# Emberton v. Board of Trustees of Plumbers and Pipefitters Local 572 Pension Fund

> District Court, M.D. Tennessee · March 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10439162

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** March 1, 2024
- **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/10439162

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

KATHY EMBERTON AS )
ADMINISTRATOR OF THE ESTATE )
OF BILLY JOE EMBERTON, )
)
Plaintiff, )
)
v. ) Case No. 3:21-cv-00757
) Judge Aleta A. Trauger
BOARD OF TRUSTEES OF )
PLUMBERS AND PIPEFITTERS )
LOCAL 572 PENSION FUND and )
SOUTHERN BENEFIT )
ADMINISTRATORS, INC., )
)
Defendants. )

MEMORANDUM
This action is governed by the Employee Retirement Income Security Act (“ERISA”). Now
before the court are the parties’ cross-motions for Judgment on the Administrative Record.1 (Doc.
Nos. 43, 44.) For the reasons set forth herein, the defendants’ motion will be granted, and the
plaintiff’s motion will be denied.

1 The plaintiff’s motion is styled as a Motion for Summary Judgment, but she
acknowledges in her supporting Memorandum that summary judgment motions under ERISA are
not governed by Federal Rule of Civil Procedure 56 and that a ruling on the motion will turn on
the interpretation of the underlying plan documents. (Doc. No. 45, at 3.) The court construes the
plaintiff’s motion as one for judgment on the administrative record. In any event, it appears that
the relevant background facts are undisputed, and the parties’ minor quibbles regarding whether
matters outside the record may be considered and whether the plaintiff’s motion was properly
styled as a summary judgment motion are immaterial, as neither relies on matters outside the
record.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. The Plaintiff’s Application for Early Retirement Benefits
The plaintiff’s decedent, Billy Joe Emberton, was a dues-paying member of the Plumbers
and Pipefitters Local 572 (“Local 572” or “the Union”) from 1981 through 2019.3 Local 572 is a
sponsor of the Plumbers and Pipefitters Local 572 Pension Fund (“Pension Fund”), which provides
benefits to participants, including members of Local 572, pursuant to a pension plan (“Plan”) that

is governed by ERISA. Although the plaintiff’s pleadings do not state as much and the parties do
not address the issue, it appears from the record that defendant Southern Benefit Administrators,
Inc. (“SBA”) and defendant the Board of Trustees of the Plumbers and Pipefitters Local 572
(“Trustees”) share in the administration of the Plan.4
The record does not contain information about Emberton’s employment between 1981 and
2003, except to indicate that he was a dues-paying member of the Union and that his employer
contributed to the Pension Fund on his behalf during that time frame. In April 2003, Emberton
accepted a job at Arnold Engineering Development Complex, working for Sverdrup Engineering.
He left Sverdrup Engineering in December 2003 to work for Jacobs Engineering as a pipefitter.
He worked for Jacobs Engineering as a pipefitter until June 2016, when he began working for

National Aerospace Solutions (“NAS”), also as a pipefitter. He worked for NAS as a pipefitter
until January 2022. It is undisputed that NAS never contributed to the Pension Fund on behalf of

2 The facts for which no citation is provided are drawn from the pleadings and are
undisputed unless otherwise noted.
3 Emberton died after commencing this action. His widow, Kathy Emberton, as
administrator of his estate, was subsequently substituted as the plaintiff, pursuant to Federal Rule
of Civil Procedure 25(a). (See Doc. Nos. 26, 39.)
4 The court previously denied SBA’s Motion to Dismiss, which argued that it was not a
proper defendant in this case. The parties have not reprised that contention in their present motion.
Emberton or any other employee. (See Doc. No. 41, Answer ¶ 36 (“Defendants admit that no
contributions were made to the Local 572 Pension Fund by NAS.”).)
On November 24, 2018, Emberton filed an Application for Benefits, specifically “Normal
Retirement Benefits,” with the Pension Fund. (See Doc. No. 25-2, at 1.) He indicated on this form
that his “Last Day Worked” was April 20, 2003. (Id.) His requested retirement date was January

