IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30672

F MICHAEL CUSTER; MARSHA F CUSTER

Plaintiffs - Appellants

v.

MURPHY OIL USA INC, formerly known as Murphy Oil Corp

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

Before REAVLEY, GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

We GRANT the Petition for Rehearing filed by defendant Murphy Oil

USA, Inc., and having duly considered the response, we withdraw the prior

panel opinion,493 F.3d 626, in its entirety and substitute the following:

In December 2003, Michael Custer (“Custer”) had an accident at his home

and, as a result, suffered a ruptured disk in his neck. Custer was totally

disabled and unable to return to work. When Custer inquired about medical

coverage from his employer, Murphy Oil USA, Inc.(“Murphy”), he was informed

that because he was totally disabled his employment would be terminated and

he would no longer qualify for coverage under the Group Insurance Plan for

Employees of Murphy Oil Corp. (“the Plan”). Under the Plan in effect prior to

United States Court of Appeals

Fifth Circuit

F I L E D

October 5, 2007

Charles R. Fulbruge III

Clerk
No. 06-30672

1 The language of that plan stated, “If the employee is totally disabled and approved

to receive benefitsunder the Company-sponsoredLongTerm DisabilityPlanor Social Security,

the employee and dependents may continue to be covered by this Plan until the employee is

age 65, provided he or she remains disabled and is not eligible for or covered by another group

plan.”

2

2003, Custer would have been covered until he turned 65. Murphy contends that

the Plan was modified in January 2003, therefore allowing Custer’s coverage to

end when he was terminated. Custer and his wife, Marsha Custer, (“the

plaintiffs”) challenge the modifications to the Plan by alleging that Murphy did

not comply with the Employment Retirement Insurance Security Act’s

(“ERISA”), 29 U.S.C. § 1001 et seq., reporting and disclosure requirements and

did not comply with the Plan’s modification procedures. Further, the plaintiffs

allege that Murphy’s decision to terminate Custer’s employmentinterfered with

Custer’s attainment of rights protected under ERISA.

I

Custer worked at Murphy from 1979 to 2004. He started as an H-operator

but, by 1997, he had worked his way up to shift foreman at Murphy’s plant in

Meraux, Louisiana. This promotion made Custer a salaried employee and he

became eligible for the Plan. The Plan is a self-funded group health plan

administered by the Employee Benefit Committee (“Benefit Committee”). In

November 2002, the Benefit Committee met to consider changes to the Plan’s

benefits, specifically relating to the long term benefits for employees who become

totally disabled and are unable to work. At the time, the Plan allowed

employees who became totally disabled, and whose employment was terminated

as a result, to receive benefits until the age of 65.1 The Benefit Committee

agreed to make changes, limiting benefits of totally disabled employees to

COBRA Continuation coverage for 18 months.

Although the Benefit Committee agreed to the changes, they were still

pending approval from the corporate office when the Employee Benefits
No. 06-30672

3

Department(“the Benefits Department”) sent Murphy’s annual open enrollment

notice to all eligible employees in November 2002. Instead of announcing the

proposed changes, the notice only announced the possibility that changes will

follow. Murphy claims that the corporate office approved the changes in early

December 2002 and that, immediately thereafter, the Benefits Department

mailed a written notice to all active employees notifying them of various changes

to the Plan which would be effective on January 1, 2003. Although Murphy

claims it mailed this notice to Custer at his then-present address, the plaintiffs

contend that they never received the December 2002 notice. In March 2003,

Murphy asserts it mailed a new Summary Plan Description (“SPD”) to all active

employees, which included two sections relating to the coverage for disabled and

terminated employees. The plaintiffs attest that they did not receive the SPD

either.

On December 19, 2003, Custer was injured while moving boxes in his attic.

Apparently, the attic stairs collapsed; he fell eight feet and ruptured the disks

in his neck. As a result of the accident, he was totally disabled and immediately

went on a leave of absence from work. On January 22, 2004, the Benefits

Department sent Custer a letter explaining how some aspects of his benefits

would be affected by his leave of absence, and included some forms which he

filled out and returned on January 28, 2004. On May 25, 2004, the Benefits

Department sent Custer another set of forms, which were returned completed.

In June of 2004, Custer called Murphy to inquire about his benefits and was told

that his employment could be terminated due to his disability and therefore he

would be no longer covered under the Plan, as amended in January 2003.

Custer claims that this was the first he had heard of these amendments.

