Tegtmeier, Allen v. Midwest Operat Pensi

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1025

ALLEN TEGTMEIER,

Plaintiff-Appellant,

v.

MIDWEST OPERATING ENGINEERS

PENSION TRUST FUND,

Defendant-Appellee.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 03 C 2386—Ruben Castillo, Judge.

____________

ARGUED SEPTEMBER 28, 2004—DECIDED DECEMBER 7, 2004

____________

Before BAUER, EASTERBROOK , and MANION, Circuit Judges.

MANION, Circuit Judge. Allen Tegtmeier sued the Midwest

Operating Engineers Pension Trust Fund (the “Pension

Fund”) for improper administration and breach of fiduciary

duties under the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. §§ 1001, et seq., alleging the defendant

improperly calculated his disability award. Both parties

moved for summary judgment, and the district court

granted the Pension Fund’s motion. Tegtmeier appeals. We

affirm.

2 No. 04-1025

I.

A. The Plan at Issue

Allen Tegtmeier was an operating engineer who partici-

pated in the Midwest Operating Engineers Pension Plan (the

“Pension Plan”), which the Pension Fund administers. The

Pension Plan addresses when a disability pension begins,

providing that “the payment of a total and permanent

disability pension shall be effective as of the first day of the

month next following the date the participant files an appli-

cation for total and permanent disability pension . . . .”

(Emphasis added.) Thus, the date a person becomes dis-

abled does not trigger payment of disability benefits; rather,

benefits begin the month following the date the participant

applies for the pension.

In 2001 and 2002, special significance attached to this

effective date under the Pension Plan because of a major

change to another plan covering Tegtmeier, the Midwest

Operating Engineers Health and Welfare Plan (the “Health

and Welfare Plan”). This plan also provided benefits to a

disabled member, though the benefits only lasted for one

year. Beginning in April 2000, the Health and Welfare Plan

began a transition in welfare payment rates by members.

Through 2001, all members paid the same monthly rate to

the Health and Welfare Fund for welfare benefits received

during a participant’s retirement or when the participant

1

was receiving disability benefits. In an effort to reward

seniority, however, the Health and Welfare Fund trustees

decided to implement a new schedule beginning in January

1

While the pre-2001 Health and Welfare Plan rates did change

based on the different type of services sought by the participant

(retiree, retiree and dependent, etc.), the rates did not alter based

on years of service.

No. 04-1025 3

2

2002. This new schedule provided that participants with

less seniority would pay greater monthly welfare rates in

the case of retirement or disability than under the previous

flat rate, while those with greater seniority (and who had

paid greater amounts to the Health and Welfare Fund over

the course of their careers) would pay less than under the

pre-existing flat rate. This meant, in many cases, that if a

participant filed for a disability pension before January 1,

2002, he would pay much less in monthly rates than if he

filed after January 1, 2002, when the new scheduled kicked

in. For a participant of ten to fourteen years seniority who

became disabled, such as Tegtmeier, it was the difference

between paying a monthly rate of $237 to the Health and

Welfare Fund (pre-2002 effective date of disability) and

paying a monthly rate of $519 to the Health and Welfare

Fund (post-2002 effective date of disability).

In addition to the effective date, the second provision of

particular importance in this case concerns the claims

administration procedure after an application is filed. For

applications filed before January 1, 2002, Section 9.2 of the

Pension Plan applies. This section states, in relevant part:

(a) Unless special circumstances exist, a Participant shall

be informed of the Trustees’ decision on his claim

within 90 days of the date the claim is received,

whether or not all the information and evidence

necessary to process the claim is received. Within

such 90-day period, the Participant shall receive the

Administrative Manager’s decision or a notice that:

(i) explains the special circumstances requiring a delay

in the decision, and

2

According to Pension Fund documents, Tegtmeier was in-

formed of the change in schedule in November 2001.

4 No. 04-1025

(ii) sets a date, no later than 180 days after his claim has

been received, by which he can expect to receive a

decision.