15, 2019. (Id.) The SBA construed his application as an application for early retirement, rather
than an application for “Normal Retirement Benefits,” apparently because Emberton was turning
62 on January 15, 2019, rather than reaching the “normal” retirement age of 65. (See Compl. ¶ 21;
Doc. No. 25-2, at 17 (Dec. 4, 2018 letter from SBA to Emberton referencing his “application for
an Early Retirement Benefit”).) SBA initially approved the application, with an anticipated start
date for the payment of a monthly benefit to begin on February 1, 2019. (Id.)
By letter dated December 17, 2018, however, SBA notified Emberton that, upon further
review, it had determined that Emberton was not entitled to Early Retirement Benefits, because he
had not retired under the Plan definition of “Retire.” (Id. at 23.) As a result, his application was

denied. (Id.)
The Plan, executed on January 22, 2015 but with an effective date of April 1, 2014 (Doc.
No. 25-5, at 1, Doc. No. 25-6, at 14), provides that a Plan Participant is eligible for the Early
Retirement Benefit if he “Retire[s] on or after April 1, 1976,” has at least five years of service at
the time of retirement, and is between the ages of 55 and 65. (Doc. No. 25-5, at 25 (Plan ¶ 5.01).)
There is no dispute that Emberton was a Plan Participant, as defined by Sections 1.18 and 2.01 of
the Plan, had more than five years of service at the time of his desired early retirement date, and
was between 55 and 65 years old. As such, he was eligible under the Plan for the Early Retirement
Benefit if he had “retired” by his proposed retirement date, as defined by the Plan.
“Retire” is defined in the Plan as “a Participant’s complete cessation of: (i) any kind of
work for an Employer, or (ii) any plumbing or pipefitting work in the construction or maintenance
industries within the geographical area of the Fund.” (Id. at 15 (Plan § 1.24).) However, in a Plan
Amendment executed on January 17, 2019 but effective retroactively beginning November 20,
2018 (i.e., just four days before Emberton submitted his application for retirement benefits), the

Plan definition of “Retire” in Section 1.24 was revised to state as follows:
The term “Retire” shall mean a Participant’s complete cessation of: (i) any kind of
work for an Employer, and (ii) any plumbing or pipefitting work in the construction
or maintenance industries within the geographical area of the Fund, for a minimum
period of six full consecutive calendar months.
(Doc. No. 25-6, at 29 (Amendment to Plan § 1.24); id. at 46 (same document).)
The Plan defines “Employer” as
any association or individual employer who has duly executed and who is bound
by a collective bargaining agreement in effect with the Union requiring periodic
payments to the Trust Fund for the purpose of providing and maintaining benefits
for the employees of such employer. Further, any employer not a party to such
collective bargaining agreement who satisfies the requirements for participation as
established by the Trustees and who agrees to be bound by the Trust Agreement
shall be considered an Employer. For purposes of this Plan, the term “Employer”
shall also include Local Union # 572 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, the Trustees of the Plumbers and Pipefitters Local # 572
Pension Fund, collectively, and the Mechanical Contractors Association of
Nashville, Incorporated.
(Doc. No. 25-5, at 12 (Plan § 1.09).) “Union” is specifically defined as the “Plumbers and
Pipefitters Local Union #572 of the United Association of Journeyman and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Nashville,
Tennessee.” (Id. at 17 (Plan § 1.31).)
SBA’s denial of Emberton’s application for Early Retirement Benefits, as stated in the
December 17, 2018 letter, was based on the conclusion that Emberton was “currently involved in
employment that disqualifie[d] [him] from meeting the criteria of being Retired” as defined in the
Plan. (Doc. No. 25-2, at 23.)
Emberton, through his attorney at the time, appealed the SBA’s decision and appeared for
a hearing on his appeal at the Trustees’ April 12, 2019 meeting. (See Doc. No. 25-8, at 1 (Minutes
of Apr. 12, 2019 Board Meeting).) According to the Meeting Minutes, the plaintiff acknowledged

