                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          SEP 1 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 DIANE KAFERLY,

          Plaintiff-Appellee,

 v.
                                                       No. 98-1165
                                                   (D.C. No. 97-B-1290)
 US WEST TECHNOLOGIES and US
                                                         (D. Colo.)
 WEST COMMUNICATIONS, INC.,


          Defendants-Appellees.




                                ORDER AND JUDGMENT *


Before PORFILIO, EBEL, and LUCERO, Circuit Judges.


      Defendants-Appellants US WEST Technologies and US WEST

Communications, Inc. (“US WEST”) appeal from the district court’s sua sponte

award of summary judgment to Plaintiff-Appellee Diane Kaferly on Kaferly’s

ERISA claims against US WEST, her employer. Our jurisdiction arises under 28

U.S.C. § 1291. Because we find that the underlying decision of the Employee



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
Benefits Committee to deny benefits to Kaferly was neither arbitrary nor

capricious, we reverse the district court’s award of summary judgment to Kaferly,

and remand the case to the district court with instructions to enter summary

judgment for US WEST.

                                      FACTS

      Despite the complexity of the US WEST Pension Plan (“Plan”) under

scrutiny here, the dispute in this case is straightforward. Plaintiff-Appellee Diane

Kaferly, an employee of Defendants-Appellants US WEST since 1991, contends

that she is entitled to Term of Employment (“TOE”) credit under the Plan for her

years of prior service with Bell Telephone Labs (“BTL”). US WEST argues that

Kaferly is not entitled under the Plan to bridge her prior service with BTL.

      Kaferly worked for BTL, a subsidiary of AT&T, from 1971 to 1978. 1 At

that time, AT&T companies were governed by a single pension plan (the Bell

System Pension Plan), under which employees could transfer among AT&T

companies and carry with them their years of service credit for pension purposes.




      1
        US WEST asserts that after proceedings in the district court were
concluded and this case was appealed, it discovered that Kaferly began working
for BTL in 1973, not 1971 as she alleged and as the district court believed. Thus,
US WEST asserts that Kaferly completed only 5 ½ years of service with BTL, not
7 ½. For purposes of this appeal we cannot consider this assertion, as it was not
part of the record below.

                                        -2-
Kaferly contributed to a BTL retirement plan during her tenure there, and left

BTL in 1978 to pursue a Ph.D.

      In 1982, federal antitrust litigation forced AT&T to split into independent

companies. As a result of the divestiture, the assets of the Bell System Pension

Plan were divided among the divested companies and each newly formed

company adopted its own pension plan. To ensure the portability of employee

benefits after divestiture, these new companies, including US WEST, entered into

two agreements that continued portability under certain limited circumstances.

These agreements are the Divestiture Interchange Agreement of January 1, 1984

(“DIA”), and the Mandatory Portability Agreement of January 1, 1985 (“MPA”).

      In 1990, Kaferly returned to technical work as an independent contractor

with US WEST. In April 1991, she accepted an offer of full-time employment at

US WEST.

      Kaferly alleges that in March 1991, prior to accepting the full-time offer

with US WEST, she met with her supervisor, Bruce Robinson, to discuss the

terms of her employment, and that Robinson told her that her prior years of

service with BTL would transfer or “bridge” to her US WEST employment for

retirement purposes after she worked at US WEST for another five years. Kaferly

asserts that US WEST human resources personnel reiterated that her prior service

would bridge; she contends that she would not have accepted the full-time offer


                                        -3-
had she been unable to bridge her prior years with BTL. Kaferly did not receive a

copy of the Plan or the Summary Plan Description (“SPD”) (and thus did not read

either the Plan or the SPD) before she accepted the full-time offer in April 1991.

She did review copies of the employee benefits handbook (which constitutes the

SPD), but only after starting full-time employment with US WEST.