The Participant may assume that his claim has been

denied and may proceed to appeal the denial if the

Participant does not receive any notice from the

Administrative Manager within the 90-day period.

The remainder of Section 9.2 details what should be con-

tained in a notice from the Administrative Manager and the

review procedure when an application for benefits has been

disapproved.

B. Tegtmeier’s Disability

Tegtmeier injured his back at work on July 12, 2001.

Following this injury, he began to receive weekly disability

benefits from the Health and Welfare Fund that had a one-

year period of eligibility, ending on July 11, 2002. Tegtmeier

did not immediately seek disability benefits from the Pension

Fund (which would have displaced payments from the

Health and Welfare Fund). In fact, he did not inquire into

obtaining these pension benefits until October 10, 2001. The

next day, the Pension Fund sent him an application, which

he did not return until November 30, 2001, the last date to

qualify as a 2001 filing.

After filing his application, however, Tegtmeier showed

reluctance to proceed with the actual determination of his

disability status under the Pension Plan. On January 25, 2002,

the Pension Fund sent Tegtmeier a letter stating that it did

not have sufficient information to process his claim. The

Pension Fund noted that he had failed to provide a Medical

Examiner’s Report and gave him until March 11, 2002, an

No. 04-1025 5

additional forty-five days, to comply. The letter ended with

the warning: “[i]f you do not provide this information, your

claim will be denied.”

Instead of providing this information promptly, Tegtmeier

waited nearly a month before taking action. At that time,

Tegtmeier talked to an unidentified person at the Pension

Fund, who told him that he could put his application on

hold. Tegtmeier then wrote a letter on February 26, 2002,

received by Judith Kot of the Pension Fund, requesting that

the Pension Fund put his application on hold.

Please put my application for my disability pension on

hold. As of this date, I have not had my surgery. I’ve

been advised even with a successful [sic] procedure, I

should not return to operation of rough riding heavy

equip. ie. [sic] Dozers, Earthmovers, Loaders, etc. [sic]

My situation is still uncertin [sic] and at this time I feel

this is in my best interest.

There is no record of any response by the Pension Fund to

Tegtmeier’s note.

On May 2, 2002, the Pension Fund sent Tegtmeier another

letter requesting medical records. This May letter referenced

the earlier letter and forty-five day extension, stating “[t]his

is to notify you that we have not received all medical

records to date.” The Pension Fund asked for updates on all

notes from January of 2002 onward and gave another forty-

five day extension, which ended on June 16, 2002. On May

5, 2002, Tegtmeier responded to this letter, stating that he

had surgery scheduled for May 29, 2002, and “request[ed]

another extension of at least 45 days or more.” There is no

record of any response by the Pension Fund to Tegtmeier’s

letter. Tegtmeier underwent back surgery on May 29, 2002.

On July 12, 2002, Tegtmeier called the Pension Fund to

discuss the status of his application. The Pension Fund

6 No. 04-1025

stated that he would need to file a new application with med-

ical documentation. Kot sent him a new application, which

Tegtmeier completed and filed on July 30, 2002. The next

day, he sent the Pension Fund a letter stating in pertinent

part:

I hereby request that my initial application for disability

dated Nov. 01 be still in affect [sic] . . . . I had no idea the

importance of maintaining this Nov. 01 date due to

Program changes, ie. [sic] effects, afterwards [sic] . I be-

lieve I was not completely informed and actually was

vaguelly [sic] mislead [sic].

Despite Tegtmeier’s pleas, the Pension Fund Review

Board approved the July 2002 application for disability ben-

efits (with an effective date of August 1, 2002) and denied

his request to use the date of his first application for de-

termining the monthly payments he owed to the Health and

Welfare Fund. The Review Board explained that “[y]ou put

your pension application on hold in February of 2002 and

then notified the Fund in May 2002 that you were not ready

to apply for pension. The Fund closed the application

process and requested that you submit a new application

when you were ready to pursue it.”

