2003 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
12-23-2003 

# W al lin v . S eve r a nce P l a n E lec
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ock e t N o . 03-1524

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w Di g it al R e posit or y

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w . v i l l a no v a . e du/thir dc ir c uit_2003/281 NOT PRECED ENTIAL UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT
No. 03-1524
IRA WALLIN, Individually a

nd as Class Representati ve on behalf of all other similar ly s ituated plaintiffs, Appellant

v. THE SEVERANCE PLAN OF ELECTRONI C DATA SYSTEMS; THE PLAN COMMITTEE AND ADMI NISTRAT OR OF THE SEVERANCE PLAN OF ELECTRONIC DATA SYSTEMS; ELECTRONIC DATA SYSTEMS CORPORATI ON
On Appeal from the United States Distri ct Court for the District of New Jersey (Dist. Ct. No. 01-cv-05463) District Judge: Honorable Willi am J. Martini

Submitte d Under Third Circ uit LAR 34.1(a)

November 19, 2003 Before: RENDELL, BARRY and CHERTOFF, Circuit Judges
.

(Filed : Decem

ber 23, 2003 )2 OPINI ON
CHERT OFF, Circuit

Judge
. Appellant Ira Walli n (“Wallin”) appeal s the judgment and order of the District Court grant

ing summ

ary judgment in favor of Appell ees, The Severanc e Plan of Electronic Data Sy stems; t he Plan Committee

and Administrator of The Severance Plan of the Electro nic Data Systems; and Electron ic Data Systems Corporation (c ollectively “EDS”). Wallin filed a cl ass action suit against EDS to recover benefits from EDS’s Severance Plan (“the Plan”) under the Em ployee Ret

irement and Incom

e Security Act (“ERISA”), 2 9 U.S.C. § § 1001 -1461 (1 994). Fo r the reasons set f orth below , we will affirm the jud gment and ord er of the D istrict Court. I. We will review the facts only briefly. Wallin was employed by Electronic Data Sy ste ms C orpor ati on (th e “Com pany”) i n Sept

emb er of 1 988. On O ctobe r 11, 2 001, t

wo Company manage rs tel ephoned Wallin to infor m him that he wa s being te

rmina ted. The followin g day, on October 12, 200 1, Wallin received his severance p ackage materials in the mail. W allin claim s that only then did he learn that the Severance Plan had been amended on O ctober 5, 20 01, and th at his severance p ackage had been altered. Befor e the Octob er 200 1 amendm

ent, the Pl an pro vided

part icipantswith t

wo weeks of W eekly Base Pay in severance benefits p er each complete Year o f Service, w ith3

a maximum

of twenty-six weeks of Weekly Bas e Pay. After it was amended in October 2001, th e Plan stipulated that participants w ith fewer tha n three Years o f Service w ere to be provided two weeks of Weekly Base Pay in severance. Those partici pants with three or more Years of

Service wou ld be extend ed four w eeks of Week ly Base Pay. Given his tenure at EDS, Wallin would have received the m aximum twenty-six weeks of severance pay before October 2001, but was entitl ed to four weeks of severance pay under Plan amended in Oc tober 200 1. Wallin filed suit against EDS in District Court on November 27, 2001, and filed an amended complaint on March 22, 2002. In his amended com plaint, Wallin alleged breach of t

he writt en provisi ons of the Pla

n, breac h of fiduciar

y dut y, and a cla

im of equitable estoppel against EDS. On January 23, 2003, the District Court denied Wallin’s motion for Leave to File a Second Amended Class Acti on Complaint and granted EDS’s motion for su mmary

judgment. II. This Court ha s jurisdi ction to r eview the grant of sum

mary judgment unde

r 28 U.S.C. § 1291. We exercise plenary review of the District Court’s gra nt of summary judgment. See Blair v. Scott Specialit y Gase s , 283 F.3d 595, 602 -03 (3d Cir. 2002). We examine the fac ts in the

light m ost favora ble to the non-moving pa

rty and affirm

the grant of sum

mary judgment i f there i s no genuine i ssue of materi al fact and if the m

oving party is entitled to judgm

ent as a matt er of law. Fed.R.Civ. P. 56(c). Based on the record,4

we find th at Wallin created no genuine issu e as to any material fact relevant to his claims.

First, Wallin argues t

hat the Di stric t Court wrongl y gr anted sum

mary judgment agai nst hi s cl aim

that EDS viol ate d the n otic e prov isi ons of t he Pla n and t hat ED S other wise “ac tive ly conce ale d the p urpor

ted Pl an am

endm ent, as pa rt of a lay off program, until they

had commenced the la

yoffs.” (Appella

nt’s brief at 10). We disa gree. ERISA’s notice and disclosure requirem ents provide that the adminis trator of an employee benefit plan must f urnish particip ants and ben eficiaries with a read ily understandable summa

ry of any “materi al modifications” in accordance with the notice and discl osure re quirem

ents cont ained in Se ction 104(b) (1) of ERISA, 29 U. S.C. §1024(b)(1). Such notification must be made within 210 day s of the end of the plan year. Id. Wallin argues t

hat the s pecific

term s of the Pla

n impose d burdens on EDS bey ond ERISA’s requirements. He points t o Section 5.2 of EDS’s Severance Plan, titled “Amendm

ent or Ter minat ion,” tha t was in effect pri or to the Oc tober 5, 2001, amendments. Section 5 .2 reads in par t, “EDS reserv es the right to mod ify or terminate the Plan at any

time. EDS through the Board of Directors or any committ ee designated by said Board of D irectors may amend the Plan pursu ant to a formal reso lution. If th is is done, eli gible Par

ticipa nts will be notifie d of any

import ant change s.” (App. 64) Wallin contend s that this langu age “constitutes a n extra-ERIS A commitment,5

