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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 01-2055

JOSEPH CHICHELO, Appellant

v.

HOFFMANN-LA ROCHE INC., a member of the Roche Group

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 97-cv-05344) District Judge: Hon. William G. Bassl er

Submitted Under Third Circuit LAR 34.1( a) February 4, 2002

Before: SLOVITER, AMBRO, Circuit Judges, and POLLAK, District Judge

(Filed February 5, 2002)

MEMORANDUM OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Joseph Chichelo, who had been employ ed by Hoffman-La Roche Inc. ("Roche") for twenty-seven years, advised his super visor in writing on May 23, 1994 that he intended to voluntarily retire on June 10, 1994. That was his last day of work, and his retirement became effective as of July 1, 1994. La ter that year, Roche announced a voluntary early retirement program (a "VERP"). Chi chelo sued Roche under the Employee Retirement Income Security Act of 1974 ("E RISA"), Pub. L. No. 93- 406, 88Stat. 829 (codified as amended in 29 U.S.C. 1001-14 61 and in scattered

sections of 26 U.S.C. (2001)), claiming Roche violated its fiducia ry duty as an ERISA plan administrator by failing to disclose the VERP to hi m in response to his specific inquiries. Determining that Roche was not "seriously consideri ng" a VERP when Chichelo inquired about that possibility, the District Court entered summary judgment for Roche. On appeal, Chichelo argues the District Court' s application and interpretation of "serious consideration" were erroneous as a matter of law, and that genuine issues of material fact were still in dispute on that issue. This court has jurisdiction pursuant to 28 U.S .C.  1291. We will affirm. I. Because we write solely for the parties, we ne ed not set forth a detailed recitation of the background for this appeal and will limit ou r discussion to resolution of the issues presented. This court gives plenary review to a district court's grant of summary judgment, reviewing the facts in the light most favorable to the party against whom judgment was entered. Beers-Capital v. Whetzel, 256 F.3d 120, 1 30 n.6 (3d Cir. 2001). "[S]ummary judgment will not lie if the dispute about a materi al fact is 'genuine,' that is, if the evidence is such that a reasonable jury could retur n a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Under ERISA, employers who administer their em ployees' retirement plans breach their fiduciary duty if they materially mislead emp loyees who inquire regarding possible changes in those plans. Fischer v. Phila. Elec. Co ., 96 F.3d 1533, 1538 (3d Cir. 1996) ("Fischer II"). An employer makes a material misre presentation when it responds to employee inquiries by representing it is not consid ering a change to its pension plan, if it is in fact giving "serious consideration" to a chan ge. Id. Chichelo made numerous inquiries of Roche exec utives asking whether Roche planned to implement a VERP. All of the executives responded that they knew of no such plans. Chichelo's last such inquiry was made on May 10, 1994. The District Court construed a statement in Ch ichelo's May 23, 1994 resignation letter that "[i]f Roche should prefer to elect that I retire early, perhaps there could be somecompensatory program," as a last inquiry whether a VERP was being

considered. App. at 16. Roche argues that "in his resignation letter C hichelo did not inquire about whether the company might offer a VERP. What he did do was to ask for an individualized 'compensatory package.'" Br. of Appellee at 33 n.2 0. Although on a motion for summary judgment the District Court was obligated t o consider the evidence in the light most favorable to the nonmovant, see, e.g., Meyer v . Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), we believe the District Cou rt adopted an unnecessarily generous view of what constitutes an employee inquiry. The "serious consideration" standard is designed to protect an employee by ensuring she has "material information on which [she] can rely in making employment decisions." Fi scher II, 96 F.3d at 1539. By sending a resignation letter, Chichelo had already made his employment decision. Chichelo's last explicit inquiry was May 10, but even if it was May 23, as the District Court found, the result would not be different. II. The appropriateness of summary judgment for Ro che turns on whether there is a genuine issue of material fact whether Roche gave " serious consideration"
to implementing a VERP prior to May 23. An employer g ives "serious consideration" to changing its plan "when (1) a specific proposal (2) is being discussed for purposes of implementation (3) by senior management with the au thority to implement the change." Fischer II, 96 F.3d at 1539. A specific proposal follows the preliminary st eps of "gathering information, developing strategies, and analyzing options." Id. at 1539-40. At best, Roche may have been involved in these preliminary steps sometime a fter May 10. On May 1, 1994, Roche had signed a merger agreement with Syntex, another drug manufacturer. In preparing to consummate that agreement, Roche had begun to plan for the integration of the two companies. Roche executives contemplated that inte gration would entail dislocating some employees. The earliest evidence Chichelo provided is tha t Patrick Zenner, Roche's President and CEO, appointed a task force in "late spring" to study the integration of the Roche andSyntex workforces. No evidence supports Chichelo's contention that one of

