                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1224
                         ___________________________

                                   Robert D. Carr

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                         Anheuser-Busch Companies, Inc.

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                    Appeal from United States District Court
                      for the Eastern District of Missouri
                                ____________

                          Submitted: September 19, 2012
                            Filed: December 21, 2012
                                 [Unpublished]
                                 ____________

Before MELLOY and BENTON, Circuit Judges, and BAKER,1 District Judge.
                          ____________

BAKER, District Judge.




      1
       The Honorable Kristine Gerhard Baker, United States District Court for the
Eastern District of Arkansas, sitting by designation.
       The district court2 granted summary judgment in favor of defendant Anheuser-
Busch Companies, Inc. (“Anheuser-Busch”) regarding its denial of plaintiff Robert
D. Carr’s claim for severance benefits under an employee benefit plan governed by
the Employee Retirement Income Security Act (“ERISA”). Mr. Carr challenges the
district court’s grant of summary judgment and the district court’s partial denial of a
motion to compel. We affirm.

I.    Background

     Mr. Carr worked for Anheuser-Busch for 25 years. He was terminated from
employment on June 4, 2009. His job title at the time was Senior Manager,
Accounting.

       Anheuser-Bush is the plan sponsor of Severance Pay Plan No. 562 (“Plan”),
which exists for the benefit of certain employees as set forth in the applicable
Summary Plan Description (“SPD”). The Anheuser-Busch Companies, Inc.,
Severance Pay Program (“Program”) is a severance program under the Plan for
eligible salaried employees. The SPD for the Program describes the conditions that
employees must meet to receive the Program benefits and provides general
information about the Program.

       Relevant to this appeal is the SPD’s provision of benefits upon an
“[i]nvoluntary separation from service due to unsatisfactory job performance for
reasons other than willful misconduct.” Anheuser-Busch concluded Mr. Carr was
ineligible for benefits because he was terminated for violating company policy, which
was deemed willful misconduct.



      2
       The Honorable Carol E. Jackson, United States District Court for the Eastern
District of Missouri.

                                         -2-
      Anheuser-Busch was the Plan Sponsor, Plan Administrator, and would have
to pay any benefits due to Mr. Carr under the Plan.

       On June 25, 2009, Mr. Carr wrote a letter to Anheuser-Busch which he
characterized as a formal request for severance benefits under the Program. He
stated: “I strongly disagree with the reason articulated for my termination” and
referred to the provisions “as outlined by the Severance Pay Program Summary Plan
Description.”

       Mr. Carr’s claim was handled by the Plan Administrator, Kathleen Boulicault,
who was the Senior Director, Compensation & Relocation at the time, and was
handled on appeal by Jeff Karrenbrock, who was the Vice President, Total Rewards
at the time. Ms. Boulicault and Mr. Karrenbrock were both paid employees of
Anheuser-Busch. During 2009, Mr. Karrenbrock also was a participant in an
Anheuser-Busch bonus incentive program based in part on a goal of reducing
Anheuser-Busch’s labor costs. Mr. Karrenbrock received a bonus under this program
for the 2009 fiscal year.

       Ms. Boulicault issued a Notice of Claim Denial on July 1, 2009, that stated in
part: “Under the current Anheuser-Busch Severance Pay Program, benefits are not
payable if the actions leading to your termination are considered willful misconduct
in violation of company policy. Because your actions were deemed as willful
misconduct, you are not entitled to benefits under the Program.”

       Mr. Carr’s attorneys sent an email to Ms. Boulicault requesting several pieces
of information relating to Mr. Carr’s termination, including a copy of the “company
policy” referred to in Ms. Boulicault’s letter and the “[s]pecific documents and
evidence . . . which support the statement in your letter of July 1, 2009 that Mr. Carr’s
alleged actions were ‘willful misconduct’ . . . .” Mr. Carr’s attorney also requested
the names of all individuals who participated in the company investigation.

