          United States Court of Appeals
                      For the First Circuit

No. 14-2059

                         ROBERT NIEBAUER,

                      Plaintiff, Appellant,

                                v.

 CRANE & CO., INC.; CRANE & CO., INC. EXECUTIVE SEVERANCE PLAN,

                      Defendants, Appellees.




          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Michael A. Ponsor, U.S. District Judge]




                              Before

                    Barron, Selya, and Stahl,
                          Circuit Judges.



     Robert A. Fisher, with whom Jonathan A. Keselenko, Christopher
S. Feudo, and Foley Hoag LLP were on brief, for appellant.
     David C. Casey, with whom Robert B. O'Brien and Littler
Mendelson, P.C. were on brief, for appellees.



                          April 21, 2015
              STAHL, Circuit Judge.         In this case arising under the

Employee      Retirement    Income     Security    Act   ("ERISA"),      29   U.S.C.

§§ 1001 et seq., Plaintiff-Appellant Robert Niebauer alleges that

the administrator of his former employer's executive severance plan

denied him severance benefits after erroneously determining that he

had    retired    voluntarily      from    his    position.       See   29    U.S.C.

§ 1132(a)(1)(B). Niebauer further alleges that his former employer

improperly interfered with his rights under the plan, in violation

of 29 U.S.C. § 1140.             The district court granted Defendants-

Appellees summary judgment on both counts.               See Niebauer v. Crane,

44 F. Supp. 3d 147 (D. Mass. 2014).

              Because we find that the plan administrator's decision to

deny       Niebauer's   claim    for    benefits     was   both    supported     by

substantial      evidence    and     procedurally    proper,      we    affirm   the

district court's judgment in that regard.                However, we vacate the

district court's judgment as to the interference claim and remand

for application of the correct standard of review.

                            I.   Facts & Background1

              At the time of the events in question, Robert Niebauer

was the chief technology officer of Crane & Co., Inc. ("Crane").

Headquartered in Dalton, Massachusetts, Crane produces specialty



       1
       As both parties and the district court did, we draw the
facts from the full summary judgment record. We detail infra the
specific information and documents that were before the plan
administrator when it made its decisions.

                                          -2-
paper products, including the banknote paper used for printing

United States currency.

               Crane maintains an executive severance plan ("plan"),

under       which   severance   benefits     are   available   to   designated

employees who have been involuntarily terminated. Because the plan

is an employee welfare benefit plan, it is governed by ERISA, 29

U.S.C. §§ 1001 et seq.          Employees who voluntarily leave Crane are

entitled to benefits only if they do so for "good reason," which

the plan defines as certain changes to an employee's position, such

as relocation, significant reduction in salary, or substantial

changes to the employee's job responsibilities.2 The plan reserves

to the administrator — here, the compensation committee of Crane's

board of directors — "full discretionary power and authority to

construe, interpret and administer the Plan [and] to make Benefit

Eligibility determinations."          As a Crane executive, Niebauer was

covered by the plan.

               In his capacity as chief technology officer, Niebauer

reported to the chief executive officer ("CEO") of the company — a

position occupied, as of October 2011, by Stephen DeFalco, a recent

hire. One of DeFalco's priorities upon taking office was repairing

a frayed relationship with a significant client of the company, the



        2
       Per the terms of the plan, an event constitutes "good
reason" only if the employee provides written notice to the Crane's
board of directors, specifying the event in question, within sixty
days of the first occurrence of such event.

                                       -3-
Bureau of Engraving and Printing ("BEP"), a division of the United

States Department of the Treasury. Work on the latest BEP project,

called   "Type      V,"   had   stalled    as   a   result   of   technological

difficulties encountered in printing the paper used for $100

banknotes.        To address the problems afflicting Type V, DeFalco

launched a task force within Crane, referred to internally as

"Project Momentum," and designated an employee named Rich Rowe as

the project leader.        As part of Project Momentum, DeFalco decided

to station a Crane staff member at the BEP printing facility in

Fort Worth, Texas, who would serve as the company representative

and liaison to the Massachusetts headquarters.

             On November 18, 2011, DeFalco asked Niebauer to serve as

the Project Momentum deputy in Texas.               Niebauer agreed, on the

understanding that he was to be in Texas only to the end of the

calendar year. However, after their conversation, DeFalco noted in

an email to the BEP contact that Niebauer would "spend substantial

time at [BEP] facilities until at least March [2012]."                 Niebauer

began to have "second thoughts" about the length of the assignment,

and also became concerned about personnel decisions that DeFalco

had   made   in    connection    with     Project   Momentum,     including   his

addition to the Massachusetts team of certain individuals whom

Niebauer felt BEP distrusted.

             Because of these concerns, Niebauer and DeFalco scheduled

a phone call for November 22 to review the project's personnel and


                                        -4-
the length of Niebauer's commitment.     The two characterize this

call differently.     According to DeFalco, Niebauer effectively

attempted to extract severance benefits in exchange for agreeing to

the Texas assignment.    According to Niebauer, he communicated to

DeFalco that he believed that his new Project Momentum role

constituted a triggering event under the severance plan, entitling

him to benefits.    In response, Niebauer says, DeFalco called this

claim "crazy talk," stating that severance was awarded only if an

executive was fired, and Niebauer was not being fired.     Niebauer

admits to telling DeFalco that he was in a position of "maximum

leverage" vis-à-vis securing severance benefits.     In any event,

Niebauer ultimately recommitted to the Texas assignment.

