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Gallo v. Amoco Corporation

December 17, 1996




Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 94 C 5916

Before POSNER, Chief Judge, and HARLINGTON WOOD, JR., and CUDAHY, Circuit Judges.

POSNER, Chief Judge.

Milton I. Shadur, Judge.



Amoco Corporation administers a defined-benefits retirement plan for its employees that is governed by the Employee Retirement Income Security Act, 29 U.S.C. secs. 1001 et seq. A class action was brought on behalf of participants in the plan, charging that Amoco had violated ERISA by failing to compute benefits in accordance with the plan documents. The district judge agreed, granted summary judgment for the class, and ordered Amoco to recompute benefits for 18,000 retired employees. 910 F. Supp. 396 (N.D. Ill. 1995). The recomputation could cost the plan as much as $125 million in additional benefits.

The annual retirement benefits of plan participants are computed according to three alternative formulas; whichever formula yields the highest benefits to the particular participant is the one used to determine his benefits. Under the Annuity Benefit Formula, the participant's average earnings in his highest-earning three years of employment by Amoco (normally his last three years) are multiplied by his total years of service, and by a fixed percentage, to yield (after further adjustments, irrelevant to this case) his annual pension. So, for example, if those average earnings were $75,000, the employee had 30 years of service, the percentage specified in the plan was 2 percent, and the irrelevant adjustments are ignored, the employee would be entitled to a pension of $45,000. The issue in this case is whether Amoco must include "pay in lieu of vacation" in determining earnings in the three base years under this formula.

An employee who, in his last year of employment with Amoco, does not take all the paid vacation that he is entitled to take in that year (without carryover of any vacation that he might have become entitled to but not taken in any previous year) receives a cash payment in lieu of that forgone vacation. The document that creates the retirement plan does not indicate whether this payment is to be included in determining the employee's earnings in the base period. The document defines "earnings" as including "wages" and certain other specified forms of compensation, including bonus, but Amoco claims without contradiction that there are more than a hundred elements of compensation and that many of these are not included in "earnings" within the meaning of the plan document even when they are deemed "wages" by the Internal Revenue Service. The summary plan description contains a more detailed specification of included and excluded elements (moving expenses and severance pay, for example, are excluded), but it does not mention payment in lieu of vacation either, and neither the document creating the plan nor the summary description sets forth criteria for classifying such payments. The plan dates back to 1939, and for as long as anyone can remember Amoco has not treated payments in lieu of vacation as earnings under the Annuity Benefit Formula. But this policy is nowhere stated. And in the administration of one of the alternative formulas, the Career Average Minimum Formula, in which benefits are based on the participant's total earnings over his entire period of employment by Amoco rather than on just his earnings in his highest-paid three years, Amoco does include such payments, even though the definition of "earnings" provided in the plan documents is the same under this formula as under the Annuity Benefit Formula. (The third formula doesn't use earnings.)

No one complained about the exclusion of payments in lieu of vacation from the determination of benefits under the Annuity Benefit Formula until 1993, when Mr. Gallo, one of the named plaintiffs, raised the issue. He was told they were excluded. Pursuant to the plan's ERISA-required procedures for appealing an adverse determination of a claim to benefits, 29 U.S.C. sec. 1133(2); 29 C.F.R. sec. 2560.503-1(g), he appealed to Amoco's senior plan administrator, a Mr. Anderson, who upheld the refusal to include the payment in the computation. All Anderson said in his letter to Gallo was that, under the Annuity Benefit Formula, "earnings" do not include "post-retirement payments," such as payment in lieu of vacation; that this has been Amoco's consistent interpretation; and that the interpretation is necessary to avoid double counting. He did not further explain the grounds for the interpretation.

