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                                                         [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13145
                      ________________________

                   D.C. Docket No. 1:15-cv-01900-TWT



DAVID L. BOYSEN,

                                                          Plaintiff-Appellant
                                                             Cross Appellee,


                                  versus

ILLINOIS TOOL WORKS INC. SEPARATION PAY PLAN,
ILLINOIS TOOL WORKS, INC.,

                                                       Defendants-Appellees
                                                           Cross Appellants.

                      ________________________

             Appeals from the United States District Court
                 for the Northern District of Georgia
                    ________________________

                             (April 3, 2019)
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Before TJOFLAT and JORDAN, Circuit Judges, and HUCK, * District Judge.

PER CURIAM:

       David Boysen appeals an order granting summary judgment to his former

employer, Illinois Tool Works, Inc. (“ITW”), and the Illinois Tool Works Inc.

Separation Pay Plan (“the Plan”), on his claim for separation pay benefits under the

Plan, as well as an order denying his motion for reconsideration. Mr. Boysen argues

that the district court erred in granting summary judgment because the plan

administrator failed to provide him with a full and fair review, as required by the

Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001–1461

(“ERISA”), its applicable regulations, and the terms of the Plan. He further argues

the plan administrator’s decision was not supported by “reasonable grounds.” Mr.

Boysen also appeals two other rulings: the denial of his motion to compel discovery,

and the denial of his emergency motion to extend time to respond to the summary

judgment motion under Federal Rule of Civil Procedure 56(d).

       ITW and the Plan, for their part, cross-appeal. They seek reversal of the

district court’s order denying them attorney’s fees.

       Following a review of the record, and with the benefit of oral argument, we

agree with Mr. Boysen that the plan administrator did not engage in a full and fair



*
 Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, sitting
by designation.
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review of his claim, and vacate the district court’s order. Given that ruling, we do

not address the discovery or attorney’s fee orders.

                                          I

       Mr. Boysen is a beneficiary of a separation pay benefits plan issued and

administered by ITW, his former employer. Both ITW and the Plan, as noted, are

parties to this action.

       ITW’s administration of the Plan is governed by the terms of ERISA. ITW

has designated one of its employees, Elliot Goldman, as the plan administrator.

                                          A

       Under the terms of the Plan, an employee is eligible to receive severance

payments if the circumstances of his termination meet four threshold conditions—

among them, that the employee was terminated “due to a permanent job

elimination.” Separation Pay Plan (“SPP”) ¶ 2.1(a)(ii). Notwithstanding any

position elimination, an employee may be ineligible for severance benefits if he was

terminated “for cause.”     Id. ¶ 2.1(b)(i).   Termination for “unsatisfactory job

performance” is considered termination for cause. Id. ¶ 2.2(b).

       The Plan sets out the procedures for filing and deciding benefits claims. An

employee may file a claim if he believes the terms of the Plan have been applied

incorrectly to his termination. If the plan administrator denies the claim, the notice

of decision must include (1) the specific reasons for the adverse determination; (2)


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reference to the specific provisions of the Plan relied upon to reach the decision; (3)

a description of additional information necessary to perfect the claim and an

explanation of why such information is necessary; and (4) a description of the Plan’s

review procedures and the applicable time limits. See id. ¶ 5.1. These requirements

comport with the claims procedure requirements under ERISA. See 29 U.S.C. §

1133.

        Following an adverse determination, an employee has 60 days to appeal the

decision in writing. See id. ¶ 5.2. He may submit documents or arguments in support

of his position and may also examine the Plan and other documents upon which the

determination was based. The plan administrator must issue a decision within 60 to

120 days.

        Under both the terms of the Plan and the applicable ERISA regulations, the

plan administrator must undertake a “full and fair review” of the claim denial. See

id. ¶ 5.3; 29 U.S.C. § 1133(2). According to the Plan, this “full and fair review”

requires the plan administrator to take into account “all comments, documents, and

other information submitted by the claimant . . . relating to the claim, without regard

to whether such information was submitted or considered in the initial benefit

determination.” Id. The notice of final decision must include the specific reasons

and provisions upon which the determination is based, and inform the claimant of




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his right to receive access to and copies of all documents relevant to his claim and

of his right to bring a civil action pursuant to ERISA within six months. See id.

                                         B

      Mr. Boysen began working as an at-will employee for ITW in 2001. In 2006,

he was promoted to General Manager of ITW’s Techspray business. In 2010, ITW

began consolidating several of its businesses. One such consolidation saw ITW’s

Techspray, Prolex, and Chemtronics businesses brought into a single “business unit”

known as the ITW Contamination Control Electronics Group (“ITWCC”). Mr.

Boysen was promoted to General Manager of ITWCC on May 1, 2012.