                                          -3-
       Ms. Boulicault responded by email explaining that the terms of the Severance
Pay Program entitled Mr. Carr to those documents on which she had relied in making
the decision to deny Mr. Carr’s request for severance benefits and attaching for
review a copy of the Employee Separation Report that indicated Mr. Carr was
dismissed for violation of company policy. She did not furnish a copy of the
requested company policy nor did she identify anyone who was involved in the
investigation.

        On August 27, 2009, Mr. Carr’s attorneys sent a four-page appeal letter to Mr.
Karrenbrock, challenging the denial of Mr. Carr’s claim for severance benefits. The
letter objected to Ms. Boulicault’s handling of the claim, citing an alleged failure to
provide the specific reasons for the denial, the failure to provide a copy of the
company policy cited in her denial, and that the denial letter referred to “willful
misconduct” in violation of company policy but “[n]o additional explanation or
evidence was provided to support this decision.” The letter included a detailed
recitation of Mr. Carr’s version of the events which led to termination.

       In the letter, Mr. Carr explained that, in 25 years of service, he had never been
reprimanded or accused of wrongdoing. Mr. Carr admitted that, on June 3, 2009, he
went to the fourth floor of his building at work to look for a docking station to use
with his office laptop computer. He observed a set of unused speakers he felt he
could use in his office, placed the speakers in a box to carry them to his office, but did
not remove the box from the fourth floor. Mr. Carr continued his search for a
docking station when he was confronted by an Anheuser-Busch security guard who,
according to Mr. Carr, accused him of stealing company property. Mr. Carr claims
he was questioned by the security guard for several hours, after which he returned to
his office. Before he left for the day, Mr. Carr contends he showed the security guard
he did not have a docking station for his office computer. After lunch the next day,
June 4, 2009, Mr. Carr was questioned by two City of St. Louis police detectives at
the Anheuser-Busch office building. He claims that, during that discussion, he

                                           -4-
reiterated “the items were only intended for use in his office for legitimate office
purposes, were never removed from the fourth floor and that he had no intention of
stealing any property from the company.” Mr. Carr denied violation of any company
policy and stated his only intention was “to use the speakers (and docking station, if
he had found one) at his company desk in connection with work that he was
performing for the company.” Mr. Carr acknowledged in his letter that, on June 4,
2009, Anheuser-Busch terminated Mr. Carr for “stealing.”

       By letter dated October 22, 2009, Mr. Karrenbrock stated he was conducting
an investigation of the information in Mr. Carr’s appeal letter and needed an
additional 60 days to gather more information.

      John Burke of the Anheuser-Busch Corporate Security office conferred with
Mr. Karrenbrock as he conducted his review. Mr. Burke prepared a memorandum to
Mr. Karrenbrock in which he reacted to Mr. Carr’s appeal letter. Mr. Burke
concluded that the explanations and arguments offered in Mr. Carr’s appeal letter
were contrary to the facts. Mr. Burke stated in the memo that Mr. Carr was arrested
by detectives for felony stealing of speakers and wires, that a detective provided a
statement contradicting Mr. Carr’s claim that detectives told him no crime was
committed, and that Mr. Carr gave a taped statement to detectives after being advised
of his Miranda rights in which he admitted to taking the speakers. Mr. Burke
explained that, to obtain the speakers, Mr. Carr had to stand on a chair and screw the
speakers out of the wall, that Mr. Carr admitted taking a box into the office into
which to place the speakers, and that, when asked what he was going to do with the
speakers, Mr. Carr said he would keep them in his office for awhile. Mr. Burke
concluded in his memo that taking the box into the office indicated “premeditation”
as Mr. Carr “would not have needed a box of that size to carry a bracket” for his
docking station and that his statement about what he intended to do with the speakers
“indicate[d] that he was going to remove those speakers from his office at a later
date.” Mr. Burke also explained Mr. Carr’s encounter with the Anheuser-Busch

                                         -5-
security guard when initially confronted about the speakers, characterizing Mr. Carr’s
answers as “delayed and evasive.” Mr. Karrenbrock relied on Mr. Burke’s
memorandum, along with other information he learned in conversations with Mr.
Burke and with Gary Davis, another employee of the Anheuser-Busch Corporate
Security office, in affirming the decision to deny Mr. Carr’s claim for severance
benefits.

