     Case: 12-20193       Document: 00512105666         Page: 1     Date Filed: 01/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 8, 2013

                                     No. 12-20193                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



GERALD P. ZIECHE,

                                                  Plaintiff-Appellant,


v.

BURLINGTON RESOURCES INC. EMPLOYEE CHANGE IN CONTROL
SEVERANCE PLAN; CONOCOPHILLIPS; WACHOVIA BANK, N.A.,

                                                  Defendants-Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              Case No. 4:07-CV-3985


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Gerald Zieche sought severance benefits and a
promised bonus after he resigned from his job. The benefits plan trustee,
Defendant-Appellee Wachovia Bank, denied his severance claim; his employer,
Defendant-Appellee ConocoPhillips, rejected his bonus claim. Zieche brought a


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
     Case: 12-20193       Document: 00512105666         Page: 2     Date Filed: 01/08/2013



                                       No. 12-20193

breach of contract claim against ConocoPhillips, and a denial of benefits claim
under the Employee Retirement Income Security Act (“ERISA”) against
Wachovia and the benefits plan. The district court granted summary judgment
for ConocoPhillips, Wachovia, and the benefits plan. We AFFIRM.
1. Facts and Proceedings
       Gerald Zieche was a longtime geologist for Burlington Resources, Inc.
Zieche participated in a company benefits plan. The plan provided that, if
another company purchased or merged with Burlington, and if the company
terminated the beneficiary’s employment within two years after the purchase or
merger, a plan participant would receive severance benefits. The plan also
provided that the participant would receive severance benefits if the participant
quit for “good reason” in that time frame. The plan defined “good reason” to
include “a reduction in the Participant’s annual base salary,” “a material
reduction in benefits provided employees immediately prior to the Change in
Control,” or “a change in the Participant’s position or responsibilities which
represents a substantial reduction of the Participant’s position or responsibilities
immediately prior thereto.”1
       ConocoPhillips announced its intent to purchase Burlington in December
2005. The company completed the purchase on March 31, 2006. In the interim
period between December 2005 and March 31, 2006, Zieche received a
discretionary bonus of $63,000 for 2005, and a promotion that increased his base
salary by eleven percent to about $185,000 for 2006.
       ConocoPhillips sent Zieche multiple letters related to his compensation.
The “Retention Bonus” letter explained that Zieche would receive a bonus of one



       1
          The plan also provided that, after a merger, plan trustee Wachovia Bank “shall,
without direction from the Company . . . make payments . . . in the Trustee’s sole discretion,
directly to the Plan Participants and beneficiaries in such manner and in such amounts as the
Trustee shall determine they are entitled to be paid under the Plans.”

                                              2
     Case: 12-20193      Document: 00512105666        Page: 3    Date Filed: 01/08/2013



                                     No. 12-20193

year’s salary—$185,000—if the merger occurred and Zieche worked at
ConocoPhillips for one year. The letter contained an exception that allowed
Zieche to resign for “Good Reason” within a year of the merger and still receive
the bonus. Exhibit A to the letter defined “Good Reason” as:
      (i) the relocation of your place of employment by more than 50 miles,
      (ii) any reduction in your annual rate of base salary from your
      annual rate of base salary in effect on the date hereof, or (iii) any
      reduction in your target bonus opportunity percentage from your
      target bonus opportunity percentage in effect on the date hereof.

Zieche signed and returned the letter.
      The “Continuation of Employment Letter” confirmed that Zieche would
continue to work for ConocoPhillips after its purchase of Burlington.
ConocoPhillips detailed in the letter Zieche’s compensation and benefits while
“reserv[ing] the right to amend or terminate plans at any time.” Under the
heading “2006 Compensation,” ConocoPhillips indicated that, for 2006, he
would receive the same salary, along with his full 2006 bonus. The bonus
normally would be paid in February 2007, but ConocoPhillips explained that it
would pay the “full and final” amount—forty percent of his salary, or almost
$75,000—thirty days after the merger.2                Under the heading “Future
Compensation Structure,” ConocoPhillips explained that it was the company’s
“intent to move all employees to [the company’s] compensation structure as soon
as practicable.” ConocoPhillips continued that Zieche’s salary would remain the
same, and that his bonus would be twenty-five percent of his annual earnings,
but that “[b]ased on performance,” his payout could range from “0-250%” of the
targeted bonus rate. Under the same “Future Compensation Structure”
heading, ConocoPhillips noted that information about the bonus was “provided


      2
        Zieche received a 2005 bonus that was thirty percent of his salary for the year in
February 2006. One month after the merger, Zieche received a 2006 bonus that was forty
percent of his salary for the year.

