### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-20193 Summary Calendar

GERALD P. ZIECHE, Plaintiff-Appellant,

v. BURLINGTON RESOURCES INC. EMPLOYEE CHANGE IN CONTROL SEVERANCE PLAN; CONOCOPHILLIPS; WACHOVIA BANK, N.A., Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas Case No. 4:07-CV-3985

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Plaintiff-Appell a n t Gerald Zieche sought severance benefits and a promised bonus after h e resigned from his job. The benefits plan trustee, Defendant-Appellee Wachovia Bank, denied his severance claim; his employer, Defendant-Appellee ConocoPhillips, rejected his bonus claim. Zieche brought a U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary8, 201 3 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-20193 Document: 00512105666 Page: 1 Date Filed: 01/08/2013No. 12-20193

breach of contract claim against ConocoPhillips, and a denial of benefits claim under the Employee Retirement Income Security Ac t (“ERISA”) against Wachovia and the benefits plan. The district court granted summary judgment for ConocoPhillips, Wachovia, and the benefits plan. We AFFIRM. 1. Facts and Proceedings Gerald Zieche wa s a l ongtime geologist for Burlington Resources, Inc. Zieche parti c i p a t e d in a company benefits plan. The plan provided that, if another company purchased or merged with Burlington, and if the company terminated the beneficiary’s employment within two years after the purchase or merger, a plan participant would receive severance benefits. The p l a n a l s o provided that the participant would receive severance benefits if the participant quit for “good reason” in that time frame. The plan defined “good reason” to include “a reduction in the Participant’s annual base salary,” “a material reduction in benefits provided employees immediately prior to the Change in Control,” or “a change in the Participant’s position or r e s p o n s ibilities which represents a substantial redu c ti o n o f th e P artic ip a nt’ s p o s itio n o r r e s ponsibilities immediately prior thereto.” 1 ConocoPhillips announced its intent to purchase Burlington in December 2005. The company completed the purchase on March 31, 2006. In the interim period between December 2005 and March 31, 2006, Zie c h e r e c eived a discretionary bonus of $63,000 for 2005, and a promotion that increased his base salary by eleven percent to about $185,000 for 2006. ConocoPhillips sent Zieche multiple letters related to his compensation. The “Retention Bonus” letter explained that Zieche would receive a bonus of one

The plan als o pr ovide d that , aft er a me rge r, plan tru st ee Wacho via Bank “s hall, 1 wi thou t dir ect ion fr om the Com pany . . . mak e paym ents . . . in the Trus tee ’s sole dis cre tio n, dir ect ly to the Plan Part icip ants and benef icia ries in suc h man ner and in suc h amo unts as the Trus tees hall det erm ine they are enti tle d to be paidund er the Plans .”
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year’s s a lary—$185,000—if the merger occurred and Zieche worked at C o n o coPhillips for one year. The letter contained an exception that allowe d Zieche to resign for “Good Reason” within a year of the merger and still receive the bonus. Exhibit A to the letter defined “Good Reason” as: (i) the relocation of your place of employment by more than 50 miles, (ii) any r e d u c t i on in your annual rate of base salary from your annual rate of base salary in effect o n t he date hereof, or (iii) any reduction in yo u r target bonus opportunity percentage from your target bonus opportunity percentage in effect on the date hereof. Zieche signed and returned the letter. The “Continuation of Employment Letter” confirmed th a t Zieche would continue to work f

o r ConocoPhillips after its purchase of Burlington. ConocoPhillips detaile d i n t he letter Zieche’s compensation and benefits while “reserv[ing] the right to amend or terminate pla n s a t any time.” Under the heading “ 2006 Compensatio n , ” C o nocoPhillips indicated that, for 2006, he would receive the sa m e s alary, along with his full 2006 bonus. The bonus normally would be paid in February 2007, but ConocoPhillips explained that it would pay the “ f

u l l a nd final” amount—forty percent of his salary, or almost $ 7 5 , 0 00—thirty days after the merger. Under the heading “ Future 2 Compensat i o n S t r u ct u r e , ” C o n o c o Phillip s e xp l ain e d th at it w a s th e c o m pany’s “intent to move all employees to [the company’s] compensation structure as soon

as practicable.” ConocoPhillips continued that Zieche’s salary would remain the
same, and that his bonus would be twenty-five percent of his annual earnings, but that “[b]ased on performance,” his payout could range from “0-250%” of the targeted bonus rate. Under the same “ Future Compensation Struct u re ” heading, ConocoPhillips noted that information about the bonus was “provided

