                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0337n.06
                             Filed: April 29, 2005

                                            No. 04-3740

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


DINA DEL RIO,                          )
                                       )
      Plaintiff-Appellant,             )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE NORTHERN
                                       )                  DISTRICT OF OHIO
TOLEDO EDISON CO.,                     )
                                       )                          OPINION
      Defendant-Appellee.              )
_______________________________________)


Before: MOORE and ROGERS, Circuit Judges, and RESTANI,* Judge.

       KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Dina Del Rio (“Del Rio”)

brought suit against Defendant-Appellee Toledo Edison Co. (“Toledo Edison”) pursuant to the

Employee Retirement Income Security Act of 1974 (“ERISA”), on various claims arising out of the

denial of long-term disability (“LTD”) benefits. The district court held that Del Rio’s claims were

without merit and granted summary judgment in favor of Toledo Edison. Upon review, we conclude

that none of Del Rio’s arguments are persuasive, and therefore, the district court’s grant of judgment

in favor of Toledo Edison is AFFIRMED. Accordingly, Toledo Edison’s pending motion to strike

the joint appendix or dismiss the appeal because of omissions in the joint appendix is DISMISSED

as moot.



       *
         The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
                                       I. BACKGROUND

       Del Rio was employed by Toledo Edison,1 an electric generation company, from October 22,

1984 until September 9, 1992. During her employment at Toledo Edison, Del Rio performed a

number of administrative jobs. As part of her employment, Del Rio was a member of a union and

covered by a collective bargaining agreement (“CBA”). She was also a participant in the Centerior

Energy Corporation Retirement Plan (the “Plan”), which entitled her to receive certain benefits

provided by Toledo Edison. Though the Plan provided a disability pension, Del Rio was within a

category of employees who were not entitled to this benefit.

       Del Rio’s employment at Toledo Edison also entitled her to coverage under the company’s

LTD benefits plan (the “LTD Plan”). Under the LTD Plan, a full-time employee was eligible to

receive LTD benefits if the employee had “ten years of Company service at the time of the disability

which rendered the employee totally disabled.” Letter from Richard LaFleur to Del Rio 2 (Nov. 20,

2001). Because Del Rio’s employment at Toledo Edison lasted only eight years, she was not

eligible for benefits under this provision. The LTD Plan also stated that “[t]here is no Company

service requirement if total disability resulted from an on the job injury while performing Company

work duties.” Id. To be eligible to receive LTD benefits, an employee “must be certified totally

disabled, and receive and [sic] award of benefits, by the Social Security Administration.” Id.

       On May 5, 1994, more than a year and a half after her employment with Toledo Edison

ended, Del Rio was awarded disability benefits by the Social Security Administration (“SSA”). The

SSA found that she suffered from a number of impairments, including: “somatoform pain disorder,


       1
        In 1997, the parent company of Toledo Edison merged with Ohio Edison Company. The
new entity is now known as FirstEnergy Corp. (“FirstEnergy”). The merger of the companies does
not affect the outcome of this case.

                                                 2
dysthymia, personality disorder, rotator cuff tear of the right shoulder, tenosynovitis of the right

hand and wrist; and status post operative anterior cervical diskectomy and fusion at C5-6 and C6-7.”

SSA Decision 2 (May 25, 1994). The SSA determined, however, that the “totally disabling

component is her emotional problems which includes severe depression and a personality disorder

with histrionic and paranoid features.” Id. The SSA found that the disability began on May 7, 1992,

during which time she was still employed at Toledo Edison. Because there were no jobs available

that she could perform in light of this condition, the SSA awarded her disability benefits.

       Del Rio alleges that between 1994 and 2000 she periodically called the benefits department

at Toledo Edison inquiring about her rights under the LTD Plan. She claims that each time she

called, a Toledo Edison employee would inform her that she was not eligible for LTD benefits

because she was not employed for a full ten years. On August 14, 2001, Del Rio wrote a letter to

Toledo Edison, by then FirstEnergy, demanding LTD benefits. Richard LaFleur (“LaFleur”), the

director of employee benefits for FirstEnergy, responded to Del Rio via a letter on November 20,

2001. In the letter, LaFleur explained the terms of the LTD Plan and enclosed a description from

the employee handbook. Furthermore, he stated that because there was no evidence that she was

“totally and permanently disabled” at the time her employment ended, she was ineligible to receive

benefits. Letter from LaFleur to Del Rio 1 (Nov. 20, 2001). LaFleur invited Del Rio to appeal the

determination as well as submit documentation substantiating her claim.