                                            3
    Case: 12-20193    Document: 00512105666     Page: 4   Date Filed: 01/08/2013



                                 No. 12-20193

for informational purposes only,” and that “[s]ince [Zieche’s] 2006 equity and
bonus awards have already been made or will be made shortly after the merger
as set forth above, [Zieche] will not be participating in these ConocoPhillips
programs until 2007.” ConocoPhillips continued under the heading “Benefits”
that, later in the year, Zieche would “receive comprehensive information on the
2007 compensation and benefits for which [Zieche] will be eligible.”
      The “Salary Over Range Maximum” letter explained:
      Your base salary exceeds the maximum of the salary range for your
      grade level. The salary range may be adjusted annually; however,
      while your salary exceeds the maximum of the range you will be
      ineligible for annual salary increases and your [bonus] targets will
      [be] capped at the maximum of the range. The Company intends
      that all employees will be within the salary range over time.

      Zieche resigned from ConocoPhillips about five months after the merger.
In a letter giving notice of his resignation to ConocoPhillips and Wachovia,
Zieche wrote that he had a “good reason” for resigning pursuant to both the
“Retention Bonus” agreement and the terms of the benefits plan.           Zieche
explained that ConocoPhillips reduced his compensation by freezing his salary,
lowering his bonus rate, and decreasing other benefits, including the company’s
contribution to his 401(k). As a result, he argued, he was entitled to severance
benefits and his full retention bonus.
      ConocoPhillips rejected Zieche’s retention bonus claim. The company
explained that there was no reduction to the bonus rate because Zieche received
his full 2006 bonus after the merger. The company added that the “Continuation
of Employment Letter” “was clear that none of the parameters regarding Mr.
Zieche’s bonus would be changing in 2006,” and that “[w]e cannot tell what
might have happened after 2006.”
      Wachovia denied Zieche’s severance benefits claim. Wachovia explained
that there was no change to his salary or “material reduction in benefits.”
Wachovia added that, “[b]ased on the information provided by both parties, it

                                         4
     Case: 12-20193        Document: 00512105666          Page: 5     Date Filed: 01/08/2013



                                        No. 12-20193

appears that Mr. Zieche had the same, or more, direct reports, the same, or
more, geographic responsibility, an increased budget, increased signing
authority and an increased salary.”
       Zieche filed suit in November 2007, alleging that ConocoPhillips breached
its agreement to provide Zieche a retention bonus, and that Wachovia incorrectly
denied Zieche’s severance benefits claim under ERISA.3 The district court
granted summary judgment for ConocoPhillips, Wachovia, and the benefits plan
in March 2011. The district court found that ConocoPhillips’ refusal to pay the
retention bonus did not breach its contract with Zieche because Zieche did not
have a “good reason” to resign pursuant to the “Retention Bonus” agreement.
The district court explained that Zieche did not have a “good reason” to resign
because ConocoPhillips did not reduce Zieche’s salary or bonus. The district
court also found that Wachovia did not abuse its discretion by interpreting the
benefits plan to deny Zieche severance benefits because Zieche did not have
“good reason” to resign pursuant to the plan. The district court explained that
there “was no material reduction in Zieche’s position, responsibilities, or
benefits, as of the date of Zieche’s voluntary termination.” The district court
denied Zieche’s motion for reconsideration for the same reasons. The order
denying Zieche’s motion for reconsideration also rejected Zieche’s request for
further discovery, finding that Zieche “did no more than advance vague
assertions of unspecified facts.” Zieche appeals the district court’s ruling as to
both the retention bonus and severance benefits.4


       3
          Zieche also sought to hold ConocoPhillips liable for the denial of his benefits under
ERISA, but the district court found that ConocoPhillips was not a proper defendant under 29
U.S.C. § 1132(a)(1)(B). The district court found that Wachovia, and not ConocoPhillips,
administered the plan and made the final determination regarding Zieche’s rights. Zieche
waives this issue because he does not raise it on appeal. See F.D.I.C. v. Mijalis, 15 F.3d 1314,
1327 (5th Cir. 1994) (“[I]f a litigant desires to preserve an argument for appeal, the litigant
must press and not merely intimate the argument during the proceedings before the district
court.”).
       4
         Zieche also argues that the district court erred in denying his motion for a continuance
to allow more time for discovery under Fed. R. Civ. P. 56(f) (since renumbered Rule 56(d)). To

