                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0738n.06
                             Filed: August 24, 2005

                                                04-1765

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


DONALD R. MCGREW,                                    )
                                                     )
        Plaintiff-Appellant,                         )
                                                     )
v.                                                   )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR THE
GENERAL MOTORS CORPORATION                           )    EASTERN DISTRICT OF MICHIGAN
and GENERAL MOTORS RETIREMENT                        )
PLAN FOR SALARIED EMPLOYEES                          )
AND TRUST,                                           )
                                                     )
        Defendants-Appellees.                        )




        Before: NORRIS and DAUGHTREY, Circuit Judges, and MARBLEY,* District Judge.


        PER CURIAM. The plaintiff, Donald McGrew, brought this action against General Motors

Corporation and the General Motors Retirement Plan for Salaried Employees and Trust (collectively,

GMC), alleging that GMC violated the Employee Retirement Income Security Act of 1974 (ERISA)

by withholding certain post-employment benefits under the company’s retirement program. GMC

took the position that McGrew was not entitled to those benefits under either the language of the

retirement plan or a summary description of the plan made available to employees, because he had

been discharged from his position with the company. The district court granted judgment on the


        *
        The Hon. Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting
by designation.
04-1765
McGrew v. GMC

administrative record to GMC and dismissed McGrew’s complaint, finding that McGrew had no

enforceable right to the post-employment benefits in question. We agree and affirm.

        Donald McGrew worked for GMC as a maintenance supervisor for 31 years but was

discharged in 1990, at age 50, for participating in a “kickback” scheme that involved his receipt of

illegal bribes from third-party vendors.1 Under GMC’s retirement program, McGrew was eligible

for monthly retirement benefits, despite his discharge, because he had worked at GMC for more than

30 years. Although it paid McGrew standard retirement benefits, GMC denied McGrew three other

secondary retirement benefits: early retirement supplements under the GMC Retirement Program,

health care coverage under the GMC Health Program, and life insurance under the GMC Life and

Disability Benefits Program. The plan administrator determined that because McGrew had been

discharged for cause, he was not entitled to these benefits. McGrew appealed the decision to GMC’s

Employee Benefit Plans Committee, arguing that he qualified for the benefits under summary plan

description published in 1996, which he claimed was binding on GMC under ERISA. He contended

that the 1996 booklet did not exclude discharged employees from the benefit plans and that, to the

extent that it conflicted with the language of the actual plans, the booklet controlled. The Board

adopted the position of the plan administrator, concluding that McGrew was not entitled to the

benefits because the retirement program, as well as health and life insurance plans, specifically

excluded employees who had been discharged and because the 1996 booklet was addressed only to

former employees who had already retired by 1996 and therefore did not apply to McGrew .



        1
         McGrew pleaded guilty in a Genesee County court to one count each of unauthorized use of a credit
card and commercial bribery and was sentenced to five years probation and 100 hours of community service.

                                                  -2-
04-1765
McGrew v. GMC

McGrew subsequently appealed the plan administrator’s decision on his health and life insurance

benefits to the Board, which again affirmed the administrator’s denial on the same grounds.

       McGrew then filed a complaint against GMC, claiming that the company had violated his

right to benefits protected by ERISA and had breached its fiduciary duty to him. GMC moved for

judgment on the administrative record or, in the alternative, for summary judgment, arguing that the

benefits committee’s decision should stand because it was not arbitrary or capricious and that

McGrew had not established a breach of fiduciary duty under ERISA. After a hearing, the district

court granted judgment on the administrative record to GMC, concluding that the decision of the

benefits committee was not arbitrary and capricious, given language in the GMC retirement plans

that precluded supplemental benefits to a discharged employee. The court found that the 1996

summary plan description, which McGrew claimed entitled him to benefits, was not applicable to

McGrew and so not binding on GMC.

       In an action to enforce benefits under ERISA, we review de novo the district court’s

judgment on the administrative record. See Wilkins v. Baptist Healthcare SYS., Inc., 150 F.3d 609,

613 (6th Cir. 1998). Generally, we also review a plan administrator’s denial of ERISA benefits de

novo, but when a plan vests the administrator with complete discretion to make eligibility

determinations, we will reverse the administrator’s decision only if it is found to be arbitrary or

capricious. See Moon v. Unum Provident Corp., 405 F.3d 373, 378 (6th Cir. 2005). Both parties

concede that the plans in question all include such a provision and that we should therefore review

the benefits committee’s ruling under an arbitrary and capricious standard.