above and beyond the statutory [210 day] notice requirem ent,” which “impos[ed] an immedia te notice burden on defendants.” (Appellant’s brief at 13). He a rgues that “defendant s undertook a

n extra- statut

ory notice obligation without which not ificat ion of an ‘im portant’ change, t

he Plan ca

nnot be am

ended.” (Appellant ’s repl y br ief at 4) In fact, the plain language of t he Plan only

state s that “

partic ipants wi ll be notified” ab out “important ch anges” to the P lan. The reco rd indicates that Wa llin did recei ve writt

en notice of the Octobe

r 5, 2001, am

endment s to the Pl an on October 12, 2001, s even d ay s aft

er EDS had ad opted

the a men ded Pl an. W all in’s cla im t hat ED S was required to provide “imm ediate” notificati on is unfounded. No langu age in the Plan state s, and no evi dence sugge sts, t hat EDS was obligated t

o provide noti ficati on of changes within a spe cific pe riod of tim

e, or tha t it wasrequire d to provide s imult aneous disclosure of

the Committee’s adoptio n of an amend ment to the Plan. Wal lin a lso a rguesthat the Di str ict Court shoul d have

uphel d his c lai m th at EDS “actively concealed” chang es to the Plan b y “burying” the information in its in tranet site that was only

accessible t

o management em

ployees . This contention is frivolous. Even if Wallin was not able to acc ess the Company ’s intranet sit e on October 11, 2001, when he was fir st notifi ed of his te rmina tion, he r eceive d a copy

of the am

ended Plan t

he following day on October 12, 2001. One day’s la pse in disclosure hardly

constitutes “concealment. ” And the fact that EDS had on one occasion provided notice of a Board resolut ion on the sa

me day it was a dopted (the

“Todd Memo” of July

27, 1999) does not6

suggest t hat a subs equent dec ision not t o provide simulta

neous notic e constitutes a ctive concealment by the Compan y. Next, Wa llin as sertsthat the

Distri ct Court improper

ly granted s umma

ry judgment in favor of EDS on Wallin’s claims of breach of fiduciary duty. This Court has held that in order to su stain a breach o f fiduciary duty complaint und er ERISA, a p laintiff must demonst rate ( 1) the com

pany was act ing in a fiduc iary

capacity ; (2) the

company made affirmative r

epresentationsor faile d to adequat ely inform pl an parti cipantsand benefici aries ; (3) the

company knew of the confus ion genera ted by its m isrepr esenta tions or its silence; and (4 ) there was resultin g harm to the employees. Int’l Union, United Auto., Aer

ospace & Agric. I mplem ent Worke

rs of Am. , U.A.W. v. Skinner Engine Co. , 188 F.3 d 130, 1 48 (3d C ir. 1999). Wallin’s cla

im founder s at the

second prong of t

his tes t, i.e . “that

the com pany made a ffirma tive re present ations or failed t o adequately

inform pl an parti cipantsand beneficiaries.” In support o f his breach of duty claim, Wallin simply repackages his contention that EDS “activ ely concealed” information on its intranet site an d failed to provide simulta

neous notifi cation of t

he Board re solution t

o Plan benefi ciari es. We have reject ed these argume nts alr eady , and they

become no more pe

rsuasi ve garbed in the language o f breach o f fiduciary duty. Wallin’s final

argume nt is tha t he is e ntitle d to reli ef from EDS’ s October 5, 2001, amendment to the Pla

n based on a theory of equitable es toppel. In order to succeed7

under this theory

of relief, an ERISA plaintiff must esta blish (1) a mate

rial repres entati on, (2) re asonable and detrimenta

l reli ance upon the

repres entati on, and (3) extraordina ry circumstances. Curcio v. Ha ncock Mut. Li fe Ins. Co. , 33 F.3d 226, 235-36 (3d Cir. 19 94) (internal c itations omitted). A few day s’ dela

y of not ificat ion of a Plan a

mendm ent does not

rise t o the level of a material misrepresentation. Mo reover, Wallin h as failed to pro vide eviden ce to substant iate a finding of subst

antial harm ba sed on thisdelay . He argue s that in the seven-day

window from the date the Board amended the Plan to the date he re ceived writte n notice of t

he changes , i.e. October 5, 2001 to October 12, 2001, EDS “usur

p[ed] [his] opportunity

to make an inform

ed decis ion regar

ding the futur

e of his benefits and employ ment. ” (Appell ant’s br

ief at 28) . However, an excer pt from W allin’ s deposit

ion suggests that h is complaint is grou nded more in w ishful thin king than reality. Q. It is speculati on on your [Wallin’s] part t hat the position [at Merck Medco] w as even still available a s of Octob er 5, correct? A. Yes. Q. And between October 5t h and October

11th y ou did not turn down a ny employment opportunities, co rrect? A. Right. The

re were no specifi c opportunit

ies offer ed. Q. And during that time, between October 5th and October 11th, y ou were not pursu ing any opportu nities, correct? A. Correct. Q. And n obody was pursu ing you during that time frame, correct? A. Correct. (App. 116-17, Wallin Dep. at 73-74).
No further di scussi on is nece ssary . EDS ame nded its Severance

Plan on8

October 5, 2001, and provided Wallin with notice of amendments to the Plan on October 12, 2001. Wallin did not provide evidence to suggest that EDS failed follow the notice requirementsof the Plan or breache d its fiduc iary

responsi biliti es to him . His re quest for relief under a the ory

of equitabl e estoppel is al so unfounded. Acc ordingly , the judgm ent of the Dist

rict Cour t will be affirm ed.

TO THE CLER K: Please file the foregoing opini on.

/s/ Micha el Che rtoff Circuit Judge