      Kaferly asserts that during the first five years of her employment with US

WEST, she periodically inquired about her bridging status, and was repeatedly

told that she needed to do nothing more than complete her five years of service

with US WEST for her prior service with BTL to bridge.

      In November 1996, after Kaferly had completed 5 ½ years with US WEST,

the company’s Employee Benefits Committee (“EBC”) denied Kaferly’s bridge

request, stating that her prior years of service with BTL would not bridge under

the Plan.

      On June 3, 1997, Kaferly filed suit against US WEST in state court,

alleging that US WEST knowingly or negligently misrepresented to her that she

could bridge her prior BTL service, and that the EBC misinterpreted the Plan in

violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. §§ 1001-1461. She asserted three state common law claims – breach of

contract, promissory estoppel, and misrepresentation – and two federal claims –

federal common law equitable estoppel and a claim for benefits under ERISA, 29


                                        -4-
U.S.C. § 1132(a)(1)(B). On June 20, 1997, US WEST removed the case to

federal court and moved for summary judgment.

      The district court granted summary judgment to US WEST on plaintiff’s

state law claims, ruling that these claims were preempted by ERISA. The district

court also granted summary judgment to US WEST on plaintiff’s federal equitable

estoppel claim, ruling that because the terms of the Plan were not ambiguous,

plaintiff had failed to establish the elements of an equitable estoppel claim. The

district court denied summary judgment to US WEST on Kaferly’s ERISA claim,

however, and sua sponte entered summary judgment in Kaferly’s favor on this

claim, ruling that the SPD unambiguously entitled Kaferly to bridge her prior

service with BTL upon completion of five years of continuous service with US

WEST, and that therefore, the EBC had acted arbitrarily, capriciously, and

contrary to law when it denied Kaferly’s bridge request.

      US WEST filed a motion for a new trial and/or to alter or amend the

judgment. The district court denied this motion and US WEST now appeals. 2




      2
       Kaferly does not cross-appeal, nor does she argue against, the adverse
ruling on her state law claims for breach of contract, misrepresentation, or
promissory estoppel; likewise, she has not formally cross-appealed the adverse
ruling on her federal equitable estoppel claim, although she does argue equitable
estoppel in her answer brief as an alternative basis for affirming the summary
judgment entered in her favor by the district court.

                                        -5-
                                   DISCUSSION

      Standard of Review

      The district court’s determination that the EBC’s decision was arbitrary and

capricious is a legal conclusion. Thus, “our review of the district court’s

decision, although not the underlying administrator’s decision, is plenary.”

Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380 (10th Cir. 1992).

      Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Jones v. Kodak

Med. Assistance Plan, 169 F.3d 1287, 1291 (10th Cir. 1999). A court may enter

summary judgment sua sponte only when there is no dispute of material fact and

the losing party has had an adequate opportunity to address the issues involved,

including an adequate time to develop any facts necessary to oppose summary

judgment. See David v. City and County of Denver, 101 F.3d 1344, 1358-59

(10th Cir. 1996), cert. denied, 118 S. Ct. 157 (1997).

      In reviewing a challenge to a denial of benefits under 29 U.S.C. §

1132(a)(1)(B), we apply an “arbitrary and capricious” standard when examining a

plan administrator’s decision “if the plan grants the administrator discretionary

authority to determine eligibility for benefits or to construe the plan’s terms.”


                                         -6-
Charter Canyon Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135 (10th Cir. 1998)

(citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)); see also

Millensifer v. Retirement Plan, 968 F.2d 1005, 1009 (10th Cir. 1992) (“[I]f the

Plan gives the retirement committee discretion to construe doubtful provisions of

the plan itself, the committee’s decision must be upheld unless it was arbitrary

and capricious, not supported by substantial evidence, or erroneous on a question

of law.”) (internal quotations omitted)). 3 We will not set aside a retirement

committee’s decision if it was based on a reasonable interpretation of the plan’s

terms and was made in good faith. See Jones, 169 F.3d at 1292; Averhart v. US

WEST Management Pension Plan, 46 F.3d 1480, 1485 (10th Cir. 1994).