       On January 21, 2002, Del Rio responded by faxing a letter to LaFleur accompanied with the

SSA determination finding her disabled since May 1992. She also included a determination from

the Industrial Commission of Ohio (the “IC”), which found that Del Rio had suffered several work-

related injuries affecting her arms and wrists. LaFleur forwarded Del Rio’s letter and supporting


                                                 3
documentation to the Appeals Committee, which reviews benefit claims from present and former

employees of FirstEnergy and its predecessor companies. On March 25, 2002, the Appeals

Committee denied her claim, finding that she neither worked at Toledo Edison for the requisite ten-

year period, nor could she demonstrate that her disability resulted from an on-the-job injury. The

Appeals Committee relied upon the SSA determination that her emotional problems were the

disabling component of her injuries. While the SSA found that the disability began in May 1992

during her employment with Toledo Edison, there was no evidence in the record that the disability

“resulted from an on the job injury while performing Company work duties.” Letter from LaFleur

to Del Rio 2 (Nov. 20, 2001).

       On May 23, 2002, Del Rio brought suit against Toledo Edison in the United States District

Court for the Northern District of Ohio on several grounds. Specifically, Del Rio alleged that

Toledo Edison violated ERISA by breaching its fiduciary duties, failing to disclose statutorily

required information, and failing to pay her pension benefits within sixty days of the end of her

employment. Del Rio also alleged that Toledo Edison breached the CBA by failing to provide her

with LTD benefits. Following discovery, the parties filed cross motions for summary judgment.

On April 19, 2004, the district court issued its order granting Toledo Edison summary judgment on

all claims. Del Rio appeals from this ruling.

                                         II. ANALYSIS

A. Standard of Review

       We review “the grant of summary judgment de novo, viewing all evidence in the light most

favorable to the nonmoving party.” Boone v. Spurgess, 385 F.3d 923, 927 (6th Cir. 2004). “Under

Rule 56(c), summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories,


                                                4
and admissions on file, together with the affidavits, if any, show that 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.’” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). The Court has noted that

“the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the

district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at

325.

B. Breach of Fiduciary Duty

       Del Rio’s first argument on appeal is that the district court erred by granting summary

judgment in favor of Toledo Edison on her claim of a breach of fiduciary duty. Upon review of the

record, we conclude that Del Rio has not presented sufficient evidence to support her claim, and

therefore the grant of summary judgment in favor of Toledo Edison is appropriate.

       Del Rio presents two theories in support of her breach-of-fiduciary-duty claim against

Toledo Edison. First, in her complaint, Del Rio alleged that Toledo Edison breached its fiduciary

duties “[b]y using the Plaintiff’s pension funds for its own personal use.” Compl. at 4. We agree

with the district court that Del Rio’s allegation is nothing more than a bare assertion, devoid of any

support in the record. Moreover, to the extent that Del Rio was seeking damages in her individual

capacity as a result of this alleged breach rather than on behalf of the plan itself, ERISA does not

afford her an avenue of redress. Tregoning v. Am. Cmty. Mut. Ins. Co., 12 F.3d 79, 83 (6th Cir.

1993) (citing Mass. Mut. Life. Ins. Co. v. Russell, 473 U.S. 134, 140-144 (1985)), cert. denied, 511

U.S. 1082 (1994).2


       2
        In her brief, Del Rio attempts to distinguish her case from Tregoning by arguing that its
holding pertained to ERISA § 409, 29 U.S.C. § 1109, while she is seeking redress for violations of
ERISA § 404, 29 U.S.C. § 1104. Appellant’s Br. at 17. This argument is wholly without merit.

                                                  5
       Del Rio’s second argument is that Toledo Edison breached its fiduciary duty by making

material misrepresentations to her regarding her LTD benefits.3 We have stated that “[a] fiduciary

breaches his duty by providing plan participants with materially misleading information, regardless

of whether the fiduciary’s statements or omissions were made negligently or intentionally.” James

v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 449 (6th Cir. 2002) (internal quotation omitted), cert.

denied, 538 U.S. 1033 (2003). “Misleading communications to plan participants regarding plan

administration (for example, eligibility under a plan, the extent of benefits under a plan) will support

a claim for a breach of fiduciary duty.” Drennan v. Gen. Motors Corp., 977 F.2d 246, 251 (6th Cir.

