# Benzing v. USAA Officer Severance Plan

> District Court, W.D. North Carolina · September 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10260239

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** September 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10260239

## How later opinions describe it (automated extraction)

- holding that ERISA’s notification timing requirements were unalterable and that de novo review was required where the fiduciary did not timely notify claimant of denial in compliance with ERISA regulations

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:22-cv-146-MOC-SCR

LISA BENZING, )
)
Plaintiff, )
)
Vs. ) ORDER
)
USAA OFFICER SEVERANCE PLAN, )
)
)
Defendant. )
This matter is before the Court on a Motion for Summary Judgment filed by Plaintiff Lisa
Benzing, (Doc. No. 19), and on a Motion for Summary Judgment filed by Defendant USAA
Officer Severance Plan, (Doc. No. 22). The Court held a hearing on the motions on June 22,
2023. This matter is ripe for disposition.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background to Plaintiff’s Claim for Severance Benefits
Plaintiff Lisa Benzing began working for United Services Automobile Association
(“USAA”) on September 30, 2019, as Vice President of Talent Development. Plaintiff was a
participant in the Defendant USAA Officer Severance Plan (“Severance Plan” or “Plan”).
Defendant terminated Plaintiff’s employment just seven weeks later on November 19, 2019, and
Defendant subsequently denied Plaintiff’s claim for severance benefits. In this action, Plaintiff
brings a claim for wrongful denial of severance benefits under the Plan pursuant to Section
502(a)(1)(B) of the Employee Retirement Income Security Act (29 U.S.C. § 1001 et seq.). See
29 U.S.C. § 1132(a)(1)(B). Plaintiff also demands, as her second claim, attorney fees and costs.
B. The Relevant Plan Language
The Plan provides that “[i]n the event of a Qualifying Termination, the Plan
Administrator will determine the Severance Pay, if any, to be provided to any Employee.” (Plan
§ 4.1, AR48). The Plan Administrator (see Plan § 2.1(g), AR46) has “the discretionary authority
to determine whether an event constitutes a ‘Qualifying Termination’” (Plan § 2.1(j), AR47;
emphasis added). A “Qualifying Termination” does “not include,” among other things,

“Termination due to the failure to meet standards of job performance.” (Plan § 2.1(j)(iv), AR47).
Beyond the specifically enumerated power to determine whether a termination is
“[q]ualified,” the Plan grants the Plan Administrator broad discretionary authority:
Notwithstanding anything to the contrary herein, the Plan Administrator shall
have sole and absolute discretion to interpret the provisions of the Plan (including,
without limitation, by supplying omissions from, correcting deficiencies in, or
resolving inconsistencies or ambiguities in, the language of the Plan), to
determine the rights and status under the Plan of any Eligible Employees and
other persons, to resolve questions or disputes arising under the Plan and to make
any determinations with respect to the benefits hereunder and the persons entitled
thereto as may be necessary for the purposes of the Plan. In furtherance of, but
without limiting the foregoing, the Plan Administrator shall have the following
specific authorities, which he or she shall discharge in his or her sole and absolute
discretion in accordance with the terms of the Plan (as interpreted, to the extent
necessary, by the Plan Administrator):

(a) To resolve all questions or disputes arising under the provisions of the Plan as
to any individual’s entitlement to become an Eligible Employee or the occurrence
of a Qualifying Termination;
(b) To determine the amount of benefits payable to any person under the Plan; and
(c) To conduct the Claims Procedure specified in Section 5.3.

All decisions of the Plan Administrator as to the facts of any case, as to the
interpretation of any provision of the Plan or its application to any case, and as to
any other interpretive matter or other determination or question under the Plan
shall be final and binding on all parties affected thereby....

(Plan § 5.1, AR 51–52).
The Plan has a two-level claims procedure. A participant makes an initial claim for Plan
benefits to the Claims Administrator, as delegate of the Plan Administrator. (Plan § 5.3(a), AR
52; AR 58). If the Claims Administrator denies the claim (AR 57–58), the participant may appeal
to the Plan Administrator (Plan § 5.3, AR 52–53).
Plaintiff applied for Severance Pay under the Plan on or about December 23, 2019. (AR
85). The Claims Administrator denied Plaintiff’s application for Plan benefits because Plaintiff’s
termination was not a “Qualifying Termination,” but was due to her “failure to meet standards of

job performance”:
Under ERISA, the federal law that governs the Plan, the administrator is required
to administer the plan in accordance with its written provisions and terms, as
interpreted by the administrator. We have carefully considered the information
related to your claim, and applied the terms of the Plan to your request. We have
determined that you are not eligible for severance benefits under the Plan and
your request must be denied because you have not had a “Qualifying
Termination.” A “Qualifying Termination” does not include a termination for the
following:

• “Termination due to your failure to meet standards of job performance”
The Plan provides severance benefits only in the event of a qualifying “Termination” of
your employment, which is expressly defined on page 4 of the Plan.

(AR 57).
Plaintiff appealed to the Plan Administrator, who affirmed the denial of benefits on the
same ground as the Claims Administrator:
I have carefully considered the documents, records and other information related
to Ms. Benzing’s appeal and per provisions and terms of the Plan, have applied
the terms of the Severance Plan to her request.

For the reasons set out below, I have concluded that Ms. Benzing is not eligible
for severance benefits under the USAA Severance Plan and I am affirming the
decision to deny her request for Severance benefits.

As was previously communicated, under the USAA Severance Plan, only a
“Qualifying Termination” of employment entitles a participant to severance
benefits. As outlined in the USAA Severance Plan, there are various terminations
that are excluded from the Plan’s definition of “Qualifying Termination.”
Among those excluded events is a “Termination due to your failure to meet
standards of job performance.”

The decision reached represents the Plan’s final decision and action with respect
to Ms. Benzing’s claim.