that he “had not actually ceased employment at the time of his ‘retirement,’” but he argued in
support of his appeal that he was not working for an “Employer” as defined by the Plan. He also
claimed that he knew of other individuals who were receiving a retirement benefit from the Pension
Fund, even though they did not meet the definition of “retired,” and argued that the Trustees were
not fairly and equitably administering the Plan. (Id. at 1–2.)
The Trustees unanimously decided to uphold SBA’s decision to deny the application for
Early Retirement Benefits. (Id. at 2.) According to the Meeting Minutes, the decision was based
on the Trustees’ conclusion that Emberton did not satisfy the eligibility requirements for Early
Retirement Benefits, because he

continued to work for an Employer in the plumbing and pipefitting industry who
had a duly executed collective bargaining agreement in effect with Local 572.
Specifically, the trustees referenced the agreement by and between [NAS]
[Emberton’s employer] and Air Engineering Metal Traces Counsel and Affiliated
Unions AFL-CIO. The trustees indicated that Local 572 was an affiliated local and
therefore a party to the agreement.
(Id.)5
An exchange of emails between SBA’s administrator, Seth Caldwell, and Eric Coons, a
Trustee, documents that the Trustees confirmed prior to hearing the appeal that Emberton was

5 The Minutes indicate that the SBA was also directed to undertake an investigation into
the plaintiff’s allegations that other individuals were receiving a benefit from the Pension Fund,
even though they were not “retired” under the Plan. (Doc. No. 25-8, at 3.)
“still working in the trade” as of the date of the consideration of his application. (Doc. No. 25-2,
at 37.) The April 12, 2019 Meeting Memo states that the decision to deny benefits was based on
confirmation that “Mr. Emberton was actively employed in the trade.” (Id. at 38.)
Emberton was notified of the Trustees’ decision by letter dated April 16, 2019. (Doc. No.
25-3, at 1–2.) The letter misquotes the amended definition of “Retire”6 and states that the Trustees

had unanimously agreed that Emberton did not meet that definition, because he “continue[d] to
work for an Employer in the plumbing and pipefitting industry who has a duly executed collective
bargaining agreement in effect with Local 572.” (Id. at 2.)7
Emberton filed this lawsuit in October 2021. Kathy Emberton was permitted to amend the
Complaint and to be substituted as the plaintiff in early 2023, after the death of her husband.8 The
Amended Complaint (Doc. No. 40) contends that the Trustees improperly denied Emberton’s
appeal and that they amended the Plan improperly in order to deny his claim for early retirement
benefits. The defendants filed a complete copy of the administrative record (Doc. No. 25 and
attachments), and the parties thereafter filed their cross-motions for judgment on the record. Both

6 The letter states that the Plan definition of “Retire,” as “refined in an amendment dated
November 20, 2018,” was “a participant’s complete cessation of: (1) any kind of work for an
Employer, or (2) any plumbing or pipefitting work in the construction or maintenance industries
within the geographical area of the Fund, for a minimum of 6 (six) full consecutive calendar
quarters.” (Doc. No. 25-3, at 1.) As quoted above, the amended definition actually is “[a]
Participant’s complete cessation of: (i) any kind of work for an Employer, and (ii) any plumbing
or pipefitting work in the construction or maintenance industries within the geographical area of
the Fund, for a minimum period of six full consecutive calendar months.” (Doc. No. 25-6, at 29
(emphasis added).)
7 Emberton eventually retired with pension benefits effective August 1, 2022, after
reaching “normal” retirement age (65). (See Doc. No. 25-3. at 9.)
8 Kathy Emberton is referred to herein as the “plaintiff,” and Billy Joe Emberton is referred
to as “Emberton.”
parties filed Memoranda of Law in support of their motions, and each filed a Response to the
other’s motion and a Reply in support of its own motion. (Doc. Nos. 43-1, 45, 47, 48, 49, 52.)
II. STANDARD OF REVIEW
Section 502(a)(1)(B) of ERISA authorizes an individual to bring an action “to recover
benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan,

or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
Judicial review of the denial of benefits challenged under this provision is de novo, “unless the
benefit plan gives the administrator or fiduciary discretionary authority 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); McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059, 1063 (6th Cir. 2014). “If a
plan affords such discretion to an administrator or fiduciary, [the court reviews] the denial of
benefits only to determine if it was ‘arbitrary and capricious.’” McClain, 740 F.3d at 1064 (6th
Cir. 2014). Here, the parties agree that the “arbitrary and capricious” standard of review applies.
The parties also generally agree that, when reviewing an administrator’s denial of benefits pursuant
to an ERISA plan, the court “may typically review only evidence contained in the administrative