I. ERISA Claim

      At issue in this case is the calculation of Kaferly’s Term of Employment

(“TOE”); specifically, whether Kaferly is entitled to bridge her years of service at



      3
        Ordinarily, if a plan administrator or fiduciary is operating under a conflict
of interest, the conflict will trigger a less deferential standard of review, with the
level of deference decreasing in sliding scale fashion in proportion to the severity
of the conflict. See Jones, 169 F.3d at 1291; Chambers v. Family Health Plan
Corp., 100 F.3d 818, 826 (10th Cir. 1996). The conflict is weighed as one factor
in determining whether the plan administrator’s action decision was arbitrary and
capricious. See Firestone, 489 U.S. at 115; Jones, 169 F.3d at 1291; Charter
Canyon, 153 F.3d at 1135. Here, however, Kaferly does not contend that the EBC
operated under any conflict of interest, nor do we discern any such conflict;
therefore, we need not temper the deference owed to the EBC’s decision.

                                         -7-
BTL to increase her TOE. US WEST contends that it is entitled to summary

judgment because the terms of the Plan 4 and the SPD unambiguously establish

that Kaferly is not entitled to bridge her prior service with BTL. US WEST

further contends that the district court erred in granting summary judgment sua

sponte to Kaferly because the court’s ruling relies on the wrong provision of the

SPD, and because it wrongly assumed that Kaferly’s vesting status at BTL was

not in dispute, when in fact US WEST had submitted an affidavit that called

Kaferly’s vesting status at BTL into doubt. Finally, US WEST argues that even if

the terms of the Plan are ambiguous, it is still entitled to summary judgment,

because the Plan vests the EBC with discretion to interpret Plan provisions, 5 such

      4
        The district court hinged its ERISA ruling on the language of the SPD; the
court noted in its order that “[o]nly US WEST’s 1996 employee benefits
handbook [the SPD] is part of the record.” The only actual Plan provision
mentioned in the court’s order is § 2.2(a), which was quoted by the EBC in its
letter to Kaferly denying her bridge request. Thus, the district court apparently
did not consult the Plan in its entirety. However, in the record before us, it
appears that both sides submitted copies of the Plan among the exhibits attached
to their memoranda on the summary judgment motion. As a result, we assume
that the Plan was part of the record before the district court, and therefore include
its provisions in our analysis of Kaferly’s ERISA claim.

      5
          Section 8.7 of the Plan provides in relevant part:

      The Committee shall administer the Plan and shall have all power
      and authority necessary for that purpose, including, but not by way of
      limitation, the full discretion and power to interpret the Plan, to
      determine the eligibility, status, and rights of all persons under the
      Plan and in general to decide any dispute.


                                           -8-
that under Millensifer, the EBC’s decision must be upheld unless it was arbitrary

or capricious. Here, US WEST submits, the EBC’s decision to deny Kaferly’s

bridge request was based on a reasonable interpretation of the Plan, and its

determination therefore should have been upheld by the district court.

      “In interpreting the terms of an ERISA plan we examine the plan

documents as a whole and, if unambiguous, we construe them as a matter of law.”

Chiles v. Ceridian Corp., 95 F.3d 1505, 1511 (10th Cir. 1996). Here, the ERISA

plan is comprised of five documents: 6 1) the Pension Plan (“Plan”); 2) the

Summary Plan Description (“SPD”); 3) the Divestiture Interchange Agreement

(“DIA”); 4) the Mandatory Portability Agreement (“MPA”); and 5) the Portability

Guidelines. The new companies that emerged after the AT&T divestiture entered

into the DIA and MPA to preserve the benefits of certain employees who transfer

among specified companies. The Plan, which was drafted after divestiture, refers

to and incorporates by reference both the DIA and MPA. The SPD and Portability

Guidelines purport to interpret the Plan, the DIA and the MPA.