          Thereafter, team members worked to get Project Momentum

up and running, and scheduled meetings with BEP representatives in

Fort Worth for Monday, December 5.      Niebauer, who had not yet

relocated to Texas, was slated to make the trip.    In an exchange

with Rowe over the preceding weekend, however, Niebauer began to

express reluctance to travel and eventually decided not to go.   In

a December 4 email to Rowe, Niebauer said that he had "made some

decisions that [he] must inform [Rowe] of."   Niebauer also emailed

DeFalco on December 4, asking to set up a meeting "concern[ing] a

decision [he] ha[d] reached."

          The ensuing December 5 phone call between Niebauer and

DeFalco is a focal point of this litigation; the parties vehemently


                                 -5-
dispute the content and import of the conversation.                     Niebauer's

account is that he called DeFalco on his cell phone and told him

that       his   persistent    concerns   about    the    structure    of    Project

Momentum left him no choice but to "at least consider retirement"

if the project organization did not change.3                     At some point

thereafter, the parties agree that the call was dropped.                    Niebauer

asserts      that,    when    the   connection    was    reestablished,     DeFalco

rebuffed his offer to repeat what he had said; instead, DeFalco

declared that he had heard enough, and that it was his policy not

to try to talk an executive out of retirement.                        According to

DeFalco, however, Niebauer told him that he was "retir[ing] now,

effective immediately," since he was not going to receive severance

at the conclusion of Project Momentum.             DeFalco told Niebauer that

he was disappointed but understood his decision to retire and

wished him well.

                 In the aftermath of the December 5 phone call, both

Niebauer and DeFalco sent emails to various individuals explaining

what       had   happened.     That   afternoon,    DeFalco    emailed       Charles

Kittredge, the former CEO of Crane who had stayed on as chairman of

the board, letting him know that Niebauer had just told DeFalco

that "he would be retiring immediately." DeFalco also informed the

Project Momentum team by email the next day that Niebauer had


       3
      Niebauer testified at his deposition that the reason he gave
DeFalco for being forced to consider retirement was his failure to
negotiate a severance package.

                                          -6-
decided to retire and that his last working day was likely to be

December 16.

           For his part, Niebauer emailed his daughter the morning

after his conversation with DeFalco, telling her that he had "made

the announcement to [DeFalco] that [he did] not want to go live in

Fort Worth for the next six months and want[ed] to retire."   On the

afternoon of December 5, Niebauer also forwarded to DeFalco an

email from a BEP contact who was trying to schedule a phone call.

In forwarding the email, Niebauer asked DeFalco for guidance in

responding to the BEP email, noting that he wanted "this to be a

smooth transition but under[stood] if [DeFalco wanted] to make it

more abrupt." Niebauer then forwarded the email chain to his wife,

who replied, "Sounds like you told [DeFalco] that retirement is

route."4

           Following the December 5 call, DeFalco instructed Jay

Wickliff, the head of human resources at Crane, to reach out to

Niebauer to discuss next steps.    Wickliff and Niebauer met on the

morning of December 6.    The parties' characterizations of this

meeting diverge. Niebauer claims that he told Wickliff that he had

not voluntarily retired but rather DeFalco had "retired him" — but

that if he were going to retire, he would need to learn more about


     4
       As will be further discussed below, Niebauer's position in
this litigation is that he never expressed an intent to retire, nor
did he tell others that he had retired. Instead, he maintains on
appeal that, after the December 5 call, he told people that DeFalco
"had retired him."

                                  -7-
his financial options.            Crane asserts that Niebauer reiterated his

decision to retire, and that he and Wickliff discussed setting a

retirement         date    that   took    into     account    Niebauer's     remaining

vacation      time.         Wickliff     emailed    DeFalco    after   the   meeting,

stating, "[Niebauer] confirmed to me this morning his decision to

retire."          Wickliff added, "We discussed having some kind of event

to honor his career.              At first he thought he did not want to do

anything, but decided that a low key event . . . would be best."

                  Later that day, DeFalco posted a message on Crane's

internal communications system formally announcing the launch of

Project Momentum.           Niebauer's name was not included in the list of

team members. Shortly thereafter, a colleague wrote in an email to

Niebauer that he had just seen the announcement, which "said it

all."        In the ensuing back-and-forth, Niebauer wrote that he

believed that his last day of work would be the next day, December

7, and that his "[r]etirement day [would] most likely be February

1st."       Niebauer explained to the colleague that his "decision to

leave       was    that    in   [his]    opinion,     the    company   [had]    become

dishonorable."            Niebauer also emailed Rowe, the leader of Project

Momentum, stating, "I am assuming that you know about my pending

retirement,"5 and that, since the announcement of the project team




        5
      The copy of this typed email in the record bears handwritten
quotation marks around "pending retirement."

                                            -8-
had been posted without his name, he expected that he would not

attend upcoming team meetings.

