                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 6 2005
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 WAYNE M. WOLBERG,

               Plaintiff - Appellant,                   No. 03-1532
          v.                                           (D. Colorado)
 AT&T BROADBAND PENSION                           (D.C. No. 02-RB-1627)
 PLAN; AT&T BROADBAND
 EMPLOYEE BENEFITS
 COMMITTEE,

               Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before SEYMOUR , ANDERSON , and LUCERO , Circuit Judges.



      Wayne M. Wolberg brought this action against the appellees, AT&T

Broadband Pension Plan (“Plan”) and the AT&T Broadband Employee Benefits

Committee (“Committee”), under the Employee Retirement Income Security Act,

29 U.S.C. §§ 1001-1461 (ERISA), alleging that the Committee failed to provide

him with pension benefits in violation of ERISA, § 502(a)(1)(B), 29 U.S.C.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 1132 (a)(1)(B).   1
                        Specifically, Mr. Wolberg claims that the Plan Administrator

and, on appeal, the Committee, wrongfully excluded $180,000 from the formula

for calculating pension benefits payable to him. The Committee concluded that

the $180,000 in question was not eligible for inclusion in Mr. Wolberg’s benefit

calculation because it was a special retention bonus specifically excluded from

the definition of qualifying compensation under the terms of the Plan. Mr.

Wolberg contended that it qualified as compensation in the form of either basic

wages, a lump sum payment in the nature of a merit or performance award, a non-

executive incentive, or incentive compensation.

      The parties agreed on the basic facts of the dispute and submitted the case

on cross-motions for summary judgment. The district court analyzed the case in a

written opinion which upheld the decision of the Committee, and, subsequently,

entered a judgment granting the defendants’ motion for summary judgment,

denying Mr. Wolberg’s motion for summary judgment, and dismissing the action.

      On appeal, Mr. Wolberg contends that the district court: (1) applied the

wrong standard of review; (2) relied on nonexistent evidence; (3) erred by not

ruling that the Plan fiduciaries abused their discretion when they refused to define

disputed and, allegedly, ambiguous crucial Plan terms; and (4) erred by not


      1
        Section 1132(a)(1)(B) authorizes civil actions by participants in a pension
plan to recover benefits under a plan, to enforce the terms of a plan, and to clarify
rights to future benefits under a plan.

                                            -2-
concluding that the Plan fiduciaries’ denial of Mr. Wolberg’s claim is not

supported by substantial evidence, not based upon a deliberate, reasoned process,

and was arbitrary and capricious. He asks this court to reverse the district court

and to direct the entry of judgment in Mr. Wolberg’s favor as well as require that

the appellees recalculate Mr. Wolberg’s accrued pension benefits by including the

disputed $180,000 in the pension benefit calculation.

      For the reasons stated below, we affirm the judgment of the district court.



                                   BACKGROUND

      The facts are undisputed, well known to the parties, and set out in the

district court’s opinion. Accordingly we set out only those central facts necessary

to our discussion of the issues.

      In early 2000, AT&T Broadband acquired MediaOne Group, Inc. through a

merger. Mr. Wolberg, who worked at MediaOne, was identified by AT&T as one

of the experienced employees AT&T desired to retain to facilitate a successful

merger transition. Accordingly, on May 2, 2000, AT&T offered Mr. Wolberg a

temporary assignment as vice president-finance from the date of the merger

through April 1, 2001. The offer, which was reduced to a written agreement

dated May 2, 2000, and signed by Wolberg on July 10, 2000, described an initial

assignment of three months during which Mr. Wolberg would assist with the


                                         -3-
transition of the MediaOne Group Audit and Consulting Services function to

AT&T Broadband; followed by work on special projects as assigned. For this

work Mr. Wolberg would be paid an annual salary of $180,000, a 30% short-term

incentive, and a retention bonus of $180,000, payable in a lump sum at the end of

the one-year transition period, or in a prorated lump sum if he left prior to March

31, 2001. Since this agreement controls our analysis of this controversy, we set it

out in its entirety, as follows:

       May 2, 2000

       Wayne Wolberg
       9785 Maroon Circle
       Englewood, Colorado 80112

       Dear Wayne:

       We are pleased to confirm an offer of a temporary assignment at
       AT&T Broadband. You will hold the position of        Vice President -
       Finance, effective upon the close of the MediaOne merger with
       AT&T Broadband. The initial assignment is for up to three months
       and is intended to assist with the transition of the MediaOne Group
       Audit and Consulting Services function to AT&T Broadband.
       Following the completion of that transitional assignment, you will be
       assigned to complete other special projects at my direction. This
       assignment is to conclude on March 31 or April 1, 2001.