Tegtmeier appealed the Review Board’s decision to the

Pension Fund Appeal Review Panel, which initially denied

the appeal. Tegtmeier then asked for reconsideration, which

led to a hearing as well as a November 19, 2002 decision

from the Review Panel that was “final, conclusive and bind-

ing.” Before the Review Panel, Tegtmeier acknowledged

that he was “attempting to obtain the highest level of bene-

fits during his rehabilitation to support his family,” but

indicated that he had misunderstood the consequences of

waiting to proceed with his disability pension application.

According to Tegtmeier, had he known that his delay would

result in the higher rate, “he would not have made the

No. 04-1025 7

financial decision to continue receiving welfare benefits

instead of accepting pension benefits.” The Review Panel

concluded that the Pension Fund acted reasonably when

treating the 2002 application as a new application, “since the

first application had been stopped, more than 90 days had

passed since the first application, and it is unknown

whether Mr. Tegtmeier’s first application for benefits would

have been approved prior to surgery.”

On February 29, 2003, Tegtmeier attempted to reopen his

claim in the light of a favorable Social Security Administration

decision from January 2003 that found him totally disabled

since July 2001. The Pension Fund advised Tegtmeier that it

would not reopen the appeal process.

Tegtmeier responded by filing his ERISA suit in the

Northern District of Illinois, claiming that the Pension Fund

improperly administered his claim and that employees of

the Pension Fund breached their fiduciary duties by mis-

representing the effect of Tegtmeier’s attempt to put his

initial application on hold. Both parties moved for summary

judgment. The district court granted summary judgment to

the Pension Fund, concluding that it did not act arbitrarily

or capriciously when treating the July 2002 application as a

new application. Further, the district court found that the

Pension Fund employees had not breached their fiduciary

duties in their interactions with Tegtmeier. This appeal

followed.

II.

“We conduct de novo review of a district court’s decision

involving cross-motions for summary judgment.” Metro. Life

Ins. Co. v. Johnson, 297 F.3d 558, 561 (quoting Ozlowski v.

Henderson, 237 F.3d 837, 839 (7th Cir. 2001)). Summary

judgment is proper when the “pleadings, depositions, an-

8 No. 04-1025

swers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c)). “With cross-motions, our review of the record requires

that we construe all inferences in favor of the party against

whom the motion under consideration is made.” Johnson,

297 F.3d at 561-62 (quoting Hendricks-Robinson v. Excel Corp.,

154 F.3d 685, 692 (7th Cir. 1998)).

A.

On appeal, Tegtmeier first asserts that the Pension Fund

improperly administered his claim for disability benefits.

Specifically, Tegtmeier argues that the Pension Fund acted

unreasonably when it refused to set December 2001 as the

effective date of his benefits pursuant to his initial applica-

tion. As mentioned above, the effect of the Pension Fund’s

decision was that his monthly benefit rate under the welfare

plan was $519 rather than $237. Tegtmeier also attacks the

Pension Fund for its decision not to reopen his claim in light

of the January 2003 Social Security determination that he

was permanently disabled.

As a general matter, we review a benefits determination

under ERISA under the “de novo standard unless the ben-

efit plan gives the administrator or fiduciary discretionary

authority to determine eligibility for benefits or to construe

the terms of the plan.” Mers v. Marriott Int’l Group Accidental

Death & Dismemberment Plan, 144 F.3d 1014, 1019 (quoting

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).

In this case, both parties agree that the Pension Plan grants

the trustees of the Pension Fund complete discretionary

authority to construe, interpret, and apply all of the terms of

the Plan. When a plan gives discretion, as in this case, we

No. 04-1025 9

review using the deferential arbitrary and capricious

standard. See Mers, 144 F.3d at 1019. Under this standard,

the administrator’s decision will only be overturned if it is

“downright unreasonable.” Carr v. Gates Health Care Plan,

195 F.3d 292, 295 (7th Cir. 1999). “It is not our function to

decide whether we would reach the same conclusion as the

Plan or even rely on the same authority.” Id. at 294. If the

administrator made an informed judgment and articulates

an explanation for it that is satisfactory in light of the rel-

evant facts, then that decision is final. See Exbom v. Cent.

