     Case: 13-10117      Document: 00512496358         Page: 1    Date Filed: 01/10/2014




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

                                                                                   FILED
                                      No. 13-10117                          January 10, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk


GEORGE MICHAEL WALL,

                                                 Plaintiff–Appellant,

versus

ALCON LABORATORIES INCORPORATED;
ALCON SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN;
ALCON LABORATORIES INC. SEVERANCE PAY PLAN,

                                                 Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-883




Before STEWART, Chief Judge, JOLLY and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       George Wall worked for Alcon Laboratories Inc. (“Alcon”), a major



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 13-10117
pharmaceutical company, from 1988 until resigning in 2010. He asked for, but
was denied, a series of retirement and incentive-based benefits before he left
Alcon to join another company. He sued Alcon and its benefit plans, seeking
those benefits as well as damages stemming from alleged age discrimination
and retaliation. The district court granted summary judgment for the defen-
dants. Wall appeals, and we affirm.


                                        I.
                                       A.
      The year 2008 marked the turning point in Wall’s relationship with
Alcon. That year, another company, Novartis, began its takeover of Alcon, and
research and development (“R&D”) was restructured as a result, leading to
Wall’s reporting to three supervisors at different times. Dr. Jean-Michel Gries
(the first of the three) changed Wall’s position from Senior Director to “Project
Head IV, Pharm,” similar to the reclassification of many others within the
R&D Division, and then reassigned him to work under Dr. Michael Brubaker.
Finally, in the latter part of 2009, Wall began working for the Therapeutic Unit
Head for anti-infectives, Dr. David Stroman.
      One of the projects Wall worked on then was for a product called Fina-
floxacin; for most of his claims on appeal, he relies heavily on that project and
his claimed diminution of duties with respect to it. According to his evaluation,
that project constituted only a small portion of his yearly objectives, and on his
self-assessment for that year, he mentioned no diminution of duties and rated
himself as “Fully Meets Expectations” in his 2009 self-assessment vis-à-vis the
project.
      Stroman delivered the rest of Wall’s 2009 performance review. Wall gave
himself a high rating, but Stroman rated him as only “Partially Met
Expectations.” As a result, Wall received a raise and bonus smaller than they
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                                       No. 13-10117
would have been had the review been better.
      On November 2, 2010, eight months after receiving his 2009 review, Wall
emailed Alcon’s CEO and the VP of Human Resources (“HR”) asking to discuss
it with them. Two days later, Wall met with Vickie Stamp, the Alcon HR Dir-
ector responsible for R&D, to discuss a potential appeal of his 2009 perfor-
mance appraisal and a perceived lack of advancement. A week later (on the
11th), Wall met with Stamp again to discuss the possibility of retiring.
According to Wall’s deposition, Stamp assured Wall that she would “handle
everything going forward” and advised him, “[D]on’t piss them off[;] don’t do
anything.” 1
       But Wall quickly accepted employment elsewhere instead. On Novem-
ber 11, 2010—the same day he says he met with Stamp to discuss the possibil-
ity of retiring—Wall was offered a job with Otonomy, a clinical stage bio-
pharma company focusing on diseases of the inner and middle ear, as its Vice
President of Product Development. He accepted the offer nine days later. His
contract with Otonomy included higher base pay 2 and a guarantee that Oton-
omy would pay up to $50,000 in legal fees in the event of a dispute with Alcon
about severance or retirement benefits.
       Three days later (November 23), Wall emailed his supervisors stating his
intention to retire on December 31. His last day in the office would be the 17th,
at which point he would take two weeks’ paid leave. He followed up with a
letter on December 1 to Alcon’s attorney, listing the reasons for his retirement
and requesting benefits to which he believed he was entitled. On the 17th—
his last day in the office before leaving for Otonomy—Wall received an email


       The deposition excerpt seems to suggest that Stamp was talking about his severance
       1

package when saying that she was “going to handle everything.” In his brief, Wall describes
Stamp as referring to claims he made alleging age discrimination.
       2   About $260,000 annually versus the $212,950 he made at Alcon.
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                                  No. 13-10117
from Alcon’s in-house counsel, Tom Ryder, who said that his 2010 Performance
review rated him as “Partially Met Expectations” and that Alcon had denied a
portion of the benefits he claimed in his December 1 letter.


