                                Thomas H. YOCHUM, Plaintiff-Appellant,

                                                     v.
  BARNETT BANKS, INC. SEVERANCE PAY PLAN, Employee Benefits Committee of the Barnett
Banks, Inc. Severance Pay Plan, Defendants-Appellees.

                                              No. 99-13581.

                                     United States Court of Appeals,
                                             Eleventh Circuit.

                                               Dec. 1, 2000.

Appeal from the United States District Court for the Middle District of Florida. (No. 98-00758-CIV-J-21C),
Ralph W. Nimmons, Jr., Judge.
Before EDMONDSON and BIRCH, Circuit Judges, and BLACKBURN*, District Judge.
        PER CURIAM:

        On this appeal we decide whether, after NationsBank bought Barnett Bank, NationsBank's oral job
offer to an executive of Barnett Bank that gave the executive more responsibility, but only guaranteed his

salary for one year and eliminated his stock options, constitutes comparable employment under the meaning
of an ERISA severance pay plan. The district court held that the new offer was comparable, and that by
refusing the offer, the bank executive disqualified himself from receiving severance benefits. We REVERSE

and REMAND to the district court with instructions to enter summary judgment for the Plaintiff.
                                            I. BACKGROUND
        Plaintiff-Appellant, Thomas Yochum, had worked at Barnett Bank for 27 years when the bank was

sold to NationsBank.1 NationsBank offered Yochum the position of Regional President of Operations in
central Florida, which would have increased the number of counties he supervised. However, he was only

guaranteed his salary for one year, and was not offered stock options.2 Yochum rejected this position and

began working for SunTrust Bank after the Barnett Bank/NationsBank merger became effective on 9 January


   *
     Honorable Sharon Lovelace Blackburn, U.S. District Judge for the Northern District of Alabama,
sitting by designation.
   1
    We summarize only the facts relevant to our decision.
   2
    Yochum also argues that the offer was not sufficient under the Severance Pay Plan because it was
made orally, and not in writing as required by the Plan. We decline to decide this issue, as we find for the
Plaintiff on other grounds. However, we agree with Yochum that the offer should have been made in
writing in order to disqualify him from the Plan. We reject the district court's finding that the Summary of
the Plan—which does not require the offer to be in writing—governs, because only the full Plan was
before the Committee. R2-52-17.
1998.

           Yochum was covered under the Barnett Banks Inc. Severance Pay Plan ("Plan"), which is a welfare

benefit plan as defined in the Employee Retirement Income Security Act of 1974 ("ERISA"). See 29 U.S.C.

§ 1002. On 4 May 1998, Yochum requested that the Employee Benefits Committee ("Committee"3) pay him
the severance benefits due to him under the Plan. On 30 July 1998, he received a letter from the Committee
denying his request for severance benefits because, according to the Committee, he had rejected a written

offer of comparable employment, which is a disqualifying event under section 2.2 of the Plan.4 This letter
also informed Yochum that he had exhausted his administrative remedies, and would have to "seek other legal
remedies" if he planned to appeal.

           On 6 August 1998, Yochum filed a complaint against the Plan and its named administrator, the

Committee. Yochum then moved for summary judgment, and the Committee moved for cross-summary
judgment. After conducting limited discovery, Yochum filed an additional motion for summary judgment
based on new facts, which the district court struck on the grounds that it was duplicative. The district court

then granted the Committee's summary judgment motion.             The district court held that comparable
employment does not require identical employment, and commented that granting Yochum severance benefits
after he had already started work with a new company would constitute a windfall for Yochum. Yochum

appeals.
                                              II. DISCUSSION

A.         Standard of Review
           The district court's grant of summary judgment is subject to plenary review, and we apply the same

standard of review as the district court. See Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1449 (11th

Cir.1997). Summary judgment shall be granted where "there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the facts

and all reasonable inferences in the light most favorable to the non-moving party. See Wideman v. Wal-Mart

Stores, Inc., 141 F.3d 1453, 1454 (11th Cir.1998).


     3
    All responsibility for the duties of the Barnett Bank Employee Benefit Committee was legally
transferred to the NationsBank Benefits Appeals Committee. See R3-84-3. Therefore, the term
"Committee" will be used to refer to both committees.
     4
    The relevant portion of Section 2.2 of the Plan reads, "Disqualifying Events. An employee who
might otherwise qualify for the Severance Pay Plan will be disqualified by any one of the following
circumstances: ... (c) He declines a written offer of comparable employment." R1-1-B6.
         There are three standards of review appropriate in ERISA decisions. See Firestone Tire and Rubber

Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (comparing ERISA law to trust law and

adapting the standards of review from trust law to fit ERISA cases). Where an ERISA plan does not grant

the fiduciary or plan administrator discretion over distribution of benefits, the court will apply a de novo

standard of review. See Marecek v. BellSouth Telecommunicatons, Inc., 49 F.3d 702, 705 (11th Cir.1995).

When the plan does grant the fiduciary or plan administrator such discretion, the "arbitrary and capricious"

standard applies, which is analogous to an abuse of discretion standard. See Marecek, 49 F.3d at 705.