       At the end of your temporary assignments, in the event you are not
       offered a comparable regular full time position you will be separated
       under the Enhanced Merger Related Severance Package.

       Upon assumption of your new job, the compensation package offered
       includes an annual salary of $180,000, a 30% Short-term Incentive,
       and a retention bonus of $180,000 payable at the conclusion of the
       assignment. In the event you leave prior to March 31, 2001 the

                                         -4-
      retention bonus will be prorated . You will remain under the
      MediaOne (Group) Benefits Plan; please note these benefit plans may
      be modified in the future subject to the requirements set forth in the
      AT&T/MediaOne merger agreement.

      If you accept this offer with AT&T Broadband and stay with the
      business for at least 6 months, you will have the full exercise term of
      any stock options that were vested at the time of the merger close
      should you voluntarily leave the business.

      Acceptance of this offer is expressly subject to your agreement to be
      bound by all of the terms set forth in the previous MediaOne Group
      employment documents such as (1) the Employee Handbook and the
      Business Integrity and Ethics Handbook, and (2) all terms set forth in
      any prior offer letters and/or attachments given to you by MediaOne.

      To confirm your acceptance, please sign this letter and return to
      Murri Bishop, Director-Human Resources, 188 Inverness Drive West,
      8th Floor, Englewood, Colorado 80112. Please do not hesitate to
      contact Murri at 303-858-3858 if you have any questions.

      Sincerely,
      /s/
      Connie Campbell
      Senior Vice President, Finance

                                       Agreed and Accepted :

                                       /s/ Wayne M. Wolberg           7/18/00
                                       Wayne Wolberg                  Date

Appellant’s App. Vol. 1 at 95 (emphasis added).

      Subsequently, Mr. Wolberg served out his one-year term, retiring from

AT&T effective April 4, 2001. He received the following separation benefits:

      (1) severance pay equal to one years’ salary in the amount of
      $180,000; (2) qualified and non-qualified pension distributions


                                         -5-
      totaling $1,386,991.87 on a lump sum basis, at Wolberg’s election;
      and (3) the lump sum retention bonus payment of $180,000.

Id. at 78; see also Resp. Br. of Appellee, Vol. 2 at 178-87, 280.

      For purposes of calculating pension benefits, the Plan defines compensation

as follows:

      1.13    “Compensation ” means:

                                         ...

                    (1) For this purpose, “Compensation” means basic salary
      or wages (determined prior to any election by the Employee to reduce
      his salary or wages under sections 125, 132(f)(4), or 401(k) of the
      Code), differentials other than for geographic location or expatriate
      differentials, lump sums paid as merit performance awards or as a
      buy-out of base pay due to demotion or resulting from pay parity,
      non-executive bonuses, overtime and commissions.       Compensation
      shall exclude all other amounts, including without limitation non-
      cash payments, special cash payments and awards (such as hiring,
      retention or stay payments), executive bonuses or incentive
      payments , relocation allowances and other geographical area
      differentials, expatriate differentials, medical opt-out payments,
      vacation buyouts, deferred compensation and payment of any
      previously deferred compensation, income from the grant or exercise
      of Company stock options and any gross-ups of any payments.
      Compensation shall also exclude severance payments (including a
      buyout of any transition period) and payment of any compensation
      made after Termination, except that commissions paid within 90 days
      after Termination, and payments under the Company’s Short Term
      Incentive Plan (“STIP payments”) paid either: (i) within 30 days of
      the Company’s receipt of the Employee’s executed waiver letter
      under the MediaOne Group Separation Plan or (ii) within 30 days
      after Termination if such Termination is the result of a corporate
      transaction such as a merger, acquisition, sale, divestiture, or swap,
      shall be considered Compensation and, in the case of X Participants,
      shall be prorated in accordance with paragraph (2) below.