      On December 21, 2009, Mr. Karrenbrock issued a Notice of Denial on Appeal
of Mr. Carr’s claim for severance benefits. Mr. Karrenbrock concluded that Ms.
Boulicault’s denial of Mr. Carr’s claim for severance benefits was appropriate
because Mr. Carr had violated company policy by misappropriating company
property and that such a violation of company policy is deemed to constitute willful
misconduct as that term is used in the SPD. Mr. Karrenbrock stated that his review
revealed that Mr. Carr “was terminated for violating company policy. Specifically,
Mr. Carr was terminated for violating Policy Number I-4, Section III.K.” Mr.
Karrenbrock further indicated that “Mr. Carr’s termination for violating a company
policy is deemed to constitute willful misconduct” which is not an enumerated
circumstance for providing severance. Mr. Karrenbrock then quoted certain
provisions in the Plan, including the provision that excludes payment of severance
benefits if an employee is terminated for willful misconduct.

       Mr. Karrenbrock also responded to Mr. Carr’s complaints about Ms.
Boulicault’s alleged failure to produce information relevant to the claim denial. Mr.
Karrenbrock explained that the Employee Separation Report was the “only document
relied upon in making her determination . . . and Ms. Boulicault did not rely upon,
review or consider any other document . . . and we have determined that there were
no other ‘relevant’ documents (as determined under Labor Reg. § 2560.503-1(m)(8)),
which must be provided with respect to Mr. Carr’s claim.”




                                         -6-
       By letter dated December 31, 2009, Mr. Carr’s attorney again requested a copy
of the company policy referred to in the denial decisions. Mr. Karrenbrock forwarded
a copy of company Policy Number I-4 on January 5, 2009; the policy refers to the
“[m]isappropriation or attempted misappropriation of Company property.”

      Mr. Carr filed suit challenging the denial of his severance benefits in
accordance with 29 U.S.C. § 1132(a)(1)(B).

       During the course of the litigation, Mr. Carr filed a motion to compel
Anheuser-Busch to produce certain emails exchanged between Mr. Karrenbrock and
Anheuser-Busch’s legal department pursuant to the fiduciary exception to the
attorney-client privilege. After conducting an in camera inspection of certain emails,
the district court ordered Anheuser-Busch to produce an email dated October 9, 2009,
but did not require production of three other emails, two dated December 10, 2009,
and one dated December 21, 2009. Mr. Carr appeals this decision of the district
court.

       Anheuser-Busch filed the administrative record for Mr. Carr’s claim under seal
with the district court on July 5, 2011. The administrative record included only Mr.
Carr’s August 27, 2009, appeal letter and Mr. Burke’s undated memo addressing
various matters set forth in Mr. Carr’s appeal letter.

       Mr. Carr filed a motion for partial summary judgment on his ERISA claim on
July 25, 2011. Mr. Carr asserted that the denial of his claim was erroneous under
either an abuse of discretion or a less deferential standard of review. Mr. Carr argued
in part that Ms. Boulicault and Mr. Karrenbrock both relied on a single document in
making their decisions and that document was not substantial evidence to support the
denials.




                                         -7-
      On August 1, 2009, Anheuser-Busch filed its motion for summary judgment
on Mr. Carr’s ERISA claim, asserting that the denial of his claim should be upheld
under either an abuse of discretion or de novo standard of review. Anheuser-Busch’s
statement of uncontroverted material facts was filed under seal and accompanied by
several exhibits, including a ten-page affidavit from Mr. Karrenbrock dated August
1, 2011.