Finally, if the plan grants the fiduciary or administrator discretion, but the court finds a conflict of interest

between the fiduciary or administrator and the company, a heightened arbitrary and capricious standard

applies, and the court will consider this conflict in its analysis. See Brown v. Blue Cross and Blue Shield of

Alabama, Inc., 898 F.2d 1556, 1566 (11th Cir.1990) ("[W]e hold that when a plan beneficiary demonstrates

a substantial conflict of interest on the part of the fiduciary responsible for benefits determinations, the burden
shifts to the fiduciary to prove that its interpretation of plan provisions committed to its discretion was not

tainted by self-interest.") It is important to note that where the district court agrees with the ultimate decision

of the administrator, it will not decide whether a conflict exists. It is only when the court disagrees with the
decision that it looks for a conflict and, when one is found, reconsiders the decision in light of this conflict.

See Marecek, 49 F.3d at 705.

        The district judge applied the arbitrary and capricious standard, which was appropriate because the

Committee did have discretion over the distribution of benefits. See R1-37-A3.5 Because the district court

agreed with the Committee's decision to deny Yochum's request for benefits, it was unnecessary to determine
whether a conflict of interest existed between the Committee and NationsBank. We, however, disagree with
the Committee's decision, and must take into account any potential conflicts of interest while we decide

whether the decision was arbitrary and capricious.

         Where the funding for severance plans comes directly from the coffers of a company, rather than

through a trust, there is a conflict of interest. See Brown, 898 F.2d at 1562 (finding that the heightened

arbitrary and capricious standard must be applied when the ERISA plan was administered by an insurance


   5
    Yochum argues that the NationsBank Committee did not have authority over his request, because the
Plan called for the Barnett Banks Committee to make the decision. However, the record reflects a legal
transfer of fiduciary responsibility from the Barnett Banks Employee Benefits Committee to the
NationsBank Benefits Appeals Committee; thus, the district court applied the correct standard. See R3-
84-7.
company which paid benefits directly from its own assets). In this case, we find that there was a conflict of

interest in the benefits decision by the Committee, because severance benefits are paid directly from the
coffers of NationsBank, so a decision to award severance benefits would take money directly away from

NationsBank. At the same time, members of the Committee are NationsBank employees, and their decision

to deny benefits saves NationsBank a large sum of money. NationsBank had already paid money to Yochum

in fulfillment of other contracts, and Yochum was now working for NationsBank's strongest competitor in
the region. Based on these conflicts of interest, we will apply the heightened arbitrary and capricious

standard, as the district court would have done if necessary.

B.       "Comparable" Employment
         Under the plain language of the Plan, Yochum would not qualify for severance payments if he

"declined a written offer of comparable employment" from NationsBank as a result of the merger.6
NationsBank contends that, because Yochum would have more responsibility in his new position, and
because he was guaranteed the same salary and incentives for one year, the job they offered was comparable

to Yochum's job with Barnett Bank. The Committee contends that because stock options do not guarantee
income, as stocks rise and fall regularly, they are not a necessary part of a benefits package. Finally, they

argue that because "comparable" can be interpreted to mean "substantially equivalent," Yochum turned down
a comparable offer and is not eligible for benefits.
         Yochum disagrees, pointing out that his salary and incentives will decline one year after he accepts

employment with NationsBank, despite the fact that he has a two-year agreement with Barnett Bank upon
a change in control. Specifically, after one year, his incentive package will decrease to about 25% of what
he received from Barnett Bank. Additionally, it is undisputed that Yochum will not receive stock options from

NationsBank, which were an integral part of his benefits package at Barnett Bank. We find these arguments

persuasive.
         We look to the plain language of Yochum's Employment Agreement with Barnett Banks

("Agreement") and the Plan to make our determination. See 29 U.S.C. § 1104(a)(1)(D) ("[A] fiduciary shall

discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and ... in


     6
     Section 1.8 of the Barnett Banks Inc. Severance Pay Plan reads, "Comparable Employment means a
job with the Company or an Employer or an Affiliated Company that is consistent with the Employee's
previous position, experience, education, capabilities and responsibilities, with equivalent compensation
and benefits and similar working conditions, which is within the same distance from his or her residence
to the former work location or within 35 miles of this residence to the new work location." R1-1-B3.
accordance with the documents and instruments governing the plan insofar as such documents and

instruments are consistent with [ERISA]"); Hunt v. Hawthorne Associates, Inc., 119 F.3d 888, 892 (11th

Cir.1997) ("Because both the plan administrator and named fiduciary must discharge their duties in
accordance with the written instrument, we examine the provisions of the Plan in detail").

