United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 08-2363/2434

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Brian Pendleton, *

*

 Plaintiff – Appellant/ *

 Cross –Appellee, *

* Appeals from the United States

v. * District Court for the

* Eastern District of Missouri.

QuikTrip Corporation, *

* 

Defendant – Appellee/ *

Cross – Appellant. *

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Submitted: April 13, 2009

Filed: June 8, 2009

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Before MURPHY, HANSEN, and BYE, Circuit Judges.

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MURPHY, Circuit Judge

Brian Pendleton brought this action against QuikTrip pursuant to the Employee

Retirement Income Security Act of 1974 (ERISA), alleging that QuikTrip had

terminated his employment to prevent him from receiving benefits under the

company’s severance and stock plans. QuikTrip moved for summary judgment, and

the district court granted the motion after concluding that Pendleton was not entitled

to any benefits under the plans. The district court also denied QuikTrip’s motion for

attorney fees. Both parties appeal. We affirm. 
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Brian Pendleton worked at QuikTrip from 1989 until his termination in 2004.

He held several positions with the company, including his last post as a director of real

estate. In June 2004, Pendleton told his direct supervisor, Jeff Thoene, that he

intended to leave QuikTrip to pursue a career in private real estate development.

Thoene informed his boss, James Marchesano, about Pendleton’s plan to leave.

Marchesano then called Pendleton and asked him to reconsider. Although Pendleton

indicated that he did not want to stay at QuikTrip permanently, he agreed to postpone

his departure to assist with his replacement’s transition. Pendleton recommended to

Thoene that the new real estate director be someone with a background in real estate

and store development, rather than an insider who lacked such experience. 

On July 23, 2004, Pendleton learned that his replacement would be Rodney

Loyd, a QuikTrip employee from the operations group at corporate headquarters.

That same day Pendleton held a meeting with his staff regarding the transition. After

announcing at the meeting that Loyd would succeed him, Pendleton then made

disparaging comments about Loyd and the company’s management. According to a

staff member who was present, Pendleton said that the selection of Loyd demonstrated

that QuikTrip “promote[s] operations people into positions where they don’t know

what they’re doing.” Pendleton also accused management of developing inbreeds and

referred to Loyd as a “twinkie bar” whose “only real estate experience was probably

buying a house, but not doing a sophisticated, complicated deal.”

Thoene and Marchesano quickly learned of Pendleton’s remarks at the staff

meeting. Thoene recommended to Marchesano that Pendleton be terminated

immediately “because he was just going to undermine [Loyd’s] ability to be able to

lead this group going forward.” QuikTrip’s president, Chet Cadieux, authorized

Marchesano to fire Pendleton if the comments were actually attributable to him.

Thoene and Marchesano met with Pendleton, who did not deny making the

statements, offer any excuses for his behavior, or apologize for his actions.
1

The rule of 75 is a formula used by QuikTrip to determine the availability of

benefits. To qualify, an employee’s age combined with years of service must equal

75. For example, an employee who is 53 years of age and has worked at QuikTrip for

22 years would qualify (22 + 53 = 75). 

-3-

As a result Thoene and Marchesano gave Pendleton a written dismissal notice

which stated that his termination was for “gross misconduct” and “insubordination.”

Marchesano also told Pendleton that his termination was “for cause.” Pendleton later

testified that he was not aware of any facts suggesting that Marchesano and Thoene

acted in bad faith in their decision to terminate him. Pendleton contends that Thoene

and Marchesano’s stated reasons for his termination were pretextual and that he was

actually fired so that QuikTrip could avoid paying him benefits under the company’s

severance and stock plans.

 

QuikTrip maintained an ERISA governed severance plan at the time that

Pendleton was terminated. The plan had undergone substantial revisions. The

original plan stated that “[s]everance pay based on tenure with QuikTrip will be

provided when a full-time employee terminates employment for any reason with the

exception of gross misconduct.” A revised plan was in place at the time of

Pendleton’s termination, however, which narrowed the availability of severance pay.