record.” Jones v. Metro. Life Ins. Co., 385 F.3d 654, 660 (6th Cir. 2004) (quoting Wilkins v. Baptist
Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir. 1998)).
“[T]he arbitrary or capricious standard is the least demanding form of judicial review of
administrative action.” Judge v. Metro. Life Ins. Co., 710 F.3d 651, 658 (6th Cir. 2013) (quoting
Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989)). “A plan administrator’s
decision will not be deemed arbitrary or capricious so long as ‘it is possible to offer a reasoned
explanation, based on the evidence, for a particular outcome.’” Id. (quoting Davis, 710 F.3d at
693). In other words, the court will uphold a benefits determination if it is “rational in light of the
plan’s provisions.” Id. (quoting Jones, 385 F.3d at 661). Although the standard of review is
“extremely deferential,” the court does not simply “rubber stamp the administrator’s decision.”
Jones, 385 F.3d at 660–61.
III. ANALYSIS
In support of her motion, the plaintiff quotes the Plan’s definition of “Retire” as “a
Participant’s complete cessation of: (i) any kind of work for an Employer, or (ii) any plumbing or

pipefitting work in the construction or maintenance industries within the geographical area of the
Fund.” (Doc. No. 45, at 5; see also Doc. No. 25-6, at 29 (Plan § 1.24.) Pointing to the “or” between
clauses (i) and (ii), she argues that, under the plain language of this definition, a participant must
meet only one of these two requirements to be deemed “retired.” (Id.) She effectively concedes
that Emberton did not meet the second clause, as he continued to be employed by NAS as a
pipefitter, apparently within the geographic area of the Fund, as those terms are defined by the
Plan.
The plaintiff contends, however, that NAS does not qualify as an “Employer” under the
Fund, principally because it was not “bound by a collective bargaining agreement with [Local 572]
requiring periodic payment to the Trust Fund for the purpose of providing and maintaining benefits

for the employees of such employer.” (Id. at 6; see also Doc. No. 25-5, at 12 (Plan § 1.09).) It is
undisputed that NAS never made contributions to the Pension Fund on behalf of Emberton or any
other employee. (See Doc. No. 41, Answer ¶ 36 (“Defendants admit that no contributions were
made to the Local 572 Pension Fund by NAS.”).)9

9 The definition of “Employer” does not expressly require the employer to make
contributions to the Pension Fund on behalf of the plaintiff. Rather, it appears also to include
employers who make contributions to the Pension Fund for some employees, even if not for the
particular plaintiff. But the defendants here concede that NAS never made contributions to the
Pension Fund for any employee.
The plaintiff also argues that the Trustees improperly amended the Plan in January 2019,
after Emberton became eligible for Early Retirement Benefits, and made the amendment
retroactive to November 20, 2018, before Emberton submitted his application for Early Retirement
Benefits. The plaintiff infers from the timing of it that the amendment was intended to make
Emberton ineligible for benefits. She contends that the amendment violated the terms of the Plan

Summary, insofar as it retroactively reduced Emberton’s vested rights. (Doc. No. 45, at 9.)
The defendants, focusing only on the language in the amendment requiring cessation of
work “for a minimum period of six full consecutive calendar months” before an employee will be
deemed to meet the definition of “Retire,” assert that the amendment had no effect on Emberton’s
eligibility, because he was still working at the time the decision to deny benefits was made. The
court finds, therefore, that the defendants have waived any argument that the amendment controls
the outcome of this appeal.10
The defendants do not address the plaintiff’s argument that the plain language of the
definition of “Retire” required Emberton to meet only one of the two clauses in the definition set

forth in the pre-amendment version of Plan § 1.24. Instead, they argue that the Trustees reasonably
concluded that NAS qualified as an Employer, because there was a collective bargaining
agreement between NAS “and Air Engineering Metal Trades Council and Affiliated Unions AFL-
CIO, and Local 572 is an affiliated local and therefore a party to the agreement.” (Doc. No. 27-3,
at 2 (April 16, 2019 from Pension Fund to Emberton).)