                                        B.
      In January 2004, Alcon permitted Wall to participate in the “Alcon Sup-
plemental Executive Retirement Plan” or “ASERP,” an employee benefit plan
under the Employee Retirement Income Security Act of 1974 (“ERISA”).
ASERP benefits are calculated based on the employee’s average compensation.
Employees must agree to various covenants as a condition of receiving ASERP
benefits. Relevant to this appeal are the covenants not to disclose Alcon’s confi-
dential information and not to compete. The latter, which is the more impor-
tant of the two, states:
      [A]s a condition to receipt of ASERP Benefits, for a period of five (5)
      years following termination of employment, each Participant will
      not . . . carry on any business of, or be engaged in, consult or advise,
      . . . or permit his name or any part thereof to be used by, any person
      or entity engaged in or concerned with or interested in any busi-
      ness carried on, anywhere in which the Alcon Affiliated Companies
      carry on their business, which competes with the products
      manufactured and sold or services provided by the Alcon
      Affiliated Companies (the “Business”). If the Participant vio-
      lates the Covenant Not to Compete set forth herein, he or she shall
      forfeit all ASERP Benefits.
The benefits are administered by the ASERP Committee, composed of Alcon’s
CEO and CFO.
      After Alcon received Wall’s December 1 request for ASERP benefits,
Ryder emailed Wall asking for additional information, including Wall’s new
company and the nature of his duties. That information was necessary for the
ASERP Committee to determine whether Wall’s post-Alcon employment would
violate the non-compete or confidentiality covenants.

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                                      No. 13-10117
       Despite those covenants and Wall’s acceptance of a position with another
pharma company a month earlier, 3 Wall refused to provide the requested infor-
mation. On December 22, he sent an email stating that Alcon’s “request for
more specific detail regarding my potential job opportunities appears to be
beyond the scope of what is reasonable and may violate my obligations of con-
fidentiality with other entities.”
       Alcon gave Wall three additional chances to provide the requested infor-
mation. Finally, on January 21, 2011, Wall’s counsel responded by stating that
Wall had accepted employment with Otonomy but that Otonomy was not a
competitor because it was a start-up company.
       In June 2011, Alcon wrote to Wall’s counsel again, noting that Otonomy
had issued a press release announcing Wall’s hiring, citing his previous exper-
ience at Alcon, and naming several Alcon products. An examination of its web-
site then revealed that Otonomy was developing medications for ear infections,
which Alcon believed were “clearly aimed” at developing products that could
compete with those sold by Alcon. Accordingly, the ASERP Committee denied
Wall’s ASERP benefits and informed Wall that he had sixty days to request a
review and to provide any material he desired the Committee to include in its
review of the claim.
       Wall did appeal, denying that his employment with Otonomy violated
the covenant not to compete. On September 27, 2011, Alcon affirmed its denial
of ASERP benefits on the grounds that Alcon and Otonomy were both compet-
ing in the market for treatments of Otitis Media (an ear condition). 4




       3This was also despite the fact that he had just extracted from Otonomy a promise to
provide up to $50,000 in legal fees explicitly related to a potential ASERP fight with Alcon.
      The Alcon product was called CIPRODEX; Otonomy’s developmental drug was called
       4

OTO-201.
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                                 No. 13-10117
                                       C.
      During the course of his employment, Wall was annually awarded
Restricted Stock Units or “RSUs,” which vest on the date set forth in the Award
Certificate. After fulfilling the vesting schedule, RSUs convert to shares of
Alcon stock that each participant can sell or retain as an investment. To obtain
his RSUs, Wall was required to comply with the terms of the award agree-
ments.   The key terms are the Change-of-Control provision in the 2009
Restricted Stock Unit Award Agreement and §§ 7.7 and 7.9 of the 2002
Amended Alcon Incentive Plan.
      The Change-of-Control provision is an acceleration clause triggered by a
change of control of the company, as occurred when Novartis became the major-
ity shareholder in Alcon on August 25, 2010:
      [U]pon a Change-of-Control of the Company pursuant to Section
      2.4 of the Plan and if the Participant’s employment with the Com-
      pany or successor is terminated without Cause or by the Partici-
      pant with Good Reason six months preceding to two years follow-
      ing a Change of Control, all Restricted Stock Units granted the
      Participant under this Agreement will vest . . . at the Participant’s
      termination of employment . . . .
      For this purpose, “Good Reason” means the occurrence of one or
      more of the following conditions:
            (1) A material diminution in the Participant’s base
            compensation.
            (2) A material diminution in the Participant’s authority,
            duties, or responsibilities.
            (3) A material change in the geographic location at which the
            Participant must perform services.
      The Participant must provide written notice to the Company or
      successor, as applicable, of the existence of one or more of these
      enumerated conditions within 90 days after the existence of the
      condition. The Company or successor will have at least 30 days fol-
      lowing its receipt of such notice to remedy the condition and thus