             Also on December 6, Niebauer met with Rick Kendall, who

handled     retirement    calculations       for     Crane's   executives     in

conjunction with an outside firm, Towers Watson, which acted as

Crane's actuarial consultant.            Niebauer and Kendall discussed

different options for retirement dates.                Kendall advised that

obtaining a retirement calculation from Towers Watson did not

commit him to retiring, but that if he did retire, he would not be

eligible for severance.         In email correspondence through December

9, Niebauer asked Kendall to use February 1, 2012 as a basis for a

retirement calculation, and then later proposed March 1, 2012 as

his retirement date.           Kendall then told Niebauer via email on

December 9 that his last day of work would be January 27, 2012,

followed by five weeks of vacation, for a retirement date of March

1. Shortly thereafter, Niebauer wrote in an email to his wife that

they could "kiss the severance option good bye."

             Beginning on December 12, Niebauer began unambiguously

portraying his retirement as involuntary.             When a coworker, Chris

Duquette,    emailed     him    that   day   to    congratulate   him   on   his

retirement, Niebauer responded, "All I have agreed to is to

consider retirement and look at the numbers to see if it is

possible."     Around that time, Niebauer also approached Wickliff

(the head of human resources) to tell him that he had not decided


                                       -9-
to retire and was not in fact retiring.    Wickliff responded that

Niebauer had indeed resigned,6 and the CEO DeFalco had already

accepted his resignation; if he wanted his job back, he would have

to consult DeFalco.

          DeFalco called Niebauer on December 16 to tell him that

that day would be his last working day, but that he would be kept

on the company payroll through the end of January.   Wickliff sent

Niebauer a letter to a similar effect, which Niebauer received on

December 19. Following the phone call with DeFalco on December 16,

Niebauer memorialized his disagreement in a letter, sent to DeFalco

by certified mail, writing, "I have not resigned from Crane & Co.

and . . . I have no present intention of resigning from Crane & Co.

. . . [T]he termination of my employment at this point would be

considered involuntary under the Executive Severance Plan."     He

claimed that this was all a misunderstanding arising out of the

December 5 dropped call and that he had never communicated an

intent to retire. Nonetheless, Crane shut off Niebauer's email and

telephone access on December 16.      Niebauer did not thereafter

report to work.

          Niebauer filed a claim for severance benefits under the

plan on February 2, 2012, on the ground of involuntary termination.

The compensation committee — the designated plan administrator,



     6
        This opinion uses the terms "resign" and          "retire"
interchangeably, as the parties do in their briefing.

                               -10-
responsible for determining Niebauer's benefits eligibility — was

scheduled to meet on March 15, 2012.        In advance of the meeting,

James Hackett, general counsel of Crane, investigated Niebauer's

claim. He reviewed Niebauer's email correspondence around the time

of his departure and spoke with various Crane employees about the

circumstances leading up to the departure, including DeFalco,

Wickliff, Rowe, Kendall, and Doug Crane, a Crane vice president.

With the help of Wickliff and outside counsel, Hackett created a

one-page timeline of events from November 2011 to February 2012 to

summarize the results of his investigation.

           At the compensation committee meeting, Hackett presented

the   timeline   he   had   prepared.7    Other   documents   before   the

committee included a copy of the plan, certain emails that Niebauer

had sent in December of 2011,8 and Niebauer's application for

benefits.9 DeFalco, Wickliff, and Kittredge also provided relevant

information to the committee orally.10


      7
       Niebauer did not attend the meeting, nor did he request to
attend.
      8
       Emails from Niebauer to Rich Rowe concerning travel plans to
Texas, to his daughter, to Rick Kendall, and to Chris Duquette were
not before the committee.
      9
       At the time of Niebauer's departure from Crane, human
resources had determined that he was ineligible for severance
benefits under the plan and declined to pay them out. A summary of
this decision was also before the compensation committee.
      10
       Separately from Niebauer's claim for severance benefits, the
committee also considered the issue of his "management incentive
compensation," awarding him a lump sum of $3.5 million instead of

                                   -11-
             The committee issued a written summary of its decision on

May 2, 2012, outlining the substance of Niebauer's claim, relevant

plan provisions, and the information presented to the committee.

Its conclusion was to deny Niebauer's claim for benefits, given

that he had "voluntarily elected to resign his employment" and

therefore "was not eligible for a severance benefit pursuant to the

Plan." The written decision also noted that, pursuant to the terms

of the plan, Niebauer was entitled to file an appeal within sixty

days.

             Although he had initially submitted his claim without

supporting     documentation,   Niebauer's   appeal   of   the   adverse

decision, filed on June 28, 2012, numbered almost seventy pages in

length and contained a detailed rebuttal of Hackett's timeline and

various appended emails and documents.       Niebauer's position was

that he had never announced an intent to retire, and that Crane's

belief to the contrary was a misunderstanding; even though he had

attempted to clear up the confusion, Crane did not allow him to

maintain his employment.

             In advance of the August 24, 2012 compensation committee

meeting, members were provided with all of the documents that

Niebauer had submitted in support of his appeal, in addition to a

memorandum written by Hackett that included, among other things, an

explanation of the legal authorities cited in Niebauer's appeal and


a payout over ten years.

                                  -12-
copies of certain relevant emails, Hackett's timeline of events

created for the first meeting, and the written summary of the

initial decision to deny benefits.            At the meeting, the committee

unanimously voted to deny Niebauer's appeal, on the ground that he

had resigned his employment without "good reason" to do so, as

defined in the plan. The committee issued a written summary of its

decision on September 7, 2012.