      The parties differ in their assessments of Mr. Boysen’s performance in that

role. ITW asserts that financial performance under Mr. Boysen’s leadership was

subpar beginning in early 2013. Mr. Boysen, for his part, maintains that ITW had

unreasonable expectations for his performance, that his negative evaluations were

pretextual and part of a retaliatory effort to terminate him, and that ITWCC

outperformed other divisions in the electronics group.

                                         C

      The parties’ pre-suit correspondence is central to our analysis, so we recount

it in some detail.

      In its termination letter dated March 17, 2014, ITW stated that Mr. Boysen

was being terminated for overall poor performance. A month later, Mr. Boysen’s


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counsel, Lawrence Ashe, sent a letter declining ITW’s severance offer and

contesting ITW’s assertion that Mr. Boysen was terminated for poor performance.

The letter offered detailed support for Mr. Boysen’s satisfactory performance.

      On May 27, 2014, ITW’s counsel, John P. Scruggs, sent a response letter

explaining that Mr. Boysen was not eligible for severance benefits under the Plan

because (1) his termination was not due to a position elimination and (2) he was

terminated for cause. The letter also offered support for ITW’s claims of poor

performance and instructed Mr. Boysen to make a claim to the plan administrator if

he disagreed with the decision. The letter explained the following as to Mr. Boysen’s

former position:

             General Manager of Chemtronics/Techspray/Prolex[ ]
             was, and continues to be, critical to the overall success of
             the ITW Contamination Control Electronics Group. Upon
             Mr. Boysen’s termination, the Company immediately
             commenced a search for a successor. As of this writing,
             candidates have been interviewed and are being vetted.
             Although no offer has yet been made, the job held by Mr.
             Boysen has most definitely not been eliminated and will
             be filled in the immediate future.

ITW 00049 (emphasis in original). Mr. Ashe replied, again contesting ITW’s

assessment of Mr. Boysen’s performance.

      In June of 2014, Mr. Goldman, the plan administrator, responded to an earlier

letter from Mr. Ashe regarding severance benefits. Mr. Goldman explained that he

was denying the claim because, “the basic fact is that you were terminated for


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reasons other than the elimination of your job. That being the case, you are not

entitled to Separation Benefits . . . .” ITW 00084 (“Initial Decision”). The letter did

not mention “for cause” termination or Mr. Boysen’s job performance, though it did

reserve the Plan’s right to “review, assess[,] and/or rely upon, any other eligibility

prerequisites should it later be determined to be proper to do so.” Id.

      Correspondence between Mr. Ashe and Mr. Scruggs continued over the

summer of 2014, and Mr. Ashe replied to Mr. Scruggs’ May 2014 letter on July 25,

2014. Mr. Ashe reiterated his contention that Mr. Boysen’s performance was

superior, and requested documents related to hiring for Mr. Boysen’s previous

position. Specifically, Mr. Ashe asked for job postings, a copy of the offer letter,

and payroll information for any new hire. He requested details about the position,

including “title, classification, compensation, product brands, geographic territory,

and other relevant information . . . includ[ing], for example, whether the successor’s

position—if he or she was already an ITW employee—was eliminated, and the

person’s age and length of service.” ITW 00102 & n.2. He also stated that he had

learned there was no longer a General Manager I position at ITW.

      In response to this letter, Mr. Scruggs explained in an August 5, 2014, email

that the General Manager job was not eliminated. “To the contrary,” he wrote, the

position had already been filled. See ITW 00104. In support, he attached an internal

memorandum from July 22, 2014, with the following announcement:


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            Ken Caskey, who most recently led the sales team for the
            Chemtronics/Techspray/Plato brands, has assumed the
            position of Business Unit Manager for the CC Electronics
            Group. In his new role, Ken reports directly to me and is
            responsible for the group’s full p&l and global growth.
            Ken’s intense focus on delivering value to customers and
            inspiring a winning team are important assets in his new
            role.

ITW 00106. To explain the change in title, Mr. Scruggs offered the following:

            While the title of ‘General Manager’ was changed across
            all ITW businesses to ‘Business Unit Manager,’ the duties
            . . . did not change. The newly appointed ‘Business Unit
            Manager’ has the same responsibility for the full P&L for
            the same businesses . . . . His position was neither
            eliminated, nor did its scope of responsibilities change.

ITW 00104 (emphasis in original). Mr. Scruggs clarified: “For this reason alone,

Mr. Boysen is not entitled to Separation Pay Plan benefits, notwithstanding your

contention that he was discharged without good cause.” Id. He denied Mr. Ashe’s

July 25th information requests without explanation.