        Mr. Karrenbrock’s affidavit discussed in part Plan terms, his investigation into
Mr. Carr’s claim, including conversations he reportedly had with Mr. Burke and Mr.
Davis and upon which he relied in denying Mr. Carr’s claim, other information he
relied upon in denying the claim, and his opinion that Mr. Carr’s failure to receive a
copy of the company policy cited in Ms. Boulicault’s decision or Mr. Burke’s
memorandum did not impact Mr. Carr’s ability to challenge the denial of benefits.
It also recited that Mr. Karrenbrock’s decision was not impacted by his participation
in Anheuser-Busch’s retention bonus program. Mr. Carr objected to those paragraphs
of Anheuser-Busch’s statement of uncontroverted material facts that were based on
Mr. Karrenbrock’s affidavit. He alleged that the affidavit contained immaterial and
inadmissible information outside the administrative record. He objected to Anheuser-
Busch’s making an improper attempt to introduce new facts in the record and to
Anheuser-Busch’s improper and belated attempt to explain the purported reasons for
the decision.

      The district court issued its Memorandum and Order granting Anheuser-
Busch’s motion for summary judgment on the ERISA claim and denying Mr. Carr’s
motion for partial summary judgment. Mr. Carr appeals the district court’s ruling on
his ERISA claim.3

      3
       Mr. Carr also included a claim for unpaid vacation pay due after his
termination. The district court declined to exercise supplemental jurisdiction over
Mr. Carr’s vacation pay claim and dismissed the claim without prejudice. Mr. Carr
does not appeal the district court’s ruling on the vacation pay claim.

                                          -8-
II.    Standard of Review

      This Court reviews a district court’s grant of summary judgment de novo,
viewing the record in the light most favorable to the nonmoving party. Smith v.
United Television, Inc., 474 F.3d 1033, 1035 (8th Cir. 2007).

      We review de novo the district court’s determination of the appropriate
standard of review under ERISA applicable to Anheuser-Busch’s denial of severance
benefits. Anderson v. U.S. Bancorp, 484 F.3d 1027, 1031 (8th Cir. 2007); Seitz v.
Metropolitan Life Ins. Co., 433 F.3d 647, 650 (8th Cir. 2006). We also engage in a
de novo review of the district court’s application of the standard. Seitz, 433 F.3d at
650.

       We review discovery rulings “in a manner both narrow and deferential, and
reversal is only warranted if an erroneous ruling amounted to a gross abuse of
discretion.” Robinson v. Potter, 453 F.3d 990, 994-95 (8th Cir. 2006) (internal
quotations omitted).

III.   Discussion

       A.    Standard of Review Under 29 U.S.C. § 1132(a)(1)(B)

       The Plan gives discretionary authority to the Plan Administrator. Therefore,
the Plan language required the district court to review Anheuser-Busch’s
interpretation of the Plan for abuse of discretion. Anderson, 484 F.3d at 1031 (citing
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); King v. Hartford
Life & Accident Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005) (en banc)).

                                         -9-
       Mr. Carr contends that a less deferential standard should have been applied by
the district court due to procedural irregularities. In Woo v. Deluxe Corporation, 144
F.3d 1157 (8th Cir. 1998), we set forth a two-part test for determining whether a
district court should apply an abuse of discretion or de novo standard of review to a
plan administrator’s denial of benefits. Under Woo, a claimant seeking de novo
review had to “present material, probative evidence demonstrating that (1) a palpable
conflict of interest or a serious procedural irregularity existed, which (2) caused a
serious breach of the plan administrator’s fiduciary duty. . . .” Id. at 1160.

       In Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105 (2008), “the
Supreme Court made clear the conflict does not change the standard of review applied
by the district court. Rather, a conflict should be weighed as a factor in determining
whether there is an abuse of discretion.” Hackett v. Standard Ins. Co., 559 F.3d 825,
830 (8th Cir. 2009) (internal quotations omitted). The Court observed a “conflict of
interest exists whenever the plan administrator is also the employer or insurance
company which ultimately pays benefits.” Id. at 830 (citing Glenn, 554 U.S. at 112).
When considering all factors that might bear on whether the administrator abused its
discretion, the conflict of interest should prove more important “where circumstances
suggest a higher likelihood that it affected the benefits decision, including, but not
limited to, cases where an insurance company administrator has a history of biased
claims administration . . . .” Glenn, 554 U.S. at 117. It should prove less important
“where the administrator has taken active steps to reduce potential bias and to
promote accuracy, for example, by walling off claims administrators from those
interested in firm finances, or by imposing management checks that penalize
inaccurate decisionmaking irrespective of whom the inaccuracy benefits.” Id.