10 This concession also means that the court has no need to consider the import of that part
of the amendment that substituted the word and for the word or in the definition of “Retire.”
However, in light of the court’s discussion, below, of the interpretation of the word or as used in
the Plan’s pre-amendment definition, the court finds that the substitution amounts simply to a
clarification rather than a modification.
Regarding the plaintiff’s argument that the defendants ignore the second part of the
definition of “Employer,” which requires not merely a collective bargaining agreement, but a
collective bargaining agreement “with the Union requiring periodic payments” to the Pension
Fund, the defendants assert that, “[e]ven if this interpretation were to be accepted, Emberton still
was not eligible for early retirement benefits as he continued to work in the plumbing and

pipefitting industry.” (Doc. No. 47, at 5.)
In their own Memorandum in support of their Motion for Judgment, the defendants
continue to focus on the second clause of the definition, arguing that the Trustees reasonably
determined that Emberton had not retired, because he continued to work “in the trade.” (Doc. No.
43-1, at 10.) In response, the plaintiff maintains that Emberton’s continued employment as a
pipefitter is irrelevant, because he was not employed by an “Employer” as defined by the Plan and,
therefore, satisfied the first definition of “Retired.”
The Supreme Court has long recognized that the “validity of a claim to benefits under an
ERISA plan is likely to turn on the interpretation of terms in the plan at issue.” Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Here, as the plaintiff submits, the plain language
of the (original) Plan definition of “Retire” appears to require the participant’s “complete
cessation” of “any work for an Employer” or his “complete cessation” of “any plumbing or
pipefitting work in the construction or maintenance industries within the geographical area of the
Fund.” (Doc. No. 25-5, at 15 (Restated Plan § 1.24).) And the definition of “Employer” also
unambiguously requires an employer who has, not only a collective bargaining agreement with the
Union, but a collective bargaining agreement “requiring periodic payments to the Trust Fund.” (Id.
at 12 (Restated Plan § 1.09).) And not just any trust fund, the “Fund,” defined as the Plumbers and
Pipefitters Local #572 Pension Fund. (Id. at 16 (Restated Plan § 1.29).) Here, the defendants do
not contend that NAS ever contributed to the Pension Fund, and it is therefore clear that NAS does
not qualify as an Employer under the Plan. The Trustee’s conclusion to the contrary is arbitrary
and capricious, as it simply ignores a large part of the definition of the term. Under the plain
language of the Plan, that is, Emberton was no longer employed by an “Employer” at the time he
turned 62 and sought early retirement benefits. He was, however, still employed as a pipefitter in

the maintenance or construction industry within the geographic area of the Fund. The question,
then, is whether it was arbitrary and capricious to read the word or in the definition of “Retire” to
mean and. If the two clauses of the term “Retire” must be read in the disjunctive, then it does not
matter whether Emberton was still employed by a non-“Employer” as a pipefitter.
The Sixth Circuit has observed that, typically, “the word or does not also mean and.”
Marquette Gen. Hosp. v. Goodman Forest Indus., 315 F.3d 629, 633 (2003). As the court stated
there, in the context of interpreting an ERISA plan’s definition of claims excluded from coverage,
the use of the disjunctive or usually means that “one exclusion does not depend on the other, nor
does one determine the other.” Id. As the Seventh Circuit has recognized, however, or does in fact

sometimes mean and. See Schane v. Int’l Bhd. of Teamsters Union Loc. No. 710 Pension Fund
Pension Plan, 760 F.3d 585, 589–90 (7th Cir. 2014) (“Formal notation aside, the point is merely
that determining the meaning of or in a sentence is not just a matter of declaring that the word is
disjunctive. Context matters.”).
Contracts, including ERISA plans “ordinarily should be enforced as written.” Trustees of
Sheet Metal Workers Loc. 7 Zone 1 Pension Fund v. Pro Servs., Inc., 65 F.4th 841, 847 (6th Cir.
2023) (quoting Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99, 108 (2013)). Thus,
“[w]here the words of a contract in writing are clear and unambiguous, its meaning is to be
ascertained in accordance with its plainly expressed intent.” Id. (quoting M & G Polymers USA,
LLC v. Tackett, 574 U.S. 427, 435 (2015)). At the same time, courts interpreting ERISA plan
provisions “have at times gone beyond the actual language of the plan to ascertain the underlying
intent.” Stockman v. GE Life, Disability & Med. Plan, 625 F. App’x 243, 250–51 (6th Cir. 2015)
(citing Citizens Ins. Co. of Am. v. MidMich. Health ConnectCare Network Plan, 449 F.3d 688,
692–93 (6th Cir. 2006)). Courts have the “paramount responsibility in construing plan language

