NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0511n.06 No. 10-4259 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

L ARRY L EWI S,
P laintif f-App ellant,

v. CENTRAL STATES, SOUTHEAST & SOUTHWEST AREAS PENSI ON FUN D et al., Defendan ts-Appellees.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUT HERN DI STRI CT OF OH I O

O P I N I O N

Before: K

EITH , BOGG S, and MOORE, Circuit Judges.

KA REN NELSO N MOORE, Circuit Judge. Plaintiff-Appellant L arr y L ewis sued Duro Ba g Manufa cturing Company (“D uro Ba g ”), his former employ er, Central States, Southeast & Southwest Are as Pension Fund (“Centr al States” or “the pension plan”) , and the I n t er n at i o n al
Br otherhood of Tea msters, alleg ing that Central States improperly reje cted his claim for additional contributory service cre dit from his time working at Duro Ba g . The district cour t g rante d Central States’s motion for judgment on the admini strative re cord a nd denied L ewis’s mot ion to set aside the administrative dec ision. Bec ause Centr al States’s denial of L ewis’s claim was not a rbitrar y or capr icious, we AF FI RM.No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.

I. BACKG ROUND Central States is a multiemploy er employ ee -bene fit plan reg ulated by the Employ ee Retirement I ncome Security Act (“ERI SA”), 29 U.S.C. § 1001 et seq., and administered by a Boa rd of Trustee s composed of repr esenta tives of labor and manage m en t

. As rele vant for this case , the pension plan provides for a signific ant incre ase in pension b en efits with twenty -five y ear s of contributory service cre dit. A participa nt ear ns contributory service cre dit based on the leng th of his employ ment with an employ er require d t o co n t ri b u te to the pension plan on his behalf under a collective ba

rg aining ag ree ment (“CB A”)

. The CBA betwee n Duro Ba g and I nterna tional Br otherhood of Tea msters, L ocal 100 (“L ocal 100”) provides that Duro Ba g must contribute to Central States “for eac h reg ular seniority employ ee

cover ed by this ag ree ment, excluding extra, casua l, temporar y and part-time employ ees.” R.16-4 at 36 (CBA , Art. 9(a) ). The CBA also require s that “[n] ewly hired dri v er s m u s t work thirty (30) cumulative work day s within any ninety (90) cale ndar day period befor e being considere d a reg ular employ ee.” Id. at 37 (CBA , Art. 10(a) ). Employ ees beg in to acc rue seniority afte r completing this “proba tionary period,” but “may be discharg ed without rec ourse” befor e doing so. Id. The contra ct 1

Part of the dispute in this case stems from the CBA’ s failure to define some of the terms it 1 uses to descr ibe differ ent ty pes of employ ees. Be cause the CBA does not contain a differ ent definition of “casual employ ees,” we understand that term t o car ry its common meaning

of “shor t term, temporar

y , sporadic employ ees.” B r o w n -G r aves Co. v. Central States, Se. & Sw. Areas Pension Fund , 206 F.3d 680, 683-84 (6th Cir. 2000). A casua l employ ee is thus distinct from a fulltime employ ee. The CBA also makes clea r that a “re g ular seniority employ ee” is distinct from a casua l e mploy ee, but doe s not a ddress the rela tionship betwe en a reg ular seniority employ ee and a full-time employ ee. 2No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.

als o co n tains a union-shop provision, which direc ts “[a]ll employ ees . . . [t o] become and rema in members of the Union in g ood standing as a condition of employ ment on the thirty -first (31st) day following the date of

employ ment.” Id. at 34 (CB A, Art. 3). As d es cribed in more detail below, the circ umstances of L ewis’s first y ear and a h al f o f employ ment with Duro Ba g are a matter of dispute. I n brief, the parties disag ree over whether L ewis beca me elig ible as a re gu l ar empl oy ee for contributions to Central States on his behalf , and thus beg an ea rning contributory

service cre dit, in J uly

1976 or in Novembe r 1977. D u r o B a g b e g a

n ma k in g c o ntributions to Central States on L ewis’s behalf in N o v e mb e r 1 9 7 7