                                               -3-
04-1765
McGrew v. GMC

       This standard is, of course, the least demanding form of judicial review. See Perry v. United

Food & Commercial Workers Dist. Unions 405 & 442 & Retail Food, 64 F.3d 238, 242 (6th Cir.

1995). The board’s decision is not arbitrary or capricious if GMC can offer a reasoned explanation

based on the record. See id.; Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 693

(6th Cir. 1989). Moreover, in examining the record, we may consider only the evidence presented

to the plan administrator and the GMC benefits board. See Yeager v. Reliance Standard Life Ins.

Co., 88 F.3d 376, 381 (6th Cir. 1996) .

       The GMC Retirement Plan indicates that supplemental retirement benefits, otherwise

available to early retirees until they reach age 62 and are eligible for social security payments, are

not available to discharged employees:

       (a) An employee who retires with benefits payable under Section 2 of this Article I
       (other than an employee (i) discharged for cause, (ii) hired after January 1, 1998, or
       (iii) referred to in Section 2(b)(2)(ii) of this Article I who retires voluntarily after
       attainment of age 55 but not age 50 and whose combined years of age and years of
       credited service at retirement total less than 85) or who retires with benefits payable
       under Section 4 of this Article I, and who retires within five years of the last day
       worked for the Corporation will receive in addition to retirement benefits, certain
       supplements as set forth below . . . .

       Likewise, the health insurance provided to most GMC employees following termination of

employment under Section 6(a) of the Salaried Health Care Program is not available to an employee

who is discharged for cause pursuant to an exclusion contained in the GMC Policy and Procedure

covering Salaried Personnel:

       This classification is applicable to employees following a TER/D00 (Discharge) who are
       eligible for benefits under the Salaried Retirement Program. Eligibility for other benefit
       plans and programs will be determined under the terms of those programs with respect to



                                                -4-
04-1765
McGrew v. GMC

        discharged employees (e.g., discharged employees are not eligible for GMC contributions
        toward health care coverages in retirement).

Despite his argument to the contrary, McGrew is not “retired” within the meaning of the Health Care

Plan. For purposes of the plan, he is “discharged” and not entitled to receive further coverage.

        As for McGrew’s claim under the GMC Life and Disability Benefits Program for Salaried

Employees, Article V, Section 5.07 of that plan specifically disqualifies any employee who quits or

is discharged. McGrew argues that this clause does not apply to him because it is contained in

Article V of the plan, not Article IV, which discusses the benefits of the plan in retirement.

Obviously, however, Article V includes overarching policies that effect the entirety of the plan, and

the forfeitures discussed in Article V therefore apply to the coverage discussed elsewhere in the

plan.

        Nor do we find any merit to McGrew’s contention that if he is not entitled to the benefits

under the terms of the plans, he should be awarded benefits based on a summary plan description

that is binding on GMC. The summary plan description on which McGrew relies is contained in the

1996 booklet, which does not apply to McGrew because in 1996, McGrew was not a salaried retiree

and the booklet covered only those employees who had already retired in 1996. Instead, McGrew

was subject to a 1998 summary plan description contained in a booklet entitled “Your GMC Benefits

- A Handbook for Salaried Employees.” That booklet was directed towards those who were active

employees in 1998, including McGrew, and describes the eligibility criteria for early retirement

supplements, post-employment healthcare, and post-employment life insurance. It specifically

excludes discharged employees from the programs:



                                                -5-
04-1765
McGrew v. GMC

       Supplements are not payable to you if you (1) retire voluntarily as early as age 55 and prior
       to age 60 and the sum of your age and years of credited service is less than 85, or (2) are
       discharged. (Emphasis added.)

       Health care coverages cease at the end of the month in which you quit or are
       discharged . . . . (Emphasis added.)

                                          *****
       All Life and Disability Benefits Program coverages cease on the day you quit
       voluntarily or are discharged. (Emphasis added.)

The booklet defines discharge as “the separation of an employee for personal misconduct, such that

GMC determines that the employee’s continued employment would not be in the best interest of the

Corporation.” Clearly McGrew qualifies as “discharged,” and just as clearly he is ineligible for the

benefits in question. The applicable summary plan description does not conflict with the language

of the plans themselves, and it was not arbitrary and capricious for GMC to deny McGrew access

to the benefits based on a reasonable interpretation of the language of the plans and the 1998

summary plan description.

       Finally, there is no merit to the claim that GMC somehow breached its fiduciary duty to the

plaintiff, supposedly by misleading him into believing that he would receive full benefits despite his

discharge, pursuant to language contained in the 1996 summary plan description. But, as noted

above, McGrew was not covered by the 1996 booklet.

       For the reasons set out above, we AFFIRM the judgment of the district court.




                                                -6-