. . . to ascertain and effectuate the underlying intent.” Id. (citations omitted). Courts interpreting
ERISA provisions must “first reference the plan language itself, but may also consider reasonable
inferences and presumptions under the particular circumstances of the claim. The language of a
plan is ambiguous only ‘if it is subject to two reasonable interpretations.’” Id. at 251 (quoting
Citizens Ins. CO., 449 F.3d at 694)). “[I]f Plan language, ‘however inartfully worded or clumsily
arranged, fairly admits of but one interpretation it may not be said to be ambiguous or, indeed,
fatally unclear.’” Id. (quoting Reardon v. Kelly Servs., Inc., 210 F. App’x 456, 459 (6th Cir. 2006)).
Further, an ERISA plan, like any contract, is to be “construed as a whole.” Mitzel v. Anthem Life
Ins. Co., 351 F. App’x 74, 90 (6th Cir. 2009) (quoting Alexander v. Primerica Holdings, Inc., 967

F.2d 90, 93 (3d Cir. 1992); Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1250 (10th Cir.
2007)).
In Schane v. International Brotherhood, a plan participant and the plan trustees disagreed
about the date on which the participant had retired, with the trustees arguing for an earlier date and
the participant arguing for a later date, both based on the plan’s definition of the term “Retire.”
The date mattered, because the participant was entitled to an additional $300 per month if he was
considered to have retired on the later date. The definition of “retire” was stated in the disjunctive.
As relevant to the participant’s claim, the definition provided that “retirement” or “retire,” prior to
a participant’s “attainment of Normal Retirement Age” meant
cessation of being employed in Covered Employment or engaging in any of the
following:
(i) employment with any Contributing Employer . . . .
Schane, 760 F.3d at 587 (emphasis added). It was clear from the record that the employee “was
employed in Covered Employment until August 2009” and was “was engaged in employment with
a Contributing Employer . . . until December 2011.” Id. at 588. The pension plan argued that the
participant retired when he ceased working in Covered Employment, without making any real
effort to interpret the plan or to explain why or, as used in the definition of “retire,” did not really
mean or.
The plaintiff filed an ERISA action in federal court, arguing that the trustees acted
arbitrarily and capriciously by “focusing only on whether he had ceased working for a covered