      On August 8, 2014, Mr. Ashe wrote to Mr. Scruggs contesting ITW’s refusal

to provide more information because he could not assess ITW’s position or offer

without the requested information. See ITW 00107. He raised the title change and

asked for additional related documentation. Mr. Ashe noted that it should be

“relatively easy” for ITW to produce “a restructuring document or communication

regarding this systemic, company-wide change.” Id. He also requested the job

descriptions for the General Manager and Business Unit Manager positions to be


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able to compare them and renewed his requests for the offer letter provided to Mr.

Boysen’s replacement, as well as basic payroll information for both positions,

including grade level, classification, eligibility for stock, and compensation range.

Mr. Ashe explained that Mr. Boysen would be forced to litigate to obtain the

documents in discovery if ITW again refused to provide them.

      On August 11, 2014, Mr. Ashe formally appealed the plan administrator’s

decision. See ITW 00109. He again emphasized his evidence in support of Mr.

Boysen’s purported satisfactory job performance. Mr. Ashe pointed to the company-

wide title change as evidence of a position elimination and asked for additional

related information. He requested (1) documentation discussing the company-wide

title change; (2) the identities of all current general managers at ITW; (3) job

descriptions for both general managers and business unit managers; (4) updated

financial information for Mr. Boysen’s business unit and the electronics division;

and (5) the offer letter provided to Mr. Boysen’s replacement, along with basic

payroll information for both positions, to include grade level, classification,

responsibilities, stock eligibility, and compensation range. See id. He noted that

Mr. Caskey (the new Business Unit Manager) had previously worked as a Business

Unit Manager and had reported to Mr. Boysen, his General Manager, in that position.

See id.




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      On September 10, 2014, Mr. Goldman responded, clarifying the basis for his

initial decision and responding to the document requests. In unambiguous terms,

Mr. Goldman stated:

             [J]ob elimination is a prerequisite to benefits under the
             Plan and other issues or disputes are irrelevant to Plan
             benefit entitlement absent a job elimination. That Mr.
             Boysen was found to have not lost his job due to a “job
             elimination” was and is the sole basis for the prior
             denial of benefits. No other issues are relevant or relied
             upon by the Plan and only data relevant to whether his job
             was eliminated is relevant to the appeal under the relevant
             ERISA standard.

ITW 00115 (emphasis in original).        Turning to the information requests, Mr.

Goldman explained that “company-wide title issues . . . are not relevant to the

question of job elimination under the Plan.” He similarly deemed the identities of

general managers irrelevant to whether Mr. Boysen lost his job due to job

elimination. As for the request for General Manager I and Business Unit Manager

descriptions, he explained that there was no unified description and concluded that,

in any event, it was irrelevant. He did not produce a description for Mr. Boysen’s

prior position because one did not exist, but he attached a copy of the applicable job

description for the ITWCC business manager. He denied Mr. Boysen’s request for

updated financial information as irrelevant.

      Mr. Goldman attached a copy of Mr. Caskey’s offer letter, though he redacted

the financial information “as it has no bearing on whether Mr. Boysen’s job was


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eliminated.” Noting that the letter “refers to Chemtronics” alone, he explained that

“Mr. Caskey also assumed the managerial responsibilities upon hire for Prolex . . .

and TechSpray . . . . It is my understanding that Mr. Boysen’s managerial scope . . .

was the same as that of Mr. Caskey[.]” Mr. Goldman also denied the request for

comparative payroll information as irrelevant. Mr. Boysen did not provide any

additional documents or materials in support of his position to Mr. Goldman, despite

Mr. Goldman’s offering an additional 60 days for him to do so.

      On December 3, 2014, Mr. Goldman issued his final decision upholding the

initial determination. According to Mr. Goldman, the Plan found that “Mr. Boysen’s

job was not permanently eliminated but rather he was replaced by Mr. Caskey and

. . . the change in title of the position does not equate to a permanent job elimination

under the plan.” ITW 00152.

                                           D

      On May 27, 2015, Mr. Boysen filed suit in federal court. From the outset, the

parties disagreed over the appropriate scope of discovery. ITW and the Plan were

unwilling to voluntarily produce anything outside of the existing administrative

record but Mr. Boysen identified a number of potential areas for discovery in the

joint discovery plan. See D.E. 10. Mr. Boysen sought copies of his own personnel

file and most recent job description; information about the scope of responsibilities

and compensation of general managers and business unit managers; Mr. Caskey’s


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personnel file and all job descriptions applicable to his employment at ITW;

communications related to Mr. Boysen’s job performance and termination;

documents and communications related to ITW’s restructuring; and documents and

communications related to the selection of his replacement. In a summary order

entered November 18, 2015, the district court ordered that discovery would “be as

requested by [Mr. Boysen] in the Joint Preliminary Report and Discovery Plan” and

gave the parties four months to complete discovery. D.E. 11.

