                                                                      PUBLISH

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                  FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                                09/20/99
                                                            THOMAS K. KAHN
                                 No. 97-6984                     CLERK

                       D.C. Docket No. CV-97-A-171-S


ROGER WHATLEY, SR.,

                                                             Plaintiff-Appellant,

                                    versus

CNA INSURANCE COMPANIES,
BAKER BROTHERS, INCORPORATED., et al.,

                                                          Defendants-Appellees.



                  Appeal from the United States District Court
                      for the Middle District of Alabama

                             (September 20, 1999)


Before TJOFLAT, Circuit Judge, GODBOLD and HILL, Senior Circuit Judges.

PER CURIAM:

      Roger Whatley brought this action under the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”), to recover disability
benefits from Continental Casualty Company (“CNA”),1 Baker Brothers, Inc., and

Baker Brothers, Inc. Long Term Disability Plan (“the Plan”). The district court

granted CNA’s and the Plan’s motion for summary judgment on the ground that

Whatley’s employment with Baker Brothers, Inc. was terminated before Whatley met

the requirements for benefits under his disability plan.2 We conclude that there are

disputed issues of material fact and that judgment as a matter of law was not

appropriate. We thus vacate the entry of summary judgment and remand for further

proceedings.



                                                I.

       Roger Whatley went to work for Baker Brothers, a wholesale heating and air

conditioning distributor, in 1973. From that time until his termination, on October 2,

1995, he was employed in various capacities. By 1995, he was working as an outside

salesperson in Baker Brothers’ store in Dothan, Alabama. In late 1995, Baker

Brothers decided to close its Dothan store; Whatley was informed he would lose his

job when the store closed on December 31. On Monday, October 2, 1995, Baker



       1
          Continental Casualty Company was designated as “CNA Insurance Companies” in the
original complaint.
       2
       By stipulation of the parties, Baker Brothers was dismissed from the case prior to the entry
of summary judgment. Both CNA and the Plan remain as defendants.

                                                2
Brothers terminated Whatley because of a sharp decline in his performance and an

inability to get along with co-workers. His termination was effective that day; he

gathered his personal belongings and went home.

       Prior to his termination, Whatley had been suffering from a number of serious

ailments for which he had received medical care. These included kidney disease,

chronic kidney stones, hypertension, pulmonary disease, and sleep apnea. He had

three major operations in his last year of work: one to remove sebaceous cysts, one to

repair a hernia, and another to perform a kidney biopsy. In the last two months of his

employment with Baker Brothers, Whatley passed four kidney stones; each time

missing several days of work. On September 28, five days before he was fired, and

on October 3, the day after his termination, appellant met with his physician

concerning his sleep apnea.

       In April 1996, Whatley filed a claim for disability benefits with CNA as a

participant in the Plan, which was sponsored by Baker Brothers. CNA denied

coverage; its stated reason was that Whatley had become disabled on October 3, but

had been terminated on September 29.3 The plan required a participant to be “totally


       3
          This discrepancy between CNA’s finding of Whatley’s termination date and his last day
of work may well have been Whatley’s own fault. Whatley stated in his original claim for benefits
to CNA that his last day of work was Friday, September 29. Baker Brothers’ records also reflected
that date. Apparently, he had worked a full day (plus overtime) on Friday, but had been fired upon
arrival at work on Monday October 2. The exact date of his termination appears to be in dispute.

                                                3
disabled”4 while still employed with Baker Brothers; in other words, since he was

fired while still able to work, any “total disability” arising after the termination would

not be covered.5

       In January 1997, Whatley filed this action in the Circuit Court of Houston

County, Alabama, alleging a single count of wrongful denial of ERISA benefits under

29 U.S.C. § 1132(a)(1)(B). The case was removed to United States District Court for

the Middle District of Alabama,6 and in October 1997, following discovery, the court

granted CNA’s and the Plan’s motion for summary judgment. The court held that, as

a matter of law, Whatley did not qualify for benefits under the disability plan because

he had been able to work up to his termination and therefore could not have been

“totally disabled” until after that date. After judgment was entered, Whatley took this

appeal.



                                                II.