      In addition, § 13.2(f) provides:

      The Committee shall each have full discretionary authority to
      determine eligibility, status and rights of all persons under the Plan
      and to construe any and all terms of the Plan.

     Kaferly asserts, and US WEST does not dispute, that all of these
      6

documents were before the EBC when it denied Kaferly’s bridge request.

                                         -9-
      A. Pension Plan Language

             1. “Term of Employment”

      Under the Plan, “Term of Employment” means “a period of continuous

employment of an Employee as provided in Article II.” (Plan at § 1.65.) An

“Employee” is “any individual employed by any Participating Company on a full-

time or part-time basis who receives a regular stated compensation other than a

pension, retainer, or fee under contract.” (Plan at § 1.15.) A “Participating

Company” means “US WEST or any subsidiary of US WEST that, with the

consent of the Committee, participates in the Plan. No Former Affiliate or

Associated or Allied Company, whether or not previously a Participating

Company in this or any Predecessor Plan, shall be considered, or may become, a

Participating Company.” (Plan at § 1.41.) BTL was not a subsidiary of US

WEST, and as such, is not a Participating Company; rather, as a subsidiary of

AT&T, it is considered an “Interchange Company” or “Portability Company.”

      Article II of the Plan provides:

      2.2 Term of Employment

             a) An Employee’s Term of Employment is a period of
      continuous employment of an Employee in the service of one or more
      Participating Companies, Interchange Companies (to the extent that
      an Interchange Agreement is applicable to the individual at the time
      the individual becomes an Employee or with respect to any individual
      who was an Employee of a Former Affiliate on December 31, 1983
      and became an Employee on January 1, 1984) or Portability
      Companies (to the extent that the Mandatory Portability Agreement is

                                         - 10 -
      applicable to an individual at the time the individual becomes an
      Employee) . . . . Notwithstanding the foregoing, Term of
      Employment shall not include any period of employment that is
      included in an individual’s term of employment under an Interchange
      Company Pension Plan or a Portability Company Pension Plan if the
      applicable Interchange Agreement or the Mandatory Portability
      Agreement is not in force and effect at the time an individual
      becomes employed or reemployed by a Participating Company or if
      such agreement does not provide for the recognition of such
      individual’s term of employment under the Interchange Company
      Pension Plan or Portability Company Pension Plan upon his
      employment by a Participating Company.

(Emphasis added.)

      Thus, under the Plan, an employee’s TOE is generally the number of

consecutive years that the employee works for a Participating Company, and if

appropriate, an employee’s prior service at an Interchange Company or Portability

Company (such as BTL), but only to the extent that the individual is covered by

an Interchange Agreement or the MPA at the time the individual becomes an

employee with the Participating Company. Kaferly’s TOE therefore includes her

years of service at US WEST (a Participating Company), and may include her

years at BTL (an Interchange Company) only if either the DIA or MPA applies to

her as of the time she became an employee of US WEST.

      In its letter denying Kaferly’s bridge request, the EBC set forth the above-

quoted § 2.2(a) of the Plan and concluded that Kaferly’s prior service could not

be recognized because she was “not an employee of an Interchange or Portability



                                       - 11 -
Company on December 31, 1983.” (Letter 7/29/96.) The district court concluded

that Kaferly is not covered under either the DIA or MPA, and we agree.

      The DIA governing this case permits recognition of full credit for years of

service at an Interchange company for “any covered employee who becomes

employed by [US WEST] during the calendar year 1984.” (DIA at 20.) The

Portability Guidelines, which interpret the DIA, provide in relevant part:

      The DIA provides for the mutual recognition of service credit and the
      interchange of benefit obligations with respect to employees who
      move among the AT&T companies and the divested former Bell
      System Companies for certain periods of time and under certain
      specified conditions. . . .

      Any employee with prior Bell System service who rehired during
      calendar year 1984 (true-up period) . . . shall be covered under the
      DIA. . . .