       As the district court correctly determined, Glenn abrogated conflict of interest
as a basis for heightened review but did not address whether procedural irregularities
may continue to trigger heightened review. As we have observed:

                                         -10-
      After the Supreme Court’s decision in Glenn, the Woo sliding-scale
      approach is no longer triggered by a conflict of interest, because the
      Supreme Court clarified that a conflict is simply one of several factors
      considered under the abuse of discretion standard. The procedural
      irregularity component of the Woo sliding scale approach may, however,
      still apply in our circuit post-Glenn.

Wrenn v. Principal Life Ins. Co., 636 F.3d 921, 924 n.6 (8th Cir. 2011) (internal
citations omitted).

       Mr. Carr alleges procedural irregularities in support of a higher review
standard. We affirm the district court’s determination that any procedural
irregularities claimed by Mr. Carr are insufficient to trigger any heightened review
that may be available in this circuit post-Glenn.

      Mr. Carr alleges that Anheuser-Busch failed to follow the Plan’s claim
procedures, failed to comply with ERISA’s requirement that he be given adequate
written notice of the specific reasons for denial of his claim, and failed to provide to
him a full and fair review.

       Mr. Carr presented no evidence that the procedures followed by Anheuser-
Busch were made “without reflection or judgment” or were “the product of an
arbitrary decision or the plan administrator’s whim.” Parkman v. Prudential Ins. Co.
of America, 439 F.3d 767, 772 n.5 (8th Cir. 2006) (internal citations omitted). There
is no evidence that Anheuser-Busch failed to consider a fundamental determination
which was required and which would have changed the outcome here. Cf. Chronister
v. UNUM Life Ins. Co. of America, 563 F.3d 773, 777 (8th Cir. 2009) (concluding
defendant’s internal claims manual required a procedure that defendant did not follow
or consider). We also reject as insufficient Mr. Carr’s contention that Anheuser-

                                         -11-
Busch’s alleged failure to provide requested documents should trigger any heightened
review. There is no evidence that the procedures followed by Anheuser-Busch in
regard to Mr. Carr’s claim were any different than those employed in reviewing the
claims of other participants. The Court does not find that the alleged irregularities
resulted in a serious breach of Anheuser-Busch’s fiduciary duty or “trigger a total
lack of faith in the integrity of the decision making process.” Layes v. Mead Corp.,
132 F.3d 1246, 1251 (8th Cir. 1998) (internal quotation marks omitted).

      Accordingly, the district court did not err in reviewing Anheuser-Busch’s
decision under an abuse of discretion standard.

      B.     Analyzing the Denial of Severance Benefits

      Under the abuse of discretion standard “we consider whether the administrator
abused its discretion—that is, whether its interpretation of the plan was reasonable,
and whether its decision was supported by substantial evidence.” Pralutsky v.
Metropolitan Life Ins. Co., 435 F.3d 833, 838 (8th Cir. 2006). Substantial evidence
is “more than a scintilla but less than a preponderance.” Schatz v. Mutual of Omaha
Ins. Co., 220 F.3d 944, 949 (8th Cir. 2000).

             1.     Matters Outside the Administrative Record

      As an initial matter, Mr. Carr alleges the district court erred in considering and
relying on, over his objections, Mr. Karrenbrock’s affidavit testimony, which was not
placed in the administrative record for Mr. Carr’s claim.