Eventually, Custer was terminated from his employment on September 30,

2004. The Benefits Department notified Custer that his medical coverage ended
No. 06-30672

4

when he was terminated but also informed him that he was eligible for COBRA

Continuation coverage, which ended in April 2006.

The plaintiffs filed suit against Murphy in March 2005, seeking a

declaratory judgment and damages under the pre-2003 version of the Plan.

After delays due to Hurricane Katrina, Murphy moved for summary judgment

in April 2006. The plaintiffs opposed the motion and filed a cross-motion for

summary judgment, but in June 2006 the district court granted summary

judgment to Murphy on all claims and denied the plaintiffs’ cross-motion for

summary judgment.

II

“We review grants of summary judgment de novo, applying the same legal

standard used by the district court.” Chacko v. Sabre Inc., 473 F.3d 604, 609

(5th Cir. 2006). Summary judgment is appropriate if the moving party can show

“that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In making

this determination, we evaluate the facts in the light most favorable to the nonmoving party))in this case, the plaintiffs. Keszenheimer v. Reliance Std. Life

Ins. Co., 402 F.3d 504, 507 (5th Cir. 2005).

A

The plaintiffs first argue that Murphy’s December 2002 notice did not

comply with ERISA’s reporting and disclosure requirements. ERISA requires

that “[a] summary of any material modification in the terms of the plan . . . shall

be written in a manner calculated to be understood by the average plan

participant and shall be furnished in accordance with section 1024(b)(1) of this

title.” 29 U.S.C. § 1022(a). The plaintiffs argue both that the notice was not

furnished in accordance with § 1024(b)(1) and that it was not written in a

manner calculated to be understood by the average plan participant.
No. 06-30672

2 The district court’s order suggests that the plaintiffs may be able to recover damages

by relying merely on prejudice even if Murphy complied with ERISA’s reporting and disclosure

requirements. See District Court Order of June 1, 2006 (“Having concluded Defendant’s notice

satisfies ERISA disclosure requirements, Plaintiffs can only recover if they can show active

concealment, significant reliance, or prejudice resulting from the lack of notice.”) (citing

Godwin v. Sun Life Assurance Co., 980 F.2d 323, 328 (5th Cir. 1992)). However, nothing in

Godwin suggests that an employer can be held liable for a plaintiff’s failure to receive notice

5

1

Section 1024(b)(1) sets out the requirements for how plan administrators

must notify participants of material changes in the Plan. The statute states that

“a summary description of such [a material reduction in covered services or

benefits] shall be furnished to participants and beneficiaries not later than 60

days after the date of the adoption of the modification or change.” 29 U.S.C.

§ 1024(b)(1). Further, the Secretary of Labor has promulgated regulations

interpreting the disclosure requirements of § 1024(b)(1): “[T]he plan

administrator shall use measures reasonably calculated to ensure actual receipt

of the material by plan participants, beneficiaries and other specified

individuals.” 29 C.F.R. § 2520.104b-1(b)(1). The regulations indicate that

distribution through first-class mail fulfills the disclosure obligation. Id.

(“Material distributed through the mail may be sent by first, second, or thirdclass mail.”); Williams v. Plumbers & Steamfitters Local 60 Pension Plan, 48

F.3d 923, 926 (5th Cir. 1995) (“The plan administrator may send the [summary

of material modification] by mail.”); cf. Degruise v. Sprint Corp., 279 F.3d 333,

336 (5th Cir. 2002) (stating, with respect to a similar provision of COBRA, 29

U.S.C. § 1166, that “[t]his does not mean, however, that employers are required

to ensure that plan participants actually receive notice. Rather, it merely

obligates employers to use means ‘reasonably calculated’ to reach plan

participants.”) (footnote omitted). As a result, we look not at whether Custer

actually received the December 2002 notice but instead at the Benefit

Committee’s method of distribution.2
No. 06-30672

where the plaintiff has not established that the employer violated ERISA’s reporting and

disclosure requirements. Rather, for a plaintiff to obtain a remedy under ERISA, the plaintiff

must establish, at the very least, that the defendant violated some provision of ERISA.

6

In arguing that it complied with the reporting and disclosure

requirements, Murphy asks this court to apply the “mailbox rule.” The version

of the mailbox rule that Murphy would have us apply “provides that the proper

and timely mailing of a document raises a rebuttable presumption that the

document has been received by the addressee in the usual time.” Schikore v.

BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 961 (9th Cir. 2001) (citing

Hagner v. United States, 285 U.S. 427, 430 (1932)); see also Beck v. Somerset

Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (applying the mailbox rule).

Because this mailbox rule functions merely to create a presumption of receipt,

it only comes into play when there is a material question as to whether a

document was actually received. See, e.g., Schikore, 269 F.3d at 963 (“We note

that the Plan requires only actual receipt and does not require any particular

form of mailing.”). However, in this case, the question is not whether there was

actual receipt by the plaintiffs, but rather whether the plan administrator

“use[d] measures reasonably calculated to ensure actual receipt.” 29 C.F.R.

§ 2520.104b-1(b)(1). Since the focus here is on only whether notice was mailed,

the mailbox rule does not operate in this context. 

Although the mailbox rule does not operate here to shift burdens and

create presumptions, as Murphy argues, the mailbox rule is still germane to our

analysis. A threshold question for the application of the mailbox rule is whether

there is sufficient evidence thatthe letter was actually mailed. Because Murphy

contends that the measure the plan administrator used to ensure actual receipt

was distribution by first-class mail, we ask whether there is a genuine issue of

material fact as to whether Murphy mailed the notice.
No. 06-30672

3 There was a dispute before the district court over whether these affidavitsshould be stricken

from the record; the district court allowed them and the plaintiffs did not renew on appeal their

argument to strike these documents from the record.

7

The summary judgment record provides no physical evidence that the

December 2002 notices were mailed, such as business records, a signed receipt

from certified mail, or a post-marked envelope. However, Murphy does provide

sworn affidavits from Kristi Saulsbury (“Saulsbury”), Murphy’s supervisor of

mail services, and Alissa Wilson (“Wilson”), a benefits analyst in Murphy’s

Benefits Department.3 The two affidavits, read together, state that in

distributing the December 2002 notices, Murphy followed its normal mailing

procedures and Saulsbury specifically states that “the envelopes were metered

for first-class postage and placed in bins for delivery by the United States Postal

Service.” Both Saulsbury and Wilson supply a copy of the mailing list used to

label the December 2002 notices, and the list contains Custer’s name and

address. “[A] sworn statement is credible evidence of mailing for the purposes

of the mailbox rule.” Schikore, 269 F.3d at 964; Simpson v. Jefferson Standard

Life Ins. Co., 465 F.2d 1320, 1323 (6th Cir. 1972) (same).

Further, we have recognized that “[p]lacing letters in the mail may be

proved by circumstantial evidence, including customary mailing practices used

in the sender’s business.” Wells Fargo Business Credit v. Benn Kozloff, Inc., 695

F.2d 940, 944 (5th Cir. 1983). To show that the normal procedures were followed

in mailing the December 2002 notice, Murphy provides the deposition testimony

of Ronald Smith, the manager of the Benefits Department as well as the

affidavits of Saulsbury and Wilson. Saulsbury and Wilson stated that, under the

normal process the Benefits Department provides mail services with a list of

addresses. Mail services then prints labels of those names and addresses,

placing them onto envelopes. The envelopes then go back to the Benefits

Department for stuffing and sealing after which they are returned to mail
No. 06-30672

8

services. The Saulsbury and Wilson affidavits also corroborate the deposition

testimony of Ronald Smith. Soon after the approval of the Plan amendment,

Smith stated that his department stuffed the December 2002 notice of material

modification into envelopes and the envelopes were delivered to the mail room.

As Smith put it, “My department did the stuffing. The mail room did the

mailing.”

The individuals actually responsible for addressing and mailing the

envelopes, Anthony Yarborough and David Kilby, provided no evidence to

support that the notices were mailed or how they were addressed. Yarborough

and Kilby stated that the mail room does not keep, as a matter of practice, any

records, reports, codes, or memoranda concerning what it sends out; the mail

room does not know the contents of sealed envelopes received from the Benefits

Department; and the computers and printers that would have been used to

produce the lists to address the envelopes were discarded in February 2006.

Yarborough and Kilby provided no evidence, either physical or testimonial, to

support Smith’s claim that the notices had been properly addressed and sent.