       4
        In order to qualify as “totally disabled” under the policy, a participant must show:
       (1) [he is] continuously unable to perform the substantial and material duties of his
       regular occupation;
       (2) [he is] under the regular care of a licensed physician other than himself; and
       (3) [he is] not gainfully employed in any occupation for which he is or becomes
       qualified by education, training or experience.
       5
           Whatley exhausted his administrative remedies with CNA prior to bringing this suit.
       6
        Jurisdiction in the district court was thus proper under 28 U.S.C. § 1331 and 29 U.S.C. §
1132(e)(1), because the suit is an action to recover ERISA benefits under federal law.

                                                 4
      This Court reviews the granting of summary judgment de novo, applying the

same legal standards which bound the district court. Haves v. City of Miami, 52 F.3d

918, 921 (11th Cir. 1995). Summary judgment is appropriate only when "there is no

genuine issue as to any material fact and . . . the moving party is entitled to a judgment

as a matter of law." Fed.R.Civ.P. 56(c). In making this determination, we view all

evidence and make all reasonable inferences in favor of the party opposing summary

judgment. Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,

1578 (11th Cir.1994).

      In a case alleging a denial of benefits under an ERISA-covered plan, we have

created three standards of review of administrator decisions: “(1) de novo where the

plan does not grant the administrator discretion; (2) arbitrary and capricious when the

plan grants the administrator discretion; and (3) heightened arbitrary and capricious

where there is a conflict of interest.” Buckley v. Metropolitan Life, 115 F.3d 936, 939

(11th Cir. 1997). The parties agree that the CNA plan at issue does not grant its

administrator discretion; the district court therefore made a de novo review of the

denial of benefits under Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109

S. Ct. 948, 956-57, 103 L. Ed. 2d 80 (1989), and we do the same on appeal.

      For appellant to obtain benefits under the Plan, he must have satisfied the

definition of disabled while still employed with Baker Brothers. The relevant contract


                                            5
language states that to be disabled he must be “continuously unable to perform the

substantial and material duties of his regular occupation.” The district court held that

appellant did not meet this requirement as a matter of law for two reasons. First, the

court found that appellant “persevered and continued working up until the day he was

terminated . . . [and] offered no evidence that . . . his condition disabled him from

performing required tasks.” Part of this finding was based on appellant’s working

overtime on his last day of work. The district court acknowledged that appellant had

to take frequent rests and had difficulty performing day-to-day, but stated that “[t]he

essence of the requirement is performance, not quality of performance.”

        The district court’s second ground for the grant of summary judgment was

based on contract language requiring that a claimant not be “gainfully employed in

any occupation for which he is or becomes qualified by education, training or

experience.” The district court stated that appellant did not meet this requirement

either: “not only did [appellant] collect a paycheck, but . . . he performed his regular

duties and even worked overtime on his last full day.”7



        7
         The district court stated that, in regard to this clause, “[p]laintiff’s assertion that he was not
gainfully employed in his occupation while he was an active employee is unsupported.” The court
appears to have given the two clauses at issue contradictory meanings. A claimant under the plan
must become disabled while still employed, but the meaning given to this second clause apparently
requires that claimant not be employed when the disability arises. More likely, the clause simply
prevents a situation in which a claimant is not actively working for the plan’s sponsor but is
employed elsewhere (say in a position not precluded by his disability) and earning a paycheck.

                                                    6
      Both of the district court’s conclusions are based on the idea that appellant

could not have been disabled before his termination because he came to work and

collected a paycheck. Viewing all facts and drawing all inferences in favor of

appellant, we disagree. Appellant has produced sufficient evidence from which a jury

could find he was “continuously unable to perform the substantial and material duties”

of his job before October 2.