      According to Mr. Boysen’s March 3, 2016, motion to compel, in response to

his first formal discovery request ITW and the Plan had produced only the

administrative record; Mr. Boysen’s personnel file; selected portions of Mr.

Caskey’s personnel file; and 14 emails collected by Mr. Boysen’s former supervisor

and a human resources representative. See D.E. 19 at 1–2, 6. Mr. Boysen laid out

the reasons he required documents pertaining to his performance, as well as more

detailed personnel records.

      In their response, ITW and the Plan argued, among other things, that

communications regarding Mr. Boysen’s performance going back six years were

irrelevant because “Plaintiff’s job performance is irrelevant to this case. This

case concerns only whether Plaintiff’s position was eliminated, as that is the only

way Plaintiff can qualify for severance benefits[.]” D.E. 21 at 18–19 (emphasis in

original). The district court granted in part Mr. Boysen’s motion to compel:


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             To the extent not already produced, Defendants are
             ordered to promptly produce all records concerning the
             documented reasons for Plaintiff’s termination of
             employment from Illinois Tool Works Inc. Additionally,
             Defendants shall make the Plan Administrator, Elliot
             Goldman, available for deposition. Plaintiff’s Motion to
             Compel Discovery is otherwise denied.

D.E. 26 at 1–2.

      ITW and the Plan thereafter conducted limited searches of their electronically

stored information and produced a few hundred pages of documents. Among the

documents produced were speaker notes from an undated presentation about

“Business Structure Simplification.” See ITW 00596. That document stated, in

relevant part, as follows:

             As we move towards creating Divisions ($100mm+) with
             VP/GMs leading these divisions, the need for a General
             Manager is being eliminated. Rather, Business Units will
             become apart [sic] of these larger Divisions
             (consolidated), led by Business Unit Managers.

             [T]he General Manager level and title is being phased out
             and current incumbents are being mapped to the new ITW
             Operating Structure . . . . In some cases, where the
             business LRP intends to get to $100m, the incumbent GM
             has been ‘grandfathered’ in grade and title. However, in
             most cases, current business GM’s [sic] have been mapped
             to a Business Unit Manager. This means that existing
             GMs at a grade 15 have been realigned to a BUM grade
             14 or 13 depending on revenue size, scope and complexity
             of business. It’s expected that in the future, these stand
             alone [sic] businesses will consolidate administration and
             streamline functions (Finance, HR, Marketing, Sales,
             Operations) into the larger division ($100m) therefore not


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             having the scope and complexity as in the past as a stand
             alone [sic] $30m business.

Id. (emphasis added). The notes went on to explain that this restructuring meant that

incumbent general managers were being realigned “to a lower job grade” which

would “have a negative impact on their position in salary range.” And it meant that

current general manager incumbents, who had been “realigned” to business unit

managers, would no longer be eligible for the company’s long-term incentive

program.

      At his deposition, Mr. Goldman explained that he had not looked “to see if

[job grade and salary] were the same or different. [He] looked to see if the job was

the same, and it was.” Elliot Goldman Deposition Transcript, D.E. 52 at 96. He

conceded, however, that he had not reviewed the BSS presentation, and that there

were several things in the presentation that didn’t “coincide” with his “understanding

of things” when it came to the General Manager position. See id. at 125–26. After

Mr. Goldman’s deposition, Mr. Boysen filed a second motion to compel limited

discovery prior to a ruling on summary judgment. The district court denied that

motion.

      The district court also denied Mr. Boysen’s later emergency Rule 56(d)

motion and granted summary judgment for ITW and the Plan. In its order granting

summary judgment, the district court explained: “Because the issue of job

elimination was the only one which the Administrator considered, the Administrator
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only needed to investigate arguments that were reasonably connected to that issue.

Whether [Mr.] Boysen was fired for cause is irrelevant.” D.E. 67 at 17. According

to the district court, “[t]he documentary record is absolutely clear that [he] was fired

for poor performance. There is no evidence that this was a pretext for eliminating

his position.” Id. at 18.

                                          II

      We review the district court’s grant of summary judgment in an ERISA case

de novo, applying the same standard the district court used in its review. See Melech

v. Life Ins. Co. of N. Am., 739 F.3d 663, 672 (11th Cir. 2014). “While ERISA and

the . . . regulations provide certain minimum procedural requirements, the statute

and regulations do not provide a judicial standard of review for courts reviewing

administrators’ benefit-eligibility decisions.” Id.

      The Eleventh Circuit has established a six-part test for review of eligibility

determinations, see Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355 (11th

Cir. 2011), but none of the relevant authorities expressly provides a governing

standard of review for determining whether a plan administrator has satisfied the

necessary “minimum procedural requirements” or provided a full and fair review.