Ziec he rec eived a 2005 bonus that wa s thir ty per cent of his sal ary for the year in 2 Februa ry 2006. On e mo nth aft er the me rger , Ziec he rec eived a 200 6 b o nus that wa s for ty per centof

hi s sal ary fort he year. 3 Case: 12-20193 Document: 00512105666 Page: 3 Date Filed: 01/08/2013No. 12-20193

f o r i nformational purposes only,” and that “[s]ince [Zieche’s] 2006 equity and bonus awards have already been made or will be made shortly after the merger

a s s e t forth above, [Zieche] will not be participating in these ConocoPhill i p s programs until 2007.” ConocoPhillips continued under the heading “ Benefits” that, later in the year, Zieche would “receive comprehensive information on the 2007 compensation and benefits for which [Zieche] will be eligible.” The “Salary Over Range Maximum” letter explained: Your base salary exceeds the maximum of the salary range for your grade level. The salary range may be adjusted annually; however, while your sal a r y e x c e e ds the maximum of the range you will be ineligible for annual salary increases and your [bonus] targets will [be] capped at t h e m a x i mum of the range. The Company intends that all employees will be within the salary range over time.
Zieche resigned from ConocoPhillips about five months after the merger. In a letter giving notice of his resignation to Conoc o P h i l l i p s and Wachovia, Z i e che wrote that he had a “good reason” for resigning pursuant to bot h t h e “Retention Bonus” agreement and the terms of t h e benefits plan. Zieche explained that ConocoPhillips reduced his compensation by freezing his salary, lowering his bonus rate, and decreasing other benefits, including the company’s contribution to his 401(k). As a result, he argued, he was entitled to severance benefits and his full retention bonus. ConocoPhillips rejected Zieche’ s retention bonus claim. The company explained that there was no reduction to the bonus rate because Zieche received his full 2006 bonus after the merger. The company added that the “Continuation of Employment Letter” “was clear that none of the p a r a m eters regarding Mr. Zieche’ s b o n u s w ould be changing in 2006,” and that “[w]e cannot tell what might have happened after 2006.” Wachovia denied Zieche’s severance benefits claim. Wachovia explained that there was no ch a nge to his salary or “material reduction in benefits.” Wachovia added that, “[b]ased o n t h e i nformation provided by both parties, it

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appears that Mr. Zieche had the same, or more, dire c t r eports, the same, or more, geographi c r esponsibility, an increased budget, increased signing authority and an increased salary.” Zieche filed suit in November 2007, alleging that ConocoPhillips breached its agreement to provide Zieche a retention bonu s , a n d th at Wachovia incorrectly denied Z i e c h e ’s severance benefits claim under ERISA. The district court 3 granted summary judgment for ConocoPhillips, Wachovia, and the benefits plan in March 2011. The district court found that ConocoPhillips’ refusal to pay the retention bonus did not breach its contract with Zieche because Zieche did not have a “good reason” to r e s i g n p u r suant to the “Retention Bonus” agreement. The district court explained that Zieche did not h av e a “good reason” to resign b e cause ConocoPhillips did not reduce Zieche’s salary or bonus. The district court also found that Wachovia did not abuse its discretion by interpreting the benefits plan to deny Zieche severance benefits because Zieche did not h ave “good reason” to resign pursuant to the plan. The district court explained that there “was no material reduction in Zieche’s position, res p o n s ib i lities, or benefits, as of the date of Zieche’s voluntary termina t ion.” The district court denied Zieche’s motion for reconsideration f o r the same reasons. The order denying Zieche’s motion for reconsideration also rejected Zieche’s request for f urther discovery, finding that Zieche “did no more than advance v a gu e assertions of unspecified facts.” Zieche appeals the district court’s ruling as to both the retention bonus and severance benefits. 4

