UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

TERRY JAREMKO, Plaintiff-Appellant,

v. ERISA ADMINISTRATIVE COMMITTEE, Defendant-Appellee. No. 12-3179 (D.C. No. 6:10-CV-01137-RDR-KGS) (D. Kan.)

ORDER AND JUDGMENT *

Before LUCERO , Circuit Judge, PORFILIO , Senior Circuit Judge, and MATHESON , Circuit Judge.
Terry Jaremko (“Jaremko”) appeals th e district court’s decision to grant defendant ERISA Administrative Comm ittee’s motion for judgment on the administrative record. Mr. Jaremko br ought his claims pursuant to 29 U.S.C. § 1132(a)(1) of the Employee Retirement In come Security Act of 1974 (ERISA). Exercising jurisdiction un der 28 U.S.C. § 1291 , we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 8, 2013 Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND Mr. Jaremko began his employment at Suns hine Biscuits on August 11, 1981. He participated in the company-sponsored retiremen t plan, which included a provision called “Golden 80.” Golden 80 provides full pension benefits when the participant’s age plus years of continu ous service equals eighty or more. On January 3, 1998, after approximately sixteen years of continuous service, Mr. Jaremko became an officer at the Reta il Wholesale and Department Store Union (“RWDSU”), a union then having a contract with Sunshine, which subsequently was purchased by Keebler, which in turn was purchased by Kellogg. 1 The union contract said that any employee-elected officer at RWDSU would be granted a leave of absence from the company and would reta in seniority during such leave. In 2009, after working at RWDSU for el even years, Mr. Jaremko sought to retire from Kellogg with full benefits under the Golden 80 provision. Kellogg’s ERISA administrator granted Mr. Jaremko onl y seventeen years of service, which did not qualify him for Golden 80. The administ rator pointed to a cl ause in Golden 80 that allows reinstatement of “continuous service” for an employee on leave only if he resumes employment within twelve months of leaving. Mr. Jaremko never resumed

1 The relevant contract and retirement provisions have remained the same since Mr. Jaremko began his employment at Suns hine in 1981. The employer, having changed ownership from Sunshine to Keeble r to Kellogg during the relevant time period, will be called Kellogg fo r the purpose of simplicity.- 3 - employment with Kellogg after leaving in 1998 to work for the union, and he therefore received continuous service credit only for the first year he was on leave. Mr. Jaremko appealed this decision to the company’s ER ISA Administrative Committee (“Committee”). Among other ar guments, Mr. Jaremko asserted that he was entitled to the same se rvice calculation that Adrian Loomis, a former Kellogg employee, received. Like Mr . Jaremko, Mr. Loomis took a leave of absence to work as a union officer for over a year. Unlike Mr. Jaremko, and despite his multi-year absence, Mr. Loomis received continuous service credit for the entire time he worked for the union and received full pension bene fits upon retirement. The Committee denied Mr. Jaremko’s appeal in April 2010. Mr. Jaremko then filed suit in the district court, which grante d judgment on the administrative record to the Committee. Mr. Jaremko now appeals. II. DISCUSSION Mr. Jaremko’s various arguments bo il down to whether Mr. Jaremko should have been granted full pension benefits under the Golden 80 provision of his retirement plan. A. Standard of Review We review a denial of ERISA plan be nefits under an arbitrary and capricious standard if the plan gives the administrator “discretiona ry authority to determine eligibility for benefits or to construe term s of the plan,” as the Kellogg plan does. See Kellogg v. Metro. Life Ins. Co ., 549 F.3d 818, 825 (10t h Cir. 2008) (internal- 4 - quotation marks omitted). De novo review may be appropriate if the determination process was not in substantial co mpliance with ERISA regulations. See Hancock v. Metro. Life Ins. Co ., 590 F.3d 1141, 1152 (10th Cir. 2009). Mr. Jaremko argues procedural error for the limited purpose of seeking a de novo standard of review. 2 He contends the administra tive review process contained substantial procedural defe cts warranting de novo review. Both Mr. Jaremko and the Committee devote considerable attenti on in their briefing to Mr. Jaremko’s allegations of procedural error. But even applying a de novo st andard, we conclude the administrator did not err in denying Mr. Jaremko Golden 80 benefits. B. Golden 80 Eligibility 1. The SPD and the Plan Mr. Jaremko contends that the Summa ry Plan Description (“SPD”), which summarizes the pension plan’s terms, should be enforced over the terms of the full pension plan (“Plan”) itself. Because the SPD states “continuous service” ends only upon retirement, termination, or death, Mr . Jaremko contends he lacked notice that the Plan states continuous service may be broken by taking leave. In other words, he asserts that the SPD and the Plan conflict and that the plan ad ministrator should not