The plan confers upon the administrator--Amoco and, through Amoco, Anderson--discretion to interpret it. Therefore the issue for the district court was not whether Anderson's interpretation was correct but whether Amoco had abused its discretion, or, what amounts to the same thing, had acted arbitrarily and capriciously, in interpreting the plan documents to exclude vacation pay. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Petrilli v. Drechsel, 94 F.3d 325, 329 (7th Cir. 1996); Cutting v. Jerome Foods, Inc., 993 F.2d 1293, 1295-96 (7th Cir. 1993). To give a plan administrator such power, when the administrator is the employer, may seem a case of putting the fox in charge of the henhouse. Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 n. 5 (3d Cir. 1993). Although the employer cannot appropriate the plan's assets directly, the fewer the benefits paid out the likelier the plan is to become overfunded, in which case the employer can reduce his contributions; and if the plan is terminated, assets not required to satisfy the participants' claims can be recaptured by the employer. But that is not the whole picture. Retirement benefits are a valued component of total compensation, so that the employer who is tightfisted in computing benefits, or who gets a reputation for unfairness in passing on claims, may find himself having to pay higher wages. Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995); see generally Daniel Fischel & John H. Langbein, "ERISA's Fundamental Contradiction: The Exclusive Benefit Rule," 55 U. Chi. L. Rev. 1105 (1988). No one is suggesting that Amoco is about to go out of business and is therefore indifferent to the effects on its reputation, and so on its employees' future demands for compensation, of dealing unfairly with claims of benefits. Of course, a loss of reputation might be a price worth paying to avoid $125 million in unanticipated expense.

There is no need to go deeper into the question of the extent to which employers can be trusted to administer their retirement plans fairly. The question is not open for us. The standard of judicial review is clear: Amoco's denial of Gallo's claim can be set aside only if the denial was arbitrary and capricious. Because the plan documents are silent on the issue of treating payments in lieu of vacation as earnings and Anderson's response to Gallo was consistent with the administration of the plan since its inception (or at least as near to that inception as anyone can remember), we are perplexed by the district judge's ruling. Anderson's interpretation of the plan may be right or wrong; it was not unreasonable. It is true that Amoco treats payments in lieu of vacation as earnings under a different formula in the same plan. But as that formula, the Career Average Minimum Formula, is intended for lower-income employees who do not have a glorious "High 3" on which to base their pensions, Amoco's willingness to compute the earnings component of it more generously than under the Annuity Benefit Formula is understandable. Especially since the financial implications of such treatment are modest, because under the Career Average Minimum Formula the payments in lieu of vacation are in effect averaged over the employee's entire period of service, rather than just over three years as under the Annuity Benefit Formula. Amoco's experts testified, plausibly enough, that defined-benefits plans often exclude pay in lieu of vacation because its inclusion would create arbitrary and sometimes quite large differentials among otherwise similarly situated employees, which in turn could complicate the management of employees in their last year--none of whom would want to take a vacation. Gallo estimates that if the payment he received in lieu of vacation in his last year is credited to his earnings for retirement purposes, it will increase the present value of his total benefits under the Annuity Benefit Formula by $40,000. Who would give that up for a vacation when the vacation to end vacations--retirement--is so imminent?

Since, moreover, the payments in question are (of course) in lieu of paid vacation, to count them as earnings is to count the earnings on the days on which the employee is entitled to vacation twice: once as part of his earnings in his "High 3" years, and the second time as an add-on to those earnings. This is the double counting to which Anderson alluded in his letter to Gallo. Alternatively, it is squeezing more than twelve months into the year. An employee who in his last year had coming to him but did not take two months of vacation would be asking to have his retirement benefits computed as if there were fourteen months in that year. And the fact that the employee who does not use all the vacation to which he is entitled is paid for it only in his last year of service gives the payments in lieu of vacation the aspect of severance pay, which is expressly excluded from earnings under the Annuity Benefit Formula.

These considerations do not prove that Amoco's interpretation of the plan is correct. Indeed, it is doubtful whether the terms "correct" and "incorrect" can be used to characterize answers to difficult interpretive questions presented by retirement plans. The details of such plans are inherently rather arbitrary, making recourse to purpose, the standard method of disambiguating documents, often futile. When as in this case the plan document does not furnish the answer to the question, the answer given by the plan administrator, when the plan vests him with ...

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