(SAR 60). Plaintiff thereafter filed this civil action.
C. The Parties’ Evidence Submitted on Summary Judgment
The parties submit vastly different versions of what happened during the short time
Plaintiff was employed with USAA.
i. Plaintiff’s Facts
Plaintiff asserts in Spring 2019, USAA’s VP of Talent Rewards, Wendy Salmon,
recruited Plaintiff for the position of VP of Talent Development at USAA. (AR 72). This
position focused on human resource (“HR”) issues associated with the development of USAA
employees’ skills and capabilities. These responsibilities were consistent with Plaintiff’s
employment background, which focused on human resource issues, especially as related to
employee development and human capital for large organizations. (AR 73; see also AR 175–78).
On August 9, 2019, Plaintiff accepted the VP of Talent Development position based on
the job duties and responsibilities verbally conveyed to her by USAA representatives. Among the
USAA representatives who conveyed the duties and responsibilities of the VP of Talent
Development Position to Ms. Benzing was Ms. Robin Kirby, the Senior VP of Human Resources
and Plaintiff’s immediate supervisor. When Plaintiff accepted the position, she withdrew from
other career opportunities she had been contemporaneously contemplating. (AR 73). USAA
never provided Plaintiff a written job description for her position of VP of Talent Development,
and none is contained in the administrative record.
After accepting the position, Ms. Benzing relocated her family from Charlotte, North
Carolina to USAA’s headquarters in San Antonio, Texas. On September 30, 2019, Plaintiff
began working for USAA. (AR 61). According to Plaintiff, immediately after she began work,
USAA substantially changed her job duties. On October 3, 2019, Plaintiff met with Ms. Kirby,
her supervisor. During that meeting, Ms. Kirby drastically changed Plaintiff’s job duties,

informing Plaintiff that Plaintiff would no longer be responsible for HR issues related to talent
development, as discussed during Plaintiff’s job interviews and consistent with Plaintiff’s job
title. Rather, Plaintiff would be responsible for overseeing work associated with USAA’s recent
consent order with the Office of the Comptroller of the Currency (“OCC”) related to systemic
failures surrounding USAA’s banking ventures. (AR 74).
Later that day, Plaintiff contacted Ms. Salmon, who first recruited her, regarding her
concern that the role Ms. Kirby had described was inconsistent with the position for which
Plaintiff was hired. Ms. Salmon seemed equally confused and could not explain why the role had
changed. Ms. Salmon also mentioned that Ms. Kirby had openly advocated against including

Plaintiff on USAA’s HR Operating Model Task Force (a group of HR leaders who reviewed how
HR could be better structured), which would have been consistent with Plaintiff’s initial job
duties as VP of Talent Development. (AR 75–76). Ms. Salmon found this odd as well. (Id.).
Also on Oct. 30, 2019, Plaintiff met with Lori Gray, who told Plaintiff, “I heard about
your situation. It sounds like the old ‘bait and switch.’” Plaintiff had not talked to Ms. Gray or
anyone in HR about her concerns with Ms. Kirby’s changes to her role and directives. When
Plaintiff asked Ms. Gray about the source of her concerns, Ms. Gray responded, “I’m in HR. We
know everything.” (AR 75).
Plaintiff asserts that, although the OCC review was not the kind of work Plaintiff was
hired to do, she accepted the responsibility without issue. Over the next several weeks, Plaintiff
worked with Chalice Jones, VP/HR Business Partner, to transition the OCC work fully to
Plaintiff. On October 9, 2019, Plaintiff had a one-on-one meeting with Ms. Kirby to review the
OCC response work. Plaintiff mentioned, again, that this was very different from the

responsibilities described to her when Plaintiff interviewed to work for USAA. Ms. Kirby
admitted that the job did not allow for HR talent development work, as originally represented to
Plaintiff. (Id.).
On October 14, 2019, Plaintiff again met with Ms. Kirby at Ms. Kirby’s request. It was at
this meeting that Ms. Kirby first encouraged Plaintiff to leave USAA. While discussing the OCC
work, Ms. Kirby said she spoke with HR regarding Plaintiff’s sign-on bonus and relocation
costs, and assured Plaintiff that USAA would not require her to pay back any relocation
expenses. Ms. Kirby also shared her personal experience with the “bait and switch” from a
previous employer and told Plaintiff she regretted staying with that employer as long as she did.

Given that Plaintiff had begun working at USAA a mere two weeks prior and was still in
the onboarding process, Plaintiff was alarmed. Ms. Kirby did not, however, state or imply that
Plaintiff’s job performance was an issue. (AR 76). Later that afternoon, Ms. Jones contacted
Plaintiff and expressed that USAA needed Plaintiff's leadership skills and that Plaintiff was an
asset to the team. Ms. Jones reiterated that she would remain available to Plaintiff to ensure a
smooth transition of the OCC response work.
On October 15, 2019, Plaintiff met with Ms. Kirby to express that she understood the
changes Ms. Kirby was implementing to Plaintiff’s position and that she was “all in.” By
Plaintiff’s account, Ms. Kirby appeared surprised and discouraged by Plaintiff’s enthusiasm and
commitment. (Id.). The next day, October 16, 2019, Ms. Kirby told Plaintiff that Plaintiff would
not present to USAA’s Board of Directors in November, which presentation had been scheduled
since before Plaintiff’s first day at work. When Plaintiff asked why, Ms. Kirby said only that the
timing was not right. Plaintiff was disappointed, as the presentation offered Plaintiff an
opportunity to demonstrate her HR expertise. However, over the next several days, Plaintiff

completed the work she was assigned and continued to receive positive feedback from her peers.
Plaintiff received no complaints or reports of unsatisfactory performance. (Id.).
On October 28, 2019, USAA’s Executive Vice President/Chief Human Resources
Officer, Pat Teague, invited Plaintiff to attend Ms. Teague’s HR Leadership Staff Meeting in
place of Ms. Kirby. Moments before the meeting, however, Ms. Kirby’s administrative assistant
relayed that Plaintiff should not attend Ms. Teague’s meeting. (AR 77). Instead, Ms. Kirby
wanted Plaintiff to attend an information technology (“IT”) meeting. Plaintiff found this odd
because IT was not within her expertise or skillset, nor was it in any way related to the
responsibilities for which she was hired. Plaintiff asked whether the IT meeting was mandatory