                                         -6-
Appellant’s App. Vol. 1 at 96-97 (emphasis added).

      Based on the plain terms of the Plan and Mr. Wolberg’s written agreement

designating $180,000 as a retention bonus, the Plan Administrator excluded the

$180,000 bonus payment from the formula which calculated Mr. Wolberg’s

pension benefits based on wages and merit and non-executive bonuses.

      Mr. Wolberg, through his attorney, had requested a different treatment for

the $180,000, claiming it should be viewed as ordinary wages, or a merit or bonus

performance award, or a non-executive bonus. The Plan Administrator denied

that claim, and the decision was sustained by the Committee on appeal.   2
                                                                             During

this process, Mr. Wolberg was represented by counsel, submitted his own

affidavit, supplemented the record, was allowed to be heard by the Committee and

was provided a copy of the administrative record.

      Throughout the process Mr. Wolberg has advanced the same arguments

except that on appeal he also claims, as indicated above, that the district court

applied the wrong standard in reviewing the Committee’s decision denying his

claim, and improperly considered evidence which is not in the administrative

record. We address all these arguments below. We do so within the important



      2
       The Committee, as referred to herein, is the Employee Benefits Fiduciary
Committee. The Committee was composed of five senior level employees of
AT&T Broadband from diverse geographic and business units. Appellant’s App.
Vol. 2 at 334.

                                           -7-
framework that the Plan is employer-sponsored, funded, and administered. It is

an employee pension plan, and a defined benefit plan, pursuant to ERISA § 3(2),

29 U.S.C. § 1002(2) and 3(35), 29 U.S.C. § 1002 (35). The Plan Administrator

and members of the Committee were employees of AT&T Broadband.



                                     DISCUSSION

                                            A.

       We review de novo the district court’s grant of summary judgment.          See

Fed. R. Civ. P. 56(c);   Anderson v. Liberty Lobby, Inc.    , 477 U.S. 242, 247-48

(1986). In ERISA cases that review is confined to the administrative record.          See ,

e.g. , Sandoval v. Aetna Life & Cas. Ins. Co.     , 967 F.2d 377, 381 (10th Cir. 1992).

       Where, as is undisputed in this case, the ERISA Plan in question grants the

Plan Administrator or its delegate discretion in interpreting the terms of and

determining the grant of benefits under the Plan, we must uphold its decision on

the issue in question unless the decision was arbitrary and capricious.        Firestone

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

       The “pure” arbitrary and capricious standard requires us to uphold the

administrator’s decision if it is grounded on any reasonable basis, and that basis

“need not be the only logical one nor even the best one.”        Nance v. Sun Life




                                            -8-
Assur. Co. of Canada , 294 F.3d 1263, 1269 (10th Cir. 2002) (quoting            Kimber v.

Thiokol Corp. , 196 F.3d 1092, 1098 (10th Cir. 1999) (further citation omitted)).

       However, for many years it has been clear that deference to the plan

administrator’s decision is lessened in varying degrees if there exists a conflict of

interest between the administrator’s duty to act in the interest of the plan

participant and the administrator’s self interest or loyalty to his employer.       See

Firestone , 489 U.S. at 115; Kimber , 196 F.3d at 1097. When there exists such a

conflict of interest we undertake a “sliding scale” analysis, according deference in

inverse proportion to the degree of seriousness of the conflict.       Allison v. Unum

Life Ins. Co. of America , 381 F.3d 1015, 1021 (10th Cir. 2004);         Jones v. Kodak

Med. Assistance Plan , 169 F.3d 1287, 1291 (10th Cir. 1999);         McGraw v.

Prudential Ins. Co. of America     , 137 F.3d 1253, 1258 (10th Cir. 1998);      Chambers

v. Family Health Plan Corp. , 100 F.3d 818, 825-26 (10th Cir. 1996).