States, S.E. & S.W. Areas Health & Welfare Fund, 900 F.2d

1138, 1143 (7th Cir. 1990).

Given this highly deferential standard, we cannot say that

the Pension Fund acted unreasonably in its treatment of

Tegtmeier’s initial application. The Pension Fund has put

forth several facts to justify its decision: (1) Tegtmeier’s

attempt to put his application “on hold” in early 2002; (2)

Tegtmeier’s repeated requests for extensions to submit med-

ical documentation; (3) the Pension Fund’s decision to close

the claim after more than 180 days had passed without

progress; and (4) Tegtmeier’s acknowledgment in February

2002, and prior to his operation scheduled for May 2002,

that his status was uncertain. Taken together, these facts

present a picture of Tegtmeier attempting to game the sys-

tem by delaying the processing of his pension benefits in the

hopes of garnering a larger overall benefit payout, a fact

which Tegtmeier apparently acknowledged before the

Review Panel. Unfortunately for him, Tegtmeier did not

adequately understand the rules of the game—namely, the

provisions of the Pension Plan—and the negative effect of

his actions on his benefits.

The Pension Fund’s decision to proceed with the July 2002

application was reasonable in light of the terms of the

10 No. 04-1025

Pension Plan and the facts available to the Pension Fund

administrator. See Perlman v. Swiss Bank Corp. Comprehensive

Disability Protection Plan, 195 F.3d 975, 982 (7th Cir. 2000)

(“When review under ERISA is deferential, courts are limited

to the information submitted to the plan’s administrator.”).

Tegtmeier did not proceed with his initial application. In-

stead of providing necessary medical documentation for his

disability and going forward with the November applica-

tion, Tegtmeier repeatedly asked for extensions to gather

additional medical support. Further, Tegtmeier told the

Pension Fund that his status was uncertain both in February

and before his surgery in May. These facts give the impres-

sion that Tegtmeier did not want to proceed or could not

proceed with the determination of any disability under the

November application. The Pension Plan provided for a set

procedure of 90 or 180 days to resolve claims. After more

than 180 days and numerous extensions, the Pension Fund

acted reasonably when it deemed his November application

3

closed or withdrawn.

This conclusion is not altered by Tegtmeier’s attempts to

put a hold on his claim. The Pension Plan does not provide

for such a time extension procedure. Moreover, the Pension

3

Tegtmeier suggests that he was denied his right to appeal the

Pension Fund’s actions relating to this first application, as the

Pension Fund did not serve him with a notice of decision.

Tegtmeier, however, chose not to proceed, and, therefore, the

Pension Fund did not need to send a notice of decision, as it was

Tegtmeier who effectively stopped the process. Second, the

Pension Plan specifically provides that if the member has not

received a notice regarding the disability at the end of ninety

days, the member should treat it as denied and appeal. Despite

his decision not to proceed, Tegtmeier still could have appealed

regarding the first application according to the Pension Plan

terms.

No. 04-1025 11

Fund never responded to Tegtmeier’s request for such a pro-

cedure. Instead, it persisted in its attempts to gather the

necessary information to proceed with the claim, even al-

lowing two 45-day extensions to respond. His claim was

never on hold, nor could it be. The fact that Tegtmeier’s

strategic decisions, which did not comply with the terms

of the Pension Plan, led to an unfavorable result is unfor-

tunate, but it does not make the Pension Fund’s actions

unreasonable.

Tegtmeier also challenges the decision of the Pension

Fund not to reopen his claim after receipt of a favorable

Social Security Administration decision in January 2003. The

Review Panel made its final decision regarding this matter

on November 19, 2002. The Pension Plan specifically

provides that this last stage review will be conclusive and

binding. While Social Security decisions, if available, are

instructive, these determinations are not dispositive (except

in those cases where a plan ties benefits to the Social

Security decision—this is not such a case). See, e.g., Whatley

v. CNA Ins. Co., 189 F.3d 1310, 1314 n.8 (11th Cir. 1999);

Coker v. Metro. Life Ins. Co., 281 F.3d 793, 798 (8th Cir. 2002).