      Under an ERISA abuse of discretion standard, judicial review of the
administrator’s decision is typically limited to examining the administrative record
created during the administrative process. A reviewing court “‘must focus on the


                                         -12-
evidence available to the plan administrators at the time of their decision and may not
admit new evidence or consider post hoc rationales.’” King v. Hartford Life and
Accident Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005) (quoting Conley v. Pitney
Bowes, 176 F.3d 1044, 1049 (8th Cir. 1999)). An administrator with discretion under
the Plan “must articulate its reasons for denying benefits when it notifies the
participant or beneficiary of an adverse decision, and the adverse decision must be
supported by both a reasonable interpretation of the plan and substantial evidence in
the materials considered by the administrator.” Id. at 1000. ERISA and our prior
decisions require this. See 29 U.S.C. § 1133; Brumm v. Bert Bell NFL Retirement
Plan, 995 F.2d 1433, 1436 (8th Cir. 1993).

       We have refused to allow claimants “‘to be sandbagged by after-the-fact plan
interpretations devised for purposes of litigation.’” King, 414 F.3d at 999 (quoting
Marolt v. Alliant Techsystems, Inc., 146 F.3d 617, 620 (8th Cir. 1998)). “Such
additional evidence gathering is ruled out on deferential review, and discouraged on
de novo review to ensure expeditious judicial review of ERISA benefit decisions and
to keep district courts from becoming substitute plan administrators.” Brown v. Seitz
Foods, Inc. Disability Benefit Plan, 140 F.3d 1198, 1200 (8th Cir. 1998) (internal
quotations omitted). Further, such additional evidence may be admitted only if good
cause is shown for its omission from the administrative record. Rittenhouse v.
UnitedHealth Group Long Term Disability Ins. Plan, 476 F.3d 626, 630 (8th Cir.
2007) (reviewing the decision for an abuse of discretion and applying this standard
to evaluate proffered additional evidence).

      Mr. Carr concedes that the district court did not extensively discuss the factual
record in its decision but contends the district court relied on the expanded
administrative record when reaching its decision because the district court stated:
“Mr. Karrenbrock was told that plaintiff knew that he should not have removed the
speakers without permission and that the police were prepared to issue a warrant if


                                         -13-
the company decision to press charges.” We agree with Mr. Carr that this specific
information is not included in Mr. Burke’s memorandum or any other portion of the
administrative record.

       Anheuser-Busch made no good cause showing here to admit additional
evidence. Mr. Karrenbrock could have taken notes, prepared a contemporaneous
memorandum to his file, or in some other way memorialized these conversations with
security personnel so as to include that information in the administrative record. He
did not do so. Mr. Carr objected to the admission of evidence outside the
administrative record. We conclude the district court abused its discretion when it
reviewed Anheuser-Busch’s decision on an expanded factual record. Brown, 140
F.3d at 1201.

     For the reasons that follow, we also conclude this error was harmless as the
administrative record reasonably supports the conclusion Anheuser-Busch reached.

             2.     Considering the Administrative Record

        Under an abuse-of-discretion standard, we ask whether the administrator’s
interpretation of the plan was reasonable. Phillips-Foster v. UNUM Life Ins. Co. of
America, 302 F.3d 785, 794 (8th Cir. 2002). To inform the analysis of whether the
administrator’s interpretation of uncertain terms in a plan is reasonable, this Court
reviews several factors, including “whether their interpretation is consistent with the
goals of the Plan, whether their interpretation renders any language of the Plan
meaningless or internally inconsistent, whether their interpretation conflicts with the
substantive or procedural requirements of the ERISA statute, whether they have
interpreted the words at issue consistently, and whether their interpretation is contrary
to the clear language of the Plan.” Finley v. Special Agents Mut. Benefit Assoc., Inc.,



                                          -14-
957 F.2d 617, 621 (8th Cir. 1992) (citing de Nobel v. Vitro Corp., 885 F.2d 1180,
1188 (4th Cir. 1989)).