. When Duro Ba g went out of business in the Cincinnati are a in 1986, L ewis wrote to Central States
reque sting information on the amount of service cre dit he had ear ned. I n his letter, L ewis stated that he had w orked a t Duro Ba g from J une 26, 1976 to March 1, 1985. Ce ntral States informed L ewis that he first beca

me a participa

nt in the pension plan in November 1977 and had ear ned 8.8 y ear s of contributory

service cre dit. L ewis did not respond. The story picks up ag ain in Marc h 2001, when L ocal 100 ask ed C en t ral States to revie w L ewis’s service cre dit f

or 1976 and 1977 bec ause L ewis believe d he re ceive d an incorre ct amount of cre dit for that period. I n response , C en t ra l S t at es reiter ated that Duro Ba g contributed to the pension plan from November 1977 to Fe bruar y 1985 and reque sted su p p o rt ing information as to whether additional contributions wer e owed. Central States also noted that L ewis had 21.456 y ear s of contributory

service cre dit.

3No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.

I n Dec ember 2003, L ewis applied to Centra l States for a r etireme nt pension benef it. After Central States informed L ewis that he w as elig ible for a 23-Ye ar Contributory Pension, L ocal 100 submitt ed documents in support of L ew is’s claim for additional service cre dit, including Social Security ear

nings recor ds and a 2001 letter from the Duro B ag pay roll manag er stating that L ewis “wa s hired by Duro Ba g Mfg

. Co. on J une 2, 1976, as a casua l truck driver [and o]n May 25, 1977, he beca me a full time over-the -roa d truck drive r.” R.16-5 a t 124. The Social Secur ity documents showed that L ewi s ea rned $2,050.70 at Duro Ba g in 1976 and $10,788.72 in 1977. A copy of 2
L ewis’s union-due s ledg er indica ted that he wa s initi ated into L ocal 100 in Nove mber 1976. Central States denied that any additional contributions wer e owed. L ewis appealed to the Central States Be nefits Claim Appea ls Commi ttee and to the Trustee Appellate Review Commi ttee. As part of his a

ppeal, L ewis stated that he worke d as a full-time city driver at Duro Ba g from May 1976 to October

1976 and ag ain from January 1977 to Aug ust 1977, at which point he transf err ed
to a road- driver position. He explained that he was laid off in October 1976 due to a strike and was

rec alled in J anuar

y 1977. Bo t h the Appea ls Commi ttee and the Trustee s denied L ewis’s claim for additio n al contributory service cre dit. Central States explained tha t L ewis had not established that Duro Ba g should have made contributions for him prior to November 1977 and emph asi zed the lack of

The bre akdown by

quarte r wa s 2 J an.-Ma

r. Apr.-June J uly -Sept. Oct.-D ec. 1976

-- 782.02 1,268.68

-- 1977 764.50 1,106.90 4,008.61 4,908.71 4No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.

contempora

neous documentation as t o the date on which L ewis beca me eligible for service cre dit by completing his probationar y period or which wee ks he worke d afte r that period. Fur ther, Central States noted that the company rec ords that L ewis had provided showed that he was initially hired as

a casua l employ ee, and that Duro Ba g was not require d to make contributions for casua l employ ees. L ewis and his union continued to corr espond with Central States throug hout 2005 and 2006. Along with seeking additional contributory service cre dit for his time at Duro Ba g, L ewis asked Central States to revie w his contributions from Br anch Motor Ex press, wher e he had worke d during the fourth qua

rter of 1976 and the f

irst quarter

of 1977. Central States ag ain reque s t ed contempora neous documentation of L ewis’s probationar y period at Duro Ba g and soug ht clar ification reg arding sever al i n co n sistencies betwee n L ewis’s

acc ount of his employ

ment history and other documents in the rec ord. Specifica lly , Central States asked L ewis to explain why , if he was a reg ular employ ee at Duro Ba g , he did not work during the fourth quarte r of 1976 and only worke d a few wee ks from J anuar y throug h J une 1977, as well as why Duro Ba g was able to hire new drivers during the period when L ewis claimed to have been laid off.
I n Fe bruar