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                                 No. 13-10117
      eliminate the Good Reason.
The key clauses are the requirements that the termination by Wall be for one
of the “Good Reason[s]” listed and that Alcon would have thirty days to cure.
      In his December 1 letter and on appeal, Wall does not claim that the first
or third listed “good reason” applies but only that he suffered a “material
diminution in [his] authority, duties, or responsibilities.” He proffers two such
diminutions: (1) that he was prohibited from publishing scientific articles and
(2) that Dr. Alani, the VP of Formulation, was placed in charge of formulation
work of the Finafloxacin project. Alcon responded in its December 17 letter
that Wall had failed to provide a good reason for his retirement and thus was
entitled only to one-third of his 2009 RSUs and none of his 2010 RSUs.
      The dispute over the RSUs and ASERP benefits continued into the fol-
lowing summer, and on July 28, 2011, Wall sent a letter appealing Alcon’s
determination that he had not resigned for good reason. Ryder responded for
Alcon on September 27, rejecting the appeal on the ground that “even if Dr.
Wall’s authority, duties or responsibilities were diminished, . . . any such dim-
inishing was not ‘material’ as that term is used in the [RSU Award
Agreement].”


                                       D.
      Wall sued, alleging four theories of recovery relevant to this appeal:
      (1) that the ASERP Committee arbitrary and capriciously denied him
      benefits owed him under Alcon’s ERISA plan (“ERISA claim”);
      (2) that Alcon, in failing to award 100 percent of his outstanding RSUs
      and SARs, breached its contract (“Contract claim”);
      (3) that Alcon constructively discharged him because of his age, in viola-
      tion of the ADEA, 29 U.S.C. §§ 621-34 (“Age Discrimination claim”); and


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                                       No. 13-10117
       (4) that Alcon constructively discharged him in retaliation for his oppo-
       sition to its discriminatory practices, in violation of the ADEA, 29 U.S.C.
       § 623(d) (“Retaliation claim”).
The district court granted summary judgment for the defendants.


                                              II.
       Wall’s ERISA claim comes down to one question. That sole inquiry is
whether the ASERP Committee’s determination that Wall’s employment with
Otonomy violated the non-compete clause was arbitrary and capricious.


                                              A.
       We most recently described the standard of review for summary judg-
ment in appeals of a decision of an ERISA administrator in Schexnayder v.
Hartford Life & Accident Insurance Co., 600 F.3d 465, 468 (5th Cir. 2010):
           We review the district court’s grant of summary judgment in
       an ERISA case de novo, applying the same standard as the district
       court. Because the Plan gave [the ERISA administrator] discre-
       tionary authority to determine eligibility for benefits as well as to
       construe the Plan’s terms, we review [the administrator’s] denial
       of benefits for an abuse of discretion. A plan administrator abuses
       its discretion where the decision is not based on evidence, even if
       disputable, that clearly supports the basis for its denial. “If the
       plan fiduciary’s decision is supported by substantial evidence and
       is not arbitrary or capricious, it must prevail.
(Citations and internal quotation marks omitted.) Our “review of the
administrator’s decision need not be particularly complex or technical; it
need only assure that the administrator’s decision fall somewhere on a
continuum of reasonableness—even if on the low end.” 5



       5 Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 (5th Cir. 2009) (citation and
internal quotation marks omitted); see also Threadgill v. Prudential Secs. Grp., Inc., 145 F.3d
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                                      No. 13-10117
       The ASERP Plan included a five-year non-compete covenant that
provided, in relevant part, a promise not to work for a company “which
competes with the products manufactured and sold or services provided”
by Alcon. The ASERP Committee denied Wall’s claim because it found
that he had violated the covenant by accepting employment with Oton-
omy, which was producing an allegedly competing treatment for otitis
media, an ear condition.