       This case presents a situation where there may be what could be termed a

standard conflict of interest because the plan administrator and members of the

Committee are employees and, presumably, participant/beneficiaries of their

employer’s self-funded plan. In such situations the burden of proof is on the

plaintiff to prove the existence of the conflict,    see Fought v. Unum Life Ins. Co.

of America , 379 F.3d 997, 1005 (10th Cir. 2004), and to prove that any such

conflict jeopardized the administrator’s impartiality.       See id. ; Cirulis v. UNUM


                                              -9-
Corp. , 321 F.3d 1010, 1017 n.6 (10th Cir. 2003);   Kimber , 196 F.3d at 1097. In

Fought we reiterated the details of this well-established rule as follows:

      “[T]he mere fact that the plan administrator was a [company]
      employee is not enough per se to demonstrate a conflict. Rather, a
      court should consider various factors including whether: (1) the plan
      is self-funded; (2) the company funding the plan appointed and
      compensated the plan administrator; (3) the plan administrator’s
      performance review or level of compensation were linked to the
      denial of benefits; and (4) the provision of benefits had a significant
      economic impact on the company administering the plan.”

      If the plaintiff cannot establish a serious conflict of interest, we
      consider defendant’s standard conflict of interest as one factor in
      determining whether defendant’s denial of disability benefits to
      plaintiff was arbitrary and capricious.   See Firestone , 489 U.S. at
      115, 109 S. Ct. 948 (holding that when “a benefit plan gives
      discretion to an administrator . . . who is operating under a conflict
      of interest, that conflict must be weighed as a factor in determining
      whether there is an abuse of discretion) (internal quotations omitted);
      Charter Canyon Treatment Ctr. v. Pool Co. , 153 F.3d 1132, 1135
      (10th Cir. 1998) (where a plan administrator is operating under a
      conflict of interest, “the court may weigh that conflict as a factor in
      determining whether the plan administrator’s actions were arbitrary
      and capricious”).

Fought , 379 F.3d at 1005 (quoting   Cirulis , 321 F.3d at 1017 n.6 (internal

quotation marks omitted)).

      If the plaintiff proves the existence of a conflict of interest under the

standard set out above, or proves the existence of a serious procedural

irregularity, then the burden shifts to the plan administrator to demonstrate that its

decision was reasonable within the parameters of the traditional arbitrary and

capricious standard.   See id. at 1006.

                                          -10-
       Here, the district court applied a “pure” arbitrary and capricious standard of

review after noting that such standard applies in the absence of a conflict of

interest. Order at 4, Appellant’s App. Vol. 2 at 427. Mr. Wolberg argues that the

court erred by failing to recognize that a conflict of interest existed in the case

and by failing to apply a less deferential standard of review using a sliding scale

approach. He urges us to remand the case for re-analysis under the sliding scale

and burden shifting analysis clarified by us in    Fought . We are unpersuaded.

       Fought did not announce any new watershed principle applicable to this

case. The sliding scale approach, and the factors to be established by the plaintiff

to show a conflict of interest, have been the law of this circuit for many years.

See Woolsey v. Marion Labs., Inc. , 934 F.2d 1452, 1459 (10th Cir. 1991);          Jones ,

169 F.3d at 1291; Kimber , 196 F.3d at 1097.

       More to the point, Mr. Wolberg failed to establish in the administrative or

district court proceedings that any conflict of interest existed which would

warrant a standard of review less deferential than simply treating the existence of

this employer-funded and employee-administered plan as a “standard” conflict to

be treated simply as a factor in an arbitrary and capricious standard of review.      3




       3
        In his brief in support of his motion for summary judgment in the district
court, Mr. Wolberg stated the standard of review as “the more deferential
‘arbitrary or capricious’ or abuse of discretion standard . . .” Br. in Support of
Mot. for Summ. J. at 5, Appellant’s App. Vol. 2 at 51. He mentioned conflict of
                                                                         (continued...)

                                            -11-
Mr. Wolberg’s claim that the Committee was biased against him because it

allowed the Plan Administrator to mention records which Mr. Wolberg had not

seen is insufficient to change the standard of review, especially since the mention

of the records does not achieve the prominence in the Committee’s decision that

Wolberg ascribes to it.