       Even with these factors, however, “[t]he dispositive principle remains . . . that
where plan fiduciaries have offered a ‘reasonable interpretation’ of disputed
provisions, courts may not replace [it] with an interpretation of their own—and
therefore cannot disturb as an ‘abuse of discretion’ the challenged benefits
determination.” King, 414 F.3d at 999 (alteration in original) (quoting de Nobel, 885
F.2d at 1188). “If the decision is supported by a reasonable explanation, it should not
be disturbed, even though a different reasonable interpretation could have been
made.” Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th Cir. 1997).
“We do not, however, substitute our own weighing of the evidence for that of the
administrator.” Farley v. Arkansas Blue Cross & Blue Shield, 147 F.3d 774, 777 (8th
Cir. 1998).

       We affirm the district court’s ruling that the decision to deny Mr. Carr
severance was based on a reasonable interpretation of the severance benefits program.
Ms. Boulicault explained to Mr. Carr in her denial letter and in her later
correspondence that she and the Program considered willful misconduct to include
violations of company policy, and this was the reason Mr. Carr was being denied
benefits. Mr. Carr does not seem to challenge her interpretation of the term “willful
misconduct,” and, regardless, her interpretation satisfies the standard we apply.

        We also conclude the decision to deny benefits was supported by substantial
evidence. Ms. Boulicault considered only the Employee Separation Report in her
initial denial of benefits; this form clearly states Mr. Carr was terminated for violation
of company policy. Mr. Karrenbrock did not rely solely on the Employee Separation
Report. To evaluate his decision, we consider only those items in the administrative
record—Mr. Carr’s August 27, 2009, appeal letter and Mr. Burke’s memorandum.


                                          -15-
These documents constitute substantial evidence supporting the decision to deny Mr.
Carr benefits. There is no indication in the administrative record that Mr. Carr was
discharged for any reason other than violation of company policy. Mr. Carr likely
disagreed with the reason for his discharge, but our review does not extend to
determining whether Mr. Carr deserved to be terminated under all of the
circumstances. “[W]e are limited to determining whether a reasonable person could
have interpreted and applied the ERISA plan in the way that the administrator did,
and here the answer is yes.” Johnson v. U.S. Bancorp Broad-Based Change in
Control Severance Pay Program, 424 F.3d 734, 740 (8th Cir. 2005).

       When considering all factors that might bear on the abuse of discretion
analysis, we determine the evidence presented regarding the conflict of interest does
not suggest a higher likelihood that the benefits decision was affected. See Glenn,
554 U.S. at 117; Green v. Union Sec. Ins. Co., 646 F.3d 1042 (8th Cir. 2011). Mr.
Carr acknowledges there is no history of biased claim determination on the part of
Anhesuer-Busch. Instead, he alleges that Mr. Karrenbrock’s being paid a bonus with
a stated goal of reducing Anheuser-Busch’s labor expenses should be given weight
as a conflict of interest. Because the record contains evidence of neither biased
claims administration nor efforts to reduce the risk of such administration, we give
the conflict some weight. Manning v. American Republic Ins. Co., 604 F.3d 1030,
1039 (8th Cir. 2010); Darvell v. Life Ins. Co. of North America, 597 F.3d 929, 934
(8th Cir. 2010). We conclude this fact on this record does not alter the outcome under
the abuse of discretion analysis.

      C.     Full and Fair Review Under 29 U.S.C. § 1133

       Under ERISA, employee benefits plans must “afford a reasonable opportunity
to any participant whose claim for benefits has been denied for a full and fair review
by the appropriate named fiduciary of the decision denying the claim.” 29 U.S.C. §


                                        -16-
1133(2). Mr. Carr asserts he was not afforded a full and fair review, repeating in
support of this claim many of the arguments he makes regarding the conflict of
interest and procedural irregularities cited in support of his argument for a heightened
standard of review.

       Any suggestion that Mr. Carr did not know the reason for the denial of his
claim or the specific misconduct referred to in Anheuser-Busch’s decision is belied
by the two letters he submitted regarding his claim. Regardless, the rationale for his
termination and the denial of benefits has remained the same throughout this case.
While a more detailed explanation may have been warranted had the basis for
denying his claim been more complicated, nothing more specific was necessary here.
Midgett v. Washington Group Int’l Long Term Disability Plan, 561 F.3d 887, 896
(8th Cir. 2009).