            On October 30, 2012, Niebauer filed suit in the district

court against Crane and the Crane executive severance plan.                 His

complaint sought to recover severance benefits allegedly due under

the plan, 29 U.S.C. § 1132(a)(1)(B), and also pleaded one count of

interference   with      a    protected   right.    Specifically,       Niebauer

alleged that Crane "terminated [his] employment [against his will]

and then labeled it as a retirement in order to deprive him of

severance    pay   and       other   benefits   under    the   Plan,"   thereby

discriminating against him for the purpose of interfering with a

protected right, in violation of 29 U.S.C. § 1140.                  In total,

Niebauer sought $1,169,484 in damages, plus attorney's fees and

costs.   That amount included $855,920 in severance benefits, $5000

for reimbursement of health insurance premiums, and $308,564 in

back pay.

            After ordering additional discovery to fill in gaps in

the   administrative         record,   the    district   court   granted    the

defendants' motion for summary judgment.            The court held that the


                                       -13-
committee's decision to deny Niebauer's claim for benefits was

neither arbitrary nor capricious and was supported by substantial

evidence.   The court further held that because Niebauer could not

establish that he had suffered an adverse employment action, he

could not make out a prima facie case of interference with a

protected right.    This appeal followed.

                             II.   Analysis

            On   appeal,   Niebauer   argues   that   the   compensation

committee's decision to deny his claim for severance benefits was

tainted by a conflict of interest as well as procedural errors, and

was not supported by substantial evidence.        He also asserts that

the district court improperly granted summary judgment to the

defendants on the interference claim.      We address these issues in

turn, but first discuss the applicable standard of review, which

the parties dispute.

A.   Standard of review

            In general, where an ERISA plan delegates to the plan

administrator the discretion to construe the plan and determine

eligibility for benefits under its provisions, a decision made

under the plan will be upheld unless it was "arbitrary, capricious,

or an abuse of discretion."     Cusson v. Liberty Life Assurance Co.

of Bos., 592 F.3d 215, 224 (1st Cir. 2010) (internal quotation

marks omitted).      Under this standard, a reviewing court "asks

whether a plan administrator's determination is plausible in light


                                   -14-
of the record as a whole, or, put another way, whether the decision

is supported by substantial evidence in the record."                 Colby v.

Union Sec. Ins. Co. & Mgmt. Co. for Merrimack Anesthesia Assocs.

Long   Term    Disability   Plan,   705   F.3d   58,   61   (1st   Cir.   2013)

(internal quotation marks omitted). Because we review the district

court's summary judgment decision de novo, we, too, apply a

deferential standard to the plan administrator's decision.                Leahy

v. Raytheon Co., 315 F.3d 11, 18 (1st Cir. 2002).

              Niebauer   argues   against   such   deferential     review    by

pointing out that the plan at issue is a "top hat plan" and urges

us to follow the approach of the Third and Eighth Circuits, which

have held that de novo review applies to decisions made under top

hat plans.     See Craig v. Pillsbury Non-Qualified Pension Plan, 458

F.3d 748, 752 (8th Cir. 2006) (holding that "[t]op hat plans should

be treated as unilateral contracts and reviewed in accordance with

ordinary contract principles" (internal quotation marks omitted));

Goldstein v. Johnson & Johnson, 251 F.3d 433, 443 (3d Cir. 2001)

(same); see also McCarthy v. Commerce Grp., Inc., 831 F. Supp. 2d

459, 480 (D. Mass. 2011) (noting circuit split regarding whether de

novo or arbitrary and capricious standard of review applies to top

hat plans generally).

              Under ERISA, a top hat plan is "any 'plan which is

unfunded and is maintained by an employer primarily for the purpose

of providing deferred compensation for a select group of management


                                    -15-
or highly compensated employees.'"           Alexander v. Brigham & Women's

Physicians Org., Inc., 513 F.3d 37, 42 (1st Cir. 2008) (quoting 29

U.S.C. § 1051(2)).       The parties agree that the plan at issue is a

top hat one.

              We   decline   to    decide    whether   top   hat   plans   are

categorically subject to de novo review because, as Crane observes,

"[e]ven the Circuit courts that have reviewed top hat decisions

under 'ordinary contract principles' . . . have noted that it is a

distinction without a difference where, as here, the plan grants

the administrator discretion to interpret the plan."                Both the

Third   and     Eighth   Circuit    cases    upon   which    Niebauer   relies

ultimately reviewed decisions under top hat plans simply for

reasonableness. See Craig, 458 F.3d at 752; Goldstein, 251 F.3d at

444. Those courts reasoned that a plan's grant of discretion to an

administrator must be given effect as contract principles would

ordinarily require: "where one party is granted discretion under

the terms of the contract, that discretion must be exercised in

good faith — a requirement that includes the duty to exercise the

discretion reasonably." Craig, 458 F.3d at 752 (quoting Goldstein,

251 F.3d at 444).        As "reasonableness is the basic touchstone in

all benefit-denial cases," Denmark v. Liberty Life Assurance Co. of

Bos., 566 F.3d 1, 6 (1st Cir. 2009) (internal quotation marks

omitted), we apply our typical deferential standard of review here.

              In reliance on Hannington v. Sun Life & Health Insurance


                                      -16-
Co., 711 F.3d 226, 230–32 (1st Cir. 2013), Niebauer argues in the

alternative that de novo review is mandated under this Circuit's

precedent where a plan administrator interprets material outside

the plan.   Niebauer maintains that the compensation committee here

"interpreted emails and other documents to reach its conclusion."