employer, while ignoring whether—and when—he had also ceased engaging in the activities
precluded by” the remainder of the definition of “retire.” Id. The district court rejected the
employee’s argument, observing that “the plan’s definition of ‘retirement’ was phrased in the
disjunctive [to] mean[] ‘cessation of being employed in Covered Employment or engaging in any
of the following . . . .’” Id. (emphasis in original).
The Seventh Circuit found that the issue was not as clear as suggested by the district court,
undertaking a lengthy analysis of when or can means and:
Often, the word or does function as a straightforward disjunctive. Consider the
following sentence: “parent” means someone who has a son or daughter. No one
would contend that a man who has a daughter is not a “parent” because he does not
also have a son. Clearly, to satisfy this definition, the man must only have a son or
have a daughter; he does not need both. In this sentence, the word or indicates
precisely what the board of trustees thought it did . . . .
But consider another sentence, very similar to the previous one: “non-parent”
means someone who does not have a son or daughter. Suppose the same man comes
to you and claims he is a non-parent. True, he admits, he does have a daughter.
However, he is quite certain that he does not have a son. The man notes that the
definition of “non-parent” consists of two parts joined with an or, and furthermore
that “the word or does not also mean and.” Thus, he reasons, the definition is
disjunctive; because he satisfies the first part of the definition (no son), it simply
does not matter whether he satisfies the second (no daughter). . . .
The flaw in the man’s argument is easy to spot. To be a non-parent, a person must
not have a son or daughter—which is to say, he must not have a son and he must
not have a daughter. Because this man does not satisfy the second part of the
definition (he has a daughter), he is not a non-parent, even though he satisfies the
first (he has no son).
Note how, in the paragraph above, the or-statement (“not have a son or daughter”)
was rephrased using only an and (“not have a son and not have a daughter”). This
equivalence arises when a speaker combines a negation (like “not have”) with a
disjunctive word (like “or”). Another example from a recent book on legal
interpretation illustrates the point: “After a negative, the conjunctive and is still
conjunctive: Don’t drink and drive. You can do either one, but you can’t do them
both. But with Don’t drink or drive, you cannot do either one: Each possibility is
negated.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 119 (2012). In propositional logic, this move—the rule of inference
that not (X or Y) is equivalent to not X and not Y—is known as one of “De Morgan’s
Laws.” See Lawrence M. Solan, The Language of Judges 49 (1993). Formal
notation aside, the point is merely that determining the meaning of or in a sentence
is not just a matter of declaring that the word is disjunctive. Context matters.
Id. at 589–90 (some internal citations omitted).
So, in light of these considerations, the court was confronted with the question of whether
cessation of covered employment was sufficient to make an employee “retired.” And it found that
the answer was “not obvious, in part because the plan’s language . . . is so inelegant. Certainly the
word ‘cessation’ has the flavor of a negation, but given the unwieldy phrasing there may be room
for debate.” Id. at 590. However, even granting the trustees “substantial room to interpret
ambiguous provisions,” the court found that their argument on appeal—that the “subparts in the
definition of retire are separated by the disjunctive word ‘or’, . . . indicating that either subpart may
constitute ‘retirement”—“must still be compatible with the language and structure of the plan
document” as a whole. Id. (internal quotation marks and citation omitted). And in that regard, the
court noted that the trustees’ proposed interpretation could not be reconciled with the plan
provision covering the suspension of benefits.
More specifically, the plan required a participant who took early retirement to notify the
trustees if he became no longer “retired,” for purposes of the section defining “retire,” and
permitted the trustees to suspend the participant’s benefits until he once more entered retirement.
The court found that the same definition of “retire” applied to both provisions and had to be
interpreted consistently in both contexts and that it made no sense to apply the trustees’ definition

of “Retire” in the latter context:
In the trustees’ view, the fact that an employee has ceased covered employment is
itself sufficient to deem that employee retired. This would undercut the suspension-
of-benefits provision because a pensioner who resumed work in the same industry
and geographic area would nevertheless remain retired. Why? Even though the
employee would have resumed employment in one of the activities listed in section
6.05(a)(i)-(v)—and so would not satisfy the second half of the definition of
“retirement”—the employee would still continue the “cessation of being employed
in Covered Employment” (at least so long as the new employer did not make
pension contributions on his behalf). Under the trustees’ interpretation, therefore,
that employee would still be deemed “retired” despite now working for a
competitor—largely vitiating the suspension-of-benefits clause.
. . . .
Remember, the trustees have already argued that the subparts in the definition of
retire are separated by the disjunctive word “or,” indicating that either subpart may
constitute “retirement.” They cannot now turn around and say that, for suspension-
of-benefits purposes, cessation of covered employment alone is not enough. . . .
Once a term has been defined by the Plan and interpreted by the administrator to
have a particular meaning, the administrator may not change the meaning when the
term is used in a different part of the Plan without any basis in the Plan or in ERISA
to do so. To interpret the same defined term in two different ways in this manner is
paradigmatically arbitrary and capricious.
Id. at 591–92 (internal quotation marks and citations omitted).
Accordingly, the Seventh Circuit found that, to the extent the plan’s definition of “retire”
was ambiguous, that ambiguity was resolved by looking at the suspension-of-benefits clause, and
the “only sensible interpretation” of the provision defining “retire” was that “a participant must
cease both covered employment and the activities listed in [the remainder of the provision] to be
deemed ‘retired.’” Id. at 592.11
The parties in the present case are on different sides of a nearly identical issue: the plan
participant—rather than the Trustees—contends that the disjunctive or means he must only meet
one part of the definition of “Retire.” The Plan’s definition of the term here is even more