and explained that she was already on her way to Ms. Teague’s meeting but was told that the IT
meeting was mandatory. Plaintiff attended the IT meeting. (Id.).
During the IT meeting, the Senior VP of IT explained that USAA failed its OCC audit
and that IT needed someone new to lead the project. Ms. Kirby appointed Plaintiff as the new
lead for the IT Skills Training and refused to provide her any resources. At this point, Plaintiff
believed Ms. Kirby was intentionally setting Plaintiff up to fail. Plaintiff did not have the
requisite experience and/or knowledge in IT, and Ms. Kirby knew that. Plaintiff proactively
reached out to contacts from previous jobs for suggestions to tackle the work. (Id.; see also AR
92 (chart showing differences in three separate jobs assigned to Plaintiff)).
The next day, Plaintiff reached out to Jamie Wetherell, a USAA HR Business Partner,
about this second change in Plaintiff’s position in four weeks. Ms. Wetherell suggested Ms.
Kirby’s behavior over the past several weeks may be because Ms. Kirby was opposed to hiring
Plaintiff from the very beginning. According to Ms. Wetherell, the Talent Acquisition team had
asked Ms. Wetherell to intervene after Ms. Kirby directed them to not interview Plaintiff.

Separately, Ms. Teague also apologized to Plaintiff for the confusion regarding her role and
responsibilities. (AR 74).
On October 30, 2019, during an HR Town Hall, Ms. Teague disclosed that HR was
cutting its budget by $37 million. That same day, Ms. Wetherell called Plaintiff and
acknowledged that USAA owed Plaintiff clarity on her role. She also asked Plaintiff the “dollar
amount” that would relieve the “hardship” Plaintiff endured from taking the position with USAA
and relocating her family to San Antonio. (AR 77). Plaintiff became concerned that her
employment was in jeopardy. Regardless, Plaintiff remained committed to doing her job. For
instance, Plaintiff continued to meet with Ms. Jones and transition onto the OCC work. As

evidence of this commitment and continued engagement with her work and responsibilities,
copies of Plaintiff's calendar entries for the week before her termination and notes taken during
those meetings are included in the filed administrative record. (AR 78–79 (providing detailed
outline of meetings); AR 104–74 (calendar entries and meeting notes)).
On Thursday, November 14, 2019, Ms. Wetherell told Plaintiff that, according to Ms.
Kirby, “[s]taying is no longer an option.” (AR 79). Plaintiff was devasted, given that six weeks
earlier she had accepted USAA’s offer, intending to help the company with her longstanding HR
experience. Because of Plaintiff’s job, she and her husband relocated to San Antonio and
purchased property there. Plaintiff was directed to communicate only with Ms. Wetherell until
Plaintiff’s last day was announced. Later that same evening, Ms. Wetherell informed Plaintiff
that Ms. Kirby had directed Plaintiff “not to return to the office.” (AR 79–80). The following
Monday, November 19, 2019, in a conference call, Ms. Kirby terminated Plaintiff. Ms. Wetherell
and Mr. Menendez were also present on the call. (AR 80). Plaintiff represents she has an audio
recording of the November 19 call wherein Kirby notified Plaintiff of the termination, in which

Kirby told her:
We are going to move forward with the termination.

We just feel that we don’t have the confidence any longer that your interest is here in the
role and that your ability to deliver at the pace and the quality level that is going to be
required as we go forward is going to be there.

(AR 80, 85).
Plaintiff had never been counseled for performance issues or told her work was
inadequate before her employment was terminated.
ii. Defendant’s Facts
USAA’s statement of facts diverges significantly from Plaintiff’s. USAA does not
acknowledge Plaintiff’s contentions that her job responsibilities were significantly changed after
she started her job. Defendant asserts, instead, that as soon as Plaintiff started working at USAA,
it became abundantly clear to Defendant that Plaintiff was not qualified for the position.
Defendant presents the following evidence for its version of the events leading to Plaintiff’s
termination:
On November 18, 2019, the day before Ms. Kirby terminated Plaintiff’s employment,
Employee Relations informed the Legal Department that Plaintiff’s employment was being
terminated due to “Loss of Confidence.” (SAR 70). On November 19, Rebecca Campos,
Employment Relations Transaction Specialist, documented the reason for Plaintiff’s termination
as “Involuntary>Loss Confidence/Lack Judgment” on a document titled “View Terminate
Employee Event: Terminate: Lisa Benzing,” (SAR 7). Campos further explained that Plaintiff
was terminated for “loss of confidence due to inability to perform” her job duties. (SAR 71).
The Salesforce Case document memorializing Plaintiff’s termination likewise records
Plaintiff’s “involuntary termination: inability to perform role.” (SAR 73).

Human Resources’ “[s]eparation summary on Lisa Benzing” included the following:
● Plaintiff told Kirby of her “displeasure” at the focus of her work.
● Much of Plaintiff’s work “did not interest her,” even though “it was part of the full
scope of the role she was hired to perform.”
● In the week preceding Plaintiff’s termination, her relationship with Kirby became
“tenuous” (Plaintiff’s word).
● Plaintiff “refused to continue meeting with” Kirby.
● Plaintiff “stopped coming to the office.”
● Plaintiff “missed several meetings without notice.”

(SAR 6). The “[s]eparation summary” continues:
Because of this lack of engagement, lack of accountability for the full portfolio of
work she was hired to deliver, and inability to transition into acceptance mode on
the scope and urgency on the Learning work, Robin Kirby lost confidence in
Lisa’s ability to adequately engage and deliver at the required pace. As such,
Robin Kirby made the decision to terminate Lisa’s employment effective
11/19/19 for loss of confidence/lack of judgment.