Those interpretations of non-plan documents, the argument goes, are

not entitled to deference.

            Hannington   is   inapposite.     In     that   case,   a   plan

administrator relied on a provision of the Veterans' Benefits Act

to reduce the benefits due under a plan to a claimant, where that

claimant was also receiving service-related disability compensation

under the statute.   711 F.3d at 229, 231–32.        We reviewed the plan

administrator's construction of the statute de novo, holding that

the administrator only had discretion to interpret the plan's

provisions and that deference is inappropriate "when the plan

fiduciary is required, in the course of determining the meaning of

the plan language, to interpret material outside the plan." Id. at

230; see also Coffin v. Bowater Inc., 501 F.3d 80, 85 (1st Cir.

2007) (reviewing de novo plan administrator's interpretation of

stock   purchase   agreement    that     allegedly    terminated    plan's

obligations to subsidiary's workers after sale of subsidiary).

            Here, by contrast, the non-plan material at issue is

email correspondence, not documents creating or altering legal

obligations such as statutes or contracts.           The emails that the


                                  -17-
compensation committee considered, wherein Niebauer discussed his

retirement from Crane, do not bear on the legal definition of plan

terms.    Rather, they provide pertinent background, a basis for

assessing whether the factual predicate of the plan's provisions

has been triggered.      Simple fact-gathering cannot displace the

deference owed to a plan administrator.         We thus proceed under the

rubric of arbitrary-and-capricious review.

B.    Conflict of interest

            Niebauer   argues   that     the   compensation   committee's

decision to deny him benefits was irreparably tainted by a conflict

of interest, pointing out that the existence of such a conflict is

one    factor   that   may   justify   the     conclusion   that   a   plan

administrator's decision was arbitrary and capricious.         See Metro.

Life Ins. Co. v. Glenn, 554 U.S. 105, 116–17 (2008); Denmark, 566

F.3d at 8. In particular, he asserts that the committee was biased

by its concern with the ongoing problems plaguing the BEP contract

and with Niebauer's integral role in ameliorating those problems,

thus precluding it from impartially deciding Niebauer's claim for

severance benefits.     In other words, Niebauer maintains that the

committee was so frustrated with the impending loss of the most

important staff member (him) on Crane's most important project that

it denied his claim for benefits to spite him.

            This argument sits in tension with Niebauer's overall

theory of the case.     As the district court observed,


                                  -18-
            [Niebauer] seems to suggest that his absence
            was going to damage [Project Momentum] and
            that Defendants wanted to penalize him because
            they were angry at his decision to leave the
            company at a sensitive time. [Niebauer] also
            strongly contends, however, that he never
            decided to leave, that Defendants knew he
            wanted to continue his employment, and that
            they nevertheless arbitrarily terminated him
            involuntarily, apparently despite the negative
            impact on the Project.

Niebauer, 44 F. Supp. 3d at 162.            Thus, if it is true that the

committee was so resentful of Niebauer's ill-timed departure that

its   judgment   was   impaired   as   to   his   severance     claim,   it   is

implausible that Crane would have terminated him in the first

instance, as he claims.

            But even leaving aside any internal inconsistency in his

position,   Niebauer    does   not     identify   an   actual    conflict     of

interest.    The paradigmatic conflict of interest in ERISA cases

occurs when the same entity is responsible for "both determin[ing]

whether an employee is eligible for benefits and pay[ing] benefits

out of its own pocket."11      Glenn, 554 U.S. at 108.        In such cases,

the plan administrator's financial stake in the outcome acts as a

disincentive to award benefits.             Here, though, the success of

Project Momentum in no way depended on the compensation committee's

decision on Niebauer's claim for severance benefits.             Whatever the



      11
       Before the district court, Crane conceded the existence of
such a structural conflict, albeit one that was de minimis in
nature. Niebauer, however, does not press a structural-conflict
argument on appeal.

                                     -19-
committee members thought about the effect of Niebauer's departure

on Project Momentum, the decision to award benefits would not

impact the project either way.          Rather than conflict of interest,

Niebauer's argument on this score sounds in retaliation — a claim

that he has also raised independently and that we address below.

C.   Claimed procedural errors

           We    next   turn     to   Niebauer's       contention   that     the

compensation committee's decision was procedurally flawed.                   He

raises two arguments to buttress this claim: first, that the

decision relied on an incomplete factual record, and second, that

the committee's transmission of its decision to Niebauer failed to

comply with ERISA's notice requirements, 29 U.S.C. § 1133.                    We

address each in turn.

           1.      Whether the committee's decision relied on an
                   incomplete factual record

           Niebauer     faults    the    committee      for   relying   on    an

"inaccurate and incomplete" record in rendering its decision.                 He

points to two categories of errors that, in his view, undermine the

legitimacy of the committee's final decision: first, he argues that

the committee inappropriately relied on the one-sided timeline of

events prepared by Hackett, the general counsel.               He goes on to

contend   that   Hackett   "withheld"        certain    documents   from     the

committee that supported Niebauer's position, such as various

emails and personnel files.



                                      -20-
            We do not agree that there was anything improper in the

content or scope of the materials that the committee considered.