y 2007, the Trustee s rec onsidered and ag ain reje cted L ewis’s claim for additional contributory

service cre dit. I n their dete rmination letter, the Tr ustees explained their de cision: The Trustee s noted that y ou provided no contempora neou s ly prepa

red documents (seniority lists, pay chec k stubs, driver log books, etc.) indicating (1) y our seniority date, (2) the date on which y ou completed y our probation period of 30 day s worke d within 90 cale ndar day s (following the date on which y ou wer e hired for reg ular (not casua l) employ

ment), or (3) the specific wee ks in which y ou worke d afte r completing y our proba tion period.

5No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.

R.16-6 at 1. The letter also noted L ewis’s failure to respond to t h e i n consi stencies which Central States had identified betw ee n L ewis’s position and other evidenc e in the rec ord. Finally , Central States observe d that it had first informed L ewis in 1986 that Duro Ba g ’s contributions on his behalf b ega n i n No vember 1977, y et L ewis had waited fourtee n y ear s to aler t Central States that he disag ree d with this deter mination. Central States did, by contra st, cre di t L ewis with additional contributions from his time at Br anch Motor Ex press. Even with these additional contributions, howeve r, L ewis had only 24.456 y ear s of service cre dit a nd was not e ligible for a 25-y ear pension.
L ewis sued Central States, Duro Ba g , and the I n t er n at ional Br otherhood of Tea msters in Aug ust 2009, alleg ing that he beca me a reg ular employ ee (and thus elig ible for contributory service

cre dit) afte r completing a 30-day probationar y period in J uly 1976. The district court hel d t h at Central States’s decision to deny L ewis’s claim for additional contributory service cre dit wa s n o t arbitra ry or capr icious beca

use the CBA was ambig uous as to whether a casua l employ ee could become a reg ular employ ee simply by completin g a probationar y period and beca

use the administrative rec ord supported a finding that L ewis was not a reg ular employ ee befor e November 1977. Acc ordi n gl y , t h e district court g rante d Central States’s motion for judgme nt on the

a d mi n is tr a ti v e r e c o r d , d enied L ewis’s motion to disreg ard the administrative rec ord, and d e n ie d D u r o Ba g ’s motion to dis miss as moot, as Duro B ag had no liability if Central States had none

. 3

L ewis’s complaint also contained claims ag ainst Duro Ba g for brea ch of contra ct and brea ch 3 of fiduciar

y duty

. The district c ourt construed the former as a claim under the L abor Manag ement Relations Act and dismiss ed it as time-barr ed, but did not specific ally addre ss the latter. L ewis does not addre ss either c laim on appea l. 6No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.

L ewis timely appea led, arg uing that Central States’s denial of his c laim w as pre mised on a faulty rea ding of the CBA. Central States counter s that its rea ding of the CBA is corr ect and that the

rec ord otherwise supports its decision to deny L ewis’s claim. Alterna tively , Central States contends that L ewis’s suit is barre d by the statute of limitations. 4

II. ANALYSIS ERI SA authorizes a participa nt in a pension plan to sue to “re cover benef its due to him under the t erms of his plan.” 29 U. S

. C

. § 1132(a) (1)( B)

. We revie w de novo a dis trict court’s decision
reg arding the denial of benef its under an ERI SA plan. Smith v. Cont’l Cas. Co. , 450 F.3d 253, 258 (6th Cir. 2006)

. Unless the plaintiff make s a proc edura l challeng e to the administrator’s decision, a reviewing court will consider only the evidence c o n t ai n ed in the admini strative record. W ilkins

v. Baptist Healthcare Sys., Inc. , 150 F.3d 609, 619 (6th Cir. 1998). When an ERI SA plan “provide s the administrator with ‘discre tionary authority to deter mine elig ibilit y for benef

its or to construe the
terms of the plan,’” we will not overturn an administrator’s decision to d en y b en efits unless that decision was arbitra

ry or capr icious. Smith , 450 F.3d at 258-59 (quoting W ilkins , 150 F.3d at 613). An administrator’s decision is not arbitra ry or capr icious “‘if it is the result of a delibera te, principled

rea soning proce ss and if it is supported by substantial evidenc e.’” Benne tt v. Kemper Nat’l Servs.,

Duro Ba g filed a separ ate brief raising simil ar arg uments. L ewis voluntarily dismiss ed his 4 appea l ag ainst the I nterna tional Brothe rhood of Te amsters. 7No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.