      Upon verification of prior service and coverage under DIA, full term
      of employment and vesting service may be granted to the employee.

(Portability Guidelines, §§ 8(A), (B), (C)) (Second emphasis added.)

      Kaferly left BTL in 1978 and was not reemployed by US WEST during

1984; instead, she joined US WEST as a full-time employee in 1991. Therefore,

the DIA is inapplicable to her.

      Likewise, Kaferly is not covered by the MPA. To be covered under the

MPA, an employee must have been an active employee on December 31, 1983.

This is clear under § 1.6 of the MPA as well as pages L11-L12 of the SPD.



                                       - 12 -
Again, because Kaferly left service in 1978 and did not return to full-time status

until 1991, the MPA does not apply to her.

             2. TOE Bridging Rules

      The other Plan provision critical to this case is § 2.4, which discusses TOE

bridging rules. Section 2.4 provides in relevant part:

      2.4 Breaks in Service; Periods of Severance - Bridging Rules
      ...
      (b) Term of Employment
            (1) An absence from service without pay . . . shall
            constitute a break in the continuity of the Term of
            Employment.
            (2) . . . If the Employee’s absence from service is longer
            than six months and if the Employee had previously
            completed six months of continuous service at the time
            the absence commenced, the Employee shall be credited
            with all service prior to his absence upon the
            Employee’s completion of five years of continuous
            service after the return to service.
            (3) An absence from service while in the employ of a
            Former Affiliate or a Portability Company shall
            constitute a break in continuity of service unless the
            Employee is transferred to or reemployed by a
            Participating Company while covered by an Interchange
            Agreement or the Mandatory Portability Agreement.

      Although it would appear at first blush that under § 2.4(b)(2) Kaferly could

be credited with her prior service – because her absence from service exceeded

six months, she had completed six months’ continuous service prior to leaving,

and she completed five additional years of service after being reemployed – such

a reading of the Plan is myopic. As its very subtitle states, § 2.4(b) addresses the


                                        - 13 -
bridging rules as they apply to one’s “Term of Employment,” which, as discussed

above in § 2.2(a) of the Plan, does not entitle Kaferly to bridging, as “TOE” is

limited to: 1) service at a Participating Company; or 2) service with an

Interchange Company or Portability Company, provided that the individual is

covered by the DIA or MPA. Moreover, § 2.4(b) references “Employee,” which

is defined in the Plan at § 1.15 as an active employee of a Participating Company,

indicating that the bridging rules in § 2.4 are intended only to consider service

(albeit interrupted) with a Participating Company. Finally, § 2.4(b)(3) separately

addresses an Employee’s absence from service while in the employ of a

Portability Company, and, consistent with § 2.2(a), provides that prior service

with a Portability Company will bridge only if the employee is reemployed by a

Participating Company while covered by the DIA or MPA.

      Under § 2.2, Kaferly’s prior service at BTL does not qualify as prior TOE

because it was not service at a Participating Company, nor was Kaferly covered

by the DIA or MPA. Accordingly, § 2.4(b) does not cover her prior service with

BTL. In sum, under the language of the Plan, as further elaborated through the

DIA and MPA, Kaferly’s prior service with BTL does not count as TOE, and

therefore cannot bridge.




                                        - 14 -
      B. SPD Language

      The district court did not look beyond § 2.2 of the Plan. Instead, the court

deemed § 2.2 to be in conflict with language in the SPD, and held that as such,

the terms of the SPD controlled. It is true that, where the SPD and the Plan

language differ, the SPD is binding. See Semtner v. Group Health Serv. of Okla.,

Inc., 129 F.3d 1390, 1393 (10th Cir. 1997). However, “it is axiomatic that if a

summary’s language can trump language contained in the master plan documents

in the event of a conflict, the documents must actually conflict.” Charter Canyon,

153 F.3d at 1137. Moreover, to be entitled to relief, a plaintiff must show not

merely that the SPD is inconsistent with the terms of the plan, but also that he or

she relied upon, or was otherwise prejudiced by, the alleged inconsistency. See

Chiles, 95 F.3d at 1519. Here we conclude that the Plan and the SPD are not in

conflict; that the district court erroneously relied on a provision in the SPD that

governed vesting service instead of TOE; and that in any event, plaintiff has not

shown that she relied on the SPD in deciding to accept the offer of full-time

employment at US WEST.