                                            B.
       The district court granted summary judgment after hearing oral argu-
ment at the pretrial conference, concluding that the ASERP Committee’s
finding that Wall had violated the non-compete was not arbitrary and capri-
cious, even if “[o]ther people might have made a different decision.” Wall
presents two arguments for reversal. First, he contends that the clause is writ-
ten in the present tense (“competes”), whereas the allegedly competing product
was a product in development, not for sale at the time Wall joined Otonomy.
At oral argument, Wall’s counsel emphasized that the non-compete covenant
requires that Otonomy be “manufactur[ing]” a product in order to violate the
non-compete covenant. Second, Wall argues that the product does not compete
with anything Alcon produces because CIPRODEX (Alcon’s product) was
approved by the FDA only to treat acute otitis media, but OTO-201 (Otonomy’s
product) is being developed to treat chronic otitis media.
       Alcon responds to the first contention by saying that it might have merit
if Alcon were only in the business of sales, but it is also engaged in researching
new drug treatments. Accordingly, the Committee sensibly interpreted the


286, 295 (5th Cir. 1998) (applying this deferential standard of review in a dispute over the
proper interpretation of an ERISA agreement).
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                                  No. 13-10117
non-compete clause as prohibiting a participant from engaging in the develop-
ment of products that would conflict with Alcon’s business when brought to
market.   As to the second, Alcon responds that “[t]he ASERP Committee
rejected this hair-splitting argument, since Wall admitted in his appeal that
both OTO-201 and [CIPRODEX] were intended to treat the same basic condi-
tion, Otitis Media.” Based on the then-extant record, Wall’s position would
require the Committee “to speculate on the potential future uses, treatments,
conditions, method of dispensing, and clinical settings in which, and for which,
a medication currently in development may be used once it is ultimately
brought to the marketplace.”
      Alcon has the better of the argument. The contract does not in fact
require that a competitor be manufacturing anything. Although it anticipates
that the competitor be competing with “the products manufactured and sold or
services provided by Alcon,” that only requires that Alcon, not the competitor,
be producing something. The portion of the clause that is relevant to Otono-
my’s conduct is much broader: The prohibition is on Wall’s “engag[ing] in,
consul[ting] or advis[ing] . . . or permit[ting] his name . . . to be used by” any
company—such as Otonomy—that is “concerned with or interested in any bus-
iness . . . which competes with products” manufactured by Alcon. Otonomy is
in the developmental stages of a drug treating otitis media, and Alcon manu-
factures a drug treating otitis media. It can hardly be said that Otonomy is
not “engaged in” or “concerned with” or “interested in” business that competes
with products manufactured and sold by Alcon.
      Wall’s interpretation of the contract fails for another reason. Wall, by
profession, is a researcher. Almost by definition, any work he would ever do
on a product would be in its developmental stage. By his interpretation, he
could never, then, violate the non-compete clause of the ASERP. But that
would be an absurd rendering of the contract.
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                                 No. 13-10117
      Ultimately, we need not resolve the “true” interpretation of the contract.
Because Wall’s arguments are hair-splitting, this is a case in which we must
defer to the ERISA administrator: The Committee’s decision was not arbitrary
and capricious.
      Wall’s behavior betrays the reasonableness of the Committee’s inter-
pretation. After his “retirement” from Alcon, Wall—despite the existence of
the non-compete covenant and the $50,000 in legal fees he extracted from
Otonomy in contemplation of an ASERP fight—refused to respond to Alcon’s
request that he divulge the entity for which he was working. Alcon in fact
provided four opportunities over the course of several months for Wall to pro-
vide information concerning his new company, and only on the last attempt did
Wall finally comply.
      Furthermore, when Wall signed his employment contract with Otonomy,
he extracted a promise for $50,000 in legal fees should Alcon dispute whether
he had violated the non-compete clause. (His contract with Otonomy, in fact,
explicitly references the non-compete clause.) If Wall truly believed that any
finding that he was violating the non-compete clause was unreasonable, that
promise was a curious extract from negotiations. More likely, the promise
reveals at least the reasonableness of the Committee’s non-compete
determination.


                                      III.
      Wall’s claim for RSUs is more complicated than his claim for retirement
benefits, despite being a routine contract claim divorced from the labyrinth
that is ERISA. It involves four questions and requires a two-step inquiry.
      First, we must decide whether § 4.7 or § 4.9 of the Amended 2002 Alcon
Incentive Plan governs the parties’ 2009 [RSUs] Award Agreement. If § 4.7
applies, we must reverse and render in favor of Wall because § 4.7 requires
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                                 No. 13-10117
automatic vesting of Wall’s RSUs upon retirement. If § 4.9 applies, we have to
consider three questions, a negative to any of which compels us to affirm sum-
mary judgment for Alcon:
      (1) Did Wall retire for a “good reason?”
      (2) Did Wall satisfy the thirty-day notice requirement?
      (3) Did Wall violate the non-compete clause?