The plaintiffs,for their part, provide sworn deposition testimony thatthey

never received the notice. Evidence of non-receipt can be used to establish that

the notice was never mailed. This is the inverse of the mailbox rule’s

presumption of receipt. As WIGMORE ON EVIDENCE states:

The presumption [of receipt] rests upon the supposed uniform

efficiency of the postal service in delivering letters duly stamped,

addressed, and mailed into its custody; if therefore the efficiency is

operating, does not the nonarrival of an alleged letter indicate that

such a letter was never given into the postal custody?

9 WIGMORE ON EVIDENCE § 2519 at 567 (Chadbourn rev. 1981); but see, Meckel

v. Continental Resources Co., 758 F.2d 811, 817 (2d Cir. 1985) (applying New

York law and holding that denial of receipt does not upset finding that a notice

was mailed).
No. 06-30672

9

In addition to the plaintiffs’ claim that they never received the notice, the

plaintiffs produce four other employees of the Meraux plant, also shift

supervisors like Custer, who could not recall receiving the notice. Three of the

four shift supervisors stated they retain benefits documents in records at their

homes, and they expected that if they had received the notice it would have been

in their records; none was able to find the relevant notice in their personal

records. All four stated they regularly discuss changes in the benefits plans,

especially those resulting in reductions of coverage for spouses, as here, and

none could remember discussing these changes until they learned of Custer’s

injury and the denial of benefits he expected to receive. Although this is a sort

of presumption once-removed when applied to the plaintiffs, it does corroborate

the plaintiffs’ assertion that Murphy did not mail the notice.

While the plaintiff ultimately bears the burden of demonstrating that

Murphy failed to “use measures reasonably calculated to ensure actual receipt”

of the notice, Murphy, as the party moving for summary judgment, bears the

burden of demonstrating that there is no genuine issue of material fact. See

Harvill v. Westward Commc’ns., L.L.C., 433 F.3d 428, 433 (5th Cir. 2005) (“The

moving party has the burden of demonstrating that there are no genuine issues

of material fact in dispute.”). “Where critical evidence is so weak or tenuous on

an essential fact that it could not support a judgment in favor of the nonmovant,

or where it is so overwhelming that it mandates judgment in favor of the

movant, summary judgmentis appropriate.” Alton v.Texas A&M Univ., 168F.3d

196, 199 (5th Cir. 1999).

First, we refuse to fully adopt Wigmore’s “inverse mailbox rule” in this

setting, such that a plaintiff’s bare assertion of non-receipt could create a

genuine issue of material fact to survive summary judgment. To do so would

essentially require proof of receipt on the employer’s part where the regulations

only require proof of mailing. But while proof of receipt is unnecessary, we
No. 06-30672

4 Murphy asserts that it produced seven other individuals claiming to have received the

notice, but Murphy does no such thing. Instead, Murphy provided the names of seven

individuals who Murphy claims to have received the notice.

10

cannot forget that proof of mailing is still required. On the issue of mailing, it

cannot be said that either of Alton’s grounds are satisfied, and thus summary

judgment is improper.

Turning back briefly to the evidence of mailing in this case, Saulsbury

asserts that the notice was mailed. But Murphy has not produced any business

records or other physical evidence that the notice was sent. In fact, Murphy has

presented no evidence, testimonial or otherwise, as to the day on which the

notices were mailed. The only two individuals who make sworn statements that

they received the notices are Smith and Wilson, both employees of the Benefits

Department responsible for the mailing. The plaintiffs assert that they did not

receive the notice. Further, the plaintiffs’ assertion of non-receipt is supported

by the other Meraux shift supervisors’ testimony that they also could not recall

receiving the notice, and that they regularly retain such notices but could not

locate the notice in their records. 4

While we refuse to adopt Wigmore’s “inverse mailbox rule” in its entirety,

in this case, where the employee’s assertion of non-receipt is supported by

circumstantial evidence, and the employer provides an equally weak assertion

that notice was mailed, the issue of mailing should not be decided at summary

judgment. 9 WIGMORE ON EVIDENCE § 2519 at 567 (Chadbourn rev. 1981) (selfinterested testimony of mailing and self-interested testimony of non-receipt

should go to jury); cf. Rosenthal v. Walker, 111 U.S. 185, 193 (1884) (noting that

the mailbox rule’s presumption of receipt is “a mere inference of fact... and,

when it is opposed by evidence that the letters never were received, must be

weighed with all the other circumstances of the case, by the jury.”). Because
No. 06-30672

5 Although we reverse the district court’s ruling on this issue, we make no holding on

the difficult question of what remedy, if any, ERISA provides for a violation of its reporting and

disclosure requirements. This issue was neither briefed by the parties nor considered by the

district court. 