2 Even if he were arguing the alleged pr ocedural errors warrant reversal and remand, that argument would be unavailing because he ha s not attempted to show prejudice. See DiGregorio v. Hartford , 423 F.3d 6, 16-17 (1st Cir. 2005) (“To be entitled to a remand, [the pl aintiff] must show prejudi ce in a relevant sense.”); see also Brimer v. Life Ins. Co. of North America , 462 F. App’x 804, 809 (10th Cir. 2012) (“courts can require a showing of prejudice due to an ERISA violation as a prerequisite to orde ring a remand.”).- 5 - be permitted to deny full benefits because Mr. Jare mko could reasonably have believed the SPD actually was the Plan. We disagree. First, the SPD and the Plan do not conflic t. The SPD states that, “generally,” continuous service ends when a participant retires, term inates his employment, or dies. The Plan contains a mo re detailed definition of “con tinuous service.” It notes that continuous service may be severed when an employee is absent for reasons other than retirement or terminati on. In such cases, severan ce occurs one year after the absence commenced. 3 The SPD, as its title indicates , provides a basic summary. The Plan describes what happens in circumstan ces like Mr. Jaremko’s leave of absence. Had the SPD fully described each provision and exception included in the Plan, it would not be a “summary” description. Second, even if the SPD could be read as conflicting with th e Plan, the Plan’s terms would control. The Supreme Court’s decision in CIGNA Corp. v. Amara held that SPDs should not be enforced over th e terms of a plan. 131 S. Ct. 1866, 1877 (2011) (noting that if SPD terms were enforced, plan ad ministrators might use more complex language in SPDs and thereby frust rate their purpose, which is to provide “clear, simple communication”). In Eugene S. v. Horizon Bl ue Cross Blue Shield of New Jersey , 663 F.3d 1124 (10th Cir. 2011) , we interpreted Amara as standing for

3 The Plan also provides that “[i]f a seve rance from service da te occurs and the person resumes active employment with th e Employer or an Affiliate before incurring a one-year period of severance, prio r Continuous Service shall be reinstated and the period of severance sh all be counted in Continuo us Service.” Aplt. App., Vol. 2 at 188.- 6 - the proposition that “the terms of [an] SPD are not enforceable when they conflict with governing plan documents.” Id . at 1131. Finally, we are not convinced that a reasonable person wo uld understand the SPD to be the Plan. The SPD states that it is only a summary of the Plan and “does not attempt to cover all the deta ils” of the Plan. Aplt. App ., Vol. 2 at 92. It further notes that the Plan text “will govern if any questions should arise as to its administration or interpretation.” Id . Further, the SPD st ates that retirement, termination, or death only “generally” e nd continuous service under the Plan. The word “generally” should have indicated to Mr. Jaremko that other circumstances can end continuous service under the Plan. The Plan was not improperly administered in this case. 2. Mr. Loomis Mr. Jaremko contends that the Plan wa s interpreted inconsistently because Mr. Loomis received full pens ion benefits despite having a nearly identical service history as Mr. Jaremko. Mr . Jaremko argues that becau se Mr. Loomis was credited continuous service years based on a different interpretation of the Plan, Mr. Jaremko should therefore be entitled to the same interpretation. Kellogg credited Mr. Loomis with c ontinuous service from 1961 until 1995 despite his apparently having worked as a union official from 1977 to 1980 and again in 1994. Under the Plan, Mr. Loomis’s leave from 1977 to 1980 should have severed- 7 - the “continuous service” peri od and made him ineligible for full benefits, just as Mr. Jaremko’s union service leave did for him. Rather than Kellogg’s having interpreted th e plan differently as to Mr. Loomis and Mr. Jaremko, it appears from the record that Mr. Loomis’s plan administrator was not aware of Mr. Loomis’s leave as a union official when his service was calculated. The Committee concluded that Mr. Jaremko was not entitled to the same benefits as Mr. Loomis because Mr. Loom is’s Golden 80 benefits were awarded based on factual error. Mr. Jaremko ar gues that this conclusion is based on speculation, but the evidence indicates that the plan administrator did not have a record of Mr. Loomis’s leave of absence when cal culating his benefits. The record indicates that Mr. Jaremko’s and Mr. Lo omis’s pension benefits were evaluated under the same standards. The outcomes were different because Mr. Loomis’s record before the plan administrator errone ously lacked reference to his leave period, while Mr. Jaremko’s leave period was in cluded. Applying the adage that two wrongs do not make a right, we conc lude that just because Mr. Loomis may have been granted full benefits in error doe s not mean Mr. Jaremko should be granted the same. Mr. Jaremko’s administrator cr edited his service by applying the express terms of the Plan. And under those terms, Mr. Jaremko was not eligible for Golden 80. The administrator did not err in denying his claim.- 8 - III. CONCLUSION The judgment of the distri ct court is affirmed. Entered for the Court,

Scott M. Matheson, Jr. Circuit Judge