     Case: 12-10151     Document: 00511961926         Page: 1     Date Filed: 08/20/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          August 20, 2012

                                     No. 12-10151                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DEBORAH ARMANDO,

                                                  Plaintiff-Appellant
v.

AT&T MOBILITY,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:10-CV-170


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Deborah Armando brought claims under various
federal employment statutes against Defendant-Appellee AT&T Mobility after
AT&T Mobility fired her from her job at an AT&T call center. This appeal
concerns the district court’s summary judgment disposing of Armando’s claims
under the Employee Retirement Income Security Act of 1974 (“ERISA”). The
district court held that AT&T Mobility is not a proper defendant for Armando’s


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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denial-of-benefits claim because AT&T Mobility neither sponsors nor
administers its employees’ benefit plan.      And the district court held that
Armando’s complaint did not state a claim for ERISA retaliation. We AFFIRM.
      AT&T Mobility’s parent company hired Sedgwick, Inc., to administer the
employee benefit plans of its various subsidiaries. The instrument governing the
plan at issue here gives Sedgwick final authority to make benefits
determinations, and AT&T Mobility staff have no role in Sedgewick’s formal
decision making and appeals process.
      With the exception of a brief period in late May and early June, Armando
was absent from her job at AT&T mobility from April 17 until she was fired on
September 3, 2009. Armando requested short-term disability leave covering her
absence, which Sedgwick granted through August 19, 2009. Armando did not
return to work after that date, and on August 25 AT&T Mobility sent her a letter
warning of its policy requiring an employee who has exhausted leave under the
Family Medical Leave Act to either return to work or secure approval for short-
term disability leave covering the absence. Armando requested an extension of
her short-term disability leave on August 26, 2009, but Sedgwick denied the
request. Armando did not return to work, and AT&T Mobility fired her on
September 3, 2009, citing the lack of approved short-term disability leave
covering her absence since August 20, 2009.
      We review a summary judgment de novo, using the same standard as the
district court. Haggard v. Bank of Ozarks, Inc., 668 F.3d 196, 199 (5th Cir.
2012). Summary judgment is proper only if there is no “genuine dispute as to
any material fact.” FED. R. CIV. P. 56(a). We consider evidence in the summary
judgment record in the light most favorable to the party opposing the motion.
Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). We




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also review de novo a dismissal for failure to state a claim. True v. Robles, 571
F.3d 412, 417 (5th Cir. 2009).
       Armando brings her denial-of-benefits claim under ERISA § 502(a)(1)(B),
29 U.S.C. § 1132(a)(1)(B). In support of its argument that it is not a proper
defendant for the denial-of-benefits claim, AT&T relies on ERISA § 502(d)(2):
     Any money judgment under this subchapter against an employee
     benefit plan shall be enforceable only against the plan as an entity and
     shall not be enforceable against any other person unless liability
     against such person is established in his individual capacity under this
     subchapter.
29 U.S.C. § 1132(d)(2). In Musmeci v. Schwegmann Giant Super Markets, Inc.,
332 F.3d 339, 349-50 (5th Cir. 2003), we held that § 1132(d)(2) permitted an
employee to bring a denial-of-benefits action against an employer who was both
the plan administrator and plan sponsor, and who had “indisputably” made the
benefits decision that the plaintiffs wished to contest.                        Id. at 350.
“Administrator” and “Sponsor” are defined terms under ERISA. In this case,
AT&T Mobility’s parent, AT&T, Inc., is the plan sponsor under 29 U.S.C.
§ 1002(16)(B)(iii),1 and Sedgewick is the administrator under 29 U.S.C.
§ 1002(16)(A)(1).2


       1
           “Sponsor” means:
     (i) the employer in the case of an employee benefit plan established or maintained
     by a single employer, (ii) the employee organization in the case of a plan
     established or maintained by an employee organization, or (iii) in the case of a plan
     established or maintained by two or more employers or jointly by one or more
     employers and one or more employee organizations, the association, committee,
     joint board of trustees, or other similar group of representatives of the parties who
     establish or maintain the plan.
29 U.S.C. § 1002(16)(B).
       2
           “Administrator” means:
     (i) the person specifically so designated by the terms of the instrument under which the
     plan is operated;

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       Although AT&T Mobility is neither administrator nor sponsor of the plan,
Armando contends that “if evidence exists to show that the employer had some
control over decisions related to claims for benefits, the employer should be able
to be held accountable for a decision to deny benefits to employees.” Armando
relies on Sweet v. Consolidated Aluminum Corporation, 913 F.2d 268 (6th Cir.
1990). In Musmeci, we cited Sweet with approval for the proposition that “the
plan beneficiaries can sue the employer when it was the employer’s decision to
deny benefits.” Musmeci, 332 F.3d at 349 (citing Sweet, 913 F.2d 268).
       As evidence that AT&T Mobility had control over Sedgwick’s benefits
determinations, Armando points to her affidavit testimony stating that as a
union representative in other employees’ grievance proceedings, she has
witnessed AT&T Mobility managers review and reverse Sedgwick’s
determinations concerning employees’ disability benefits. Armando contends
that AT&T Mobility managers’ ability to influence other employees’ benefit
determinations in the past entails “in turn . . . that Mobility would, likewise,
have some control over the decisions involving Armando’s claim for the benefits
at issue in this case.”
       We disagree. Armando’s affidavit testimony shows that Sedgewick has at
times been willing to reconsider its benefits decisions in response to an informal
request from an AT&T Mobility manager seeking to resolve an employee
grievance proceeding. Sedgwick’s occasional solicitude to such requests does not
create a genuine issue of fact regarding who made the decision concerning
Armando’s benefits in the face of the plan instrument’s giving Sedgwick control



     (ii) if an administrator is not so designated, the plan sponsor; or
     (iii) in the case for which an administrator is not designated and a plan sponsor cannot
     be identified, such other person as the Secretary may by regulation prescribe.
29 U.S.C. § 1002(16)(A).

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                                 No. 12-10151
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over benefit determinations. AT&T Mobility is therefore not a proper defendant
for Armando’s denial-of-benefits claim.
      We next consider Armando’s claim under 29 U.S.C. § 1140, which prohibits
employers from retaliating for employees’ exercise of their ERISA rights. The
theory of her ERISA retaliation claim, Armando explains, is that because AT&T
Mobility did not want the plan to have to pay for her disability benefits as
required by the plan, AT&T Mobility first engineered Sedgwick’s denial of her
August 26, 2009 request for an extension of short-term disability benefits, and
then AT&T Mobility used the absence of short-term disability leave as a pretext
to fire her. She contends that the district court erred in finding that her
complaint does not state a claim for ERISA retaliation, and she argues in the
alternative that the district court should have allowed her leave to amend. We
need not address the sufficiency of Armando’s complaint, because Armando’s
ERISA retaliation theory is premised on AT&T Mobility’s having exercised
control over Sedgwick’s decision to deny Armando’s request for more disability
leave. The record establishes as a matter of law that Sedgwick had control over
that decision, so there was no reversible error in the district court’s disposition
of Armando’s ERISA retaliation claim.
      The district court’s judgment is AFFIRMED.




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