                                               5
     Case: 12-20193       Document: 00512105666          Page: 6     Date Filed: 01/08/2013



                                       No. 12-20193

2. Standard of Review
       “This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court.” E.E.O.C. v. WC&M Enters.,
Inc., 496 F.3d 393, 397 (5th Cir. 2007).
3. The Retention Bonus
       “The essential elements of a breach of contract claim are: (1) the existence
of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; and (4) damages sustained by the
plaintiff as a result of the breach.” Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex.
App. 2005); see also Valero Mktg. & Supply Co. v. Kalama Int’l, 51 S.W.3d 345,
351 (Tex. Ct. App. 2001).5 “A breach of contract occurs when a party fails or
refuses to do something he has promised to do.” Capstone Healthcare Equip.
Servs., Inc. ex rel. Health Sys. Grp., L.L.C. v. Quality Home Health Care, Inc.,
295 S.W.3d 696, 699 (Tex. App. 2009); see also Mays v. Pierce, 203 S.W.3d 564,
575 (Tex. App. 2006). A court’s “primary concern in interpreting a contract is to
ascertain and give effect to the objective intent of the parties as expressed by the



justify a continuance for more discovery, a party must “specifically explain both why it is
currently unable to present evidence creating a genuine issue of material fact and how a
continuance would enable the party to present such evidence.” Liquid Drill, Inc. v. U.S.
Turnkey Exploration, Inc., 48 F.3d 927, 930 (5th Cir. 1995). In doing so, the party seeking the
continuance may not “rely on vague assertions that discovery will produced needed, but
unspecified, facts.” Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 535 (5th Cir. 1999)
(quoting Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990)). A district court
has broad discretion to a deny a Rule 56(f) motion. Id. To the extent that Zieche argues that
he needs more discovery to develop his conflict of interest allegation, his argument is moot
because the existence of a conflict would not alter our analysis under ERISA. Zieche does not
otherwise make specific assertions that more discovery will produce evidence that would
create a genuine issue of material fact, and thus does not show that the district court abused
its discretion in denying his continuance motion. See id.
       5
        The “Retention Bonus” agreement was formed in Texas, and the parties do not dispute
the district court’s application of Texas state law to Zieche’s breach of contract claims.
Further, the district court properly exercised supplemental jurisdiction over the breach of
contract claims pursuant to 28 U.S.C. § 1367.

                                               6
     Case: 12-20193       Document: 00512105666           Page: 7    Date Filed: 01/08/2013



                                       No. 12-20193

ordinary and plain language of the instrument.” Cnty. of Maverick v. Tex. Ass’n
of Counties Workers’ Comp. Self-Ins. Fund, 852 S.W.2d 700, 705 (Tex. App.
1993). “The entire instrument must be considered so that none of the provisions
will be rendered meaningless.” Id.; see also Westwind Exploration, Inc. v.
Homestate Sav. Ass’n, 696 S.W.2d 378, 382 (Tex. 1985).
       Here, the district court correctly found that ConocoPhillips did not breach
the retention bonus agreement because Zieche did not have a “good reason” to
resign under the plain language of the agreement. The agreement defined “good
reason” as “any reduction in [Zieche’s] annual rate of base salary from [his]
annual rate of base salary in effect on the date hereof” or “any reduction in [his]
target bonus opportunity percentage from [his] target bonus opportunity
percentage in effect on the date hereof.” The parties do not dispute that Zieche’s
salary before the merger was $185,000 per year, or about $15,000 per month,
and that Zieche received the same $15,000 sum in the months following the
merger.6 The parties also do not dispute that, one month after the merger,
ConocoPhillips awarded Zieche a 2006 bonus of forty percent of his salary for the
year, an increase of ten percent from the year before. The salary freeze was not
a “reduction” because, as the district court found, interpreting “reduce” to mean
“not increase” as opposed to its ordinary meaning—for example, “[t]o diminish
in size, amount, extent, or number,” see Merriam-Webster’s Collegiate Dictionary
1044 (11th ed. 2003)—is “unnatural[ ]” and at odds with the term’s plain
meaning. It follows that a bonus rate increase is not a “reduction.”
       Zieche argues instead that he had a “good reason” to resign because
ConocoPhillips “Continuation of Employment Letter” reduced his future salary




       6
         Zieche testified at his deposition that his salary “was not reduced, but it was capped”
after the merger. He added: “I was pretty confident my salary was going to remain the same
for a very long time.”