(Id.).
According to Defendant, the above reasons reflect a “[t]ermination due to the failure to
meet standards of job performance” under the Plan. Defendant asserts that, in Plaintiff’s
application for severance pay, she essentially admitted the validity of the reasons for her
termination:
● “I was transparent with Robin [Kirby] re: my concerns and told her that the
Learning/Training area was not my biggest passion or area of deep subject matter
expertise.” (AR 89)
● Plaintiff told HR Business Partner Jamie Wetherell “I was not interested in leaving
USAA, and that I just needed time to understand how I can make an impact in the

training/learning Consent Order space given that wasn’t my area of deep subject matter
expertise.” (AR 89)
● On October 15, 2019, Kirby “cautioned me to ‘be careful with this. It seems you are
mentally looking for timelines regarding doing the work that’s fun for you.’” (AR 89)
● “It became very evident that my skills no longer aligned with the new job
requirements.” (AR 90)
● “And, in full transparency, I would not have hired me to do the role as Robin [Kirby]
has since defined it.” (AR 90)
● “I do not have experience designing technical skills training programs or leading IT

technical training projects.” (AR 90)
● “[N]or do I have experience de-centralizing training or working in a Consent
Order/highly audited environment.” (AR 90)
Defendant further asserts that the Administrative Record is clear that the Plan
Administrator had evidence before her indicating that Plaintiff was terminated because she failed
to meet standards of job performance. For example, information provided to the Plan
Administrator indicated:
Lisa Benzing (EID: Y9976) was hired as the VP, Talent Development, effective
09/30/19. Throughout several onboarding meetings with her direct leader (SVP,
Talent - Robin Kirby, EID: U4209) and others in the HR function, Lisa shared her
displeasure that the focus of the role would involve a significant percentage of her
time on Learning & Development. Although the work did not interest her, it was
part of the full scope of the role she was hired to perform (was called out in job
description and job posting detail) and part of the experience she had from prior
roles (though admittedly at a different altitude). In the week prior to her
separation, Lisa’s relationship with Robin became so tenuous – as described by
Lisa – that she refused to continue meeting with Robin, stopped coming in the
office, and missed several meetings without notice. Because of this lack of
engagement, lack of accountability for the full portfolio of work she was hired to
deliver, and inability to transition into acceptance mode on the scope and urgency
on the Learning work, Robin Kirby lost confidence in Lisa’s ability to adequately
engage and deliver at the required pace. As such, Robin Kirby made the decision
to terminate Lisa’s employment effective 11/19/19 for loss of confidence/lack of
judgment.

(SAR 06; see also SAR 01; SAR 28; SAR 37).
II. STANDARD OF REVIEW
This matter is before the Court on the parties’ cross motions for summary judgment.
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). The movant has the “initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citations omitted). Only disputes between the parties over material facts that might
affect the outcome of the case (as determined by reference to the substantive law) properly
preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute about a material fact is “genuine” only if the evidence is such that “a
reasonable jury could return a verdict for the nonmoving party.” Id.
Once the movant's initial burden is met, the burden shifts to the nonmoving party. Webb
v. K.R. Drenth Trucking, Inc., 780 F. Supp. 2d 409 (W.D.N.C. 2011). The nonmoving party
opposing summary judgment “may not rest upon the mere allegations or denials of his pleading,
but ... must set forth specific facts showing there is a genuine issue for trial.” Anderson, 477 U.S.
at 248. In deciding a motion for summary judgment, a court views the evidence in the light most
favorable to the non-moving party, that is, “[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. At

summary judgment, it is inappropriate for a court to weigh evidence or make credibility
determinations. Id.
When considering cross-motions for summary judgment, a court evaluates each motion
separately on its own merits using the standard set forth above. See Rossignol v. Voorhaar, 316
F.3d 516, 522 (4th Cir. 2003); accord Local 2-1971 of Pace Int'l Union v. Cooper, 364 F. Supp.
2d 546, 554 (W.D.N.C. 2005). Both Plaintiff and Defendants have moved for summary
judgment, and so the Court will analyze each motion in turn.
Notably, “ERISA benefit actions are usually adjudicated on summary judgment rather
than at trial.” Skinder v. Fed. Express Long Term Disability Plan, 2021 WL 1377982, at *1

(W.D.N.C. Apr. 12, 2021) (citing Vincent v. Lucent Techs., Inc., 733 F. Supp. 2d 729, 733–34
(W.D.N.C. 2010)); see also Leahy v. Raytheon Co., 215 F.3d 11, 17–18 (1st Cir. 2002) (“In an
ERISA benefit denial case, trial is usually not an option ... [the district court in ERISA benefits
denial cases] does not take evidence, but, rather, evaluates the reasonableness of an
administrative determination in light of the record compiled before the plan fiduciary”). In such
cases, the threshold issue for this Court is what standard of review to apply in reviewing
Defendant’s denial of Plaintiff’s claim for severance benefits.
In Firestone Tire & Rubber Co. v. Bruch, the Supreme Court held that a denial of benefits
“is to be reviewed under a de novo standard of review unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.” 489 U.S. 101, 115 (1989); see also Williams v. Metro. Life Ins.
Co., 609 F.3d 622, 629–30 (4th Cir. 2010) (reservation of discretionary authority requires abuse
of discretion standard of review). As noted above, the Plan in this action confers the requisite
discretionary authority. Plaintiff argues, however, that the standard of review should be de novo

for two reasons.
First, Plaintiff argues that the administrator named in the Plan did not make the benefits
determination. The Plan named the Executive Vice President, Human Resources as the Plan
Administrator. (Plan § 5.1, AR 51). That person was Patricia Teague. (Answer, ¶16). However,
Plaintiff notes that Jeanne Hertz, the Vice President of Shared Service—HR, made the benefits
determination. (Answer, ¶ 17; AR 182–83). Plaintiff asserts that the administrative record
contains no delegation by Ms. Teague to anyone (including Ms. Hertz). Plaintiff contends,
therefore, that Ms. Hertz’s denial ought to be reviewed under a de novo standard. E.g., Grooms
v. Reliance Standard Life Ins. Co., No. 1:08cv795, 2009 WL 2878448, at *3 (M.D.N.C. Sept. 3,

