The Honorable Lyle E. Strom, United States District Judge for 1

the District of Nebraska, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2063

___________

Curtis Duffie, *

*

Plaintiff-Appellant, *

*

v. * Appeal from the United States

* District Court for the

Deere & Company; The Disability * Northern District of Iowa.

Benefit Plan for Hourly and *

Incentive Paid Employees for * [PUBLISHED]

Deere & Company, *

*

Defendants-Appellees. *

___________

 Submitted: December 13, 1996

 Filed: April 9, 1997

___________

Before BOWMAN and LAY, Circuit Judges, and STROM, District Judge. 1

___________

PER CURIAM.

Curtis Duffie brought this action against his former employer, Deere

& Company, pursuant to 29 U.S.C. § 1132, part of the Employee Retirement

Income Security Act (ERISA), 29 U.S.C. § 1101 et seq. Duffie appeals the

district court’s decision to affirm the Plan Administrator’s denial of

disability benefits under Deere’s Plan for Hourly and Incentive Paid

Employees.
Although Deere raises the jurisdictional argument that Duffie 2

failed to exhaust his remedies, we agree with the district court’s

rejection of such a claim on the ground that Deere, notwithstanding

the failure to exhaust, acquiesced in Duffie’s appeal procedure.

2

The district court affirmed Deere’s denial of benefits in a cursory

opinion, finding that Duffie was not unable to perform and attend his job

due to any sickness or injury. The court concluded that the “plaintiff

failed to prove by a preponderance of the evidence that he was totally

disabled within the meaning of the Plan prior to the termination of his

employment.” Duffie v. Deere & Co., No. C93-1025, slip op. at 2-3 (N.D.

Iowa Mar. 22, 1996).

Though Deere argues otherwise, the Plan Administrator’s decision

should not be reviewed under the arbitrary or capricious standard. That

standard is used only when a plan administrator has discretionary authority

to determine eligibility for benefits or to construe the terms of the plan.

Firestone Tire & Rubber v. Bruch, 489 U.S. 101, 115 (1989). The plan here

does not provide the Plan Administrator with this power. The district

court properly reviewed the claim de novo, making findings of fact and

conclusions of law. We review the district court’s findings of fact

(which, in this case, includes only one finding) under the clearly

erroneous rule. Greater Kan. City Laborers Pension Fund v. Superior Gen.

Contractors, Inc., 104 F.3d 1050, 1054 (8th Cir. 1996).2

Background

Curtis Duffie had been employed in various positions at Deere for

twenty-one years, when in 1988 Deere terminated his employment, citing

Duffie’s chronic tardiness and absenteeism as its reason. From 1967

through 1988, the term of Duffie’s employment with Deere, he repeatedly

missed work, most often for medical reasons. Deere’s “Absence Occurrences”

chart reflects that Duffie took approximately 
These figures are rough but conservative approximations from 3

Deere’s chart. Duffie’s brief estimates that he “was on medical

leave for approximately 1400 days from 1975 through 1988 due to a

variety of medical problems.” Appellant’s Br. at 3. The brief

also notes that while this number includes non-work days such as

weekends and holidays, it does not include shorter-term absences.

Id. at 3 n.1. Apparently, the “Absence Occurrences” chart sets

out only Duffie’s medical leave, and not his individual sick days

or tardiness.

3

194 weeks of medical leave: thirty-two weeks for injuries and pain in his

back, neck, and shoulders; thirty-one weeks for stomach problems; nineteen

weeks for elbow surgery; thirteen weeks for depression; twelve weeks for

hypertension; eleven weeks for a jaw fracture; ten weeks for depression

headaches; eight weeks for foot surgery; seven weeks for carpal tunnel

surgery; five weeks for headaches; four weeks for rib surgery; four weeks

for a burned hand; and thirty-eight weeks for miscellaneous illnesses and

reasons. App. at 243. Duffie’s medical records show that at the time of 3

his termination in 1988, he suffered from arthritis, fibromyalgia (a

chronic musculoskeletal pain syndrome), neuropathy and carpal tunnel

syndrome (both syndromes affecting the nerves), headaches, depression,

substance abuse (alcoholism), and Post Traumatic Stress Disorder.

In December 1981, Deere held an “unemployable” conference with

Duffie, where Duffie was told his absenteeism rate was fifty percent, and

that he needed to “get his medical problems under control.” Record of

Unemployable Conference (Dec. 11, 1981), App. at 233. A Deere

representative told Duffie that if his attendance did not improve, he would

be terminated. Id. When the absences continued, a Deere representative

held a second unemployable conference in March 1984. The representative

told Duffie that his absenteeism rate was fifty-three percent, and if

absenteeism continued, “a third conference would eventually be held and at

that 
4

time a disciplinary action hearing would be convened and he would be

terminated.” Record of Unemployable Conference (March 12, 1984), App. at

234. In March 1985, Deere management conducted another conference with

Duffie, which was not termed an unemployable conference, but rather was

held to “review [Duffie’s] absenteeism and current status.” Record of

Conference (March 14, 1985), App. at 235. At that meeting, Duffie

expressed his desire to enter an inpatient alcohol treatment program, but

management told him that outpatient treatment would be “best suited to his

current situation” because of his absenteeism rate. Id. Deere terminated

Duffie from work in April 1987, but rehired him under a “last chance

agreement” in August 1987. Under the agreement, Duffie could return to

work on probationary status, but with the understanding that continued

attendance problems would result in termination. He missed 170.75 hours

of work after signing this agreement, and was finally terminated June 22,

1988, due to his “accumulation of absences.” Record of Disciplinary Action

(June 22, 1988), App. at 239, 241.

