                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                          May 8, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
TERRY JAREMKO,

             Plaintiff-Appellant,

v.                                                         No. 12-3179
                                              (D.C. No. 6:10-CV-01137-RDR-KGS)
ERISA ADMINISTRATIVE                                        (D. Kan.)
COMMITTEE,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.


      Terry Jaremko (“Jaremko”) appeals the district court’s decision to grant

defendant ERISA Administrative Committee’s motion for judgment on the

administrative record. Mr. Jaremko brought his claims pursuant to 29 U.S.C.

§ 1132(a)(1) of the Employee Retirement Income Security Act of 1974 (ERISA).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  I. BACKGROUND

      Mr. Jaremko began his employment at Sunshine Biscuits on August 11, 1981.

He participated in the company-sponsored retirement plan, which included a

provision called “Golden 80.” Golden 80 provides full pension benefits when the

participant’s age plus years of continuous service equals eighty or more.

      On January 3, 1998, after approximately sixteen years of continuous service,

Mr. Jaremko became an officer at the Retail Wholesale and Department Store Union

(“RWDSU”), a union then having a contract with Sunshine, which subsequently was

purchased by Keebler, which in turn was purchased by Kellogg.1 The union contract

said that any employee-elected officer at RWDSU would be granted a leave of

absence from the company and would retain seniority during such leave.

      In 2009, after working at RWDSU for eleven years, Mr. Jaremko sought to

retire from Kellogg with full benefits under the Golden 80 provision. Kellogg’s

ERISA administrator granted Mr. Jaremko only seventeen years of service, which did

not qualify him for Golden 80. The administrator pointed to a clause in Golden 80

that allows reinstatement of “continuous service” for an employee on leave only if he

resumes employment within twelve months of leaving. Mr. Jaremko never resumed




      1
        The relevant contract and retirement provisions have remained the same since
Mr. Jaremko began his employment at Sunshine in 1981. The employer, having
changed ownership from Sunshine to Keebler to Kellogg during the relevant time
period, will be called Kellogg for the purpose of simplicity.


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employment with Kellogg after leaving in 1998 to work for the union, and he

therefore received continuous service credit only for the first year he was on leave.

      Mr. Jaremko appealed this decision to the company’s ERISA Administrative

Committee (“Committee”). Among other arguments, Mr. Jaremko asserted that he

was entitled to the same service calculation that Adrian Loomis, a former Kellogg

employee, received. Like Mr. Jaremko, Mr. Loomis took a leave of absence to work

as a union officer for over a year. Unlike Mr. Jaremko, and despite his multi-year

absence, Mr. Loomis received continuous service credit for the entire time he worked

for the union and received full pension benefits upon retirement. The Committee

denied Mr. Jaremko’s appeal in April 2010. Mr. Jaremko then filed suit in the

district court, which granted judgment on the administrative record to the Committee.

Mr. Jaremko now appeals.

                                     II. DISCUSSION

      Mr. Jaremko’s various arguments boil down to whether Mr. Jaremko should

have been granted full pension benefits under the Golden 80 provision of his

retirement plan.

                                  A. Standard of Review

      We review a denial of ERISA plan benefits under an arbitrary and capricious

standard if the plan gives the administrator “discretionary authority to determine

eligibility for benefits or to construe terms of the plan,” as the Kellogg plan does.

See Kellogg v. Metro. Life Ins. Co., 549 F.3d 818, 825 (10th Cir. 2008) (internal


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quotation marks omitted). De novo review may be appropriate if the determination

process was not in substantial compliance with ERISA regulations. See Hancock v.

Metro. Life Ins. Co., 590 F.3d 1141, 1152 (10th Cir. 2009).

      Mr. Jaremko argues procedural error for the limited purpose of seeking a de

novo standard of review. 2 He contends the administrative review process contained

substantial procedural defects warranting de novo review. Both Mr. Jaremko and the

Committee devote considerable attention in their briefing to Mr. Jaremko’s

allegations of procedural error. But even applying a de novo standard, we conclude

the administrator did not err in denying Mr. Jaremko Golden 80 benefits.

                                B. Golden 80 Eligibility

1. The SPD and the Plan

      Mr. Jaremko contends that the Summary Plan Description (“SPD”), which

summarizes the pension plan’s terms, should be enforced over the terms of the full

pension plan (“Plan”) itself. Because the SPD states “continuous service” ends only

upon retirement, termination, or death, Mr. Jaremko contends he lacked notice that

the Plan states continuous service may be broken by taking leave. In other words, he

asserts that the SPD and the Plan conflict and that the plan administrator should not
      2
         Even if he were arguing the alleged procedural errors warrant reversal and
remand, that argument would be unavailing because he has not attempted to show
prejudice. See DiGregorio v. Hartford, 423 F.3d 6, 16-17 (1st Cir. 2005) (“To be
entitled to a remand, [the plaintiff] must show prejudice in a relevant sense.”);
see also Brimer v. Life Ins. Co. of North America, 462 F. App’x 804, 809 (10th Cir.
2012) (“courts can require a showing of prejudice due to an ERISA violation as a
prerequisite to ordering a remand.”).