      Accordingly, a standard conflict of interest must be considered only as one

factor in our review. Thus, we apply the arbitrary and capricious standard to the

Committee’s decision, both as to the interpretation of the Plan and the denial of

the requested benefit, adjusted but still according significant deference to the




      3
        (...continued)
interest as an example of abuse of discretion, id., but did not pursue the matter,
stated as an undisputed fact that no remand was necessary, id. at 11, and sought
no discovery. In his reply brief in support of his motion, he, for the first time,
argued that the sliding scale of deference should be applied for a single reason,
which he stated as follows:

             Finally, if the Committee members, all Senior level AT&TBB
      managers and officers, accepted the Plan Administrator’s naked
      assertion about the allegedly reviewed “records,” the Committee
      showed it truly operated under a conflict of interest, giving more
      weight and credibility to the Company’s unsupported position. This
      conflict of interest should trigger this Court’s less deferential
      standard of review. Chambers v. Family Health Plan Corp., 100 F.3d
      818, 826 (10th Cir. 1996).

Reply Br. in Supp. of Mot. for Summ. J. at 8-9, Appellant’s App. Vol. 2 at 411-
12.

                                         -12-
Committee, and requiring no shift in the burden of proof as to the reasonableness

of the Committee’s decision.



                                              B.

       Mr. Wolberg’s argument, fundamentally, is that the term “retention bonus”

in his agreement does not mean what it says. He contends that the language was

an “incorrect label.” Br. of Appellant at 27. He argues that we should “[l]ook

[. . .] beyond the incorrect label placed on the $180,000” and regard it as either a

“merit or performance award” or “incentive compensation” or otherwise a “non-

executive bonus.”     Id. In his complaint Wolberg argued first that the payment

simply constituted wages,     id. at 9, a point (wages) to which he returns

periodically but not consistently in his brief on appeal.     See e.g. , Reply Br. of

Appellant at 3-4. As indicated, he also variously refers to the payment as one or

the other of three other types of payment; but he at no point in his opening brief

settles on one type of payment as being the applicable one.       See , e.g. , Br. of

Appellant at 25-26.   4



       The problem with this position is that Mr. Wolberg agreed, in writing, to

the characterization of the money in question as a retention bonus. Furthermore,



       “The substantial evidence is that the $180,000 wage payment was either
       4

‘basic wages,’ a ‘lump sum payment in the nature of merit or performance award,’
a ‘non-executive incentive’ or ‘incentive compensation.’” Br. of Appellant at 26.

                                             -13-
he did not then dispute the accuracy of that characterization, and has never

identified a contrary earlier description or even alleged that the company

explicitly labeled the amount as one thing in negotiating with him and then called

it something else, contrary to earlier assertions, when producing a written

agreement for his review and signature. To the contrary, company records

produced for the administrative record, including examination by Wolberg and the

Committee, do not show that the $180,000 was coded as wages for internal

accounting purposes, but, rather, as a transition payment.

      It is clear from the record that Mr. Wolberg is a sophisticated, highly-

trained professional, astute in financial and other matters at an executive level.

He has demonstrated that he pays close attention to detail. Under these

circumstances it is not only appropriate to hold him to the terms of his agreement,

it is well within the arbitrary and capricious standard of review to uphold the

Committee’s decision in this regard.

      Nor are Mr. Wolberg’s variations on the theme availing: (1) that the terms

“retention bonus,” “merit performance award,” “non-executive bonus,” and

“incentive payment” are not defined in the Plan, are ambiguous, and that the

Committee erred in denying Wolberg’s claim without defining all those terms,         id.

at 3-4; (2) that there is no such thing as a retention payment which can be pro-

rated rather than being forfeited entirely if the employee leaves short of the


                                         -14-
expiration of the retention period; (3) that the Committee did not engage in a

principled reasoning process; (4) that the Committee erroneously considered a

statement by the Plan Administrator that company records showed both forfeitable

and proratable retention payments, when Wolberg’s counsel was not given access

to such documents; and, accordingly, they do not even exist; (5) that the

Committee showed bias demonstrating a conflict of interest when it failed to take

into account and discuss a formal retention agreement with a forfeiture clause that

the company was using (according to Wolberg) in its merger with Comcast,

almost a year after the merger affecting Wolberg; and it further showed bias when

it declined to look at agreements relating to six employees identified by Wolberg;

and (6) that Mr. Wolberg’s allegedly unopposed affidavit opining that the

$180,000 retention bonus was not a retention bonus conclusively resolves the

issue in his favor, especially when taken together with his testimony before the

Committee that the payment in question was not initially identified by company

personnel as a retention bonus (or anything else), and he was not entreated to stay

on.