Ziec he als o so ught to hold Cono c oPhill ips liable for the deni al of his benef its unde r 3 ERISA, but the dis tri ct cour t fou nd that Conoc oPhill ips wa s not a pr ope r def enda nt unde r 29 U. S. C. § 1132( a) ( 1 ) ( B)

. The dis tri ct cour t fou nd that Wacho via, and not Conoc oPhill ips , adm inis ter ed the plan and mad e the fina l det erm inati on regar di n g Z i e c h e ’s right s. Ziec he
wa ives this iss ue beca use he doe s not rais e it on app eal. See F.D .I. C. v. Mi jal is , 15 F.3d 1314, 1327 (5t h Cir. 1994) (“ [I]f a liti gant des ires to pr es erve an argum ent for app eal, th e l i tigant
mus t pr es s and not m ere ly intim ate the argum ent during the proce edi ngs bef ore the dist ric t cour t. ”)

. Ziec he als o argues that the dis tri ct cour t err ed in denyi ng his mo tio n for a cont inuanc e

4 to allow mo re tim e for dis cover y unde r Fed. R. Civ. P. 56(f ) (s ince renum bere d Rule 56(d))

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2. Standard of Review “This court reviews a district court’s grant of summary judgment de novo, applying the same standards as the district court.” E.E.O.C. v. WC&M Enters., Inc. , 496 F.3d 393, 397 (5th Cir. 200 7). 3. The Retention Bonus “The essential elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damage s s ustained by the
p l a i n t i f f as a result of the breach.” Aguiar v. Segal , 167 S.W.3d 443, 450 (Te x . App. 2005); see also Valero Mktg. & Supply Co. v. Kalama Int’l , 51 S.W.3d 345, 351 (Tex. Ct. App. 2001). “A breach of contract occurs when a party f a i l s or 5 refuses to do something he has promised to do.” Capstone H e a l t h care Equip. Servs., Inc. ex rel. Health Sys. Grp., L.L.C. v. Quality H ome Health Care, Inc. , 295 S.W.3d 696, 699 (Tex. App. 2009); see also Mays v. Pierce , 203 S.W.3d 564, 575 (Tex. App. 2006). A court’s “primary concern in interpreting a contract is to ascertain and give effect to the objective intent of the parties as expressed by the

j u s t i f y a cont inuanc e for mo re dis cover y, a par ty mus t “s pec ifi call y expla in both wh y it is
cur r entl y unable to pr es ent evide nce cre ating a genuine iss ue of mat eria l fac t and how a cont inuanc e wo uld enable th e p a r t y to pr es ent suc h evide nce. ” Liqui d Dr il l, Inc. v. U. S. Turn key Explora tion, Inc. , 48 F.3d 927, 930 (5t h Cir. 1995)

. In doi ng so , the par ty se ek ing the cont inuanc e may no t “ r ely on vague ass ert ions that dis cover y wi ll pr oduc ed need ed, but unsp ecif ied , fac ts .” Stear ns Ai rp ort Equip

. Co. v. FMC Corp

. , 170 F.3d 518, 535 (5t h Cir. 1999) (quo ting Was hington v. Al ls tate Ins. Co. , 901 F.2d 1281, 1285 (5t h Cir. 1990) ). A dis tri ct cour t has broa d dis cre tio n to a deny a Rule 56(f ) mo tio n. Id

. To the extent that Ziec he argues that he need s mo re d i s c o v e r y to deve lop his conf lict of inte res t allegat ion, his argum ent is mo ot beca use the exis tenc e of a conf lict wo uld not alte r our analys is unde r ERISA. Ziec he doe s not othe rw ise mak e sp e c i f i c a s s ert ions that mo re dis cover y wi ll pr oduc e evide nce that wo uld
cre ate a genuine iss ue of mat eria l fac t, and thus doe s not sho w that the dis tri ct cour t abus ed its d isc ret ion in denyi ng his c onti nuance m oti on. See id