2009) (“I do not find any language in the policy granting discretionary powers to Wachovia as
the administrator, nor do I find a provision in which [the plan administrator] has expressly
delegated its discretionary authority to Wachovia; therefore, it appears that de novo review is
appropriate.”).
Second, Plaintiff argues that the de novo standard of review applies because Defendant
repeatedly failed to comply with ERISA’s claim procedures, resulting in Plaintiff not receiving a
full and fair review of her claim. As Plaintiff notes, under ERISA, every employee benefit plan is
required to have an internal claims procedure. 29 U.S.C. § 1133. ERISA’s Claims Procedure
Regulation, contained at 29 C.F.R. § 2560.503‐1, prescribes “minimum requirements for
employee benefit plan procedures pertaining to claims for benefits by participants and
beneficiaries.” 65 Fed. Reg. at 70265 (Federal Register notice of final claims procedures
regulations). See ERISA §§ 503, 505; 29 U.S.C. §§ 1133, 1135. The preamble to the Claims
Procedure Regulation provides that “the procedural minimums of the regulation are essential to
procedural fairness and that a decision made in the absence of the mandated procedural

protections should not be entitled to any judicial deference.” 65 Fed. Reg. at 70255; see also
Halo v. Yale Health Plan, 819 F.3d 42, 51 (2d Cir. 2016) (“[W]hen a plan fails to comply with
those minimum requirements [in the ERISA claims regulations], the plan’s decision denying a
claim should not be entitled to deference in court.”). Plaintiff asserts that the Plan and its
fiduciaries did not comply with the minimum procedural requirements prescribed by the Claims
Procedure Regulation in the following ways:
• Defendant failed to provide Plaintiff the specific reasons for the denial of her initial
claim for benefits, as required by 29 C.F.R. § 2560.503-1(g)(1)(i) and (iii).
• Defendant failed to provide Plaintiff copies of information allegedly relevant to

Plaintiff’s claim despite Plaintiff’s request for the same, in violation of 29 C.F.R. §
2560.503-1(h)(2)(iii).
• Defendant failed to consider any of the documents Plaintiff submitted for her appeal in
violation of 29 C.F.R. § 2560.503-1(h)(2)(iv). AR 182–83 (failing to respond to
Plaintiff’s documentation on appeal).
• Defendant failed to provide Plaintiff specific reasons for the denial of her appellate
claim in violation of 29 C.F.R. § 2560.503-1(j)(1). AR 182–83 (providing no specific
reasons for denial of claim on appeal other than same conclusory assertion stated in the
initial denial letter).
• Defendant failed to advise Plaintiff of her right to documents and information used in
adjudicating her claim on appeal, in violation of 29 C.F.R. § 2560.503-1(j)(3); AR 182–
83 (failing to so advise Plaintiff).
• Defendant failed to comply with the 90-day requirement in 29 C.F.R. § 2560.503-
1(f)(1) to provide Plaintiff the specific reasons for the denial. The Plan provided the

reason 155 days after, when Mr. Menendez stated Plaintiff’s claim was denied because
she did not attend required meetings the final week of her employment, including
meetings with her supervisor Robin Kirby.1
• Defendant failed to comply with ERISA’s requirements in 29 C.F.R. § 2560.503-
1(j)(1), (3) to provide the reasons for the denial, to notify Plaintiff that she was entitled to
receive document, records, and other information, and a fortiori, failed to do so within 60
days. 29 C.F.R. § 2560.503-1(i)(1)(i); AR 182–83 (denial notice).
(Doc. No. 19-1, pp. 19–22). Plaintiff argues that Defendant’s foregoing failures dictate that a de
novo standard of review applies. Fessenden v. Reliance Standard Life Ins. Co., 927 F.3d 998 (7th

Cir. 2019) (holding that ERISA’s notification timing requirements were unalterable and that de
novo review was required where the fiduciary did not timely notify claimant of denial in
compliance with ERISA regulations).
In Reply, Defendant first argues that the Plan submitted with its opposition papers
includes a copy of the Delegation and Appointment of Authority of Plan Administrator
Functions, signed by Patricia Teague, Executive Vice President, Human Resources, and

1 Plaintiff asserts that she attended all such meetings, including six meetings with her supervisor
Robin Kirby. Plaintiff provided her calendar entries and meeting notes to Defendant during the
administrative process showing that Plaintiff attended all such meetings. (Doc. No. 19-1, pp. 15–
16).
appointing Jeanne Hertz “to serve as Plan Administrator in administering and managing the
Plans,” including the USAA Officer Severance Plan, “effective as of August 20, 2019.” Included
in the delegation and appointment were the “authority, rights, powers and duties: ... (4) To
determine all questions arising under the Plans, including the questions regarding the rights or
eligibility of employees and former employees, and the respective benefits of the Participants

and others entitled thereto[.]” (Doc. No. 29-2). Thus, according to Defendant, Teague clearly
delegated the administrator functions to Hertz. Defendant also contests Plaintiff’s argument that
non-compliance with the ERISA regulations requires a de novo standard of review.
The Court rejects Plaintiff’s arguments for a de novo standard of review. First, Defendant
has shown that Teague clearly delegated the administrator functions to Hertz. The fact that
Defendant failed to submit the delegation form to Plaintiff before the summary judgment
proceedings does not transform the standard of review to de novo. Moreover, the Court agrees
with Defendant that, at the least in the Fourth Circuit, noncompliance with § 2560.503-1 is not
an abuse of discretion and does not require de novo review absent proof that the plan participant