The policy section of the revised plan states that its primary purpose is to

“accommodate position eliminations/lay-offs.” The policy section also provides that

“[s]everance pay based on tenure with QuikTrip may . . . be provided to full time

employees who are physically unable to perform their job duties, meet the Rule of 75,

or upon death,”1

 but states that employees terminated for cause are ineligible for

severance. The procedure section of the plan states that severance packages for

directors, such as Pendleton, “will be negotiated” but indicates that a director must

meet one of the criteria in the policy section, such as death or disability, even to

qualify for negotiations. 
-4-

Several documents were circulated to QuikTrip employees in relation to the

revised severance plan, including a memorandum by QuikTrip’s president which

described the new severance plan as “a significant change” that would reduce benefits.

Nevertheless, an email written by the director of human resources stated that there was

“no change” for directors in the revised plan. She later testified that her email only

clarified that the amount of severance would not change but that it did not indicate that

all directors still qualified for severance pay. 

QuikTrip also maintained a stock plan at the time of Pendleton’s termination.

In pertinent part, the stock plan states: 

In the event that the relationship between the Participant and the

Company is terminated, either voluntarily or involuntarily . . . the

Company shall have the irrevocable options, exercisable within one

hundred eighty (180) days after the date of the payment of the final cash

severance benefit by the payment of cash, to purchase the shares of stock

of the Company owned by the participant at its book value of the stock

as of the end of the last month preceding the date of the payment of the

final cash severance benefit . . . . 

(R. at 412). While the stock plan provides QuikTrip with the right to quickly

repurchase its stock within a 180 day period after termination, the plan allows specific

employees to slow the speed at which QuikTrip can repurchase its stock. Terminated

employees with 20 years or more with the company or employees who “retire” from

the company may retain ownership of some QuikTrip stock for more than 180 days.

An employee “retires” from the company if he satisfies the rule of 75, becomes

permanently disabled, or the board of directors specially places him in this category.

Pendleton contends that QuikTrip actually gave other real estate directors

generous severance payments and stock benefits when they left the company. Around
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the time of Pendleton’s termination, three other real estate directors, who voluntarily

left the company and did not meet any of the plans’ specific requirements, received

severance and stock benefits. QuikTrip maintains that Pendleton did not receive the

same benefits as the other directors because he was terminated for cause and did not

fulfill his promise to aid in his successor’s transition. In August, 2004, QuikTrip

offered Pendleton eight weeks of severance pay, which he refused to accept. Then in

December, 2004, QuikTrip attempted to repurchase Pendleton’s 4,517 shares of its

stock under the terms of the stock plan. Pendleton refused to tender his shares. Prior

to the initiation of this action, QuikTrip also paid Pendleton’s final salary, outstanding

bonuses, and related benefits.

Pendleton filed a complaint in district court alleging that QuikTrip had

terminated him to interfere with his rights to benefits under both the severance and

stock plans, in violation of § 510 of ERISA, 29 U.S.C. § 1140. The district court

granted QuikTrip’s motion for summary judgment after concluding that Pendleton

was not entitled to any benefits under QuikTrip’s plans. Pendleton appeals,

contending that the district court erred in granting summary judgment because genuine

issues of material facts exist as to Pendleton’s benefits under the company plans and

QuikTrip’s actual reasons for terminating Pendleton. 

We review a district court’s grant of summary judgment de novo. Fischer v.

Anderson Corp., 483 F.3d 553, 556 (8th Cir. 2007). Summary judgment is

appropriate when the evidence, viewed in the light most favorable to the nonmoving

party, presents no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Summary judgment should be

granted if any essential element of the prima facie case is not sufficiently supported

by specific facts to raise genuine issues for trial. Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986). 
-6-

Section 510 of ERISA makes it unlawful for an employer to discharge an

ERISA plan participant “for the purpose of interfering with the attainment of any right

to which such participant may become entitled under the plan.” 29 U.S.C. § 1140.

To prevail under § 510, Pendleton must show that QuikTrip “had a specific intent to

interfere with [his] benefits, but that may be shown by circumstantial evidence.”

Register v. Honeywell Fed. Mfg. &Tech., LLC, 397 F.3d 1130, 1137 (8th Cir. 2005).

Claims brought under § 510 are analyzed under the McDonnell Douglas burden

shifting framework. Fitzgerald v. Action Inc., 521 F.3d 867, 871 (8th Cir. 2008).

Under this analysis, if plaintiff makes a prima facie case of discrimination, then the

burden shifts to the defendant to articulate a nondiscriminatory reason for the

termination. Id. If the defendant does so, then the burden shifts back to the plaintiff

to prove that the defendant’s proffered reasons are actually pretextual. Id.