. The “Ret enti on Bonus ” agree me nt wa s for me d in Texas , and the par tie s do not dis put e 5 th e d i st ric t cour t’s app lica tio n of Texas st ate law to Ziec he’s brea ch of cont rac t clai ms
. Furt her, the dis tri ct cour t pr ope rly exerc i s e d s upp lem enta l juris dic tio n over the brea ch of cont rac t clai ms p urs uant to 28 U .S .C. § 1367.6 Case: 12-20193 Document: 00512105666 Page: 6 Date Filed: 01/08/2013No. 12-20193

ordinary and plain language of the instrument.” Cnty. of Maverick v. Tex. Ass’n of Counties Workers’ Comp. Self-Ins. Fund , 852 S.W.2d 700, 705 (T e x . App. 1993). “The entire instrument must be considered so that none of the provisions will be rendered meaningless.” Id. ; see also Westwind Explora t i o n, Inc. v. Homestate Sav. Ass’n , 696 S.W.2d 378, 382 (Tex. 198 5). Here, the district court correctly found that ConocoPhillips did not breach the retention bonus agreement because Zieche did not have a “ g o o d reason” to resign under the plain language of the agreement. The agreement defined “good reason” as “any reduction in [Z i e c h e ’ s ] annual rate of base salary from [his] annual rate of base salary in effect on the date hereof” or “any reduction in [his] t a rget bonus opportunity percentage from [his] target bonus opportunity percentage in effect on the date hereof.” The parties do not dispute that Zieche’s salary before the merger was $185,000 per year, or abo u t $ 1 5,000 per month, and that Zieche received the same $15,000 sum in the months following the
merger. The parties also do not dispute that, one month after th e merger,

6 ConocoPhillips awarded Zieche a 2006 bonus of forty percent of his salary for the
year, an increase of ten percent from the year before. The salary freeze was not

a “reduction” because, as the district court found, interpreting “reduce” to mean “not increase” as opposed to its ordinary meaning—for example, “[t]o diminish in size, amount, extent, or number,” see Merriam-W e b s ter’s Collegiate Dictionary 1044 (11th ed. 2003)

—i s “ u nnatural[ ]” and at odds with the term’s plain meaning. It follows that a bonus rate increaseis not a “reduction.” Zieche argues instead that he h a d a “good reason” to resign because ConocoPhillips “Continuation of Employment Letter” reduced his future salary

Ziec he tes tif

ied at his dep os itio n that his sal ary “w as not red uced , but it wa s cap ped” 6 aft er the me rger
. He add ed: “I wa s pr ett y conf ide nt my sal ary wa s going to rem ain the sam e fora very long tim e.” 7 Case: 12-20193 Document: 00512105666 Page: 7 Date Filed: 01/08/2013No. 12-20193

and bonus rate. T o t h e extent that we consider the letter , a plain language 7 reading of its ter m s shows that it too does not require a reduction of Zieche’s salary or bonus rate. Zieche argues that the letter caps his annual earnings but,

as discussed above, a salary fr e eze is not a “reduction.” Even if we found Zieche’s asserted interpr e t ati o n o f “r e du c tio n” p l au s ib l e , th e r e l at e d “ S alary Over Range Maximum” letter allowed for a pay inc r e a s e b y providing that Zieche’s “salary range may be adjusted annually.” Zieche also a r gu e s t hat the letter reduces his bonus rate to twenty-five percent of annual earnings. Although the letter does establish the twenty-five percent rate, it also allows for a “0-250%” variance from the rate. This variance allows ConocoPhillips to award Zieche a future bonus that matches or exceeds his 2006 rate. Even if we assume that the twenty-five percent “target bonus opportunity percentage” for 2007 would amount to a reduction, we must consider the bonus language in the context of the letter. See Cnty. of Maverick , 852 S.W.2d at 705;

see also Westwind Exploration , 696 S.W.2d at 382. ConocoPhillips prefaced the letter by warning t h a t i t “reserve[d] the right to amend or terminate plans at
any time.” Then, under the same “ Future Compensation Structure ” heading that detailed Zieche’s bonus percentage, ConocoPhillips cautioned that the “information on [the bonus program] has been provided f o r informational
purposes only,” and that “[s]ince [Zieche’s] 2006 equity and bonus awards have already been made or will be made shortly after the merger as set forth above, [Zieche] will not be participating in these ConocoPhillips programs until 2007.” A plain reading of the bonus provision, in the context of this qualifying language, indi c a tes that the twenty-five percent bonus rate for 2007 was uncertain, and subject to change.