was prejudiced. See, e.g., Cannon v. Charter Commc’ns Short Term Disability Plan, No. 18-CV-
041, 2019 WL 235325, at *7 (W.D.N.C. Jan. 16, 2019) (no abuse of discretion where “even if”
defendant violated § 2560.503-1, “such a violation was not prejudicial”) (citing Worsely v.
Aetna life Ins. Co., 780 F. Supp. 2d 397, 406–07 (W.D.N.C. 2011)); Potter v. Shoney’s, Inc., 108
F. Supp. 2d 489, 495 (M.D.N.C. 1999) (where “the record contains no evidence that Plaintiff has
been prejudiced by these procedural violations and Plaintiff does not allege prejudice or harm as
a result of the procedural deficiencies,” the “technical violations” she complains of “do not
constitute an abuse of discretion”). Accordingly, the abuse of discretion standard applies in this
case.
The abuse of discretion standard is the most deferential review standard in American
jurisprudence. Cosey v. Prudential Ins. Co. of Am., 735 F.3d 161, 168 (4th Cir. 2013); Brown v.
Nucor Corp., 785 F.3d 895, 928 (4th Cir. 2015). “When a plan by its terms confers discretion on
the plan’s administrator to interpret its provisions and the administrator acts reasonably within
the scope of that discretion, courts defer to the administrator’s interpretation.” Colucci v. Agfa

Corp. Severance Pay Plan, 431 F.3d 170, 176 (4th Cir. 2005). Thus, courts “will not disturb a
plan administrator’s decision if the decision is reasonable, even if [they] would have come to a
contrary conclusion independently.” Williams v. Metro. Life Ins. Co., 609 F.3d 622, 630 (4th
Cir. 2010). A plan administrator’s decision is reasonable “if it is a result of a deliberate,
principled decision process” supported by “substantial evidence.” Evans v. Eaton Corp. Long
Term Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008) (internal quotation and citation omitted).
The “substantial evidence” standard is not high; it is merely evidence sufficient for a
court to give the case to a jury rather than direct a verdict. LeFebre v. Westinghouse Elec. Corp.,
747 F.2d 197, 208 (4th Cir. 1984); Young v. State Farm Mut. Auto. Ins. Co., No. 2:18cv1469,

2019 WL 6833854, at *5 (S.D. W. Va. Dec. 13, 2019). It is Plaintiff’s burden to prove that
substantial evidence, so defined, was absent from the administrative record. See, e.g., Ayres v.
Kyanite Mining Corp., No. 14-cv-1, 2015 WL 4393991, at *5 (W.D. Va. July 16, 2015) (“The
plaintiff bears the burden of demonstrating, based on the record evidence, that the Committee’s
decision was unreasonable and not supported by substantial evidence.”).
In assessing the reasonableness of the plan administrator’s decision, a court may consider
eight factors, first enumerated in Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan,
201 F.3d 335 (4th Cir. 2000):
(1) the language of the plan; (2) the purposes and goals of the plan; (3) the
adequacy of the materials considered to make the decision and the degree to
which they support it; (4) whether the fiduciary’s interpretation was consistent
with other provisions in the plan and with earlier interpretations of the plan;
(5) whether the decision-making process was reasoned and principled; (6)
whether the decision was consistent with the procedural and substantive
requirements of ERISA; (7) any external standard relevant to the exercise of
discretion; and (8) the fiduciary’s motives and any conflict of interest it may
have.

Refaey v. Aetna Life Ins. Co., 467 F. Supp. 3d 328, 339 (W.D.N.C. 2020) (quoting Champion v.
Black & Decker (U.S.) Inc., 550 F.3d 353, 359 (4th Cir. 2008) (quoting Booth, 201 F.3d at 342–
43)). Consideration of the Booth factors is “not mandatory.” Millage v. B.V. Hedrick Gravel &
Sand Co. Emp. Benefit Plan, No. 10cv140, 2011 WL 4595999, at *5 (W.D.N.C. Sept. 30, 2011).
“[T]h[e] court’s review is limited to the record that was before the plan administrator at
the time of the final determination,” McGhee v. Aetna Life Ins. Co., 63 F. Supp. 3d 572, 580
(W.D.N.C. 2014), and “[t]he burden of proving an abuse of discretion rests with the plaintiff[.]”
Innes v. Barclays Bank PLC Staff Pension Plan Comm., No. 15cv18, 2017 WL 111787, at *6
(W.D. Va. Jan. 11, 2017), aff’d, 698 F. App’x 147 (4th Cir. 2017); accord, e.g., Grabowski v.
Hartford Life & Accident Ins. Co., No. 16-cv-01384, 2017 WL 6390963, at *6 (E.D. Va. Aug.
23, 2017), aff’d, 747 F. App’x 923 (4th Cir. 2018); Martin v. Hartford Life & Accident Ins. Co.,
No. 12-2134, 2013 WL 5297146, at *3 (D. Md. Sept. 18, 2013); see also, e.g., Refaey, 467 F.
Supp. 3d at 346–47 (noting plaintiff “has the burden to prove that she is entitled to receive
disability benefits under the Plan,” and holding “plaintiff has failed to prove that Aetna’s
decision was unreasonable under the Booth factors”).
Where the parties file cross-motions for summary judgment on the administrative record,
it is appropriate for the Court to “treat[] the motions and the citations of evidence in the
administrative record in the manner it would a bench trial”: first considering “the evidence
contained in the administrative record which Plaintiff has cited in h[er] favor and then
considering the record evidence by Defendant.” McGhee, 63 F. Supp. 3d at 580 (citing Stewart
v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, No. 09-2612, 2012 WL 122362 (D. Md. Jan. 12,
2012)).
III. DISCUSSION
Under the highly deferential standard of review applicable here, this Court must conclude