The plaintiffs are seeking the benefits that would have been owed to Custer under the

pre-2003 version ofthe Plan, and they assert that ERISA’s civil enforcement provision, § 1132,

provides them with this remedy. But the plaintiffs have not attempted to identify which

specific subsection of § 1132 provides such a remedy. We have previously considered cases

where a plaintiff has sought some remedy))beyond those limited remedies available in

§ 1132(a)(1)(A)))for technical violations of ERISA’s reporting and disclosure requirements.

See, e.g., Williams, 48 F.3d at 926; Hines v. Mass. Mut. Life Ins. Co., 43 F.3d 207, 211 (5th Cir.

1995); Godwin, 980 F.2d at 328. But in those cases we did not identify the legal basis for such

a remedy, nor did we need to because, in each case, the plaintiffs’ claims were dismissed on

other grounds. Other circuits which have examined the issue of “substantive remedies” for

technical violations of ERISA’s reporting and disclosure requirements have come to different

conclusions. Compare Watson v. Deaconess Waltham Hosp., 298 F.3d 102, 113 (1st Cir. 2002)

(remedy under § 1132(a)(1)(B) available only for “exceptional circumstances”); Panaras v.

Liquid Carbonic Indus. Corp., 74 F.3d 786, 789 (7th Cir. 1996) (same) with Lewandowski v.

Occidental Chemical Corp., 986 F.2d 1006, 1008 (6th Cir. 1993) (no remedy available under

§ 1132(a)(1)(B)); Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1170 (3d Cir. 1990) (same);

see also Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1073 (9th Cir. 2005) (rejecting, for

reporting and disclosure violations,§ 1132(a)(1)(B) and (a)(3) as possible sources for benefits

sought under a version of a plan in effect prior to the plan’s cancellation); Jordan v. Federal

Express Corp., 116 F.3d 1005, 1011 (3d Cir. 1997) (suggesting that § 1132(a)(3) gives rise to

some “substantive remedies” for reporting and disclosure violations in “extraordinary

circumstances”) (citing Ackerman v. Warnaco, Inc., 55 F.3d 117, 124 (3d Cir. 1995)).

When relying on a statutory scheme such as ERISA, where Congress has specifically

enumerated and limited available remedies, parties are encouraged to identify which remedial

provision provides the remedy they seek. See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134,

146 (1985) (“The six carefully integrated civil enforcement provisions found in § 502(a) of the

statute as finally enacted, however, provide strong evidence that Congress did not intend to

authorize other remedies thatit simply forgotto incorporate expressly.”) (emphasis in original).

11

there is a genuine issue of material fact as to mailing, we reverse the district

court’s grant of summary judgment on this issue.5

2

The plaintiffs also argue that even if Murphy did use proper methods to

distribute the notice, Murphy was still not in compliance with § 1022 because

the language of the December 2002 notice was not “written in a manner

calculated to be understood by the average plan participant.” 29 U.S.C.

§ 1022(a); see also 29 C.F.R. 2520.104b-3(a).
No. 06-30672

12

In November 2002, Murphy sent a notice announcing the Plan’s open

enrollment schedule and stating,

Medical costs have continued to increase nationwide and

unfortunately our Plan has not been immune to this problem. At

present we are still reviewing our plan design and associated cost.

For the time being coverage and premiums will remain unchanged.

However, as soon as our review process has been completed we will

advise of any changes in coverage and/or premium.

Following this notice, Murphy sent the December 2002 notice, which is three

pages long and contains similar language regarding the increasing costs of

medical coverage. But it contains an additional section announcing

modifications to the plan effective January 1, 2003. It is this language,

announcing the modifications, which the plaintiffs claim is not sufficiently clear.

Under a section entitled “MEDICAL PLAN CHANGES,” the notice states,

Disability Termination - When an employee is unable to work

due to an illness or injury, medical coverage is continued for a

period of time at active employee rates while the employee is on

leave of absence. When an employee is unable to return to work due

to disability and is terminated due to disability, again our practice

has been to continue medical coverage for a period of time at active

employee rates. Our employment practice while on leave of absence

will remain unchanged, however, should termination occur due to

disability, our practice will now be that the employee will be

extended COBRA Continuation as required by law. Murphy will

subsidize the COBRA premium cost and the employee will only pay

the active rate for the initial eighteen months under COBRA. All

other terms and conditions under COBRA Continuation provisions

will apply.