As an initial matter, it was entirely appropriate for the committee

to   rely   on   materials   submitted   by   Crane;   indeed,   the   plan

contemplates that the committee will do just that, by making

eligibility determinations "on the basis of information supplied to

it by the Employer."     And while a plan administrator may not rely

on evidence that it knows or has reason to know is misleading,

Buffonge v. Prudential Ins. Co. of Am., 426 F.3d 20, 30 (1st Cir.

2005), that is not what happened here.          The timeline, far from

being "undisputedly false," as Niebauer asserts, was a reasonable

synthesis of a convoluted series of events, which hewed to the

available evidence. For example, although Niebauer claims that the

timeline falsely represented that he agreed to a February 1, 2012

retirement date, that representation is a fair reading of a

December 8, 2011 email to Rick Kendall on the topic of retirement

calculations in which Niebauer wrote, "[I] think February 1st will

work."

            We also resist Niebauer's imputation of bad faith to

Hackett in his management of the investigation.          Niebauer argues

that Hackett kept certain records from the committee because they

supported Niebauer's position.      In particular, Niebauer points to

emails between him and Kendall about retirement calculations;

emails between him and coworker Chris Duquette in which Niebauer


                                  -21-
rebuffed congratulations on his retirement, stating that he had not

actually retired; as well as a document in his personnel file which

listed     the    reason     for    Niebauer's       departure       as     "Retired   —

Involuntary."12          Hackett    testified    at    his    deposition       that, in

assembling materials for the committee to review, he "look[ed] for

any   e-mails     that     were    relevant     on    the    topic    [of    Niebauer's

departure]       in    either     direction,"    mindful      of     the    committee's

"fiduciary duties to get all the facts and to look at this thing in

good faith."          Hackett stated that he turned over to the committee

all emails, sent during the relevant time period, that he deemed

relevant to Niebauer's claim.            Niebauer does not offer any reason

to discredit this testimony.

            Niebauer argues that, as a result of these supposed

inaccuracies and omissions, the committee was under the mistaken

impression that he had at least at one point decided to retire,

before ultimately changing his mind.                   But deposition testimony

makes clear that the committee members understood that Niebauer's

position was that he had not announced an intent to retire during

the initial December 5 call with Stephen DeFalco.                     In other words,


      12
       An affidavit from the Crane benefits specialist who prepared
the form, Gail Rondeau, demonstrates that the designation "Retired
— Involuntary" was not intended to be an official pronouncement on
the reason for Niebauer's departure from the company.       Rondeau
averred that, in filling out the electronic form, she simply used
the reason that Niebauer had provided, and that she "understood
that the designation in the computer program was irrelevant for any
purpose besides the Human Resources Department's administrative
termination of Niebauer's enrollment in various benefits programs."

                                        -22-
they   understood   that   Hackett's      timeline    did   not   align    with

Niebauer's stance. Certainly, if they were not aware of Niebauer's

position when the issue was considered at the first meeting, they

were by the time they decided his appeal, which offered a "point-

by-point refutation" of the timeline, Niebauer, 44 F. Supp. 3d at

158, and also provided copies of the allegedly withheld Kendall

emails.   It is this final decision that carries weight.            Terry v.

Bayer Corp., 145 F.3d 28, 35 (1st Cir. 1998).

           Although    Niebauer     now    argues    that   the   appeal    was

necessarily incomplete because it was prepared once he no longer

had access to his Crane email account, he noted at the time that he

had intentionally presented his version of events in exhaustive

detail so as to give the committee full context for his arguments.

He does not now explain how the handful of documents that were

unavailable to him at the time he filed his appeal would have

materially strengthened his presentation of his position to the

committee. As the district court concluded, "[t]he appeals process

protected against potential bias on the part of Hackett by allowing

[Niebauer]   to     present   his    unfiltered       perspective    to     the

Compensation Committee."      Niebauer, 44 F. Supp. 3d at 165.             Thus,

even if the factual record undergirding the committee's initial

decision was incomplete in some way, it was adequately supplemented

by Niebauer's appeal.




                                    -23-
          2.     Whether the committee complied with 29 U.S.C.
                 § 1133

          Niebauer next argues that the committee failed to comply

with ERISA's notice provision, which requires plan administrators

to "provide adequate notice in writing to any participant or

beneficiary whose claim for benefits under the plan has been

denied, setting forth the specific reasons for such denial, written

in a manner calculated to be understood by the participant."       29

U.S.C. § 1133(1); see    29 C.F.R. § 2560.503–1 (setting forth

implementing regulations).   Plan beneficiaries whose claims have

been denied are further entitled to "a reasonable opportunity . . .

for a full and fair review by the appropriate named fiduciary of

the decision denying the claim."   29 U.S.C. § 1133(2).    Relying on

these provisions — in particular § 1133(1) — Niebauer argues that

the notice of the compensation committee's final decision on his

appeal was inadequate.

          The notice requirements of ERISA are designed to "insure

that when a claimant appeals a denial to the plan administrator,

[he] will be able to address the determinative issues and have a

fair chance to present [his] case."        DiGregorio     v. Hartford

Comprehensive Emp. Benefit Serv. Co., 423 F.3d 6, 14 (1st Cir.