that Defendant did not abuse its discretion in denying Plaintiff’s claim for severance benefits
because Defendant’s decision was supported by substantial evidence. In determining the
reasonableness of Defendant’s decision, the Court applies the Booth factors and makes the
following findings:
1. The language of the plan. The Plan prohibits the award of benefits to participants who
were terminated “due to the failure to meet standards of job performance.” (Plan § 2.1(j)(iv), AR
47). Here, Defendant determined that Plaintiff failed to meet standards of job performance. The
Plan Administrator was consequently required to deny her benefits. See, e.g., Refaey, 467 F.
Supp. 3d at 340 (“A prudent claims administrator is charged with the responsibility of both

honoring valid claims as well as denying invalid claims”); 29 U.S.C. § 1104(a) (subjecting
fiduciaries to the “[p]rudent man standard of care”). While Plaintiff disputes Defendant’s
contention that she was not meeting the standards of her job performance, even in the wrongful
termination context, it is the employer’s assessment of an employee’s performance that counts,
not the employee’s.2 See, e.g., Moser’s v. Driller’s Serv., Inc., 988 F. Supp. 2d 559, 564 n.10

2 Plaintiff asserts that she received $560,000 in bonus payments from Defendant after her
employment was terminated. Plaintiff asserts that this is evidence that she was performing her
job duties as expected; otherwise, she would not have received the bonus payments. Defendant
notes, however, that the payment of the bonuses was in error due to bureaucratic oversight, as
their payment had been contemplated only as part of a separate and release agreement that
Plaintiff never signed. And Defendant notes that Plaintiff has not offered to return the bonus
(W.D.N.C. 2013) (“In evaluating performance, ‘it is the perception of the decision maker which
is relevant’”) (quoting Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)); Moore v. Wal-Mart
Stores E., LP, No. 16-cv-362, 2018 WL 401544, at *7 (W.D.N.C. Jan. 12, 2018) (“In
determining whether plaintiff was performing his job satisfactorily, ‘[i]t is the perception of the
decision maker which is relevant, not the self-assessment of the plaintiff’”) (quoting Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 960–61 (4th Cir. 1996)). This factor weighs in
favor of finding that the administrator’s decision was reasonable.
2. The purposes and goals of the plan. Section 1.2 of the Plan is titled “Purpose” and
states: “The purpose of the Severance Plan is to ease the economic stress of loss of employment
with the Employer by providing Eligible Employees with Severance Pay as hereinafter set forth.”
(AR 45). The general language of § 1.2 is construed in light of the rest of the Plan, which
expressly limits the award of severance say to participants whose termination was a “[q]ualifying
[t]ermination,” and excludes from the definition of [q]ualifying [t]ermination “[t]ermination due
to the failure to meet standards of job performance.” (Plan § 2.1(j)(iv), AR 47; Plan § 4.1,

AR48). See, e.g., Johnson v. Am. United Life Ins. Co., 716 F.3d 813, 820 (4th Cir. 2013)
(“ERISA plans, like contracts, are to be construed as a whole”). Thus, it serves the purpose and
goals of the Plan to deny benefits to a participant who, like Plaintiff, was terminated “due to the
failure to meet standards of job performance” and is thus not “eligible” to receive severance pay.
This factor weighs in favor of finding that the administrator’s decision was reasonable.
3. The adequacy of the materials considered to make the decision and the degree to which
they support it. There is no evidence the materials considered were inadequate. To the contrary,

payments. Defendant further notes that it paid for all of Plaintiff’s relocation costs to move from
North Carolina to Texas, and Defendant did not seek reimbursement of these costs.
Plaintiff submitted a lengthy, 10-page, single-spaced initial application for benefits (AR 85–94),
and her attorney submitted an even longer letter in support of her appeal. (AR 71–83). Plaintiff
contends that before she was fired, Defendant did not communicate with her, through write-ups
or otherwise, that Defendant was not satisfied with her job performance. Indeed, there are no
negative performance reviews in the record. Defendant attributes this to the fact that Defendant

became aware, almost immediately after Plaintiff started her job, that she was in over her head.
Defendant notes evidence in the record of Plaintiff making statements such as Plaintiff telling
Kirby of her “displeasure” at the focus of her work; stating that much of Plaintiff’s work “did not
interest her” even though “it was part of the full scope of the role she was hired to perform”; and
stating she would not have hired herself for the job. Defendant asserts that it would have been a
waste of time and money to retain Plaintiff longer solely in order to give her negative
performance reviews before it inevitably fired her.
Plaintiff, on the other hand, suggests that she made those statements because Defendant
immediately changed her job responsibilities when she started the job, basically setting her up to

fail. The Court finds credible Plaintiff’s contentions that, upon beginning her employment with
USAA, some of her job responsibilities were inexplicably changed. Plaintiff clearly expressed
displeasure with this, and she communicated to her superiors that she lacked the experience to
perform certain tasks, such as taking over duties related to the OCC. As to other job duties, such
as Learning & Development, the parties dispute that these were in Plaintiff’s initial job
description. However, given the highly deferential standard this Court must apply, the evidence
provides more than the “scintilla” of evidence necessary for the Court to find here that the
administrator’s determination was supported by substantial evidence. See Zeckoski v. Elsevier,
Inc., No. 3:19-CV-349-GCM-DCK, 2021 WL 5356494, at *8 (W.D.N.C. Sept. 29, 2021), report
and recommendation adopted, No. 3:19CV349-GCM-DCK, 2021 WL 5355928 (W.D.N.C. Nov.
16, 2021). This factor weighs in favor of finding that the administrator’s decision was
reasonable.
4. Whether the fiduciary’s interpretation was consistent with other provisions in the plan
and with earlier interpretations of the plan. As discussed above, the Plan Administrator’s

interpretation was consistent with the Plan’s provisions, which the Administrator has discretion
to interpret and apply. There is nothing in the administrative record about earlier interpretations
of the Plan. This case is thus analogous to Refaey, where the Court held with respect to the
fourth Booth factor:
Aetna’s decision is consistent with the pertinent Plan provisions. Aetna is
afforded discretion to make decisions of benefit eligibility under the Plan
definition of “disability.” The record contains no evidence of any inconsistencies
between Aetna’s decision and any previous interpretations of the Plan. Thus,
application of this factor weighs in favor of finding that Aetna’s decision was
reasonable.