      The SPD states at page L9:

Term of Employment (TOE)
     Your “TOE” is used to determine your eligibility for a pension
     benefit.
     Term of Employment (TOE)
     Your “Term of Employment” is the period of continuous employment
     generally beginning on your most recent date of hire at a

                                         - 15 -
      Participating Company and ending on your date of separation. . . .
      Prior service at Interchange and Portability Companies may be
      included if specified requirements are met. . . .
      Calculating Your TOE
             To determine when you will be eligible for a service or
      disability pension under this plan, you must know how to calculate
      your “Term of Employment” (TOE). The explanation and bridging
      rules described below apply only to TOE. “Vesting service,” used to
      determine eligibility for a deferred vested pension, is explained in the
      “Deferred Vested Pensions” section on page L31.
             Your TOE is measured in terms of completed years, months,
      and days of employment with a Participating Company. Generally,
      TOE is equal to your service starting from your most recent date of
      hire by a Participating Company through your retirement date (last
      day on active payroll) or other termination of employment.
             For other employment periods that may be included in the TOE
      under this plan, refer to the “Divestiture Impact/Mandatory
      Portability Agreement (MPA)” section on page L11. Additional
      details are contained in the Mandatory Portability Legislation
      documents maintained by US WEST, Inc.
             In addition, your TOE may also include prior periods of
      employment bridged under the TOE bridging rules. See page L37 for
      additional information.

(Emphasis added.)

      Based on this language, the district court concluded that TOE ordinarily

begins when the employee is hired by a Participating Company, but that an

employee’s TOE may increase by either of two means; first, through prior service

at an Interchange or Portability Company, and second, through TOE bridging

rules. (See Dist. Ct. Order at 9-10.) The district court correctly determined that

Kaferly could not increase her TOE under the first alternative, concluding that

Kaferly was not covered by either the DIA or the MPA. (See id. at 10-11.)


                                       - 16 -
      However, in analyzing the second alternative, the district court mistakenly

relied on the wrong bridging provision. Directing its attention to the cross

reference in the final paragraph of the SPD quoted above, the district court turned

to page L37, where it states:

      Bridging Breaks in Vesting Service
             If you are vested and incur a period of severance of one year,
      upon reemployment by a Participating Company or a Non-
      Participating Company you will receive credit for prior periods of
      service, but not the period of severance. . . .
             If the period of severance is greater than five years, prior
      service will not bridge until your TOE bridges after five years of
      continuous employment.

      The district court relied on this language to conclude that the SPD

unambiguously entitled Kaferly to bridge her prior service upon her completion of

five additional years of service under US WEST, 7 and that therefore the EBC



      7
         Specifically, the court found: 1) that Kaferly was vested at BTL before she
left in 1978; 2) that she incurred a period of severance of greater than five years;
and 3) that this severance ended when she became reemployed by US WEST, a
Participating Company. (Dist. Ct. Order at 12-13.)
        The district court found that Kaferly was vested at BTL based solely on
Kaferly’s affidavit; the court noted that US WEST offered no evidence to contest
this point. In fact, US WEST submitted the affidavit of Mary Davis, contesting
Kaferly’s vesting status at BTL. US WEST argues that, to the extent that
Kaferly’s vesting status at BTL is material to the district court’s ruling, it is a
disputed issue of fact, such that Kaferly was not entitled to summary judgment.
As discussed below, however, Kaferly was not entitled to summary judgment
because the court relied on the wrong provisions of the SPD in analyzing
Kaferly’s benefits claim. Because we conclude that Kaferly was not entitled to
bridge her prior service at BTL in any event, her vesting status at BTL is
irrelevant.