Nei ther par ty add res se d wh ethe r the “Cont inuat ion of Emp loym ent Lett er” wa s 7 inad mi ss ible as extr ins ic evide nce unde r t h e p a rol evide nce rule

. See Ross v. Stinne tt , 540 S. W.2 d 493, 495 (Tex. App

. 1976)

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I n s u m , C o n o c o Phillips did not breach its agreement to provide Ziech e with

a retention bonus because Zieche did not have a “good reason” for resigning from the company under the plain language of the agreement. 4. The Severance Benefits A “denial of b e n e fits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit p l a n gives the administrator or fiduciary discretionary a u t h o r i ty to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115 (1989). “If the administrator has discretionary authority, a reviewing court applies an abuse of discretion standard.” Wildbur v. ARCO Chem. Co. , 974 F.2d 631, 636 (5th Cir. 1992); see also Bruch , 489 U.S. at 115. “‘In applying the abuse of discretion standard, we analyze whether the plan administrator acted arbitrarily or capriciously.’” Sweat m an v. Commercial Union Ins. Co. , 39 F.3d 5 9 4 , 6 0 1 (5th Cir. 1994) ( quoting Salley v. E.I. DuPont de Nemours & Co. , 966 F.2d 1011, 1014 (5th Cir.1992)). An administrator does not abuse its discretion if there is “some concrete evidence in the administrative record that supports the deni a l o f t h e claim.” Vega v. Nat’l Life Ins. Servs., Inc. , 188 F.3d 287, 302 (5th Cir. 1999) (en banc). Here, the plan gave Wachovia discretionary authority because it provided that, after a “Change of Control,” “the Trustee shall, without direction from the Company

. . . make payments

. . . in the Trustee’s sole discretion directly to the Plan Participants.” As a result, we review Wachovia’s interpretation of the plan for abuse of discretion. See Bruch , 489 U.S. at 115; Wildbur , 974 F.2d at 636. Wachovia did not ab use its discretion in denying Zieche severance benefits because it did not act “arbitrarily or capriciously” in interpreting the plan to find that there was not “good reason” for Zieche to resign. See Sweatman , 39 F.3d at 601. Wachovia’s finding that ConocoPhillips did not reduce his salary was not

an abuse of discretion becaus e , a s discussed above, a salary freeze is not a
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reduction. Wachovia’s finding that Zieche did not demonstrate a “ma t erial

r e d u c t i on” in his bonus was not an abuse of discretion because, as discusse d above, Zieche received an increased bonus a fter the merger, and any proposed bonus reduction was subject to change. Zieche’s argument that ConocoPhillips materially reduced hi s o t h e r benefits is unpersuasive for the same reason: as Wachovia found, Zieche did not “demonstrate[ ] changes” in benefits, and any propo s ed reductions were uncertain at the time Zieche resigned. Further, Wachovia did not abuse its discretion by finding that Zieche “had the same, or
more, direct reports, the same, or more, geographic responsibility, an increased budget, increased signing authority and an increased salary” because ConocoPhillips introduc e d “c o nc r e t e evi d e nc e” int o th e a d m inistrative record, see Vega, 188 F.3d at 302, in the form of statements by Zieche’s supervisor that Zieche’s “role after the Change in Control was essentially the same as it was immediately prior the Change in Control.” Wachovia’s thorough explanation of its decis i on to deny benefits makes clear that it weighed and rejected Zieche’s competing evidence. As a result, we cannot say that Wachovia’s decision to deny benefits was arbitrary or capricious. See Sweatman , 39 F.3d at 601. In sum, Wachovia did not abuse its discretion in interpreting the benefits plan to deny Zieche’s severance benefits claim because Zieche did not have a “good reason” for resigning. 5. Conclusion Accordingly, we AFFIRM the district court’s grant of summary judgment.

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