                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 17 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STANLEY HOFFMAN, Individually and                No.   15-55756
on behalf of the Estate of Phyllis Hoffman,
                                                 D.C. No.
              Plaintiff-Appellant,               3:09-cv-02482-BEN-KSC

 v.
                                                 MEMORANDUM*
AMERICAN SOCIETY FOR TECHION-
ISRAEL INSTITUTE OF
TECHNOLOGY, INC, AKA American
Technion Society, AKA ATS, a business
entity or entities, form unknown,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted February 9, 2017
                               Pasadena, California

Before: SCHROEDER, PREGERSON, and MURGUIA, Circuit Judges.

      Stanley Hoffman appeals the district court’s grant of summary judgment to

defendant American Society for Technion-Israel Institute of Technology (“ATS”)


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
in this case arising under the Employee Retirement Income Security Act of 1974,

29 U.S.C. §§ 1001 et seq. (“ERISA”). Stanley Hoffman’s late wife Phyllis was

employed by ATS until her terminal illness forced her to leave her job. ATS’s

employee benefit plan provides that an employee “whose employment terminates

for any reason other than malfeasance, retirement or voluntary resignation shall be

entitled to . . . severance pay.” The district court ruled Phyllis Hoffman’s departure

was a “voluntary resignation,” an undefined term in the plan. Stanley Hoffman

contends that the term does not encompass an employee who leaves her job due to

a disabling illness that renders her incapable of performing her job duties.

      The district court erred in holding that unless there had been an affirmative

act by the employer, the employment termination was voluntary. Terms in an

ERISA plan “should be interpreted in an ordinary and popular sense as would a

person of average intelligence and experience.” Richardson v. Pension Plan of

Bethlehem Steel Corp., 112 F.3d 982, 985 (9th Cir. 1997) (internal citation and

quotation omitted). A person of average intelligence and experience would

understand the term “voluntary” to mean as “proceeding from the will or from

one’s own choice or consent.” See Webster’s Ninth New Collegiate Dictionary.

Being forced to leave a job due to a disabling illness does not proceed from the will

or from one’s own choice or consent. Cf. Stephan v. UNUM Life Ins. Co. of


                                          2
America, 697 F.3d 917, 936 (9th Cir. 2012) (noting that it is not “sensible to

understand [an] inability to work due to disability as a voluntary termination of

employment”).

      Two other issues must be addressed. First, ATS argues that in the context of

the plan as a whole, severance benefits are not warranted because Phyllis Hoffman

received disability benefits. The long term disability plan, however, expressly

contemplated that an employee might receive both severance and disability by

providing an offset for “any amounts that are paid under your Employer’s . . .

Severance . . . program.”

      Second, there is no merit to ATS’s alternative argument that Phyllis

Hoffman lost her severance pay when she became a part time employee. ATS’s

own records show that Phyllis Hoffman’s termination date was February 29, 2008,

before she attempted any part time work.1

      The district court’s order is REVERSED, and this case is REMANDED

with instructions to enter summary judgment in favor of Stanley Hoffman.




      1
          Stanley Hoffman’s motion to withdraw a citation is granted.
                                          3