At oral argument, counsel for ITW and the Plan stated that the appropriate standard

on this issue was de novo. We agree.




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      Generally, when a plan gives a plan administrator discretionary authority to

make benefits determinations—as this one undisputedly does—benefits denials are

reviewed under an arbitrary and capricious standard. See id. Here, however, the

initial question is not whether the plan administrator erred in interpreting or applying

the Plan. We are instead reviewing whether the plan administrator adequately

complied with the procedural aspects of the applicable statutes and regulations, and

“[t]he interpretation of ERISA, a federal statute, is a question of law subject to de

novo review.” Wilkins v. Mason Tenders Dist. Council Pension Fund, 445 F.3d 572,

581 (2d Cir. 2006) (citation omitted). Cf. Draper v. Atl. Indep. Sch. Sys., 518 F.3d

1275, 1284 (11th Cir. 2008) (“To the extent that this issue involves the interpretation

of a federal statute, it is a question of law which we review de novo”) (emphasis in

original and citation omitted). Because such adherence to statutes and regulations

involves no discretionary call by the plan administrator, “we owe the plan

administrator[ ] no deference.” Wilkins, 445 F.3d at 581. See also Capone v. Aetna

Life Ins. Co., 592 F.3d 1189, 1199–1200 (11th Cir. 2010) (concluding, at step one

of the Williams test, that the plan administrator’s failure to adequately address

claimant’s arguments or properly investigate claim was de novo wrong).

      Further, we are persuaded by our reading of Melech. We did not, in that case,

expressly state which standard should apply to review a plan administrator’s review

and compilation of the record. But we are nevertheless confident that the panel


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applied a de novo standard. The Melech panel explained that this question fell

outside the six-part test generally applied to ERISA benefits decisions, “as it is a

predicate to our ability to review the substantive decision we have been asked to

review.” Melech, 739 F.3d at 673. Here, as in Melech, we are not deciding whether

the plan administrator’s decision enjoys factual support in the record; rather, we are

reviewing whether the plan administrator satisfied his obligations in compiling that

record. We cannot see, and no party has explained, why such an inquiry requires

deference to the administrator.1

       Under ERISA, a plan administrator is considered a fiduciary tasked with

“discharg[ing] his duties with respect to a plan solely in the interest of the

participants and beneficiaries and . . . for the exclusive purpose of[ ] providing

benefits to participants and their beneficiaries; and . . . defraying reasonable

expenses” of plan administration. 29 U.S.C. § 1104(a)(1)(A). He must use the

“skill, prudence, and diligence under the circumstances then prevailing that a

prudent man acting in a like capacity and familiar with such matters would use in


1
  We are mindful that other circuits have taken different approaches to the issue. See, e.g., Atkins
v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 694 F.3d 557, 567 (5th Cir. 2012) (“Absent
potential wholesale or flagrant violations that evidence an ‘utter disregard of the underlying
purpose of the plan,’ this court does not heighten the standard of review from abuse of discretion
to de novo.”); Harrison v. Wells Fargo Bank, N.A., 773 F.3d 15, 20 (4th Cir. 2014) (concluding
plan administrator abused its discretion when it “chose to remain willfully blind to readily
available information that may well have confirmed [claimant’s] theory of disability”); Gaither v.
Aetna Life Ins. Co., 394 F.3d 792, 801, 807 (10th Cir. 2004) (concluding that denial of benefits
was arbitrary and capricious because plan administrator failed to conduct a reasonable
investigation into the claim). Here, we follow Melech’s well-reasoned approach.
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the conduct of an enterprise of a like character and with like aims.” Id. at §

1104(a)(1)(B).    This standard of care places upon a plan administrator “the

responsibility to fully investigate [a] . . . claim[ ] before denying benefits.” Capone,

592 F.3d at 1199–1200.

                                          III

      We have previously held that “[a]s a matter of common sense, we cannot

evaluate [a plan administrator’s] ultimate decision to deny [a] claim without first

considering whether the record [the administrator] had before it was complete.”

Melech, 739 F.3d at 673 (citation omitted). As discussed above, we acknowledged

that the first step of the Williams test involves de novo review, and explained that

the full and fair review inquiry is antecedent to the Williams test. See id. We

conclude the plan administrator here did not compile or review a complete record.

                                           A

      Mr. Boysen argues that the plan administrator denied him a full and fair

review in a number of ways. First, he asserts that the plan administrator failed to

interview critical witnesses, including himself and Mr. Caskey, and failed to compile

numerous documents and evidence relating to ITW’s restructuring, system-wide title

changes, or Mr. Caskey’s personnel file.          Second, he claims that the plan

administrator improperly failed to consider documents and evidence that Mr. Boysen




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submitted “by identification.” Third, he asserts that the plan administrator failed to

provide him with all documents relevant to his claim.