        The purpose behind the Agreement is to "attract and retain well-qualified executives and key
personnel and to assure itself of the continuity of its management.... The Company is concerned that in the

event of a possible or threatened change in control of the Company, uncertainties necessarily arise and the

Executive may have concerns about the continuation of his employment status and responsibilities and may
be approached by others offering competing employment opportunities, and the Company therefore desires

to provide the Executive assurance as to the continuation of his employment status and responsibilities in such

event." R2-49-A1. The guarantees in the Agreement are meant to entice the Executive to stay with the

Company, and the provisions should be read in that light. Section 5(c) of the Agreement guarantees that,
        During the Employment Period7, the Executive shall receive the following compensation and
        benefits: ... (c) He shall be eligible to participate on a reasonable basis, and to continue his existing
        participation, in annual incentive, stock option, restricted stock, long-term incentive plan, and any
        other incentive compensation plan which provides opportunities to receive compensation in addition
        to his annual base salary which are the greater of (i) the opportunities provided by the Company for
        executives with comparable duties or (ii) the opportunities under any such plans in which he was
        participating immediately prior to the Effective Date. Id. at A5.

Section 5(c) specifically guarantees that Yochum will receive stock options and incentives at least equal to
what he receives from Barnett Bank for a two-year period after a change in control.

         The Committee cites to a number of cases defining "comparable" to mean something different than
"equivalent compensation and benefits." However, those cases are not applicable here, because "comparable
employment" is defined in the language of the Plan itself to mean "equivalent compensation and benefits."

Where the parties have agreed to the meaning of a word in a contract, and that word is defined therein, we
will not look to case law interpreting other agreements to impose a different meaning.

        Because Yochum would not have received stock options had he accepted the job with Nations Bank,
and because his salary and benefits package would have decreased after one year, the new job did not provide

"equivalent compensation and benefits" as required. Therefore, by turning down this offer, he did not decline




   7
    Under § 3(b)(ii) of the Agreement, the "Employment Period" is "the period commencing on the
Effective Date for the Change in Control and ending upon the last day of the month in which occurs the
second anniversary of the Effective Date for the Change in Control." R2-49-A4.
an offer of "comparable employment."8

C.       Arbitrary and Capricious

         Because we do not agree with the Committee's decision, we now have to decide if it was arbitrary

and capricious, factoring in the conflict of interest. See Brown, 898 F.2d at 1570. If the decision were for

the benefit of the Plan's beneficiaries, we might be persuaded to uphold it despite our disagreement with the

result. See Brown, 898 F.2d at 1566-67 ("[A] wrong but apparently reasonable interpretation is arbitrary and

capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or

beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all
participants and beneficiaries."); 29 U.S.C. § 1104(a)(1)(A)(i) (the administrators of an ERISA plan are to

discharge their duties "for the exclusive purpose of providing benefits to participants and their beneficiaries").
However, there is no evidence that the denial of benefits to Yochum was made with the best interests of the
Plan's beneficiaries in mind.

          The decision itself was arbitrary and capricious. The Committee did not include Yochum's
Employment Agreement in its discussion of his claim, so they had no true basis upon which to decide that

the employment offer was comparable. They determined that the offer was comparable, despite the fact that
Yochum would no longer be receiving stock options, which was an integral part of his benefits package.
When they made this decision, they were operating under the incorrect information that Yochum's salary and

benefits were guaranteed for two years when, according to a later correction of several affidavits and the
amended minutes of the relevant Committee meeting, they were only guaranteed for one year. Finally, the

Committee denied Yochum the right to appeal their determination, a right which is guaranteed under the plain

language of the ERISA statute. See 29 U.S.C. § 1133(2) ("In accordance with regulations of the Secretary,

every employee benefit plan shall ... afford a reasonable opportunity to any participant whose claim for
benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying

the claim."). The Committee denied Yochum this opportunity, and then later asked the court to ignore several



     8
    The district court also determined that payment of severance benefits would constitute a windfall to
Mr. Yochum, as he was never unemployed. This, however, is contrary to Eleventh Circuit precedent. See
Bedinghaus v. Modern Graphic Arts, 15 F.3d 1027, 1032 (11th Cir.1994) (citation omitted) ("[F]ederal
courts have established no hard and fast rule that an individual must suffer a period of unemployment to
qualify for severance benefits under ERISA. Those courts that have deemed unemployment a
prerequisite to such benefits have predicated their decisions on the particular terms of the ERISA plan at
issue and its application to the specific facts before them."); but see Rigby v. Rhodes, Inc., No. 95-1368-
CIV-LENARD (S.D.Fla. July 10, 1996), aff'd, 121 F.3d 722 (11th Cir.1997).
of Yochum's arguments because they had not been raised before the Committee. The denial of Yochum's

claim based on false and incomplete information was arbitrary and capricious, in that the plain language of
the Plan and the Agreement were violated. Further, the denial of Yochum's right to appeal this decision to

the Committee and the attempt to use that against him later makes the violation even more egregious.

                                           III. CONCLUSION

        In order to disqualify Yochum from receiving severance benefits, NationsBank had to show that he
declined a written offer of comparable employment. Because stock options are an important part of executive

compensation, and because his benefits would have decreased after one year, the job offer made by
NationsBank was not comparable as defined by the Plan. The denial of Yochum's right to appeal was a further

violation of ERISA. The decision made by the Committee was arbitrary and capricious, and should not be

upheld. Therefore, we REVERSE the judgment of the district court and REMAND to the district court with
instructions to enter summary judgment for the Plaintiff.