In March 1992, Duffie sought disability benefits under Deere’s

Disability Benefit Plan for Hourly and Incentive Paid Employees (the Plan).

In June 1992, Deere denied Duffie’s application for benefits. Duffie

requested the United Automobile, Aerospace and Agricultural Implement

Workers of America (the Union), to which he had belonged while he was

employed at Deere, to appeal the decision. The Union refused. Deere then

gave Duffie permission to appeal individually to the Plan Administrator.

The Plan Administrator denied Duffie’s appeal, determining that none of his

conditions, “alone or coupled with others,” prevented Duffie from doing his

job. Duffie argued to the Plan Administrator that despite his apparent

ability to perform his job, he was, due to his health problems, unable to

attend his job, and was thereby disabled under the Plan. The Plan

Administrator rejected this argument, 
5

concluding that even “without considering absences related to illness

and/or injury, Claimant had a deplorable attendance record -- a record

justifying disciplinary action under the circumstances of his case.”

Review of Denied Claim for Disability Benefits (March 31, 1993), at 16.

According to the Plan Administrator, Duffie’s absences were due not to his

various maladies, but instead to his “irresponsibility.” Id. at 18. 

Findings of the District Court

Under Federal Rule of Civil Procedure 52(a), trial courts should and

must “state legal and factual conclusions sufficient to give an appellate

court a clear understanding of the grounds of its decision.” White Indus.,

Inc. v. Cessna Aircraft Co., 845 F.2d 1497, 1499 (8th Cir. 1988). If an

appellate court does not know what facts the trial court took into

consideration in drawing its conclusions, its findings become suspect. See

Atlantic Thermoplastics Co. v. Faytex Corp., 5 F.3d 1477, 1479 (Fed. Cir.

1993) (remanding because the district court’s findings were “too conclusory

and sparse” to provide a factual basis for appellate review); EEOC v.

United Va. Bank/Seaboard Nat’l, 555 F.2d 403, 406 (4th Cir. 1977) (holding

that appellate review is precluded when “the trial court provides only

conclusory findings, illuminated by no subsidiary findings or reasoning on

all the relevant facts”). 

The only critical fact the district court found states as follows:

“Plaintiff was not, by sickness or injury, rendered unable to attend and

perform the duties of his occupation prior to his termination from

employment on June 22, 1988.” Duffie v. Deere & Co., No. C93-1025, slip

op. at 2 (N.D. Iowa Mar. 22, 1996). Because the district court provided

no support or additional findings, we hold that this finding is clearly

erroneous. The 
The record also indicates that Duffie’s musculoskeletal

4

difficulties caused him pain when he was working, and that his work

as a forklift driver exacerbated the pain. See, e.g., App. at 46

(setting out Duffie’s testimony).

6

record is overwhelmingly contrary to the district court’s conclusory

finding.

The record shows that Duffie had approximately forty-five doctor

visits between July 23, 1987 (the date of the last chance agreement), and

June 22, 1988 (the date he was terminated). Of the total 170.75 hours of

documented absences occurring after the last chance agreement, the record

is undisputed that 132.5 hours were related to illness, including 36.5

hours missed for the flu and 88 hours missed for a broken ankle. Duffie

was ultimately terminated for his “accumulation of absences.” The record

is replete with corroboration of Duffie’s visits to physicians -- often the

Deere physician -- during this period. Duffie saw a Deere physician for

degenerative ailments related to knee, elbow, back and neck problems

throughout February 1988. Duffie phoned a Deere physician concerning his

shoulder pain on June 22, 1988, the day of his discharge. Deere

consistently referred to Duffie’s medical problems when discussing his

absenteeism. The medical record in this case is voluminous; there can be 4

little reasonable doubt that Duffie’s absenteeism was causally related to

Duffie’s numerous medical problems. 

Additionally, there should be little doubt that the district court’s

conclusion that Duffie was not disabled within the meaning of the Plan

directly followed from its finding that he was not rendered unable to

attend his job by reason of his illnesses. Since the underlying factual

finding is clearly erroneous, we think it procedurally judicial to remand

the case to the district court to decide again the ultimate issue of

whether Duffie is disabled 
We are cognizant that the Plan Administrator conceded that

5

the test for disability under the Deere Plan is substantially the

same as the standard followed by the Social Security

Administration. All parties agree that upon the date of

termination, Duffie had been found to be “totally disabled” by the

Social Security Administration, and not capable of undertaking

substantial gainful activity. We are also cognizant, however, that

Deere was not privy to that litigation, and although the award of

benefits and finding of the Social Security Administration is

admissible evidence in this case to support Duffie’s claim, it is

not binding against Deere.

7

under the Plan, making further factual findings to support its

determination. For us to proceed to the ultimate issue of disability with

no factual findings as our basis would violate this court’s function, which

is to review, rather than to make, findings of fact. See Atlantic

Thermoplastics, 5 F.3d at 1479 (“This court must review factual findings

made by the district court; it may not guess at findings left unmade.

Fact-finding by the appellate court is simply not permitted.”) (citing

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).5

Thus, we remand to the district court for a de novo review of the

issue of Duffie’s disability under the Plan as of the date of his last

termination. The court must apply the law of the case, bearing in mind

that this court holds the earlier determination that Duffie was not

rendered unable to attend his job to be clearly erroneous.

The district court shall make its findings and certify such findings

within ninety days to the clerk of this court.

IT IS SO ORDERED.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.