                                        - 17 -
acted arbitrarily and capriciously when it denied her bridge request. (See Dist.

Ct. Order at 12-14.)

      Upon review, however, it is clear that the provision relied upon by the

district court deals with vesting service (the length of time an employee works to

earn a deferred vested pension), not TOE calculation (the length of time an

employee works to earn an actual service pension).    It is true that on page L9 of

the SPD, the reader is informed that “your TOE may also include prior periods of

employment bridged under the TOE bridging rules,” and that the SPD then refers

the reader to page L37 for additional information. However, the “TOE Breaks in

Service and Bridging Rules” appear at pages L10-11, not pages L37-38 (which

instead clearly address “Vesting Breaks in Service and Bridging Rules”).

      Pages L10-11 govern the bridging of TOE:

      TOE Breaks In Service And Bridging Rules

      A break in TOE occurs whenever you terminate employment with a
      Participating Company. Bridging rules restore previous service if
      you are re-employed in accordance with the following circumstances:
      ...
      ! Five-year bridging rule – If you had at least six months’ TOE when
      your employment terminated and you are re-employed after a break
      of more than six months, your prior TOE will be recognized after you
      complete a five-year period of service, but your time away from work
      will not be credited.
      ...

      Divestiture Impact/Mandatory Portability Agreement (MPA)
      US WEST and other companies impacted by the 1983 divestiture
      (break up) of AT&T entered into the Mandatory Portability

                                       - 18 -
      Agreement (MPA) to preserve benefits of employees who move
      between companies that are covered by the agreement. The MPA
      currently covers US WEST, the other Interchange Companies (see
      Appendix A), and certain other related companies. The MPA
      describes how an employee’s service will be credited for TOE,
      vesting, and other purposes when the employee moves from one MPA
      company to another. . . .
            The MPA only applies to you if you meet the following
            three (3) criteria:
            1. As of December 31, 1983, you were [an active
            employee] . . . .

(Emphasis added.)

      This language from the SPD comports with § 2.4 of the Plan discussed

above. The bridging rules generally cover only periods of employment with a

Participating Company. Because Kaferly’s service with BTL does not count as

“prior TOE” (under the Plan terms discussed above), she cannot bridge this

service under the five-year bridging rule. Nor does Kaferly fall within the

exception created by the DIA or MPA.

      As a result, we conclude that the SPD does not conflict with the Plan, and

therefore that the maxim that the summary plan description governs when it

conflicts with the plan, see Semtner, 129 F.3d at 1393, is inapplicable here.

See Charter Canyon, 153 F.3d at 1136 (“If the plan documents do not conflict, the

important policy of protecting beneficiaries from misleading or false information

contained in a summary plan description is not implicated.”).




                                        - 19 -
      Furthermore, Kaferly has neither established nor argued that she relied on

the SPD (or the Plan) in electing to return to full-time status at US WEST or to

stay with US WEST after her return. Instead, her reliance was predicated on oral

interpretations she received from the company. Accordingly, Kaferly cannot

show prejudice from any alleged inconsistency between the SPD and the Plan.

See Chiles, 95 F.3d at 1519.

      At most, the cross-reference in the SPD to page L37 introduces some

ambiguity as to which bridging rules a reader should refer. Even assuming that

the SPD is substantively ambiguous to the extent that it is capable of an

interpretation that permits bridging of Kaferly’s prior service with BTL, the

EBC’s conclusion that Kaferly could not bridge her prior service was neither

arbitrary nor capricious, but rather, was based on a good faith, reasonable

interpretation of the plan documents as a whole. See Millensifer, 968 F.2d at

1010 (court must defer to retirement committee’s reasonable construction absent

administrative bias even where plaintiff offers rational alternative construction);

Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1460 (10th Cir. 1991) (“The

Administrators’ decision need not be the only logical one nor even the best one.