      Underlying each of Mr. Boysen’s arguments is that the plan administrator

pointed exclusively to Section 2.1(a) of the Plan—the threshold requirement that

termination be based on job elimination—to deny Mr. Boysen’s separation benefits

claim. But to find that Mr. Boysen was not terminated due to elimination, the plan

administrator relied almost entirely on evidence showing that Mr. Boysen was

terminated for poor performance. This, Mr. Boysen argues, looks very much like a

denial under Section 2.1(b) due to “for-cause” termination.

      According to Mr. Boysen, the Plan and ITW are not free to now rely on

Section 2.1(b) for the purposes of litigation when the sole reason offered during

administrative review was Section 2.1(a) (non-elimination). This, says Mr. Boysen,

constitutes an improper shift in the reason for the denial of his claim during litigation,

which violates both the Plan’s terms and applicable ERISA regulations.

      The Plan and ITW respond by arguing that Mr. Boysen is precluded from

contesting the plan administrator’s review because he did not produce any

documents, even though it was his burden to prove his entitlement to benefits.

Moreover, they say, the plan administrator was not obligated to ferret out evidence

to prove or disprove every one of Mr. Boysen’s theories. The Plan and ITW also

argue that there is no evidence any restructuring information or materials exist, and


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that the record was complete. In support of their latter contention, they highlight the

extensive evidence in the record indicating that Mr. Boysen was terminated for poor

performance and that he failed to challenge the content of any documents related to

Mr. Caskey. They also make much of the relatively small volume of documents

their supposedly extensive ESI searches yielded.

      In response to Mr. Boysen’s argument that they have improperly changed the

basis for the denial of benefits, ITW and the Plan assert that Mr. Boysen “misstates

the nature of the review conducted at the administrative level.” Appellees’ Br. at

45. They contend that “Mr. Goldman was called upon to determine whether the

precipitating cause of Mr. Boysen’s termination was a permanent job elimination

[and] Mr. Goldman discharged this obligation by reviewing . . . evidence . . . which

. . . confirmed that [Mr.] Boysen was terminated for poor performance[,]” and not

job elimination. Id.

                                          B

      As an initial matter, we are generally in agreement with ITW and the Plan that

they have not shifted their position on their reason for denying Mr. Boysen’s claim.

A finding that Mr. Boysen was terminated for any reason other than a job elimination

may theoretically provide a basis to conclude that he was not terminated because his

position was eliminated. ITW and the Plan are essentially arguing that, if Mr.

Boysen was terminated for any of reasons A through Y, then he necessarily was not


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fired for reason Z. In theory, the effect of a finding of poor performance at the

Section 2.1(a) threshold stage or the Section 2.1(b) disqualification stage is much

the same: it results in a denial of the claim. Nevertheless, the plan administrator’s

use of Section 2.1(a) alone has practical effects on the review process.

       The difference is perhaps best understood in considering not what the plan

administrator did, but what avenues were open to Mr. Boysen to challenge the plan

administrator’s actions and ultimate decision. To have any hope of successfully

challenging the initial benefits decision on appeal, Mr. Boysen would have had to

argue and show either (1) that he was not terminated for poor performance or (2)

that his job was eliminated.2

       A finding that Mr. Boysen was not fired for poor performance would have

obligated the plan administrator to restart his investigation into the reason for Mr.

Boysen’s termination (and, frankly, into whether “poor performance” was a pretext).

Success on the job elimination argument likely would have resulted in victory for

Mr. Boysen as, having already disclaimed Section 2.1(b), see Appellees’ Br. at 47,

the plan administrator may have had to end his analysis with a finding of job

elimination.    At that point, even if the evidence of poor performance were

overwhelming, the Plan Administrator would not have been free to raise for-cause


2
  As the plan administrator asserts: “[O]nly data relevant to whether his job was eliminated is
relevant to the appeal under the relevant ERISA standard.” ITW 00115.


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termination and would have had to stick with the threshold question which he

exclusively analyzed.

        Against this backdrop, we conclude that the plan administrator was not free

to refuse to investigate the restructuring that—as we now know—some ITW

employees had already conceded occurred, and to simultaneously refuse to consider

Mr. Boysen’s evidence of satisfactory performance. Cutting off even one avenue to

challenge the determination would have been problematic, but the process here

effectively made it impossible for Mr. Boysen to oppose the decision.3

                                                   C

        We assume, for the sake of argument, that ITW and the Plan are correct that

the burden is generally on a claimant like Mr. Boysen to prove his entitlement.

Compare Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.


