F I L E D

United States Court of Appeals

Tenth Circuit

MAR 5 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID B. CIRULIS,

Plaintiff - Appellant,

v.

UNUM CORPORATION

SEVERANCE PLAN, UNUM

CORPORATION OFFICER

SEVERANCE PLAN, and ROBERT

CORNETT,

Defendants - Appellees.

No. 01-3362

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 00-2178-CM)

Patrick K. McMonigle (John F. Wilcox, Jr., with him on the briefs), of Dysart

Taylor Lay Cotter & McMonigle, P.C., Kansas City, Missouri, for PlaintiffAppellant.

Morris J. Nunn of Stinson Morrison Hecker, L.L.P., Kansas City, Missouri, for

Defendants-Appellees.

Before HENRY , McWILLIAMS , and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.
1

 The clause stated: 

You further agree that for a period of two years after your employment

termination from UNUM, you will not directly or indirectly solicit,

assist, or induce any of UNUM’s sales representatives, other

employees, or brokers to terminate their relationships with UNUM or

to become employed by or associated with another insurance company. 

You acknowledge and agree that UNUM has a valid need to protect its

business by prohibiting such solicitation and that these restrictions are

both reasonable and necessary to protect UNUM’s business. 

(1 Appellant’s App. at 109.)

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This case requires resolution of the following question: Does the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., authorize a

plan administrator to condition payment of severance benefits on an employee’s

assent to a non-solicitation provision not included on the face of a plan? David

B. Cirulis, formerly employed with UNUM Life Insurance Company (“UNUM”),

brought suit to recover severance payments denied to him after he refused to sign

a General Agreement and Release (“Release”) including a non-solicitation clause. 

This clause prohibited Cirulis from soliciting UNUM employees or brokers to

terminate their relationships with UNUM or become employed by another

insurance company. 1 The district court granted summary judgment to UNUM,

dismissed Cirulis’s claims, and denied his subsequent motion for rehearing. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse. 
-3-

I

In November 1998, after Cirulis had been employed with UNUM for

approximately thirteen years, UNUM announced a merger. Several years prior to

this, UNUM had established severance plans covering Cirulis. Under the terms of

these plans, the plan administrator, Robert Cornett, retained discretion to

determine benefit rights, eligibility, timing and amount of payments, and to

construe and interpret the terms of the plan. In order to receive benefits,

employees were required to sign a “General Agreement and Release.” Neither

party disputes that the severance plans at issue in this case are governed by

ERISA.

In April 1999, Cirulis learned that his position would be eliminated as a

result of the merger and on July 1, 1999, the effective date of the merger, he was

formally terminated. On June 24, 1999, Cirulis received a copy of the Release for

the first time, which included the non-solicitation clause as well as a waiver of

legal claims. On August 4, 1999, UNUM informed Cirulis that he would be

eligible only for employee-level severance benefits but not for enhanced officerlevel benefits. Cirulis obtained counsel, and repeatedly objected to and requested

negotiations regarding the non-solicitation clause. Eventually, he appealed to the

plan administrator both as to UNUM’s refusal to amend the non-solicitation
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clause and as to the calculation of his benefits. Nonetheless, on February 22,

2000, UNUM accused Cirulis of violating the non-solicitation provision and, on 

April 20, informed him that he was no longer eligible for either level of severance

benefits in light of his refusal to sign the Release and alleged violation of its

terms.

In response, Cirulis filed suit in federal district court under 29 U.S.C.

§ 1132, arguing that he was entitled to officer-level benefits notwithstanding his

rejection of the non-solicitation provision and that UNUM’s repeated failure to

provide him with documents relating to the severance plan subjected UNUM to

statutory penalties. On summary judgment, the district court dismissed the

claims, ruling that (1) Cirulis’s failure to sign the Release justified UNUM’s

denial of benefits, (2) conditioning benefits on the non-solicitation provision was

a reasonable exercise of the plan administrator’s discretion, and (3) Cirulis failed

to establish the bad faith required to recover statutory penalties. Cirulis v.