Pendleton’s ability to prove a prima facie case of discrimination with regard to

both the severance and stock plans rests on whether he can show that he was entitled

to the benefits under either ERISA protected plan and that he was terminated by

QuikTrip to avoid payment of these benefits. See Montgomery v. John Deere Co.,

169 F.3d 556, 561 (8th Cir. 1999). To determine if Pendleton was actually entitled

to benefits under either plan, we first examine the ERISA plan documents. Jenson v.

Sipco, Inc., 38 F.3d 945, 949 (8th Cir. 1994). If any part of the plan document is

ambiguous, the court looks at the entire document and even extrinsic evidence to

determine its intent and purpose. Id. at 950. Whether an employee is entitled to

benefits under ERISA is controlled by the plan documents and not the customs of a

company. See Cole v. Intern. Union, United Auto., Aerospace & Agr. Implement

Workers, 533 F.3d 932, 937 (8th Cir. 2008) (discussing the formal elements of an

ERISA plan document). 

Pendleton first argues that QuikTrip terminated him to avoid paying severance

benefits. Pendleton contends that the severance plan is ambiguous because the plan’s

language is both prescriptive, in stating that severance packages for directors “will be
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negotiated,” and discretionary, in stating that “severance based on tenure with

QuikTrip may under certain circumstances also be provided.” Pendleton urges the

court to explore extrinsic evidence, such as QuikTrip’s payment of severance to other

directors and the email statements of company management, to prove that he was

actually entitled to benefits under the plan. Jenson, 38 F.3d at 945 (courts should

examine an ambiguous benefit plan “in light of all the circumstances”).

The district court properly held that Pendleton did not make a prima facie case

because he was not entitled to any benefits under the plain language of the severance

plan. The severance plan clearly states that “employees terminated for cause will not

receive severance.” Pendleton was terminated for cause, and he was therefore fully

excluded from severance benefits. Furthermore, even if Pendleton had separated from

QuikTrip without cause, he still would not have been entitled to benefits. He did not

meet any of the criteria in the plan to qualify for severance. His position was not

eliminated, he was not disabled, he did not meet the tenure rule of 75, and he did not

die. QuikTrip’s severance plan requires directors to fall within one of the listed

categories to even qualify for negotiations for severance benefits. Thus, whether the

benefits “will” or “may” be negotiated does not negate Pendleton’s need to meet the

eligibility requirements stated in the plain language of the plan. 

The extrinsic evidence raised by Pendleton to show confusion and disparate

treatment by QuikTrip in its severance policy cannot create ambiguity in a plan that

clearly does not entitle him to benefits. See Palmisano v. Allina Health Systems, Inc.,

190 F.3d 881, 888 (8th Cir. 1999). The fact that several other directors received

severance benefits does not have any direct bearing on Pendleton’s entitlement to

those benefits. See Jefferson v. Vickers Inc., 102 F.3d 960, (8th Cir. 1996)

(providing that a company’s gratuitous severance payment to some employees does

not entitle other employees to the same treatment). Additionally, non plan

documents, such as the email from the director of human resources that signified “no

change” for directors in the revised plan, cannot create ambiguity in the actual
-8-

severance plan. See Palmisano, 190 F.3d at 888. Pendleton’s proffered extrinsic

evidence does not raise genuine issues of material fact as to his entitlement to benefits

when he does not qualify for benefits under the clear and unambiguous language of

the plan. 

In addition to claiming an entitlement to severance benefits, Pendleton contends

that the district court erred in denying him benefits under the stock plan. Pendleton

argues that the plan is ambiguous and that other directors were able to slow the speed

at which QuikTrip repurchased their stock, even though they did not meet the

requirements of the stock plan. He claims that these other directors were given special

privileges by the QuikTrip board. Pendleton submits that he was entitled to benefits

under the stock plan because the board would likely have given him the same benefit

as the other directors. 