1992) (internal quotation omitted), cert. denied, 508 U.S. 940 (1993). We have explained that “a

misrepresentation is material if there is a substantial likelihood that it would mislead a reasonable

employee in making an adequately informed decision in pursuing disability benefits to which she

may be entitled.” Krohn v. Huron Mem’l Hosp., 173 F.3d 542, 547 (6th Cir. 1999). We have noted

our approval of other cases from sister circuits which have held that “once an ERISA beneficiary

has requested information from an ERISA fiduciary . . . the fiduciary has an obligation to convey

complete and accurate information material to the beneficiary’s circumstance, even if that requires




Though § 404 establishes the fiduciary duties under ERISA, § 409 is the only provision which
provides for liability for breach of those duties. See ERISA § 502(a)(2) (authorizing a civil action
“by a participant, beneficiary or fiduciary for appropriate relief under §409”). There is no cause of
action under § 404 itself.
       3
         This argument was not addressed by the district court and was only fully presented for the
first time in Del Rio’s brief to this court. While arguments not presented to the district court are
considered waived on appeal, United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 758 (6th
Cir. 1999), cert. denied, 530 U.S. 1274 (2000), Del Rio alludes to the argument in her memorandum
in support of summary judgment to the district court. See Pl.’s Mem. in Supp. of Summ. J. at 4.
Therefore, we will address the merits argument in this case.

                                                   6
conveying information about which the beneficiary did not specifically inquire.” Id. In such cases,

we have awarded equitable relief, including denied benefits.

       We have stated that to establish a claim for a breach of a fiduciary duty under ERISA based

on a material misrepresentation, “a plaintiff must show: (1) that the defendant was acting in a

fiduciary capacity when it made the challenged representations; (2) that these constituted material

misrepresentations; and (3) that the plaintiff relied on those misrepresentations to [his or her]

detriment.” James, 305 F.3d at 449. In this case, Del Rio asserts that during the years 1994-2000,

Toledo Edison misrepresented her eligibility for LTD benefits each time she called. Specifically,

she states that a person named Mr. Stevers told her that she did not qualify for LTD benefits because

she did not work at Toledo Edison for the requisite ten-year period. Assuming arguendo that Toledo

Edison was acting in a fiduciary capacity during that conversation, Del Rio has still not

demonstrated a breach of a fiduciary duty. Del Rio has not put forth any evidence to demonstrate

a material misrepresentation. Mr. Stevers informed Del Rio that she was not entitled to benefits,

which is accurate. See infra Part D. Furthermore, she did not rely on these conversations at all, but

rather sent a letter to Toledo Edison in 2001 requesting benefits nonetheless. Because she cannot

satisfy the elements of a material misrepresentation claim, Toledo Edison is entitled to summary

judgment on this ground as well.

C. Failure to Provide Documentation

       Del Rio’s second argument on appeal is that Toledo Edison violated ERISA-imposed

disclosure requirements. Because we conclude that ERISA does not provide a substantive remedy

for the violation Del Rio alleges and that Toledo Edison furnished information upon written request,

we affirm the grant of summary judgment in favor of Toledo Edison on this claim.


                                                 7
       ERISA requires a plan administrator to provide summary plan descriptions and annual

reports to all participants and beneficiaries of an ERISA plan. ERISA § 104(b), 29 U.S.C.

§ 1024(b). Del Rio alleges that Toledo Edison failed to provide her with any documents concerning

the LTD Plan throughout the years until she requested information in 2001. In her complaint, Del

Rio claimed that she suffered harm as a result of this failure to disclose information. Compl. at 5.

Toledo Edison disputes this claim and states that “each year’s summary annual report was mailed

by first class mail to [Del Rio’s] last known address.”4 Appellee’s Br. at 17. Though there is a

factual dispute on this matter, even assuming that Toledo Edison failed to provide the information,

we conclude that Del Rio does not have a remedy within the ERISA statutory scheme. We have

stated that “[n]othing in [ERISA’s civil enforcement provision] suggests that a plan beneficiary

should receive a benefit award based on a plan administrator’s failure to disclose required

information.” Lewandowski v. Occidental Chem. Corp., 986 F.2d 1006, 1009 (6th Cir. 1993).

Therefore, “even assuming that [Toledo Edison] violated its statutory disclosure duties, ERISA does

not afford the type of substantive remedy [Del Rio] seeks.” Id. at 1008.