“inelegant” than that at issue in Schane, and the Trustees’ defense of their interpretation is even
more flimsy, insofar as they fail even to engage with the plaintiff’s argument that the use of or in
the definition of “Retire” means that its differing parts must be read in the disjunctive. Further, as
set forth above, the Trustees’ determination that NAS qualified as an “Employer” is completely
unsupported by the Plan itself. Neither party, however, attempts to construe the definition of
“Retire” in light of the Plan as a whole, and here too, as in Schane, the Plan contains a provision
requiring the suspension of benefits for any employee who is reemployed following retirement,
under certain circumstances, as follows:
In the event a Retired Participant receiving monthly benefits under the Plan again
becomes employed in plumbing or pipefitting work in the construction or
maintenance industries within the Geographical Area of the Fund, his monthly
benefit shall be suspended for each month during which he is so re-employed
following his working four hundred eighty (480) hours in a calendar year in
employment as described above [after earning] total wages in excess of Fifteen
Thousand Dollars ($15,000). . . . Upon his subsequent re-retirement, the Retired
Participant shall have restored to him the monthly benefit which he was receiving
from the Plan prior to his return to work, plus any benefit due calculated on
additional Employer contributions which may have been remitted to the Trust Fund
during any periods of re-employment.
(Doc. No. 25-5, at 39 (Plan § 10.04).) In other words, this provision presumes that a “Retired
Participant,” by virtue of his retirement, is no longer “employed in plumbing or pipefitting work

11 In light of that conclusion, the court found it unnecessary to remand to the trustees to
“make further findings or provide explanation” for its decision. Schane, 760 F.3d at 592.
in the construction or maintenance industries within the Geographical Area of the Fund.” And if
he were deemed to be retired simply by virtue of no longer working for a covered “Employer”
under § 1.24, then he would nonetheless still be subject to suspension of benefits for continued
employment in “pipefitting work in the construction or maintenance industries within the
Geographical Area of the Fund,” at least if he worked enough hours and made enough money.

In light of this provision, the use of or in the definition of “Retire” makes the definition
ambiguous, or susceptible of more than one reasonable interpretation. The court’s review of the
administrator’s interpretation of an ERISA plan under the arbitrary and capricious standard does
not mean that the court must accept the administrator’s rationale for the denial of benefits. Rather,
the question before the court is whether it is “possible to offer a reasoned explanation, based on
the evidence, for a particular outcome”—that is, whether a benefits determination is “rational in
light of the plan’s provisions.” Judge, 710 F.3d at 658. Here, crediting the Seventh Circuit’s
suggestion that “the word ‘cessation’ has the flavor of a negation,” Schane, 760 F.3d at 590, and
applying propositional logic, it is rational in light of the plan as a whole to construe the definition

of “Retire” (“a Participant’s complete cessation of: (i) any kind of work for an Employer, or (ii)
any plumbing or pipefitting work in the construction or maintenance industries within the
geographical area of the Fund” (Doc. No. 25-5, at 15)) to mean that a participant is retired if he is
not engaged in (has ceased) “(i) any kind of work for an Employer” and is not engaged in “(ii) any
plumbing or pipefitting work in the construction or maintenance industries within the geographical
area of the Fund.” In fact, given the structure and purpose of the Plan as a whole; this interpretation
is the only one that makes sense. Accordingly, the Trustees’ ultimate decision to deny benefits
based on Emberton’s failure to show that he was retired under the Plan, despite their failure to
articulate a legitimate rationale, was not arbitrary and capricious.
IV. CONCLUSION
For the reasons set forth herein, the defendants’ Motion for Judgment on the Administrative
Record (Doc. No. 43) will be granted, and the plaintiff's construed motion for judgment (Doc. No.
44) will be denied. An appropriate Order is filed herewith.

ALETA A. TRAUGER if
United States District Judge

18

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10439162. Public record. Not legal advice.