UNUM Corp. Severance Plan , No. 00-2178-CM (D. Kan. Sept. 5, 2001). The

district court declined to address the question of whether Cirulis was entitled to

officer-level benefits rather than employee-level benefits, concluding that his

refusal to sign the Release disqualified him under either plan. Id.

On appeal, Cirulis challenges the district court’s underlying summary

judgment order, arguing that the plan administrator acted arbitrarily and
2

 Cirulis also contends that the district court erred in denying his motion

for rehearing under Rule 59(e) because the summary judgment order effectively

denied his statutory right to judicial review. Because, as discussed below, we

decide that the district court erred in granting summary judgment, we need not

address this issue. 

3

 UNUM’s plan provides: “The Plan Administrator shall have the full

discretion to make determinations as to the right of any person to a benefit in this

Plan. The Plan Administrator shall have the power to construe and interpret the

terms of this Plan, decide all questions of eligibility, and determine the amount

and time of payment of any benefits due under this Plan.” (1 Appellant’s App. at

79.) 

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capriciously in conditioning the payment of benefits on the non-solicitation

provision and in permitting amendments to the Release for three other employees

while refusing to allow any amendments as to his Release. 2

 

II

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

standard used by the district court. Save Palisade Fruitlands v. Todd, 279 F.3d

1204, 1209 (10th Cir. 2002). When a beneficiary challenges a denial of ERISA

benefits under § 1132(a)(1)(B) and the plan confers discretion on the plan

administrator to determine eligibility and to construe the plan’s terms, as here,3

the reviewing court applies an arbitrary and capricious standard. Kimber v.

Thiokol Corp., 196 F.3d 1092, 1097 (10th Cir. 1999). “When reviewing under the

arbitrary and capricious standard, . . . [t]he [administrator’s] decision will be

upheld unless it is not grounded on any reasonable basis. The reviewing court

need only assure that the administrator’s decision fall[s] somewhere on a
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continuum of reasonableness—even if on the low end.” Id. at 1098 (quotations

omitted). 

Noting that the non-solicitation clause did not appear on the face of the

severance plan, Cirulis maintains that the plan administrator exceeded the bounds

of his discretion in conditioning payment of benefits on assent to this provision. 

ERISA mandates that: “[e]very employee benefit plan shall be established and

maintained pursuant to a written instrument,” 29 U.S.C. § 1102(a)(1), and that

plan administrators provide benefits “in accordance with the documents and

instruments governing the plan,” § 1104(a)(1)(D). “[A] written plan is to be

required in order that every employee may, on examining the plan documents,

determine exactly what his rights and obligations are under the plan.” CurtissWright Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995) (explaining the rationale

for ERISA writing requirements) (quotation omitted). Consequently, courts have

held that the imposition of new conditions that do not appear on the face of a plan

constitutes arbitrary and capricious conduct. Garratt v. Walker, 164 F.3d 1249,

1255 (10th Cir. 1998); Blau v. Del Monte Corp., 748 F.2d 1348, 1356 (9th Cir.

1985). 

UNUM correctly points out that the severance benefits at issue in this case

constitute a welfare-benefit plan rather than a pension plan under ERISA. 

Massachusetts v. Morash, 490 U.S. 107, 116 (1989). Although welfare-benefit
-7-

plans are not subject to all ERISA requirements that govern pension plans, Chiles

v. Ceridian Corp., 95 F.3d 1505, 1510 (10th Cir. 1996), we note that both

welfare-benefit and pension plans are subject to the ERISA reporting-anddisclosure requirements discussed in Curtiss-Wright, 514 U.S. at 83, as well as to

ERISA fiduciary rules and enforcement measures. 29 U.S.C. § 1003 (crossreferencing §§ 1051, 1081, and 1101, which exempt welfare-benefit plans from

participation and vesting requirements and funding requirements, but not from

reporting and disclosure requirements, fiduciary requirements, and enforcement

measures).

