 U.S.C. § 1022(a)(1). I would award Raines $32,237.52, the

amount of his severance benefits as described in the Termination

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Document. Accordingly, I dissent from Part III of the majority's opinion.

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