Inc. , 514 F.3d 547, 552 (6th Cir. 2008) (quoting Glenn v. MetLife , 461 F.3d 660, 666 (6th Cir. 2006), aff’d , 554 U.S. 104 (2008)). 5
Her e, the pension plan provides for administration by the Boa rd of Trustee s, which is “veste d with discretionar

y and final auth o r it

y in ma k ing any deter

mination” reg arding benef it claims. R.16-3
at 85, 99 (Plan Docum en t , § 7

. 0 1, app. B §6(c) ). I n addition, “all interpre tations by the Boa rd of Trustee s of [t he Trust Ag ree ment and the Pension Plan] shall be binding upon all parties to the Trust Ag ree ment, the Union, eac h Con tr ibuting Employ er, [and] all individuals claiming benef its pursuant
to this Pension Plan.” Id. at 85 (Plan Document, § 7.03). Acc ording ly , we wi l l u phold Central States’s denial of L ewis’s c laim unless it was arbitra ry or ca pricious. 6
L ewis arg ues that he beca me a reg ular e mploy ee, a

nd thus eligible f

or contributory service

cre dit, in J uly

1976. As support for his position, L ewis points to two provisions of the CBA: Article 9 - Pension

A decision ca n al s o be arbitra ry or capr icious if the decisionmake rs harbor a conflict of 5 interest, such as wher e the same entity both f unds a benef

its plan and evalua tes the claims. Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 111-12 (2008). Su ch a co n fl ict is “we ighe d as a fac tor” in d et er m i ning whether there has been an abuse of discretion. Id. at 115 (citing Firestone T i r e & Rubber Co. v. Bruch , 489 U.S. 101, 115 (1989)) (interna l quotation marks omitted). L ewis does not alleg e that a c onflict of intere st ex isted in this case. L ewis co n t en d s that we should revie w Central States’s decision de novo beca use it was 6 based on an interpre tation of the CBA and construction of contra ctual lang uag e is a question of law subject to de novo revie w. As explained below, construction of the CBA is not a dispositi ve issue in this case , beca

use Central States could rea sonably have denied L ewis’s claim even if his rea ding of the CBA was corr ect. There fore , we need not revie w (de novo or otherwise) Central States’s or the district court’s inter

preta tion of the CBA. 8No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.
(a)

. . . [T] he Company ag ree s to [contribute to Central States] for the purpose of providing pension benef its for eac h reg ular seniority employ ee co v ered by this ag ree ment, excluding extra, ca sual, temporar y and par t-time employ ees.

. . . Article 10 - Seniority (a) Newly hired drivers must wo rk t hirty (30) cumulative work day s within any ninety (90) c alenda

r day period be fore being considere d a re g ular e mploy ee. R.16-4 at 36, 37 (CB A, Art. 9(a ), 10(a )).
L ew i s does not appea

r to challeng e the fac t that Duro Ba g initially hired him as a ca s u al employ ee in June 1976, but argues that Article 10 is not ex pressly limit ed to ne wly hired full-time drivers and thus applies to all newly hired drivers, including newly hired casual drivers like L ewis. Ba sed on this rea ding, he contends that he beca me a re gu l ar em ploy ee in J uly 1976 by working thirty -three day s within a ninety -day period and thus should have beg un ear ning contributory service

cre dit at that point pursuant to Article 9.
L ewis arg ues that Central States’s position that he could not attain reg ular-e mploy ee status until afte r he was hi re d as a fu l l -t i me employ ee is contra ry to the plain lang uag e of the CBA.
L ewis’s rea ding of the CBA does not rende r Central States’s decision to deny him addit i o nal contribut o ry service cre dit arbitra ry or capricious, however. Even if L ewis could have completed

a probationar

y period as a casua l employ ee, no evide n ce in the administrative rec ord definitively shows that he did so. Despite repe ated reque sts, L ewis never provided contempora neous documentation of when he completed his probationar y period and which wee ks he worke d afte r that period for which he should have re ceive d contributory service cre dit. L ewis states that he worke d thirty -three day s betwee n J une and Aug ust 1976, but does not explain how he rea ched that number.