 QuikTrip’s stock plan unambiguously states that QuikTrip may repurchase the

stock of terminated employees within 180 days. While there are exceptions to this

policy, they do not apply to Pendleton. One exception provides that employees who

are terminated after 20 years or more of employment with the company may slow the

rate at which QuikTrip can repurchase their stock. Since Pendleton only worked for

QuikTrip for 15 years, he does not fall into that category. The stock plan also slows

the rate of repurchase for employees who “retire” meaning they meet the rule of 75,

become permanently disabled, or are specially designated by the board. Pendleton

presents no evidence that he met the rule of 75, was permanently disabled, or was

specially designated by the board. Pendleton considers himself entitled to stock

benefits because the board could have made a special case for him since they did it for

other directors. By contending that he could have been deemed a special case,

Pendleton all but admits that his only hope for stock benefits would have been special

action by the board. 
-9-

Pendleton’s ability to prove a prima facie case is undermined by the lack of

evidence that he was entitled to benefits under either the severance or stock plans.

Moreover, Pendleton has also not shown that the stated reasons for his termination

were pretexutal. Fitzgerald, 521 F.3d at 871. After Pendleton announced his intent to

leave QuikTrip, Marchesano asked him to remain with the company to help with the

transition. Pendleton offered no evidence to show that QuikTrip abruptly forced him

out as a means to avoid giving him benefits. No evidence suggests that QuikTrip’s

management even considered the financial impact to the corporation of terminating

Pendleton. Indeed, Pendleton admitted that he did not have knowledge that

Marchesano and Thoene were acting in bad faith.

QuikTrip offered Pendleton eight weeks of severance pay before litigation

began, which he declined. His termination gave QuikTrip the unequivocal right to

repurchase Pendleton’s stock under the plan. QuikTrip states that it will pay

Pendleton $677,956.53 in exchange for his shares and Pendleton does not contest that

amount. Finally, QuikTrip did not withhold any payment of salary, bonuses, or other

benefits upon Pendleton’s departure. QuikTrip gave Pendleton all the benefits that he

was entitled to under the terms of the severance and stock plans. We conclude that

QuikTrip was entitled to summary judgment on Pendleton’s § 510 claim.

At the conclusion of the trial, QuikTrip moved for attorney fees in the amount

of $50,000. The district court denied the motion. We review de novo legal issues

related to an award of attorney fees, Advantage Media, L.L.C. v. City of Hopkins,

Minn., 511 F.3d 833, 836 (8th Cir. 2008), and an actual award of attorney fees for

abuse of discretion. Roemmich v. Eagle Eye Dev., LLC., 526 F.3d 343, 354 (8th Cir.

2008).
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Under § 502(g) of ERISA, a court may in its discretion award reasonable

attorney fees and costs to the prevailing party. 29 U.S.C. § 1132(g) (2006). In

determining whether or not to award fees, we have outlined several factors for district

courts to consider, but these factors need not be applied mechanically. Martin v. Ark.

Blue Cross & Blue Shield, 299 F.3d 966, 969 (8th Cir. 2002). The court should look

at the degree of parties’ culpability, the ability to satisfy an award of attorney fees,

whether an award of fees could deter other persons, whether the case involves a

significant question regarding ERISA, and the relative merits of the parties’ case.

Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir. 1984).

The district court’s decision to deny attorney fees in this case was entered on

the docket as “ordered denied without authority.” This statement could be interpreted

as a determination that QuikTrip had not made a sufficient showing of factors in its

favor to authorize an award of fees, but it is not free of ambiguity. Trial courts have

many demands on their time, but nonetheless a district court should state the factors

it is relying on in deciding an ERISA fee motion. See e.g. Toy v. Plumbers &

Pipefitters Local Union No. 74 Pension Plan, 2009 WL 692398, *2 (3d Cir. 2009);

Riley v. Adm’r of Supersaver 401K Capital Accumulation Plan for Employees of

Participating AMR Corp. Subsidiaries, 209 F.3d 780, 782 (5th Cir. 2000). 

Although the district court did not discuss the factors in this case, its ruling is

supported by the record made by the parties. The record does not reflect that

Pendleton brought this action in bad faith. He responded to QuikTrip’s summary

judgment motion and vigorously defended his claims throughout. The evidence

suggests that Pendleton believed that he had a valid claim under § 510 of ERISA. See

Maune v. Int’l Broth. of Elec. Workers, Local No. 1, Health & Welfare Fund, 83 F.

3d. 959, 964 (8th Cir. 1996) (holding that when a plaintiff brings a claim in good faith

it can be sufficient to deny an award of attorney fees to the other party). Finally, the

amount of fees sought would be equivalent to a not insignificant amount of the

benefits he was owed. 
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Accordingly, we affirm the judgment of the district court. 

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