                                       A.
      The threshold inquiry on the contract claim is whether § 4.7 or § 4.9
applies. To understand the significance of this decision requires some context.
      Two different agreements govern Wall’s RSU award. The first is the
“RSU Award Agreement for Restricted Stock Units awarded in February 2009
to U.S. participants under the Amended 2002 Alcon Incentive Plan” (“Award
Agreement”). The second is the Amended 2002 Alcon Incentive Plan (“the
Plan”), referenced in the title of the first agreement. The Plan is a general
umbrella contract covering any number of benefits agreements between Alcon
and its employees. The Award Agreement is a subcontract within the Plan’s
umbrella specifically governing Wall’s 2009 RSU award and includes numer-
ous terms not included in the Plan. By the terms of the RSU Award Agree-
ment, any conflict between the RSU Award Agreement (the sub-agreement)
and the Plan (the umbrella) is resolved in favor of the latter.
      In a nutshell, the fight between the parties is over which contract—the
Award Agreement or the Plan—provides the relevant schedule for accelerated
vesting of RSUs. The answer depends on whether the two contracts provide
conflicting rules for accelerated vesting, a question whose answer depends on
whether the Award Agreement is governed by § 4.7 or § 4.9 of the Plan.
      In the Award Agreement, there is a “Change-of-Control” provision that
describes an intricate plan governing accelerated vesting of RSU awards upon
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                                  No. 13-10117
a change of control (as when Novartis completed its takeover). It provides that
Wall’s RSUs would automatically vest at retirement only if he voluntarily
retired for a listed “Good Reason” and gave Alcon thirty days to remedy the
reason.   Wall maintains that the Change-of-Control provision of the RSU
Award Agreement conflicts with § 4.7 of the Plan, which provides for immedi-
ate vesting of “Restricted Stock” upon retirement:
      In case of Participant’s Retirement, the Restriction Period applic-
      able to all shares of Restricted Stock expire and such shares shall
      become vested and nonforfeitable at the earlier of (a) Retirement,
      or (b) the end of the Restriction Period.
      Alcon responds that there is no conflict between the Plan and the RSU
Award Agreement because § 4.7 does not apply to the award of restricted stock
units (which are not actually stock, as contemplated by § 4.7). Instead, the
Award Agreement falls under § 4.9 of the Plan (for “Other Stock-Based
Awards”), which does not provide for a vesting period—and that is why the
Award Agreement includes an elaborate vesting mechanism. The district court
did not address the § 4.7-versus-§ 4.9 question in its written order granting
summary judgment, presumably because the question was discussed at such
great length at the pre-trial conference, where the district court ultimately con-
cluded, correctly, that § 4.7 did not apply.
      Wall relies heavily on two “gotcha” moments in depositions, but he loses
some credibility in doing so. One such moment is from a deposition of Tom
Ryder, Assistant General Counsel for Alcon, who was asked, “Were the shares
issued under—were Dr. Wall’s shares issued under the restricted stock
award?” Ryder responded, “I don’t know if it was restricted stock award, I
assume that’s correct.” The district court’s pithy reply sums up the amount of
attention this argument is due:
      The Court: Is that what you’re relying on?


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                                  No. 13-10117
      [Wall’s Counsel]: Correct, Your Honor.