It need only be sufficiently supported by facts within their knowledge to counter a

claim that it was arbitrary and capricious.”).




                                        - 20 -
      In conclusion, the district court erred in granting summary judgment sua

sponte to Kaferly, and because there is no genuine issue of material fact, the

language of the plan documents entitles US WEST to summary judgment as a

matter of law.



II. Federal Common Law Equitable Estoppel Claim

      Kaferly argues in her Answer Brief that the elements of equitable estoppel

were present in this case and that US WEST should be estopped from denying the

benefits it promised to Kaferly.

      Kaferly did not formally appeal from the district court’s grant of summary

judgment in favor of US WEST on her claim for equitable estoppel. However, we

may consider her argument as a possible alternative basis for affirming the district

court’s sua sponte grant of summary judgment in her favor.

      Kaferly’s claim of equitable estoppel is without merit. In Miller v. Coastal

Corp., 978 F.2d 622, 624-25 (10th Cir. 1992), we explicitly rejected a federal

common law estoppel claim under ERISA. In that case, the plaintiff brought an

equitable estoppel claim against his employer, alleging that he had been told by

his employer that certain prior service would be computed in such a way that it

would augment his pension benefits. See Miller, 978 F.2d at 623. For ten years

thereafter, the plaintiff received annual statements that in fact computed his


                                        - 21 -
projected benefits in such a way, confirming his employer’s oral representations.

See id. Upon retirement, however, his pension benefits were not calculated the

way he had been told they would. See id. at 624. The plaintiff, conceding that

the terms of the plan contradicted the employer’s representations, argued that the

defendants’ oral and written representations nonetheless entitled him to the

benefits promised, and that the defendants were equitably estopped from denying

such benefits. See id.

      In analyzing Miller’s claim, we noted that, under Straub v. Western Union

Tel. Co., 851 F.2d 1262, 1265 (10th Cir. 1988), no liability exists under ERISA

for purported oral modifications of the terms of an employee benefit plan. See

Miller, 978 F.2d at 624. We extended this rule in Miller’s case to hold that “[a]n

employee benefit plan cannot be modified . . . by informal communications,

regardless of whether those communications are oral or written.” Id. (citation

omitted). Relying on language in Straub, we rejected Miller’s effort to have this

Circuit recognize a federal common law estoppel claim under ERISA, see id. at

625, and declined to deem Miller’s circumstances as “egregious” or

“extraordinary,” noting that:

      [Miller] makes no allegations of lies, fraud, or intent to deceive on
      the part of the [defendants]. Mr. Miller refers to the written
      representations simply as a “mistake” made by the defendants.
      Although the mistake directly conflicted with the terms of the plan,
      which he suggests he never saw, he could have obtained the


                                       - 22 -
      “instruments under which the plan is established or operated” upon
      written request. 29 U.S.C. § 1024(b)(4).

Id.

      Likewise, Kaferly makes no allegations of intent to deceive, and at most,

the misinformation she was given can be called a mistake. 8 It is true that the

representations made to her conflicted with the terms of the Plan, but Kaferly

presumably could have obtained a copy of the Plan. In short, her estoppel claim,

even if properly presented, fails on the merits. The district court properly

dismissed this claim.

                                  CONCLUSION

      For the reasons stated above, we REVERSE the district court’s award of

summary judgment to plaintiff, and REMAND to the district court with

instructions to enter summary judgment in favor of the defendants.


                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




      8
       Miller left open the issue of whether estoppel might apply in limited,
extraordinary circumstances, see Miller, 978 F.2d at 625, and so do we here.
Whether or not estoppel might apply in limited, extraordinary circumstances,
there are no such circumstances here that require us to consider the issue.

                                        - 23 -