The Pension Fund’s decision not to reopen the claims pro-

cess is completely proper, given the Pension Plan’s concern

for finality of decisions. See Admin. Comm. of Wal-Mart Stores,

Inc. Assoc. Health & Welfare Plans v. Varco, 338 F.3d 680, 691

(7th Cir. 2003); 29 U.S.C. § 1104(a)(1)(D).

Moreover, the Social Security determination would have

no bearing on which benefits Tegtmeier should have re-

ceived. Under the Pension Plan, the actual date of disability

was not the crucial date for benefits purposes. Rather, the

effective date for benefits depended on the date of the filing

of the application. The Social Security determination merely

indicated that Tegtmeier was disabled beginning in July

2001 and did not shed any light on the pivotal question of

12 No. 04-1025

which pension application, if either, had an effect on its

decision. In such a situation, the Pension Fund’s decision

not to reopen this issue was reasonable.

B.

We next address Tegtmeier’s claim that the Pension Fund

employees breached their fiduciary duty to him under ERISA

by misrepresenting his ability to put the initial application

on hold. Under ERISA, a fiduciary must “discharge his in-

terests with respect to a plan solely in the interest of the

participants and beneficiaries.” 29 U.S.C. § 1004(a)(1).

“Fiduciaries breach their duty of loyalty and care if they

mislead plan participants or misrepresent the terms or

administration of a plan.” Anweiler v. Am. Elec. Power Serv.

Corp., 3 F.3d 986, 991 (7th Cir. 1993). “Not all errors in com-

municating information regarding a plan violate a fiduciary’s

duty under ERISA, but ‘material facts affecting the interests

of plan participants or beneficiaries’ must be disclosed.”

Kamler v. H/N Telecomm. Serv., Inc., 305 F.3d 672, 681 (7th

Cir. 2002) (quoting Bowerman v. Wal-Mart Stores, Inc., 226

F.3d 574, 590 (7th Cir. 2000)).

Before determining whether a fiduciary duty has been

breached here, we must first decide whether a fiduciary was

involved. See Schmidt v. Sheet Metal Workers’ Nat’l Pension

Fund, 128 F.3d 541, 547 (7th Cir. 1997) (“It goes without

saying that a claim for breach of fiduciary duty lies only

against an individual or entity that qualifies as an ERISA

‘fiduciary.’ ”). As Tegtmeier has identified Kot as the pos-

sible culprit responsible for making erroneous statements

about his ability to put his pension application on hold in-

definitely, we, like the parties, must inquire into her status

as a fiduciary. When examining whether an employee or

administrator actually is a fiduciary, we must concentrate

No. 04-1025 13

on the degree of discretion entrusted to that person. See, e.g.,

Pohl v. Nat’l Benefits Consulting, Inc., 956 F.2d 126, 129 (7th

Cir. 1992); Schmidt, 128 F.3d at 547.

Tegtmeier fails in his attempt to paint Kot as a fiduciary.

He relies both on the Pension Plan’s language as well as

Kot’s job responsibilities in this endeavor, but to no avail.