As welfare-benefit plans are exempt from ERISA’s minimum participation,

vesting, and funding requirements, however, employers may unilaterally enact

amendments to them when the face of the plan reserves this authority. CurtissWright, 514 U.S. at 78. However, an employer seeking to exercise this right must

satisfy two conditions. First, it must do so in accordance with written amendment

procedures provided on the face of the plan. Krumme v. Westpoint Stevens, Inc.,

143 F.3d 71, 84 (2d Cir. 1998); Miller v. Coastal Corp., 978 F.2d 622, 624 (10th

Cir. 1992). Second, it must provide notice of the amendment to participants and

beneficiaries within “210 days after the end of the plan year in which the change

is adopted.” 29 U.S.C. § 1024(b)(1). In this case, however, UNUM does not

argue that the non-solicitation clause constituted an amendment to the original
-8-

plan; rather, it argues that the clause was part of the original plan. In the absence

of briefing by either party on this issue, we decline to hold that the nonsolicitation clause constituted a permissible amendment to the original plan. 

Rather, we proceed to inquire whether the severance plan as originally

promulgated conditioned payment of benefits on assent to a non-solicitation

provision. UNUM contends that the plan’s two references to an “Agreement and

General Release” that would need to be signed prior to the receipt of benefits

suffices to incorporate all Release provisions into the severance plan. Page two

of the severance plan states: “If an employee decides not to sign the Agreement

and General Release required under this Plan (see Release below), then that

employee will not be eligible to receive payment or other benefits under this

Plan.” (1 Appellant’s App. at 71.) Page seven of the plan provides: “No

employee will get a payment or other benefit under this Plan unless that employee

signs an Agreement and General Release (‘Release’). That Release includes

important terms that the employee should consider before making the decision to

sign it.” (1 id. at 76.) Beyond these two oblique references, the plan neither

mentions the Release, nor describes its terms. 

Cirulis did not become informed of the terms of the Release until June 24,

1999, when he received a copy of it for the first time, two and one-half months

after he learned his position would be terminated and one week before he was
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formally terminated. The Release included a clause prohibiting Cirulis from

soliciting UNUM employees or brokers to terminate their relationships with

UNUM or work for another insurance company. Until he received a copy of the

Release, years after the severance plan had been established, Cirulis had no notice

that severance benefits would be conditioned on this provision. By failing to

provide notice to employees that severance benefits would be conditioned on a

non-solicitation provision, the plan administrator’s conduct in this case

contravenes ERISA’s mandate that employee-welfare plans be written so as to

provide employees with notice of their rights and obligations under the

plan. Curtiss-Wright, 514 U.S. at 83. 

Authorities cited by UNUM as providing succor for its position, Lockheed

Corp. v. Spink, 517 U.S. 882 (1996); Burrey v. Pac. Gas & Elec. Co., 159 F.3d

388 (9th Cir. 1998); Jefferson v. Vickers, Inc., 102 F.3d 960 (8th Cir. 1997); and

Friz v. J&H Marsh & McLennan, Inc., 2 Fed. Appx. 277 (4th Cir. 2001), do not

persuade us to adopt a contrary rule. UNUM argues that these cases stand for the

proposition that a plan administrator may condition benefit payments on terms

that do not appear on the face of a benefit plan. Such a rule would defeat the

express purpose of ERISA. “Nothing in ERISA requires employers to establish

employee benefit plans. Nor does ERISA mandate what kind of benefits

employers must provide if they choose to have such a plan. ERISA does,
-10-

however, seek to ensure that employees will not be left empty-handed once

employers have guaranteed them certain benefits.” Lockheed, 517 U.S. at 887

(citations omitted). Each of the four cases is clearly distinguishable from the

present case. 

In Lockheed Corp. v. Spink, an employee filed suit under ERISA alleging

that his former employer, Lockheed, violated its fiduciary duties in conditioning

early retirement benefits on his waiver of legal claims. 517 U.S. at 888–90. In an

earlier version of the plan, Lockheed provided no retirement benefits to anyone

hired when they were over age sixty. Id. at 885. In conformity with newly

enacted antidiscrimination laws, however, Lockheed amended its plan in 1988 to

provide retirement benefits regardless of the employee’s age when hired. Id. As

an incentive, however, Lockheed provided enhanced benefits for early retirement,

in exchange for the employee’s waiver of legal claims against Lockheed. Id.