      The Court: My goodness. You can do better than that.
      The second deposition was of CEO Kevin Buehler, who, in his deposition,
was asked, “These RSUs that we had been discussing earlier are annual incen-
tive awards; is that correct?” He responded, “Yes, sir.” Of course, Buehler is
not a lawyer, and the question was not asked in the context of whether the
carve-out of “annual incentive awards” as used in § 4.9 applied to Wall’s RSU
award.
      Alcon, at any rate, has consistently argued that § 4.9 applies to the RSU
Award Agreement and, hence, that the latter’s vesting provisions govern.
Alcon claims that § 4.7 of the Plan governs the award of shares of restricted
stock, not the award of restricted stock units. Restricted stock is essentially
like cash—the recipient immediately owns the stock upon receipt of the award
(or the certificate). A unit, by contrast, is an unfunded promise to deliver stock
in the future if certain conditions are met; one does not own any stock what-
soever by virtue of being granted a stock unit.
      Alcon has the better of this argument, as recourse to either of the rele-
vant provisions in context reveals. Section 4.7 plainly contemplates the award
of stock that the recipient owns immediately, the “restricted” adjective signi-
fying that there are restraints on the recipient’s ability to alienate the stock
that he then unequivocally owns:
      4.7 Restricted Stock. A Restricted Stock Award is the transfer of
      shares to an Employee, subject to such terms and conditions as the
      Board shall deem appropriate, including, without limitations,
      restrictions on the sale, assignment, transfer or other disposition of
      such shares . . . .
And upon failure of the recipient to abide by the restraints on alienation during
the Restriction Period, the stock is forfeited or required to be sold back to the
company.
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                                  No. 13-10117
      Even the Acceleration Clause (§ 4.7(d)) is inapposite once one realizes
the difference between RSUs and restricted stock. Section 4.7((d) provides that
the “Restriction Period”—which is the period in which an owner of restricted
stock cannot alienate his shares—will expire, and the shares will become non-
forfeitable once the Restriction Period ends or the recipient retires. That, of
course, is not what this squabble is about; Wall and Alcon are not fighting over
the applicability of any Restriction Period on Wall’s ability to alienate shares
that he already owns. Rather, he is claiming that his RSUs should have been
awarded upon his retirement.
      Section 4.9, though brief, also contemplates stock unit awards (as dis-
tinct from awards of restricted shares) explicitly:
      The Board may, from time to time, grant to an Employee Awards
      . . . under Section 4.9 that consist of, or are denominated in, paya-
      ble in, valued in whole or in part by reference to, or otherwise based
      on or related to, shares. These Awards may include, among other
      things, shares, Restricted Stock Options, phantom or hypothetical
      shares and share units.
      Finally, the course of dealings between Wall and Alcon Labs manifests
the parties’ intent to be governed by the Award Agreement’s vesting period.
First, the Award Agreement suggests that the parties did not understand § 4.7
to govern the RSUs’ vesting. It would have been strange to draft such a careful,
intricate, and balanced vesting schedule for RSUs in the Award Agreement if
either of the parties thought that such an enterprise would be a waste of time.
Second, when he announced his resignation, Wall would not have gone to such
great lengths to ensure that he met the requirements of the Award Agreement
if he did not believe it would govern the vesting of his RSUs.
      Because § 4.9 governed the RSU Award Agreement, we have to apply
the latter’s vesting schedule. That schedule provides that Wall was entitled to
accelerated vesting of his RSUs if he left Alcon for “Good Reason,” as that

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                                 No. 13-10117
phrase is defined by the Award Agreement, but only if he provided notice of
the good reason to Alcon, which would then have “at least 30 days following its
receipt of such notice to remedy the condition and thus eliminate the Good
Reason.”


                                       B.
      The first of two reasons the district court gave for entering summary
judgment for Alcon was that Wall had failed to fulfill his agreement to give
Alcon thirty days to remedy the “good reasons” that had prompted his retire-
ment. The district court was correct, and we affirm its summary judgment on
this basis.
      The Award Agreement provides the following notice provision:
      The Participant must provide written notice to the Company or
      successor, as applicable, of the existence of one or more of these
      enumerated conditions within 90 days after the existence of the
      condition. The Company or successor will have at least 30 days
      following its receipt of such notice to remedy the condition and thus
      eliminate the Good Reason.
Under this provision, Wall was obligated to provide written notice and an
opportunity for Alcon to remedy in order to maintain that his resignation was
for “Good Reason,” entitling him to accelerated vesting of his RSUs. This he
failed to do.
      Even if we assume, arguendo, that Wall’s December 1 letter gave notice
of a good reason entitling him to sever his relationship with Alcon, by his own
communications he made clear (twice) that December 17 was going to be his
last day and that he had no intention of returning to Alcon after the 17th.
Moreover, he had already accepted, a month earlier, Otonomy’s offer (with a
higher base salary and a VP-level position) and had negotiated for $50,000 in
expenses for contemplated litigation over retirement benefits with Alcon. Wall

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   Case: 13-10117    Document: 00512496358      Page: 17   Date Filed: 01/10/2014



                                 No. 13-10117
never offered to remain at Alcon if only it would address his concerns, nor does
he even present any summary judgment evidence that, in fact, he would have
stayed at Alcon (and thereby breached his contract with Otonomy) had they
remedied his good reasons.


                                      IV.
      We have considered Appellant’s remaining arguments, including those
pertaining to his age-discrimination and retaliation claims, and have reviewed
the relevant portions of the record. Those arguments are unavailing.
      The summary judgment is AFFIRMED.




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