      First, the words in question are understandable on their face. They have an

ordinary, commonsense meaning—especially “retention”—which recourse to any

standard dictionary would confirm.   See, e.g., Hickman v. Gem Ins. Co. , 299 F.3d

1208, 1212 (10th Cir. 2002) (holding that it is appropriate in ERISA cases to give


                                        -15-
plan terms their ordinary and commonsense meaning). Accordingly, the

Committee was not required to define the terms further. Furthermore, “retention”

in this agreement is not rendered ambiguous by either intrinsic or extrinsic

analysis.   5
                Quite the opposite. The agreement itself covered a single year “to

assist with the [merger] transition.” For that year the agreement itself provides

explicitly for three separate items of consideration: a $180,000 annual salary, a

30 percent short-term incentive, and a $180,000 retention bonus payable in a lump

sum at the conclusion of the one-year temporary assignment at AT&T Broadband.

The retention amount was proratable (and, therefore, reduced) if Wolberg did not

stay the full year, a subject Mr. Wolberg makes much of and which we address

separately. Intrinsically these separate forms of consideration are not hard to

understand according to their terms. And the title going in, “Vice President

Finance” hardly suggested a non-executive position.

       It boils down to the simple proposition that if the $180,000 in question was

wages, it would have been included in the agreement under the salary designation,

converting the salary figure to $360,000 (obviously proratable over each month

worked and terminating either at the end of the year or at the time Wolberg quit




       Thus, cases cited by Mr. Wolberg are easily distinguishable. See, e.g.,
       5

Bynum v. CIGNA Healthcare of North Carolina, Inc., 287 F.3d 305, 314 (4th Cir.
2002) (discussing how to define what is or is not “cosmetic” in surgical
procedures).

                                            -16-
short of completing the year). If the payment was for merit or performance, then,

obviously, some measurement of merit or performance would have been included;

and, equally obviously, the amount could hardly be called a non-executive bonus

when Wolberg’s title going in was that of an executive position: vice president-

finance, and there is no suggestion that the $180,000 would suddenly take on a

different characterization some months into the one-year period without somehow

explaining what the amount was for the first part of the period when Wolberg was

clearly an executive. Finally, it is utterly inexplicable that both Wolberg and the

company would agree to the term “retention bonus” in the agreement when, as he

argues, the agreement was not referring to retention at all.

      Extrinsically, the agreement and forms of consideration are equally

unambiguous. In the merger AT&T Broadband crafted a package designed to

induce a valuable executive to stay on for a year to ensure a smooth transition.

Nothing ambiguous about that. Second, contrary to Mr. Wolberg’s assertions, the

Employee Benefits Fiduciary Committee did engage in a reasoned, principled

process in considering his appeal. We set out the Committee’s written decision

on the point in full, as follows:

                          AT&T Broadband Pension Plan
                                   Appeal

Name:    Wayne Wolberg
                                         ...


                                         -17-
C    Mr. Wolberg claims that the $180,000 payment he received on
     March 23, 2001 was not a “retention” or “stay” bonus. His
     position is that the payment was not contingent on his
     remaining on the payroll of AT&T Broadband to a
     predetermined date. Mr. Wolberg claims that the $180,000
     bonus was in the nature of a non-executive short-term bonus or
     merit performance award (Attachment A–Item 5) and as such,
     should be included in his pension calculation. He claims in his
     Affidavit that the $180,000 payment was treated the same as
     any other wage payment for purposes of taxes, FICA and
     401(k) Savings Plan deductions (Attachment A–Item 13). In
     addition, he seeks to know if other employees have received
     credit in the calculation of their pension benefit for “stay” or
     “retention” bonuses.

                                ...