Although Spink was eligible for the early retirement program, he declined to

participate because he did not want to waive his legal claims. Id. at 885–86. On

review, the Supreme Court rejected Spink’s argument that the early retirement

plan violated Lockheed’s fiduciary duty under ERISA: “We thus hold that the

payment of benefits pursuant to an amended plan, regardless of what the plan

requires of the employee in return for those benefits, does not constitute a
4

 Lockheed is also distinguishable from the present case in that the

challenged provision in Lockheed involved a waiver of legal claims. In this case,

(continued...)

-11-

prohibited transaction [within the meaning of ERISA § 406(a)(1)(D)].” Id. at 895.

Lockheed is not implicated in the instant case because nothing in Lockheed

suggests that the challenged provision did not appear on the face of the plan as

properly amended, nor is there any suggestion that Spink had no prior notice of it. 

In addition, the Supreme Court’s holding in Lockheed was limited to interpreting

the term “prohibited transaction” as used in § 406(a)(1)(D). In contrast, Cirulis

does not claim that the plan administrator’s inclusion of the non-solicitation

condition constituted a “prohibited transaction” in violation of the administrator’s

fiduciary duties. Rather, he claims that the non-solicitation clause constituted an

impermissible condition to payment of benefits because it was not included on the

face of the plan. 

Lockheed differs from the present case in a further respect. Even if the

waiver provision in Lockheed did not appear on the face of the plan, the condition

in Lockheed nevertheless left the standard benefits under the plan intact. Were an

employee to reject the waiver condition, he would remain entitled to the standard

retirement package, although he would not receive enhanced early-retirement

benefits. Id. at 885–86. In the instant case, in contrast, assent to the challenged

conditions was required in order to receive any benefits.4 
4

(...continued)

Cirulis challenges not only the waiver in the Release, but also the non-solicitation

provision. Even if we were to accept the proposition that an employer may

condition severance payments on a waiver of legal claims that does not appear on

the face of the plan, it does not necessarily follow that non-solicitation clauses

should be treated identically. 

-12-

UNUM also cites Jefferson v. Vickers, Inc. in support of its position. In

that case, William Jefferson participated in a pension plan established by his

employer, Vickers, which provided for the vesting of pension benefits upon the

employee’s having worked at Vickers for five years. 102 F.3d at 962. When

Jefferson was terminated, he had only been employed by Vickers for four years,

eight months, and fifteen days. Id. Vickers offered to extend Jefferson’s

severance payments, which would permit his pension benefits to vest, in exchange

for Jefferson’s release of any legal claims against Vickers. Id. Jefferson refused

and subsequently filed suit against Vickers, alleging that Vickers intentionally

interfered with his pension rights in violation of section 510 of ERISA. Id. In

concluding that Jefferson failed to establish Vickers’ intent to interfere, the

Second Circuit noted: “An employer does not violate ERISA when it conditions

the receipt of early retirement benefits upon the participants’s waiver of

employment claims.” Id. at 964 (citing Lockheed, 517 U.S. at 894–95). 

In Jefferson, the Second Circuit was not faced with and did not discuss the

question presented in this case—whether an employer may condition severance
5

 In addition, as in Lockheed, the challenged condition was a waiver of

legal claims, not a non-solicitation clause. 

-13-

payments on a non-solicitation provision when the provision did not appear on the

face of the plan. Moreover, in Jefferson, the waiver of legal claims was a

condition for benefits to which Jefferson would not otherwise be entitled, rather

than a condition for benefits that were already promised him. Jefferson may thus

be distinguished from the instant case.5 

Similarly, Burrey v. Pacific Gas & Electric Co. fails to persuade us to adopt

UNUM’s position. In Burrey, clerical workers employed on a temporary basis

with PG&E sued for benefits promised under PG&E’s severance plan. 159 F.3d

at 390–91. In rejecting this claim, the Ninth Circuit held that the employees

lacked standing because they could not show they were beneficiaries to the

severance plan in light of their refusal to sign the required Severance and

Agreement Release. Id. at 395–96. As in the present case, PG&E’s severance

plan indicated that benefits would be conditioned on employees’ signing a release. 