Refaey, 467 F. Supp. 3d at 343. Thus, the fourth Booth factor weighs in favor of finding that the
administrator’s decision was reasonable.
5. Whether the decision-making process was reasoned and principled. Plaintiff’s benefit
claim required nothing more than the application of the Plan’s language to the simple facts
underlying Plaintiff’s termination. While Plaintiff contends that Defendant unfairly assigned her
to tasks for which she lacked expertise, there is “no evidentiary basis to suggest that the
adequacy of the materials considered to make the decision was insufficient or that the decision-
making process was unreasoned and unprincipled.” Plotnick v. Computer Scis. Corp. Deferred
Comp. Plan for Key Execs., 182 F. Supp. 3d 573, 604 (E.D. Va. 2016), aff’d, 875 F.3d 160 (4th
Cir. 2017); see also, e.g., Murphy v. Int’l Painters & Allied Trades Indus. Pension Fund, No. 13-
cv-28760, 2015 WL 13746658, at *15 (S.D. W. Va. Apr. 6, 2015) (fifth Booth factor satisfied
where fund administrator and trustees (i.e., claims administrator and plan administrator) “applied
the pertinent plan language to the relevant evidence contained in Plaintiff’s administrative file at
both stages of the review process” and noting that administrators “were not required to adopt
Plaintiff’s view”), adopted, 2015 WL 5722809 (S.D. W. Va. Sept. 29, 2015). This factor weighs
in favor of finding that the administrator’s decision was reasonable.

6. Whether the decision was consistent with the procedural and substantive requirements
of ERISA. All ERISA requires is that “plan participants be notified in writing of any benefit
denial, and that they be given an opportunity for a full and fair hearing by those denying the
claim.” Refaey, 467 F. Supp. 3d at 346. Here, the plan administrator clearly issued a written
decision, explaining the reasoning underlying the denial of benefits, and the Court finds that
Plaintiff was given a full and fair hearing on her claim. Id. Plaintiff argues that the decision was
too scant, as it did not address Plaintiff’s arguments and evidence regarding her drastic change in
job responsibilities. She also contends that the administrator should have contacted the various
employees who told Plaintiff it seemed that she had become victim of a “bait and switch” at

USAA, where her job responsibilities were vastly changed once she started her job. Plaintiff
contends that the administrator ignored an investigation into this evidence, which would have
supported Plaintiff’s claim that her job was essentially sabotaged from the very beginning of her
employment. Plaintiff also contests Defendant’s statements that Plaintiff missed various
meetings during her last week of work and that she refused to work with Ms. Kirby.3
As Defendant correctly notes, the administrator was not required to interview the persons
Plaintiff named in her submissions. While Plaintiff insists that this would have shown that

3 To this assertion, Defendant responds that Plaintiff has provided inaccurate dates for the
various meetings she contends that she did not miss. The parties clearly dispute whether Plaintiff
refused to attend various meetings.
Plaintiff was subject to an unfair “bait and switch” at her job, Plaintiff has not shown that this
would have changed Defendant’s decision. The parties clearly dispute the extent to which
Plaintiff’s job duties changed and whether she was given tasks for which she was hired. But it is
Defendant’s, not Plaintiff’s, perception of her job performance that matters. Furthermore, under
the “more than a scintilla” standard of review, Defendant’s burden for showing reasonableness is

low. In sum, this factor weighs in favor of finding that the administrator’s decision was
reasonable.
7. Any external standard relevant to the exercise of discretion. Here, there appears to be
no additional external standard of review relevant to the administrator’s exercise of discretion.
Thus, this factor is neutral.
8. The fiduciary’s motives and any conflict of interest it may have. The Plan provides that
USAA “shall pay [s]everance [p]ay from its current operating funds.” (Plan § 3.1, AR 48).
Plaintiff must show that this policy created a conflict of interest affecting the Plan
Administrator’s decision. Here, at most, Plaintiff has shown that there was a structural conflict,

but that it not enough to show that Defendant’s reasoning was unreasonable. See, e.g., Griffin v.
Hartford Life & Accident Ins. Co., 898 F.3d 371, 383 (4th Cir. 2018) (Since “in this case, there
is no evidence that any such conflict impacted Hartford Life’s adjustment and review of Griffin’s
claim,” the “structural conflict, alone, is not sufficient to render Hartford Life’s entire
decisionmaking process unreasonable”). This factor weighs in favor of finding that the
administrator’s decision was reasonable.
Here, the Court finds that, after considering the Booth factors and applying the extremely
deferential abuse of discretion standard, the administrator’s decision to deny Plaintiff’s severance
claims was reasonable. The Court will therefore grant the Plan summary judgment and dismiss
the First Claim for Relief with prejudice.
Finally, because Plaintiff's substantive ERISA claim fails, so does her claim for
attorney’s fees and costs under ERISA § 502(g)(1), 29 U.S.C. § 1132(g)(1). The Court therefore
grants the Plan summary judgment on that claim as well and dismisses Plaintiffs claim for
attorney fees (Plaintiff's Second Claim for Relief) with prejudice.
V. CONCLUSION
For the reasons stated herein, the Court finds that Defendant did not abuse its discretion
in denying severance benefits to Plaintiff. Thus, Defendant is entitled to summary judgment.
IT IS THEREFORE ORDERED THAT:
(1) The Motion for Summary Judgment filed by Plaintiff, (Doc. No. 19), is DENIED;
(2) The Motion for Summary Judgment filed by Defendant, (Doc. No. 22), is
GRANTED, and this action shall be dismissed with prejudice.
(3) The Clerk shall terminate this action.

Signed: September 26, 2023

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Max O. Cogburn i yg
United States District Judge Feat gg ta

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10260239. Public record. Not legal advice.