Retention Payment of $180,000

C    On March 23, 2001, Mr. Wolberg received a payment of
     $180,000 that was coded as a Merger Transition Payment. The
     Merger Transition Payment was based on a letter from Connie
     Campbell dated May 2, 2000 (Attachment D) that stated “the
     compensation package offered includes . . . and a retention
     bonus of $180,000 payable at the conclusion of the assignment.
     In the event you leave prior to March 31, 2001 the retention
     bonus will be prorated.” The retention bonus was never
     characterized by AT&T Broadband as a non-executive short-
     term bonus or a merit performance award as referenced in Mr.
     Wolberg’s Affidavit (Attachment A-5). The Pension Plan
     excludes transition and stay bonuses from eligible
     compensation (Attachment E). Consistent with the
     classification of the payment as a “transition” payment, no
     401(k) deduction was taken from the payment. The payment
     advice dated March 23, 2001 (Attachment F-1) that included
     the $180,000 Merger Transition Payment had 401(k) Savings
     Plan deductions of $762.31. Mr. Wolberg contributed to the
     401(k) Savings Plan at the maximum allowed for Highly
     Compensated Employees of 10%. This deduction represented
     10% of his base rate of pay ($6,923.08 X 10%=$692.31 +

                                -18-
$70.00 adjustment on the STIP payment of $10,892.31 paid on
March 15, 2001 for a total of $762.31) – it did not include a
deduction of 10% of the $180,000 Merger Transition Payment
as referenced in Mr. Wolberg’s Affidavit (Attachment A–Item
13). The $180,000 Merger Transition Payment was correctly
excluded from the calculation of Mr. Wolberg’s pension
benefit.

In addition, Mr. Wolberg requested that we disclose all
prior determinations involving similar claims and
demanded that this payment be treated consistent with
prior determinations. The transition payment has been
excluded from the calculations of benefits for all
employees of AT&T Broadband. It has never been
considered as eligible compensation for the pension plan
and, based on the fact that payments of the bonus have
never been transmitted to the vendor responsible for
pension calculations, it has consistently been excluded
from any pension calculation. Additionally, Transition
Bonus payments are not eligible for deductions for the
401(k) Savings Plan. Stay payments have also been
consistently excluded from the calculation of the
pension benefit for all employees based on the coding as
“not eligible” and the provisions of the Plan. AT&T
Broadband has not previously received any claim or
appeal that requested inclusion of “stay”, retention”, or
“transition” payments in the calculation of the pension
benefit, nor has any claim been received regarding the
categorization of such a bonus.

In examining our records, we have confirmed that other
retention bonuses were paid on both a prorated and non-
prorated basis and these retention bonuses have
consistently been excluded from inclusion in the
calculation of the pension benefits.

                           ...




                           -19-
      Recommendation:

                                         ...

      Deny Mr. Wolberg’s appeal for inclusion of the retention payment
      and the spot bonus in the calculation of the pension benefit based on
      the provisions of the pension plan that define eligible compensation.
      Under Section 1.13 and Section 1.18A (Attachment E), “stay”
      bonuses or “retention” payments are not considered eligible
      compensation for inclusion in the calculation of pension benefits. In
      addition, payments other than base rate of pay, commissions paid
      within 90 days of termination of employment, and STIP payments
      paid upon receipt of the signed waiver, are excluded from inclusion
      in the pension calculation. The pension benefit was calculated
      correctly based on the provisions of the plan and the nature of the
      transition payment and the spot award.

Appellant’s App. Vol. 1 at 78-80.

      Neither the Committee’s reasoning nor its reasoning process, as shown by

the foregoing, was arbitrary, unprincipled or unreasonable. To the contrary, it is

eminently reasonable. Mr. Wolberg’s conclusory opinion in affidavit form was

clearly not the only evidence either before the Committee or the district court.

The agreement, the Plan, the Company’s accounting records, all the integral

correspondence relating to Wolberg’s claim, and other matters were before the

Committee.