this task force's mandates was to implement a VERP. It is on ly sheer speculation by Chichelo, and as such it is insufficient to create a genuine issue of fact whether a specific proposal existed. Chichelo points to a number of documents as ci rcumstantial evidence that Roche seriously considered a VERP prior to his last inqui ry. First, Chichelo points to two memos from Zenner. The first memo, dated May 13, 1 994, contained a "breakdown of the number of Syntex employees by business and func tion units." App. at 377. The second memo, dated May 26, 1994, recounts advice fr om competitors' CEOs regarding post-merger management, such as that one should "ma ke decisions as quickly

as you can." App. at 379. Neither of these memos create a genuine issue whether a specific proposal for a VERP existed at Roche prior to May 2 3. The other evidence is equally unavailing. On June 9, 1994, the consultants Roche had retained the preceding year forwarded a brief s ummary of recent early retirement windows for other pharmaceutical companies to a man ager in Roche's trust funds department. In mid-June, Roche sent a survey regar ding VERPs to a number of other pharmaceutical companies. On July 20, Roche retain ed new consultants to assist in its integration with Syntex. On July 21, Roche's Gener al Counsel, "[i]n response to [Zenner's] request," provided Zenner with a memoran dum outlining legal risks surrounding employment issues associated with the R oche/Syntex integration. That memo focused primarily on VERPs. App. at 382. All of this suggests there was growing momentu m at Roche in favor of implementing a VERP. None of this evidence, howeve r, creates a genuine issue of fact that a specific plan to implement a VERP existed at Roche prior to May 23, 1994. Nor does the evidence create a material issue of fact that a VERP was being considered by decision makers at Roche for purposes of implementation prior to May 23. The discussion-for-implementation factor "recognize s that a corporate executive can order an analysis of benefits alternatives or commi ssion a comparative study without seriously considering implementing a change in bene fits. Preliminary stages may alsorequire interaction among upper level management, c ompany personnel, and

outside consultants." Fischer II, 96 F.3d at 1540. At bes t, the evidence discussed above suggests that sometime in June Roche entered this preliminar y stage of evaluating a
VERP. We can understand the disappointment and frust ration of a twentyseven year employee who could have a much more favorable pensi on had he delayed his retirement by several months. But Chichelo was aware that the re was talk about a possible merger and could have decided to delay his retirement whil e the internal changes that merger caused had been fully worked out. Under the law en unciated by this court, the employee cannot recover under ERISA for failure of the emplo yer-plan administrator to give notice of impending changes unless the changes were under "serious consideration." Chichelo has not produced evidence that the early retirement program was under serious consideration at the time of his inquiries. III. Because no evidence supports a determination t hat a specific proposal for the purposes of implementation existed prior to the tim e Chichelo made his final inquiry, Roche cannot have "seriously considered" a VERP at that time. Accordingly, Chichelo has presented no genuine issue of material fact tha t Roche made material misrepresentations to him in violation of its fiduc iary duty under ERISA. For the reasons set forth, we will affirm the order of the District Court.

__________________________

TO THE CLERK:

Please file the foregoing opinion.

/s/ Dolores K. Sloviter

Circuit Judge