                                         -4-
be permitted to deny full benefits because Mr. Jaremko could reasonably have

believed the SPD actually was the Plan. We disagree.

       First, the SPD and the Plan do not conflict. The SPD states that, “generally,”

continuous service ends when a participant retires, terminates his employment, or

dies. The Plan contains a more detailed definition of “continuous service.” It notes

that continuous service may be severed when an employee is absent for reasons other

than retirement or termination. In such cases, severance occurs one year after the

absence commenced.3 The SPD, as its title indicates, provides a basic summary. The

Plan describes what happens in circumstances like Mr. Jaremko’s leave of absence.

Had the SPD fully described each provision and exception included in the Plan, it

would not be a “summary” description.

      Second, even if the SPD could be read as conflicting with the Plan, the Plan’s

terms would control. The Supreme Court’s decision in CIGNA Corp. v. Amara held

that SPDs should not be enforced over the terms of a plan. 131 S. Ct. 1866, 1877

(2011) (noting that if SPD terms were enforced, plan administrators might use more

complex language in SPDs and thereby frustrate their purpose, which is to provide

“clear, simple communication”). In Eugene S. v. Horizon Blue Cross Blue Shield of

New Jersey, 663 F.3d 1124 (10th Cir. 2011), we interpreted Amara as standing for
      3
        The Plan also provides that “[i]f a severance from service date occurs and the
person resumes active employment with the Employer or an Affiliate before
incurring a one-year period of severance, prior Continuous Service shall be reinstated
and the period of severance shall be counted in Continuous Service.” Aplt. App.,
Vol. 2 at 188.


                                         -5-
the proposition that “the terms of [an] SPD are not enforceable when they conflict

with governing plan documents.” Id. at 1131.

       Finally, we are not convinced that a reasonable person would understand the

SPD to be the Plan. The SPD states that it is only a summary of the Plan and “does

not attempt to cover all the details” of the Plan. Aplt. App., Vol. 2 at 92. It further

notes that the Plan text “will govern if any questions should arise as to its

administration or interpretation.” Id. Further, the SPD states that retirement,

termination, or death only “generally” end continuous service under the Plan. The

word “generally” should have indicated to Mr. Jaremko that other circumstances can

end continuous service under the Plan. The Plan was not improperly administered in

this case.

2. Mr. Loomis

       Mr. Jaremko contends that the Plan was interpreted inconsistently because

Mr. Loomis received full pension benefits despite having a nearly identical service

history as Mr. Jaremko. Mr. Jaremko argues that because Mr. Loomis was credited

continuous service years based on a different interpretation of the Plan, Mr. Jaremko

should therefore be entitled to the same interpretation.

       Kellogg credited Mr. Loomis with continuous service from 1961 until 1995

despite his apparently having worked as a union official from 1977 to 1980 and again

in 1994. Under the Plan, Mr. Loomis’s leave from 1977 to 1980 should have severed




                                          -6-
the “continuous service” period and made him ineligible for full benefits, just as

Mr. Jaremko’s union service leave did for him.

      Rather than Kellogg’s having interpreted the plan differently as to Mr. Loomis

and Mr. Jaremko, it appears from the record that Mr. Loomis’s plan administrator

was not aware of Mr. Loomis’s leave as a union official when his service was

calculated. The Committee concluded that Mr. Jaremko was not entitled to the same

benefits as Mr. Loomis because Mr. Loomis’s Golden 80 benefits were awarded

based on factual error. Mr. Jaremko argues that this conclusion is based on

speculation, but the evidence indicates that the plan administrator did not have a

record of Mr. Loomis’s leave of absence when calculating his benefits.

      The record indicates that Mr. Jaremko’s and Mr. Loomis’s pension benefits

were evaluated under the same standards. The outcomes were different because

Mr. Loomis’s record before the plan administrator erroneously lacked reference to

his leave period, while Mr. Jaremko’s leave period was included. Applying the adage

that two wrongs do not make a right, we conclude that just because Mr. Loomis may

have been granted full benefits in error does not mean Mr. Jaremko should be granted

the same. Mr. Jaremko’s administrator credited his service by applying the express

terms of the Plan. And under those terms, Mr. Jaremko was not eligible for Golden

80. The administrator did not err in denying his claim.




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                               III. CONCLUSION

The judgment of the district court is affirmed.

                                            Entered for the Court,



                                            Scott M. Matheson, Jr.
                                            Circuit Judge




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