3
  There is some dispute about whether the plan administrator actually considered Mr. Boysen’s
proffered arguments and evidence related to performance. Neither of his decisions contains
discussion or rebuttal of Mr. Ashe’s points. At his deposition, Mr. Goldman testified that he did
not investigate Mr. Boysen’s assertions that he outperformed others in the electronics division,
explaining: “It wasn’t relevant. The relevant issue for me was as follows: Was there job
elimination, and then related to that, I did undertake . . . an investigation of that issue because that’s
the issue . . . . I did, however, [in light of the allegations of ulterior motives] investigate his
performance by speaking to Mr. Hammouri, . . . Ms. Goldstein, . . . [and] Ms. Lewis,” and by
requesting documents and communications about Mr. Boysen’s performance, “and absolutely
nothing in there suggested that there was any other rationale for [his termination].” Goldman Dep.
Tr. 42:1–43:18. ITW and the Plan argued at summary judgment that this was enough to show that
the plan administrator “undertook substantial effort to explore Plaintiff’s vaguely articulated
theories that his termination was not proper.” D.E. 63 at 2. We cannot tell from the record before
us whether or how the plan administrator investigated Mr. Boysen’s argument and evidence, and
we do not think the deposition testimony establishes that he actually took Mr. Boysen’s points into
consideration. Cf. Capone, 592 F.3d at 1199.


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1998) (“A plaintiff suing under [29 U.S.C. § 1132(a)(1)(B)] bears the burden of

proving his entitlement to contractual benefits.”), with Melech, 739 F.3d at 673

(looking to a plan’s terms to determine who has the burden). And we acknowledge

that nothing in ERISA statutes or our precedent requires a plan administrator to

“ferret out evidence in [Mr. Boysen’s] . . . possession.” Id. But this does not mean

that the plan administrator is free to simply ignore evidence that has a direct bearing

on, or refutes, his findings. Nor can he refuse to conduct additional investigation

when it has been brought to his attention that relevant documents almost certainly

exist. Prior precedent supports our conclusion.

      Our decision in Capone, 592 F.3d at 1189, is instructive here. Capone

involved a claimant seeking disability benefits after he was injured diving into

shallow water. In denying benefits, the plan administrator had failed to “investigate

the depth of the water at low . . . [or] high tide and the tidal conditions at the time of

the accident.” Id. at 1199. It had also “made no attempt to locate other guests who

might have been on the scene.” Id. And the record did “not reflect any additional

action taken” by the plan administrator to review its decision after the claimant had

shown certain of the administrator’s assumptions were erroneous. Id. at 1199. As a

result, we held that the administrator had not satisfied its obligation to fully

investigate the claim, as it had “failed to adequately address the issues raised in




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[claimant’s] appeal and the denial of benefits without a proper investigation” is de

novo wrong. Id. at 1199–1200.

      In Melech, we held that the administrator’s refusal to consider the Social

Security Administration’s decision granting disability benefits, along with the

evidence generated in that administrative process, constituted procedural unfairness

which warranted a remand. Central to our decision was the fact that the plan

obligated claimants seeking disability benefits to simultaneously apply for social

security benefits, and actively participate in the SSA’s decisional process. We

concluded that the administrator’s treatment of the claimant’s SSA application was

“inconsistent with the fundamental requirement that an administrator’s decision to

deny benefits must be based on a complete administrative record that is the product

of a fair claim-evaluation process.” 739 F.3d at 676. We remanded to the plan

administrator to evaluate the claim using the evidence produced in the SSA process.

See id.

      In Shannon v. Jack Eckerd Corp., 113 F.3d 208 (11th Cir. 1997), the

claimant’s request for coverage of an organ transplant surgery was denied under an

experimental or investigational medicine exclusion in the policy. Following a bench

trial, the district court found that the plan administrator had failed to consider all

relevant evidence available in denying benefits and remanded. On remand, the

administrator concluded the operation would have been covered under current


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standards but still denied benefits because, at the time the claim was first submitted,

the record indicated the procedure was experimental. The district court entered final

judgment for the claimant in accordance with the administrator’s conclusion that the

procedure was now covered.

      At the time of the original determination in Shannon, the plan administrator

had relied entirely on a conclusory recommendation of denial from the plan’s

medical consultant; statements from insurance companies that the subject transplant

was experimental; and Medicare’s denial of coverage. We said that “[s]imply

accepting the bald assertions of [the plan’s medical consultant] and the denial of

other insurance companies without examining or evaluating their underlying bases

and failing to obtain additional relevant information was arbitrary and capricious.”