Importantly, however, there was nothing to suggest that the Burrey employees

lacked notice of the terms of the release form. Burrey does not discuss whether

an employer may condition benefits on employees’ assent to Release terms when

the employees had no prior notice of these terms. 
6

 Although neither party raised the issue in their briefs, we acknowledge

the possibility that the plan administrator’s actions may be subject to the slidingscale of deference we articulated in Kimber, 196 F.3d at 1097. In Kimber, we

held that when the plan administrator operates under a conflict of interest,

although “[t]he standard always remains arbitrary and capricious, . . . the amount

of deference present may decrease on a sliding scale in proportion to the extent of

conflict present.” Id. at 1097 (quotation omitted). Evidence of a conflict of

interest requires “proof that the plan administrator’s dual role jeopardized his

impartiality.” Id. (quotation omitted). “[T]he mere fact that the plan

administrator was a [company] employee is not enough per se to demonstrate a

conflict. Rather, a court should consider various factors including whether: (1)

the plan is self-funded; (2) the company funding the plan appointed and

compensated the plan administrator; (3) the plan administrator’s performance

reviews or level of compensation were linked to the denial of benefits; and (4) the

provision of benefits had a significant economic impact on the company

administering the plan.” Id. (quotation and citation omitted). 

More recently, in Pitman v. Blue Cross & Blue Shield of Okla., 217 F.3d

1291, 1296 (10th Cir. 2000), we suggested that when the plan administrator and a

third-party insurer are the same entity, this alone may suffice to show a conflict of

(continued...)

-14-

Finally, UNUM cites an unpublished opinion, Friz v. J&H Marsh &

McLennan, Inc., in which the Fourth Circuit upheld the conditioning of severance

benefits on employees’ assent to a non-solicitation clause. Given that Friz is

unpublished, and that the facts did not present an opportunity for the Fourth

Circuit to indicate how it might rule on the issue squarely before us, we do not

consider it further. 

Because we conclude that the plan administrator acted arbitrarily and

capriciously in conditioning payment of severance benefits on assent to a nonsolicitation provision of which employees had no notice,6

 we do not address
6

(...continued)

interest. Pitman’s holding was expressly limited to exclude situations in which a

plan is self-funded, i.e., where an employee of the company administers the plan. 

Id. at 1296 n.4. Unlike an insurer, an employer (or its agent-employee) does not

usually derive its profit solely from the administration of the benefits plan. Id. 

In this case, the plan administrator is an employee of UNUM, rather than a

third-party insurer. This suggests that Pitman may not apply. However, as

UNUM, unlike most other employers, presumably derives profits from

administering employee benefit plans for other companies, it is arguable that the

identity of the plan administrator as a UNUM employee may, standing alone,

provide sufficient evidence of a conflict warranting a reduced level of deference. 

Nevertheless, we need not decide this issue, as we conclude that even under the

most deferential version of the standard, the plan administrator’s actions in this

case were arbitrary and capricious. 

7

 UNUM suggests that Cirulis has waived his claim to officer-level rather

than employee-level benefits due to his failure to present this issue on appeal. 

However, Cirulis could not have raised this argument on appeal because the

district court did not address the merits of this claim, reasoning that Cirulis’

refusal to sign the Release disqualified him from either plan.

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Cirulis’s argument that the plan administrator acted arbitrarily and capriciously in

refusing to negotiate the terms of the Release with Cirulis when he was willing to

do so for three other employees. 

III

We REVERSE the grant of summary judgment and REMAND for further

proceedings consistent with this opinion. On remand, the district court must

determine whether Cirulis was entitled to officer-level rather than employee-level

benefits.7