This section is then followed by another paragraph discussing increasing medical

costs and responsible use of benefits.

The notice is clearly announcing changes to the Plan, and the section on

disability termination is structured to contrast those benefits previously

available to employees terminated due to disability with those benefits available

to employees terminated due to disability after January 1, 2003. Taken
No. 06-30672

6 Because the plaintiffs did not argue the relevance of the March 2003 SPD before the

district court, we do not now consider whether the language of that document was ambiguous,

whether that document is the controlling description of the Plan’s benefits, or whether the

plaintiffs are required to show reliance on the March 2003 SPD.

13

together, this language is sufficient to communicate to the average plan

participantthat beginning January 1, 2003,the Plan’s former disability benefits

would no longer be available, but rather the Plan would only offer COBRA

Continuation coverage. Therefore, we affirm the district court’s finding that the

content of the December 2002 notice complied with ERISA’s disclosure

requirements.6

B

Next, the plaintiffs argue that Murphy discharged Custer for the purpose

of interfering with the plaintiffs’ ERISA rights, in violation of 29 U.S.C. § 1140.

“To establish a prima facie case of discrimination under ERISA, a plaintiff must

establish that his employer fired him in retaliation for exercising an ERISA right

or to prevent attainment of benefits to which he would have become entitled

under an employee benefit plan.” Holtzclaw v. DSC Commc’ns. Corp., 255 F.3d

254, 260 (5th Cir. 2001). “An essential element of a [29 U.S.C. § 1140] is proof

of defendant's specific discriminatory intent.” Hines v. Mass. Mut. Life Ins. Co.,

43 F.3d 207, 209 (5th Cir. 1995).

The plaintiffs attempt to show discriminatory intent by arguing that

Murphy terminated Custer two weeks after finding him totally disabled. The

plaintiffs argue thatthe normal company practice was to terminate an employee

six months after finding him to be totally disabled. But the evidence the

plaintiffs rely on, namely Smith’s testimony, does not establish such a policy.

Rather,the testimony establishes that Murphy generally waits six months after

an employee is on a medical leave of absence before determining whether the

employee should be terminated because of disability. Custer was placed on

medical leave of absence in December 2003 and terminated in September 2004.
No. 06-30672

14

To the extent that Murphy deviated from its general practice, we cannot find

that it was to the detriment of the plaintiffs or that it is evidence of a

discriminatory intent.

All evidence suggests that Custer’s employment was terminated because

he was unable to perform his job function. The plaintiffs do not allege that

Custer was able to perform his job function. In Holtzclaw, we held that

“qualification for the position sought is an element of a prima facie ERISA

claim.” Holtzclaw, 255 F.3d. at 261. As a result, we affirm the district court’s

grant of summary judgment to Murphy on the plaintiffs’ retaliation and

interference claim.

C

Finally, the plaintiffs argue that the modifications to the Plan are not

effective because Murphy never formally approved the modifications. “[O]nly an

amendment executed in accordance with the Plan’s own procedures and properly

noticed could change the Plan.” Williams, 48 F.3d at 926. The Plan in effect

prior to the modification stated,

The employer’s board of directors, its president or the Plan

Administrator may modify or amend the Plan from time to time at

its sole discretion. Participants will receive notification of

amendments or modifications that affect their coverage.

The Plan Administrator is the Benefit Committee. It is undisputed that the

Benefit Committee met on November 11, 2002 and approved the Plan

modifications to take effect on January 1, 2003. Murphy has produced the

minutes from that meeting indicating such, and the plaintiffs have produced no

evidence to the contrary. Once the Benefit Committee approved the changes, it

sought corporate approval from Murphy senior management. Although there is

no documentary evidence of senior management’s approval, such evidence is

unnecessary because the terms of the Plan allow the Benefit Committee to
No. 06-30672

15

modify the Plan without senior management’s approval. Therefore, we affirm

the district court’s grant of summary judgment on this issue.

III

In conclusion, we agree with the district court’s rulings thatthe December

2002 notice was sufficiently clear, that Murphy did not discriminate against

Custer or interfere in the exercise of his ERISA rights, and that the December

2002 modifications were properly approved in accordance with the Plan. But we

REVERSE and REMAND because there is a genuine issue of material fact as to

whether Murphy properly distributed the December 2002 notices.