                                               7
     Case: 12-20193      Document: 00512105666        Page: 8     Date Filed: 01/08/2013



                                     No. 12-20193

and bonus rate. To the extent that we consider the letter7, a plain language
reading of its terms shows that it too does not require a reduction of Zieche’s
salary or bonus rate. Zieche argues that the letter caps his annual earnings but,
as discussed above, a salary freeze is not a “reduction.” Even if we found
Zieche’s asserted interpretation of “reduction” plausible, the related “Salary Over
Range Maximum” letter allowed for a pay increase by providing that Zieche’s
“salary range may be adjusted annually.” Zieche also argues that the letter
reduces his bonus rate to twenty-five percent of annual earnings. Although the
letter does establish the twenty-five percent rate, it also allows for a “0-250%”
variance from the rate. This variance allows ConocoPhillips to award Zieche a
future bonus that matches or exceeds his 2006 rate.
       Even if we assume that the twenty-five percent “target bonus opportunity
percentage” for 2007 would amount to a reduction, we must consider the bonus
language in the context of the letter. See Cnty. of Maverick, 852 S.W.2d at 705;
see also Westwind Exploration, 696 S.W.2d at 382. ConocoPhillips prefaced the
letter by warning that it “reserve[d] the right to amend or terminate plans at
any time.” Then, under the same “Future Compensation Structure” heading
that detailed Zieche’s bonus percentage, ConocoPhillips cautioned that the
“information on [the bonus program] has been provided for informational
purposes only,” and that “[s]ince [Zieche’s] 2006 equity and bonus awards have
already been made or will be made shortly after the merger as set forth above,
[Zieche] will not be participating in these ConocoPhillips programs until 2007.”
A plain reading of the bonus provision, in the context of this qualifying language,
indicates that the twenty-five percent bonus rate for 2007 was uncertain, and
subject to change.


      7
        Neither party addressed whether the “Continuation of Employment Letter” was
inadmissible as extrinsic evidence under the parol evidence rule. See Ross v. Stinnett, 540
S.W.2d 493, 495 (Tex. App. 1976).

                                            8
    Case: 12-20193      Document: 00512105666      Page: 9   Date Filed: 01/08/2013



                                   No. 12-20193

      In sum, ConocoPhillips did not breach its agreement to provide Zieche with
a retention bonus because Zieche did not have a “good reason” for resigning from
the company under the plain language of the agreement.
4. The Severance Benefits
      A “denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed
under a de novo standard unless the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989). “If the administrator has discretionary authority, a reviewing
court applies an abuse of discretion standard.”Wildbur v. ARCO Chem. Co., 974
F.2d 631, 636 (5th Cir. 1992); see also Bruch, 489 U.S. at 115. “‘In applying the
abuse of discretion standard, we analyze whether the plan administrator acted
arbitrarily or capriciously.’” Sweatman v. Commercial Union Ins. Co., 39 F.3d
594, 601 (5th Cir. 1994) (quoting Salley v. E.I. DuPont de Nemours & Co., 966
F.2d 1011, 1014 (5th Cir.1992)). An administrator does not abuse its discretion
if there is “some concrete evidence in the administrative record that supports the
denial of the claim.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 302 (5th
Cir. 1999) (en banc).
      Here, the plan gave Wachovia discretionary authority because it provided
that, after a “Change of Control,” “the Trustee shall, without direction from the
Company . . . make payments . . . in the Trustee’s sole discretion directly to the
Plan Participants.” As a result, we review Wachovia’s interpretation of the plan
for abuse of discretion. See Bruch, 489 U.S. at 115; Wildbur, 974 F.2d at 636.
      Wachovia did not abuse its discretion in denying Zieche severance benefits
because it did not act “arbitrarily or capriciously” in interpreting the plan to find
that there was not “good reason” for Zieche to resign. See Sweatman, 39 F.3d at
601. Wachovia’s finding that ConocoPhillips did not reduce his salary was not
an abuse of discretion because, as discussed above, a salary freeze is not a

                                         9
   Case: 12-20193     Document: 00512105666     Page: 10   Date Filed: 01/08/2013



                                 No. 12-20193

reduction. Wachovia’s finding that Zieche did not demonstrate a “material
reduction” in his bonus was not an abuse of discretion because, as discussed
above, Zieche received an increased bonus after the merger, and any proposed
bonus reduction was subject to change. Zieche’s argument that ConocoPhillips
materially reduced his other benefits is unpersuasive for the same reason: as
Wachovia found, Zieche did not “demonstrate[ ] changes” in benefits, and any
proposed reductions were uncertain at the time Zieche resigned. Further,
Wachovia did not abuse its discretion by finding that Zieche “had the same, or
more, direct reports, the same, or more, geographic responsibility, an increased
budget, increased signing authority and an increased salary” because
ConocoPhillips introduced “concrete evidence” into the administrative record, see
Vega, 188 F.3d at 302, in the form of statements by Zieche’s supervisor that
Zieche’s “role after the Change in Control was essentially the same as it was
immediately prior the Change in Control.” Wachovia’s thorough explanation of
its decision to deny benefits makes clear that it weighed and rejected Zieche’s
competing evidence. As a result, we cannot say that Wachovia’s decision to deny
benefits was arbitrary or capricious. See Sweatman, 39 F.3d at 601.
      In sum, Wachovia did not abuse its discretion in interpreting the benefits
plan to deny Zieche’s severance benefits claim because Zieche did not have a
“good reason” for resigning.
5. Conclusion
      Accordingly, we AFFIRM the district court’s grant of summary judgment.




                                       10