First, Tegtmeier contends that Kot’s position, as an indi-

vidual charged with the day-to-day administration of the

Pension Plan, by itself makes her a fiduciary. The Pension

Plan does establish that “the Trustees may employ or retain

the services of one or more individuals to carry out the day-

to-day administration . . . of whom the chief executive shall

be known as the ‘Administrative Manager.’ ” This designa-

tion alone, however, does not transform someone into a

fiduciary. See Pohl, 956 F.2d at 129 (“Which is not to say that

a Plan Administrator can never be a fiduciary. That depends

on its powers.”) (emphasis added). Tegtmeier described

several of Kot’s responsibilities which he thought were

discretionary in nature. As the Pension Fund notes, how-

ever, the United States Department of Labor regulations

designate the administrative functions that Tegtmeier

referenced as ministerial rather than discretionary. See 29

C.F.R. § 2509.75-8 (“A person who performs purely ministerial

functions such as the types described above for an employee

benefit plan within a framework of policies, interpretations,

rules, practices and procedures made by other persons is not

a fiduciary. . . .”). “In assessing whether a person can be

held liable for breach of fiduciary duty, ‘a court must ask

whether [that] person is a fiduciary with respect to the

particular activity at issue.’ ” Plumb v. Fluid Pump Serv., Inc.,

124 F.3d 849, 854 (7th Cir. 1997) (quoting Coleman v. Nation-

wide Life Ins. Co., 969 F.2d 54, 61 (4th Cir. 1992)). Tegtmeier

has not presented evidence that would allow us to conclude

that Kot was anything but a ministerial employee for the

activities Tegtmeier described.

14 No. 04-1025

While Kot is not a fiduciary, the Pension Fund might still

be liable for breach of fiduciary duties if Kot, a ministerial

employee, misrepresented the terms of the Pension Plan and

the Pension Plan documents were not clear. See Schmidt, 128

F.3d at 548. Tegtmeier cannot succeed in this regard because

the Pension Plan documents were clear. While it is true that

neither the Pension Plan nor the Summary Plan Description

addressed a “hold” on applications, they do not need to

address every contingency. See Herrman v. Cencom Cable

Assoc., Inc., 978 F.2d 978, 984 (7th Cir. 1992) (“Larding the

summary with minutiae would defeat that document’s

function: to provide a capsule guide in simple language for

employees.”). The Pension Plan clearly described the pro-

cedures for filing an application. Tegtmeier’s attempt to

create a new “hold” procedure, which never existed under

the Plan, does not make the Plan defective, ambiguous, or

incomplete. Tegtmeier is trying to use alleged oral state-

ments to modify the Pension Plan, which ERISA forbids. See

Schoonmaker v. Employee Savs. Plan of Amoco Corp., 987 F.2d

410, 412 (7th Cir. 1993). As the Pension Plan documents

were clear, there was no breach of fiduciary duty.

In an attempt to make a showing of breach of fiduciary

duty, Tegtmeier relies heavily on Bowerman v. Wal-Mart

Stores, Inc., 226 F.3d 574 (7th Cir. 2000). Bowerman was a

situation in which an employee briefly left Wal-Mart’s em-

ploy and, upon her return, discovered a gap in her benefits

despite numerous representations that her coverage had con-

tinued. Tegtmeier emphasizes that both in Bowerman and in

the present case, neither the pension plans nor the summary

plan descriptions explicitly addressed the particular fact

situations at issue. However, this is where the similarities

end. In Bowerman, the court noted that the summary plan

description should have dealt with the situation because it

was common enough to recur repeatedly and affect people

No. 04-1025 15

besides Bowerman. Id. at 590-91 (“In this case, the informa-

tion the Plan should have provided to Ms. Bowerman

would not have been information unique to her situation;

rather, the information she needed would have been

information relevant to all Plan participants who were

rehired by Wal-Mart within a few weeks or months after

leaving the company.”). This is not our situation. Instead of

demonstrating that a gap in the Pension Plan existed,

Tegtmeier created a gap by fashioning a benefit unique to his

circumstances and trying to impose it on the Pension Plan.

There was no need for either the Pension Plan or the

Summary Plan Description to deal with a “hold” situation

because it did not exist before Tegtmeier and was exclusive

to him. As the district court recognized, this would be a

very unique situation in which one would apply for perm-

anent disability benefits before knowing whether the disability

was permanent. Tegtmeier’s reliance on Bowerman is mis-

4

placed.

III.

Tegtmeier attempted to maximize his benefits under the

two plans and miscalculated the effects of his moves. While

the result was unfortunate, we cannot say that the Pension

Fund acted arbitrarily and capriciously or breached its

fiduciary duties when processing Tegtmeier’s claim.

AFFIRMED.

4

As Tegtmeier has failed to succeed on any of his claims, we do

not reach his arguments regarding potential remedies.

16 No. 04-1025

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-7-04