       Mr. Carr argues he was not afforded a full and fair review because he did not
receive Mr. Burke’s memorandum to Mr. Karrenbrock that was part of the
administrative record. Mr. Burke’s memorandum was generated in response to Mr.
Carr’s letter of appeal of Ms. Boulicault’s denial of his claim. The document was part
of the record generated during the appeal process. Mr. Carr had no right to receive
or respond to it prior to the final decision issued by Mr. Karrenbrock. On these facts,
full and fair review “does not include reviewing and rebutting, prior to a
determination on appeal, the [evidence] solicited on that same level of appeal.” Id.

       Any alleged failure to provide to Mr. Carr materials after the final decision by
Mr. Karrenbrock was issued does not implicate the “full and fair” review provision
of 29 U.S.C. § 1133. Mr. Carr was not frustrated from obtaining the full
administrative record and filing suit in federal court. See Brown v. J.B. Hunt Transp.
Servs., Inc., 586 F.3d 1079 (8th Cir. 2009) (violation of 29 U.S.C. § 1133 does not
justify an award of damages, but procedural relief gauged to provide plaintiff with the


                                         -17-
full and fair review he was denied, e.g., remand to the plan administrator, allowing
plaintiff to file an appeal out of time, or excusing plaintiff’s failure to exhaust
administrative remedies). Mr. Carr did not seek a court order requiring Anheuser-
Bush to produce documents or pay a daily fine. The administrative record was timely
produced during discovery.

      D.     Discovery Ruling4

       Mr. Carr filed a motion to compel Anheuser-Busch to produce certain
documents withheld from production under the attorney-client and work-product
privileges. The district court examined four emails in camera, ordered one email
dated October 9, 2009, produced under the fiduciary exception to the attorney-client
privilege, but held that the other three emails were not subject to the fiduciary
exception and did not have to be produced.

      We review the district court’s discovery ruling for a gross abuse of discretion.
The district court’s discretion is particularly broad as to discovery matters. Cook v.
Kartridg Pak Co., 840 F.2d 602, 604 (8th Cir. 1988). If Mr. Carr can demonstrate a
gross abuse of discretion, then he must also demonstrate prejudice. See Ranger
Transp., Inc. v. Wal-Mart Stores, 903 F.2d 1185, 1187 (8th Cir. 1990). The district
court’s discovery ruling was not a gross abuse of discretion, and Mr. Carr has not
shown the requisite prejudice.

       When denying Mr. Carr’s request for production of the December emails, the
district court reasoned that “[i]n contrast to the October 9, 2009, email, the December
2009 emails relate[d] to the substantive merits of plaintiff’s individual claim and the


      4
       We grant Mr. Carr’s motion to supplement the record on appeal with the four
emails examined by the district court in camera.

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content of the final decision letter denying his severance benefits, not advice as to
procedural duties owed to each beneficiary.” See United States v. Mett, 178 F.3d
1058, 1064 (9th Cir. 1999) (concluding that the fiduciary exception applies only to
communications that involve plan administration). The district court also determined
that, by December 2009, Mr. Carr’s interest had become sufficiently adverse to that
of the plan administrator’s interest because the final decision to deny benefits had
effectively been made. Mr. Carr’s only recourse, if he disagreed with the decision,
was litigation. See Smith v. Jefferson Pilot Fin. Ins. Co., 245 F.R.D. 45, 48 (D. Mass.
2007) (determining the content and context of the communication must be examined,
including whether the communication was made before or after the decision to deny
benefits, to determine whether a particular attorney-client communication involves
plan administration or legal advice for the fiduciary’s own benefit).

      The district court’s discovery ruling was not a gross abuse of discretion.

IV.   Conclusion

    For the foregoing reasons, we affirm the judgment of the district court granting
summary judgment in favor of Anheuser-Busch.

                       ______________________________




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