2005) (quoting Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 689

(7th Cir. 1992)).   This purpose is the lodestar in determining

whether there has been substantial compliance with the notice

provisions; strict compliance is not required. See Terry, 145 F.3d

                               -24-
at 39.   In assessing a notice-based challenge, we ask whether "the

beneficiary [was] supplied with a statement of reasons that, under

the circumstances of the case, permitted a sufficiently clear

understanding of the administrator's position to permit effective

review."     Id. (internal quotation marks omitted).              A claimant

typically must demonstrate that he or she has been prejudiced as a

result of the notice's inadequacy.           Bard v. Bos. Shipping Ass'n,

471 F.3d 229, 240–41 (1st Cir. 2006).

            Here, Niebauer complains that notice of the committee's

final decision was inadequate because it failed to provide specific

reasons.    But although Niebauer claims that "[t]he entirety of the

Committee's    decision    on   the    appeal    [was]     contained   in   two

sentences," the two-page memorandum at issue in fact provided a

procedural and factual background, in addition to a description of

the relevant provisions of the plan and the information the

committee     considered   in   arriving        at   its   decision,   before

summarizing its conclusion.      At the end of the memo, the committee

encapsulated its decision as follows:

            After   considering    and    discussing   the
            information presented, the Committee concluded
            that [Niebauer] had in fact elected to resign
            his employment rather than continue to work in
            support of the Crane & Co. project to which he
            had been assigned and further that his
            resignation was not for good reason as that
            term is described in the Severance Plan. See
            Article 2, Sections 2.10 and 2.16. Therefore
            [Niebauer's] appeal is denied.



                                      -25-
This    explanation,    which   clearly       outlines   the   reason    for   the

committee's decision, satisfies ERISA's notice requirements.                   See

Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 526 (1st Cir.

2005) ("The denial letter need not detail every bit of information

in the record . . . .").

             In any event, the notice of the committee's initial

decision,     with   which   ERISA's    notice    provisions    are     primarily

concerned, was adequate to permit effective review of Niebauer's

claim.      As Crane observes, it is undisputed that the key issue

before the committee was whether Niebauer had resigned or instead

had been involuntarily terminated.            Niebauer was undeniably aware

that this question was dispositive of his claim; indeed, after

receiving notice of the committee's initial decision,13 he submitted

an appeal with seventy pages of supporting documentation, addressed

to the precise issue of whether he had retired, or whether, in his

parlance, he "was retired" against his will. After considering the

documents that he submitted, the committee upheld its earlier

decision on the same grounds.           As such, Niebauer has no credible

claim that his understanding of the issues at stake was so muddled

as to inhibit effective review.14             Compare Terry, 145 F.3d at 39


       13
        As discussed above, this notice advised Niebauer of the
committee's conclusion that he, "a valued senior executive, had
voluntarily elected to resign his employment, and that therefore he
was not eligible for a severance benefit pursuant to the Plan."
       14
       Niebauer also argues that the inadequacy of the notice is
manifested in its incorrect reference to section 2.10 of the plan,

                                       -26-
(where claimant submitted additional information to committee that

directly addressed whether he was disabled from performing "any"

job, "[h]is actions demonstrate[d] that he was well aware of the

reasons for the decision, and was submitting additional evidence on

the    crucial   point"),     with    Bard,   471   F.3d    at   241   (where

administrator provided no notice of denial, claimant was not

"informed that he needed to show that his total disability occurred

prior to termination of his employment, [and accordingly] submitted

medical documentation not meant to address that point . . . which

ultimately proved quite harmful to his administrative appeal").

D.    Substantial evidence

            As noted above, where the plan confers administrative and

interpretive     discretion    upon     the   administrator,     we    review

substantive challenges to decisions made under the plan for an

abuse of discretion.        Cusson, 592 F.3d at 224.        To pass muster,

administrators' determinations "must be reasoned and supported by

substantial evidence."       Colby, 705 F.3d at 62 (internal quotation

marks omitted).      "Evidence is deemed substantial when it is

reasonably sufficient to support a conclusion."            Ortega-Candelaria

v. Johnson & Johnson, 755 F.3d 13, 20 (1st Cir. 2014) (internal


which details the various "disqualifying event[s]" that constitute
grounds for denying benefits. Even though section 2.10 is not at
issue in this case, the errant citation to that provision does not
undermine our conclusion that Niebauer — who received notice of the
committtee's initial decision that referred to the proper sections
of the plan— had a sufficiently clear understanding of the
committee's position in order to permit effective review.

                                     -27-
quotation marks omitted).    Thus, the question before us is not

which side is right, but whether the compensation committee's

decision to deny Niebauer's claim for severance benefits was

reasonable on the record before it.      See id.

          Niebauer   would   have   us    answer   in   the    negative.

Essentially, his position is that the evidence demonstrates that he

never expressed an intent to retire — on the December 5 call with

DeFalco or otherwise.   Accordingly, he argues, his departure from

Crane was the result of an involuntary termination, as evidenced by

Crane's unilateral selection of his last day of work.         He contends

that the committee failed to consider his position at all and

instead accepted DeFalco's version of events uncritically.

          Niebauer's claim that he never expressed an intent to

retire is belied by the administrative record.      The committee had

before it ample evidence that Niebauer announced his retirement to

various parties on and around December 5, 2011.         In particular,

even though there is no record of the disputed December 5 call,

contemporaneous emails show that both DeFalco and Niebauer relayed

to others that Niebauer decided to retire that day, effective

immediately. In the twenty-four hours after the call, both DeFalco

and Niebauer independently confirmed the retirement announcement to

various third parties; Niebauer's wife wrote in an email to him,

"Sounds like you told [DeFalco] that retirement is route," and he

later told her that "severance is very unlikely based on the


                               -28-
triggering events . . . . [I] think we kiss the severance option

good bye."