       In her brief to this court, Del Rio argues that even if she is not entitled to damages on this

claim, she should be able to recover a statutory penalty for Toledo Edison’s failure to provide

information which she requested. This argument is equally unpersuasive. ERISA requires that an

“administrator shall, upon written request of any participant or beneficiary, furnish a copy of the

latest updated summary plan description, and the latest annual report . . . [and the agreement] under

which the plan is established or operated.” ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4). If the



       4
       Del Rio apparently moved from Ohio to South Carolina in 1995. She claims that though
she moved, she kept a post office box in Toledo, Ohio, where the information should have been sent.

                                                 8
administrator “fails or refuses to comply with a request for any information which such

administrator is required by this subchapter to furnish to a participant or beneficiary,” the

administrator “may in the court’s discretion be personally liable to such participant or beneficiary

in the amount of up to $100 a day from the date of such failure or refusal.” ERISA § 502(c)(1)(B),

29 U.S.C. § 1132(c)(1)(B). There is no evidence in the record that Toledo Edison failed to honor

a written request for information from Del Rio. In fact, the record reveals that Del Rio only made

one written request for information, to which Toledo Edison quickly responded. As result, we

conclude that Toledo Edison is entitled to summary judgment on this claim as well.

D. Denial of LTD Benefits

       Del Rio’s final argument on appeal is that the district court erred in finding that she was not

entitled to benefits under the LTD Plan. Upon review of the terms of the LTD Plan, we conclude

that Del Rio is not entitled to benefits, and therefore we affirm the grant of summary judgment in

favor of Toledo Edison on this claim.

       First, we agree with the district court that though Del Rio styled her arguments as a denial

of benefits under the CBA, her claim is essentially a request for denied benefits under the LTD Plan.

We have stated that “‘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 the eligibility for benefits or to construe the terms of the plan.’” Smith v. Ameritech,

129 F.3d 857, 863 (6th Cir. 1997) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989)). Where the benefit plan gives the administrator or fiduciary such discretionary authority,

we have stated that “a court reviewing [the actions of the administrator or fiduciary] should apply

the arbitrary and capricious standard of review.” Williams v. Int’l Paper Co., 227 F.3d 706, 711 (6th


                                                  9
Cir. 2000). In this case, Toledo Edison concedes that it is not vested with any discretionary

authority under the LTD Plan, and therefore de novo review is appropriate.

       Under the LTD Plan, a full-time employee is entitled to benefits if she has worked for the

company for ten years “at the time of the disability which rendered the employee totally disabled.”

Letter from LaFleur to Del Rio 2 (Nov. 20, 2001). It is undisputed that Del Rio worked for Toledo

Edison for only eight years, and therefore is not entitled to benefits under that provision. The LTD

Plan also states that “[t]here is no Company service requirement if total disability resulted from an

on the job injury while performing Company work duties.” Id. Determination of total disability is

made by the SSA, not the employer. The SSA determined that Del Rio was disabled as a result of

her emotional problems, not her physical injuries. Therefore, to qualify for benefits under the LTD

Plan, she must demonstrate that her emotional problems were a result of an on-the-job injury while

performing her work duties. Because Del Rio has not presented any evidence to that effect, we

conclude that she is not eligible for benefits under the LTD Plan.5 Therefore, the district court’s

grant of summary judgment on this claim is affirmed as well.




       5
         Del Rio also argues that Toledo Edison failed to abide by the terms of the LTD plan because
the appeals committee did not independently review the medical evidence in the case. Appellant’s
Br. at 25. We find this argument to be without merit. First, Del Rio did not offer any medical
evidence to the appeals committee to review. Second, assuming arguendo that Toledo Edison failed
to abide by the LTD Plan’s procedures, Del Rio would be entitled to only equitable relief, not the
compensatory and punitive damages which she is seeking. ERISA § 502(a)(3); see also Mertens
v. Hewitt Assocs., 508 U.S. 248, 255-59 & n.7 (1993) (holding that equitable relief under § 502(a)(3)
does not include compensatory and punitive damages). Because we conclude that Del Rio is
ineligible for benefits under the LTD Plan, ERISA does not provide her with any other relief for
Toledo Edison’s failure to abide by the terms of the LTD Plan.

                                                 10
                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment on

all claims in favor of Toledo Edison. Toledo Edison’s motion to strike the joint appendix or dismiss

the appeal because of omissions in the joint appendix is DISMISSED as moot.




                                                11
