                            NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 07a0212n.06
                                     Filed: March 22, 2007

                                                   No. 05-2124

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


DEBRA HAWKINS-DUNN,                                         )
                                                            )
         Plaintiff-Appellant,                               )
                                                            )
v.                                                          )    ON APPEAL FROM THE UNITED
                                                            )    STATES DISTRICT COURT FOR THE
GENERAL MOTORS CORPORATION and                              )    EASTERN DISTRICT OF MICHIGAN
METROPOLITAN LIFE INSURANCE                                 )
COMPANY,                                                    )
                                                            )
         Defendants-Appellees,                              )
                                                            )
                                                            )
                                                            )



BEFORE:           BOGGS, Chief Judge; MERRITT, and MOORE, Circuit Judges.


         MERRITT, Circuit Judge. In this ERISA action, Debra Hawkins-Dunn appeals the District

Court’s holding that she is not entitled to an additional 0.8 years of participation under the Extended

Disability Benefits plan of her former employer, General Motors.1 Because General Motors’

interpretation of the disability plan is not arbitrary and capricious, we affirm the District Court’s

decision. We also deny Hawkins-Dunn’s request for attorney’s fees because the issue was not

properly raised in the District Court.


         1
          In the District Court, Hawkins-Dunn also claimed she was entitled to additional service time under General
Motors’ pension plan. The District Court held that she is entitled to the additional pension credit and General Motors
does not contest that decision on appeal.
No. 05-2124
Hawkins-Dunn v. General Motors Corp.



                                                            I.

       Hawkins-Dunn began working for General Motors on August 15, 1977. As a member of the

United Auto Workers, she participated in General Motors’ pension and long-term disability

insurance plans. Hawkins-Dunn worked for General Motors until she became disabled on January

27, 1987. She returned to work for two brief periods in 1987, but neither was long enough to “reset”

January 27 as her disability leave date under the terms of the GM disability plan. As of January 27,

1987, Hawkins-Dunn had worked for General Motors for nine years and seven months.

       Pursuant to General Motors’ leave policies, Hawkins-Dunn received Sickness & Accident

Benefits for the first 52 weeks that she was unable to work, ending March 7, 1988. At this point, she

began receiving Extended Disability Benefits. Under the Extended Disability Benefits Plan, the

length of time an employee is eligible to receive disability payments depends principally on whether

an employee has accrued ten years of participation under the plan. More specifically, an employee

with ten (or more) years of participation on the date the disability begins is entitled to receive

disability benefits until age 65. An employee with less than ten years, on the other hand, will receive

disability benefits for a period of time equal to her years of participation.2

       2
           Article II, section 7(c) of the Extended Disability Benefits Plan describes the benefit period as follows:

                             In the case of an employe [sic] . . . who has ten or more Years of Participation as
                   of the day on which the disability commenced, the [period] commencing with the month in
                   which the date of the expiration of . . . weekly Sickness and Accident Benefits occurs and
                   terminating with the end of the month in which the employe attains age 65.
                             [I]n the case of an employe who has less than ten Years of Participation as of the
                   day on which the disability commenced, the [amount of time] by which the employe’s Years
                   of Participation at commencement of disability exceed[s] the maximum number of weeks for
                   which he is entitled to receive Sickness and Accident Benefits.

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No. 05-2124
Hawkins-Dunn v. General Motors Corp.

         Hawkins-Dunn continued to receive monthly disability payments from March 1988 until

April 2000, when an analyst at Metropolitan Life Insurance Company, the plan administrator,

discovered that her benefits should have terminated in March 1996, based on her 9.6 years of

participation at the time her disability commenced. The insurer subsequently communicated this

finding to Hawkins-Dunn and ceased her disability payments.3

         In an effort to reinstate her benefits, Hawkins-Dunn contacted a representative of the United

Auto Workers and asked whether General Motors and Metropolitan Life were mistaken in their

conclusion that she had not attained ten years of participation in the plan. Ron Graham, from the

UAW’s Benefit Plans Section, responded by letter on July 27, 2004:

         I have concluded my inquiry about the issue you brought to my attention about your
         eligibility for extended disability benefits until you turn 65.

         The records show that your first day of disability (sick leave) was January 27, 1987.
         At that time, you had 9.6 years of credited service. In order to have your extended
         disability benefits continue to age 65, on January 27, 1987, you would have to have
         had 10 years of credited service. Your plant seniority date was August 15, 1977, and
         your last day worked was January 27, 1987, by the calender you were over 6 months
         short of 10 years.

         An audit of your credited service is enclosed. Two UAW International
         Representatives from the UAW G.M. Department Benefits Staff had checked this
         issue for you before. They both came up with the results on your inquiry that I did
         and I have included both of those responses for your records. You should already
         have copies, but I am including these answers again.




         J.A. 103

         3
          General Motors waived recovery of all but the last year of disability benefits overpayments. The remaining
overpayment was more than offset by the fact that the insurer had been using an incorrect (and lower) rate in computing
her disability payments. As a result of this offset, Hawkins-Dunn received a net payment of $3,390.60.

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No. 05-2124
Hawkins-Dunn v. General Motors Corp.

J.A. 67-68. Hawkins-Dunn continued to complain to Graham about the denial of continued

disability benefits, so Graham contacted Elizabeth LaMarra, an insurance specialist at General

Motors. LaMarra responded by letter on August 25, 2004, assuring Graham that his analysis was

correct. J.A. 69-70.