      That leaves Mr. Wolberg with the final slender reed to which he continually

returns in support of his arguments: that the lump sum retention bonus would be

paid, pro rata, if he left before the one-year engagement elapsed. He contends

that “pro rata” and “retention” are mutually exclusive terms, i.e., that retention

                                         -20-
pay is only for a period certain and forfeited in its entirety if the employee leaves

short of the full period. He does not cite a single case or any treatise in support

of this bald proposition.

      Rather, Mr. Wolberg submitted to the Committee a full-blown seven-page

single-spaced legal form document which AT&T Broadband was allegedly using

in connection with retention bonuses being then offered to unidentified classes of

Comcast employees in connection with the merger of that company with AT&T

Broadband. Id. at 212-18. He also implored the Committee to review agreements

containing retention bonuses for six named employees. Appellant’s App. Vol. 2

at 224.

      He makes much of the fact that the Committee not only did not allude to

those documents, it allowed the Plan Administrator to state that “[i]n examining

our records, we have confirmed that other retention bonuses were paid on both a

prorated and non-prorated basis and those retention bonuses have consistently

been excluded from inclusion in the calculation of the pension benefit.”

Appellant’s App. Vol. 1 at 79.

      Both the Committee and the district court included that statement in their

decisions, and did so in the face of repeated demands by Mr. Wolberg’s counsel

to be furnished copies of any records bearing on the issue in question—demands




                                         -21-
to which the company did not respond, at least as regards the statement recited

above. See, e.g. , id. at 209, Vol. 2 at 224.

       Following the Committee’s decision, which included the challenged

statement to the Committee by the Plan Administrator, counsel for Mr. Wolberg

demanded to see the records the administrator had examined. The Committee

responded in writing as follows:

       Dear Mr. Kennedy:

       This letter is in response to your letter dated May 7, 2002 that was
       received May 8, 2002 regarding your Notice of Intent to File Suit and
       Request for Undisclosed Administrative Record.

       The administrative record that was reviewed by the Employee
       Benefits Fiduciary Committee during its meetings on April 10 and
       April 22 is identical to the copy you and Mr. Wolberg received in
       advance of the meeting. The Committee did not review any
       additional information including other retention agreements or stay
       agreements during its discussion. The Committee based its decision
       on the relevant information contained in the aforementioned
       administrative record.

       Sincerely
       /s/
       Connie Adragna
       Secretary of the Employee Benefits Fiduciary Committee

Appellant’s App. Vol. 2 at 281.

       Leaving aside for the moment the Committee’s disclaimer, Mr. Wolberg’s

contentions on these points might arguably support a burden shifting claim of a

“serious procedural irregularity,”   see Fought , 379 F.3d at 1006. But we think it


                                           -22-
attempts to prove too much. The Comcast formal document, and the agreements

(in an unknown form and in unknown circumstances) with six other employees do

not stand for the categorical proposition Mr. Wolberg attempts to apply across the

board to every and any agreement with employees at every level associated with

the MediaOne-AT&T Broadband merger. Mr. Wolberg’s agreement appears as

virtually sui generis, and plain on its face. Internal company correspondence

regarding Wolberg, and company accounting records, yield no evidence

supporting his interpretation. And, finally, as the district court noted, there

certainly is no legal requirement that forfeiture is an integral condition of all

retention agreements. The inducement of $180,000 over and above his salary for

one year is a powerful attraction, hardly vitiated by the fact that Wolberg would

get only a part if he left early.

       We also note that, contrary to Wolberg’s assertions, the Plan

Administrator’s statement quoted above was not the centerpiece of either the

Committee’s or the district court’s reasoning or decision. In fact, as noted, the

Committee expressly denied any reliance on it. The conclusion that no retention

payments had ever been included in the formula for calculating an employee’s

pension benefits was, of course, not susceptible of being produced to Wolberg’s

counsel, being proof of a negative; and the implied proposition that Mr.




                                          -23-
Wolberg’s counsel would send a team of accountants in to survey the records of a

very large enterprise with respect to the asserted negative is untenable.



                                  CONCLUSION

      Having considered the Committee’s decision, administrative record, the

district court’s opinion, and Mr. Wolberg’s arguments, we conclude that the

Committee’s decision was not arbitrary and capricious and was reasonable under

any standard. Accordingly, the judgment of the district court is AFFIRMED.


                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -24-