             Furthermore, there is substantial evidence that, beyond

simply talking about the retirement, both parties took steps to

effectuate Niebauer's stated intent after December 5. DeFalco left

Niebauer's name off the announcement of the Project Momentum team,

and Niebauer stopped attending team meetings thereafter.        The

committee considered evidence that Niebauer consulted with two

different Crane employees about retirement logistics and also began

discussing plans for a retirement party.     He openly talked about

his pending retirement with his coworkers and wife.

             In the face of all this evidence, the committee was

entitled to view Niebauer's belated disavowal of his retirement in

the December 16 letter to DeFalco — eleven days after his initial

announcement — as a specious attempt to collect severance.      See

Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 216 (1st Cir. 2004)

(holding that it is within plan administrator's discretion to weigh

competing evidence).      This is particularly so where Niebauer's

letter maintained that he had never resolved to retire, without

acknowledging that his earlier conduct may have evinced a contrary

intent.15    And while Niebauer complains that the committee failed


     15
       We note that it is unclear from the record how a decision
to retire is officially finalized at Crane. But we do not view
this ambiguity as undercutting the substantial evidentiary grounds
for the committee's decision, particularly where the committee
considered evidence that Niebauer had announced his intent to

                                 -29-
to consider his account of the December 5 dropped call, including

his claim of miscommunication, the record reflects the opposite.

As the chairman of the compensation committee testified at his

deposition, "Certainly there was weight applied to the claim on Mr.

Niebauer's part that there was some confusion, but the other

evidence that we had . . . supported so much the retire[ment]

decision that we credited it fairly significantly."              The committee

thus appropriately discharged its "responsibility . . . to weigh

conflicting evidence."         Vlass v. Raytheon Emps. Disability Trust,

244 F.3d 27, 32 (1st Cir. 2001).

              Niebauer devotes significant attention to providing his

perspective on the emails upon which the committee relied wherein

he discussed his retirement with various people.                 For example,

Niebauer asserts that the December 6 email to Rowe in which he

mentioned his "pending retirement," "does not suggest that he in

fact voluntarily retired," but simply reveals that he had been

"specifically instructed to refer to it in that manner." But these

alternative      explanations      cannot     undermine    the    substantial

evidentiary basis for the committee's decision that Niebauer had

voluntarily retired and was thus ineligible for severance benefits.

"[I]n   the    presence   of    conflicting    evidence,   it     is   entirely

appropriate for a reviewing court to uphold the decision of the




retire "effective immediately."

                                     -30-
entity entitled to exercise its discretion," Gannon, 360 F.3d at

216, and we accordingly affirm the committee's decision here.

E.   Interference with protected rights

           In the second count of his complaint, Niebauer has

alleged that Crane impermissibly interfered with his protected

rights   under    the     plan,    as   proscribed   by   29   U.S.C.   §     1140.

Specifically, Niebauer argues that "Crane involuntarily terminated

[his] employment and then labeled it as retirement in order to

deprive him of severance pay and other benefits under the Plan,"

even though he "repeatedly told Crane that he was not retiring and

did not intend to retire."

           The district court's analysis of this count relied on the

"substantial evidence" standard applicable to assessing denial-of-

benefits claims under ERISA.            The court held that

           Rule 56 cannot be used . . . to create an end
           run around the "substantial evidence" rule in
           an   ERISA    case.      Because   Defendants'
           determination that he retired, and was not
           involuntarily terminated, was supported by
           substantial evidence, he cannot claim that he
           suffered   an    adverse   employment   action
           sufficient to support a claim under [29 U.S.C.
           § 1140].

Niebauer, 44 F. Supp. 3d at 168.

           This ruling inappropriately conflates review of denial-

of-benefits claims with review of interference claims.                In denial-

of-benefits      cases,     "the    ordinary    question       is   whether    the

administrator's action on the record before him was unreasonable."


                                        -31-
Liston v. UNUM Corp. Officer Severance Plan, 330 F.3d 19, 24 (1st

Cir. 2003).   In such cases, "summary judgment is simply a vehicle

for deciding the issue[, which] means the non-moving party is not

entitled to the usual inferences in its favor."    Orndorf, 404 F.3d

at 517.   In interference cases, by contrast, "the ultimate inquiry

. . . is whether the employment action was taken with the specific

intent of interfering with the employee's ERISA benefits." Barbour

v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995).      The

court is thus reviewing an employer's conduct, rather than an

administrator's decision, and as such, there is no administrative

determination that commands deference.        Indeed, our cases have

uniformly applied the typical summary judgment standard — under

which evidence is reviewed in the light most favorable to the

nonmoving party — in assessing interference claims.       See, e.g.,

Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 66–70 (1st Cir.

2008); Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 327,

330–31 (1st Cir. 1996); Barbour, 63 F.3d at 36–42.      We therefore

remand this count to the district court for consideration under the

appropriate standard of review.

                          III.   Conclusion

           For the foregoing reasons, we AFFIRM the judgment of the

district court as to Count I of the complaint.        We VACATE the

judgment of the district court as to Count II of the complaint and




                                 -32-
remand for proceedings consistent with this opinion.   No costs are

awarded.




                              -33-