9No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.
He sugg ests that he d i v i d ed h i s gro ss ear nings for t he y ear by the C BA ’s hourly wag e rate and an eig ht-hour day , but that calc ulation would not be conclusive as to how many day s L ewis worke d, beca use part of his ear

nings may have come from overtime or holiday pay or periods in which L ewis
was pa id by

the mile rathe r than hourly

. I ndeed, the rec ord contains signific ant evidenc e that L ewis was not a reg ular employ ee until November 1977. Severa l of the documents that L ewis provided, including letters from Duro Ba g ’s
pay roll manag er and a photocopy o f L ewis’s pay log, state that L ewis was hired full-time in May 1977, sug g esting that he remained a casua l employ ee prior t o that time. More o v er, L ewis’s work history prior to May 1977 is consistent with casua l-employ ee status. By his own acc ount, he worke d sporadica lly

—from J une to Aug ust 1976 and for sevente en day s in the first quarte r of 1977. L ewis 7 explains that he was laid off due to a st rike duri n g t h e fourth quarte r of 1976, but other Duro Ba g employ ees worke d during this peri o d. Duro Ba g ’s member contribution repor ts show that less senior employ ees worke d during that quarte r, in violation of any seniority rig hts L ewis would have acc rued if he ha d been a

reg ular e mploy ee a

t that point. Despite the CBA’ s union-shop provision, which require s employ ees to join the union within thirty -one day s of their date of employ ment, L ewis did not join L ocal 100 until November 1976. As Central States noted, this was the time that L ewis beg an wor k at B ranc h Motor Ex press. B eca use

L ewis’s descr iption of his employ ment history in his appellate brief is inconsistent with his 7 descr iption in various documents in the administrative rec ord. I n a 2004 letter to Central States, for example, he stated that he had worke d as a city driver for Duro Ba g from May 1976 to October 1976 and ag ain from January

1977 to Aug ust 1977. 10No. 10-4259

Lewis v. Central Stat es, Se. & Sw. Areas Pension Fund et al.

L ocal 100 also repr esente d the employ ees at Br anch, L ewis may have joined the union pursuant to his employ

ment at B ranc h rathe r than a t Duro B ag . As with 1976, L ewis did not provide contempora neous documentation as to his work history betwee n May 25, 1977, when L ewis was hired full-time, and November 1977, when Duro Ba g beg an contributing to the pension plan on his behalf

. I nterna l Central States documents in the rec ord reve al that Central S t at es at t empt ed to deter mine whether L ewis could have worked a sufficie nt number of wee ks in this period to attain the additional service cre dit neede d to rea ch 25 y ear s. I t appar ently conclude d that any such calc ulations wer e too specula tive. L ewis does not specific ally addre ss this period in his appellate brief. C en t ra l States’s conclusion that L ewis was not a reg ular employ ee, and thus did not ear n contributory service cred i t , prior to November 1977 was the result of a multi-y ear proce ss that included two administ ra t i v e ap peals and was based on evidenc e in the administrative rec ord. Acc ording ly , we cannot hold that the decision to deny additional contribut ory service cre dit was arbitra ry or ca pricious. 8
III. CONCLUSION Be cause Central States’s decision to de ny L ewis additional contributory service cre dit wa s not arbitrar

y or ca pricious, we A FF I RM the judgment of the district court.

Be cause we hold that L ewis’s claim lacks merit, we do not addres s C entral States’s and 8 Duro B ag ’s ar g ument that his claim was bar red by the statute of limitations. 11