        In the District Court, Hawkins-Dunn claimed she was entitled to additional credited service

under the Pension Plan and the disability plan. The District Court concluded that Hawkins-Dunn

had earned an additional 0.8 years of service time under the Pension Plan on account of a plan

provision that awards service credit for corporation-approved leaves of absence. Specifically the

court found that a 1992 worker’s compensation settlement between Hawkins-Dunn and General

Motors rendered a portion of her first year of disability leave a corporation-approved leave of

absence. The court held that this additional credit did not apply under the disability plan because it

was earned after the date on which Hawkins-Dunn commenced disability leave.

                                                   II.

        Under ERISA § 502(a)(1)(B), a participant in an employee benefit plan may bring an action

“to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the

terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). Where, as here, the benefit plan in question gives

the plan administrator authority to construe the terms of the plan, courts will only overturn the

administrator’s decision if it is arbitrary and capricious. Firestone Tire and Rubber Co. v. Bruch,

489 U.S. 101, 114-15 (1989). This court reviews the District Court’s application of the arbitrary and

capricious standard de novo.



                                                  -4-
No. 05-2124
Hawkins-Dunn v. General Motors Corp.

         An interpretation of an employee benefit plan is not arbitrary and capricious when the reading

is “rational in light of the plan’s provisions.” Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir.

1988). This standard recognizes that each interpretation of an employee benefit plan “implicates the

rights of other members of the plan” and by ensuring that an administrator’s decision is rational “the

courts contribute to consistency and fairness in plan administration.” Id.

         The resolution to this dispute over Hawkins-Dunn’s service time turns on the interpretation

and application of the terms of General Motors’ disability plan. As excerpted above, the disability

plan states that an employee’s “years of participation” for the purposes of calculating disability

benefits is determined “as of the day on which the disability commenced.” J.A. 51, 103. It is

undisputed that, as of January 27, 1987, when Hawkins-Dunn’s disability commenced, she had

accumulated 9.6 years of service time, just short of the ten years needed to become eligible for

disability benefits until age 65. In light of this fact, we agree with the District Court’s conclusion

that General Motors’ determination that Hawkins-Dunn has less than ten years of participation under

the disability plan was not arbitrary or capricious.

         Hawkins-Dunn argues that a provision in General Motors’ insurance plan summary entitled

“What you should know about your Benefits for hourly employees” conflicts with the language in

the disability plan and compels a finding that she is entitled to more than ten years of participation.4

Specifically, Hawkins-Dunn points to language in the plan summary under the heading “Years of

Participation under the Insurance Plan” that states, “For insurance purposes, your credited service


         4
        W here the language in a plan summary conflicts with the terms of the benefit plan itself, the provision in the
plan summary controls. University Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 850-51 (6th Cir. 2000).

                                                         -5-
No. 05-2124
Hawkins-Dunn v. General Motors Corp.

accrued on and after October 1, 1975 under the Pension Plan will be added to your years of

participation under the Group Life and Disability Insurance Program as of September 30, 1975.”

J.A. 78. Hawkins-Dunn interprets this provision to allow her to use her credited service under the

pension plan, which all parties agree is in excess of ten years, to qualify for the additional disability

benefits.

        We begin by noting that Hawkins-Dunn’s interpretation is not the only, or even the most

plausible, interpretation of the summary plan language cited. Instead, the provision allows an

employee to add credited service under the pension plan accrued after October 1, 1975, to the years

of participation earned by the employee prior to September 30, 1975. Since Hawkins-Dunn did not

begin working at General Motors until 1977, this provision appears to have no relevance to her

benefit calculations.

        Further, even if this provision did somehow allow for an employee hired in 1977 to add

pension credit to her years of participation under the insurance plan, Hawkins-Dunn’s eligibility for

benefits under the disability plan is determined “as of the day on which [her] disability commenced.”

J.A. 103. Thus, as the District Court observed, she cannot add the credit she received for a

corporation-approved leave of absence that occurred after January 27, 1987, to the years of

participation she had on that date.

        Reading the provision of the plan summary cited by Hawkins-Dunn in light of the summary’s

surrounding provisions further supports the conclusion that General Motors’ interpretation is not

arbitrary or capricious. The section titled “Years of Participation under the Insurance Plan” sets forth

a method for changing the way General Motors calculated years of participation. The section is

                                                  -6-
No. 05-2124
Hawkins-Dunn v. General Motors Corp.

broken into three subsections: 1) Prior to September 1, 1950; 2) For the Period September 1, 1950

to October 1, 1975 and 3) On and After October 1, 1975. The language highlighted by Hawkins-

Dunn is in the last of these subsections.

         A close inspection of the three subsections shows that the language of the second subsection

more closely mirrors the interpretation Hawkins-Dunn is trying to assign to the third subsection. The

second, or interim, subsection provides in part, “If your credited service under the Pension Plan is

greater than your years of participation, credited service may be used instead of years of

participation.” J.A. 78. If General Motors intended for employees to be able to use their credited

service for the pension plan for insurance purposes, this straightforward provision would have

appeared in the third, forward-looking section. The company’s decision not to employ this same

provision in the final subsection indicates that the third subsection has a different meaning, such as

the one described above. Since the interpretation urged by Hawkins-Dunn is inconsistent with the

language of the plan summary, we cannot say that General Motors’ interpretation is arbitrary and

capricious.

         Hawkins-Dunn also requests this court to order the defendants to pay her attorney’s fees

relating to her District Court victory on her pension claim. Since the request was never properly

briefed or ruled upon in the District Court, we decline to reach it.5

         For the foregoing reasons, we affirm the decision of the district court.



         5
          The record contains only one reference to attorney’s fees; it appears in the second-to-last line of Hawkins-
Dunn’s 13-page response to General Motors’ motion to affirm the administrator’s decision. In its order, the District
Court did not address this passing request.

                                                         -7-
No. 05-2124
Hawkins-Dunn v. General Motors Corp.




                                       -8-