Id. at 211. We held that the district court’s remand for additional inquiry was

therefore not error, given the administrator’s failure to make a reasonably relevant

inquiry.   “Nor can we say that the district court erred in directing the . . .

administrator to consider subsequently available evidence.” Id. Because the duty to

provide benefits is continuing, so too is a denial—“the propriety of which is

measured against the information available from time to time.”             Id. (internal

quotation marks and citation omitted).

      Here, the record indicates that the plan administrator repeatedly refused to

consider highly relevant evidence, or evidence which contradicted (or potentially


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conflicted with) his decision. For example, without suggesting that any one type or

piece of evidence is determinative in severance benefits cases, we find it highly

unusual that a plan administrator would deem compensation information, set forth

in an offer letter to a claimant’s purported replacement, irrelevant. Here, the position

being offered in the letter bore a different title and was offered to someone who once

reported to the Mr. Boysen in a similar “Business Unit Manager” capacity. The

ongoing discussions of system-wide title changes and “restructuring,” together with

Mr. Boysen’s direct request for related documentation, should have put the plan

administrator on notice. He was required to do more than to accept the verbal

representations of a few ITW employees about the details of Mr. Caskey’s position,

particularly without speaking to Mr. Caskey himself. 4

       We are mindful of ITW’s and the Plan’s argument that the speaker notes

produced during discovery do not support Mr. Boysen’s claim. Indeed, ITW and the

Plan assert that the document “states the exact opposite—that GM incumbents would

be retained” and either “grandfathered” or be “realigned to a Business Unit

Manager.” Appellees’ Br. 34–35. ITW and the Plan may well be proven right after

additional investigation and review. But without such investigation, we cannot agree

that the document definitively supports any party’s position.


4
 Suppose that Mr. Caskey’s salary was merely half of Mr. Boysen’s previous salary. Couldn’t
one reasonably conclude that such a large reduction in pay constituted a position elimination when
coupled with the other circumstances?
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      The Plan and ITW also argue that Mr. Boysen bore the burden to produce

evidence in support of his arguments. But that argument is misplaced. This is not a

typical benefits case in which the claimant has the necessary medical or personal

records in his possession and simply fails to provide them.          Here the plan

administrator was in a much better position to identify and review internal

information about any restructuring at ITW.         It is antithetical to the plan

administrator’s fiduciary duty to refuse to seek documents that would be in the

exclusive control of the company and then blame Mr. Boysen for not producing

sufficient evidence.

      The refusal to make a reasonable inquiry into the purported restructuring,

standing alone, might be sufficient to warrant our remanding for further review and

analysis. But that refusal was compounded by the plan administrator’s apparent

rejection of Mr. Boysen’s performance-related evidence and arguments and

unwillingness to dig deeper into that topic. Having made clear that a finding of poor

performance rendered a thorough investigation into job elimination unnecessary, the

plan administrator was not free to then decline to consider evidence challenging his

performance findings. The plan administrator could do an end-run around claims

procedures by relying on alleged poor performance to prove non-elimination of Mr.

Boysen’s job and then use those findings to deny his information requests and

discourage the submission of evidence.


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      Nothing in ERISA, of course, requires plan administrators to independently

“scour the countryside in search of evidence to bolster a petitioner’s case.”

Harrison, 773 F.3d at 22. But, as the Fourth Circuit explained in Harrison, neither

does “ERISA . . . envision that the claims process will mirror an adversarial

proceeding where the claimant bears almost all of the responsibility for compiling

the record, and [where] the fiduciary bears little or no responsibility to seek

clarification when the evidence suggests the possibility of a legitimate claim.” Id.

at 21 (internal quotation marks omitted) (quoting Gaither, 394 F.3d at 807). “Rather,

the law anticipates, where necessary, some back and forth between administrator and

beneficiary.” Id. “A searching process does not permit a plan administrator to shut

his eyes to the most evident and accessible sources of information” that might

support the claim; indeed, “an ERISA fiduciary presented with a claim that a little

more evidence may prove valid should seek to get to the truth of the matter.” Id.

(internal quotation marks omitted) (quoting Gaither, 394 F.3d at 808).

      We do not hold that plan administrators are obliged to search for and consider

every document “submitted by identification.”             We rule only that plan

administrators, constrained as they are by certain fiduciary obligations, cannot refuse

to consider key relevant information, or to investigate further when faced with

potentially conflicting evidence, or deny access to information that is potentially

beneficial to a claimant.


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                                          IV

      For the foregoing reasons, we vacate the district court’s judgment and remand

for further review of Mr. Boysen’s benefits claim. Before addressing Mr. Boysen’s

ERISA claim on the merits, and before deciding whether a remand to the plan

administrator is warranted, the district court should ensure that the plan administrator

has provided Mr. Boysen with all the discovery previously ordered.

      VACATED AND REMANDED WITH INSTRUCTIONS.




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