      Appellant’s attending physician’s report stated that he was disabled on October

2. The physician testified in deposition that appellant’s condition, as of September

1995, would have made it difficult for him to perform day-to-day. Appellant offered

an affidavit from a vocational expert who was of the opinion that, on the day of his

termination, appellant’s “combination of physical disabilities which contribute to his

lower work tolerance, level of pain, fatigue, and medications” would make him

“unable to meet competitive work demands and . . . vocationally disabled.” There is

no dispute that his kidney disease and chronic kidney stones, as well as other ailments,

existed before October 2. Moreover, appellant was under the care of a physician for

sleep apnea immediately before and immediately after his termination. Finally,

appellant applied for and was granted Social Security benefits, retroactive to October




                                           7
2.8

       In its initial denial letter to appellant, CNA stated that, “[t]he medical

documentation in our file indicates that you did not become disabled for your

condition until 10/3/95.” CNA acknowledged the Social Security Administration’s

approval of benefits in the same letter. CNA’s own medical evaluations, viewed most

favorably to appellant, similarly indicate an admission that, as of October 3, appellant

met the criteria for disabled under the plan. CNA’s nurse, who first evaluated

appellant’s claim for benefits, found documented evidence that there were changes in

appellant’s condition starting October 3 which would cause him to be totally disabled.

But there is no logical basis (other than it being one day after appellant was fired) that

October 3, rather than September 28 or earlier, would be the beginning of his

disability. CNA has pointed to no evidence which establishes, as a matter of law, that

appellant’s total disability arose precisely one day after his termination and not earlier.

A jury could reasonably conclude that, if appellant was disabled on October 3, he was

disabled on September 28.

       We similarly disagree with the district court’s conclusion that appellant could

       8
         We note that the approval of disability benefits by the Social Security Administration is not
considered dispositive on the issue of whether a claimant satisfies the requirement for disability
under an ERISA-covered plan. Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1452 n.5 (11th
Cir. 1997). However, we have held that “[a] district court may consider the Social Security
Administration’s determination of disability in reviewing a plan administrator’s determination of
benefits.” Kirwan v. Marriott Corp., 10 F.3d 784, 790 n.32 (11th Cir. 1994).

                                                  8
not have been totally disabled if he was able to come to work, perform some of the

tasks assigned, and obtain a paycheck. We find our decision in Kirwan v. Marriott

Corp., 10 F.3d 784 (11th Cir. 1994), particularly instructive. The disability plan in

Kirwan, like the one at issue here, required a claimant to be “totally disabled” before

being terminated.9 Id. at 786. The plaintiff was fired because of a failure to work on

several days and because of a violation of management policy. The evidence showed

that, years before his termination, he had been diagnosed with Huntington’s chorea,

and as a result suffered from abnormal and involuntary limb movements for which he

took numerous medications with various side effects. Id. at 785. His ERISA plan

determined that, since he was able to work up until his termination and there was no

determination of total disability by a physician before that point, he was not eligible

for benefits. Id. at 786-87. The district court granted summary judgment for

defendant, and we reversed.

       We noted that there were (1) medical records indicating the existence of a

serious medical condition (and associated problems with medication) before



       9
          Appellees argue that Kirwan is distinguishable because the plan in that case defined total
disability as “a Disability the result of which is that a Participating Employee is unable to perform
any job for wage or profit for which the Participating Employee is or may become qualified by
training, education, or experience.” 10 F.3d at 786. First, we do not agree that there is any
meaningful difference between the two, at least as to the question before us. Moreover, on review
of a summary judgment we are required to draw all inferences in favor of appellant; a reasonable
jury could determine that they are functionally identical for the interpretation required in this case.

                                                  9
termination, (2) an affidavit by a physician stating that Kirwan “may have” been

totally disabled on the date of his termination, and (3) a determination by the Social

Security Administration that Kirwan was disabled on that date. Id. at 790. The

district court in this case had at least as persuasive facts before it; thus we must again

conclude that “this evidence presents a genuine issue of material fact as to whether

[Whatley] was totally disabled on the date of his termination.” Id. at 790. We think

a reasonable jury could conclude that appellant might meet the prerequisites for

coverage under the policy and still show up for work, especially in light of his rapidly

declining health around the time of his termination.



                                           III.

      For the foregoing reasons, we VACATE the district court’s entry of summary

judgment in favor of Continental Casualty Company and Baker Brothers, Inc. Long

Term Disability Plan, and REMAND the case for further proceedings consistent with

this opinion.

      SO ORDERED.




                                           10
