                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 06-3216
                                 ___________

John T. Anderson,                     *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
U.S. Bancorp, a Delaware corporation; *
U.S. Bancorp Middle Management        *
Change In Control Severance           *
Pay Program; U.S. Bancorp Severance *
Administration Committee              *
                                      *
            Appellees.                *
                                 ___________

                           Submitted: February 13, 2007
                              Filed: April 24, 2007
                               ___________

Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.
                            ___________

SHEPHERD, Circuit Judge.

      Appellant, John T. Anderson, appeals from the order of the district court1
granting summary judgment in favor of U.S. Bancorp, U.S. Bancorp Middle
Management Change in Control Severance Pay Program and the U.S. Bancorp
Severance Administration Committee ("the Committee"), with respect to Anderson's

      1
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
claim for severance benefits under the U.S. Bancorp Middle Management Change in
Control Severance Pay Program ("the Plan") pursuant to the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. §§ 1104, 1132(a)(1)(B). The district court
found that the Committee's determination that Anderson was discharged for cause
from his position of employment with U.S. Bancorp and thus was not eligible for
severance benefits was not an abuse of discretion. We affirm.

                                           I.

      The factual setting for the present action is succinctly summarized in this
Court's opinion in a related case, Johnson v. U.S. Bancorp Broad-Based Change in
Control Severance Pay Program, 424 F.3d 734, 736 (8th Cir. 2005):

             Around the time of [Anderson's] termination, U.S. Bancorp was
      involved in a merger with Firstar Corporation. U.S. Bancorp, in an effort
      to retain a number of valued employees in the face of the uncertainty
      caused by the pending merger, offered certain of them a severance plan
      (the "Plan") providing for severance pay in the event they were
      terminated as a result of the merger. The Plan provided that employees
      terminated for "Cause" would not receive severance pay under the Plan.
      Cause was defined in relevant part as follows:

      [G]ross and willful misconduct during the course of employment ...
      including, but not limited to, theft, assault, battery, malicious destruction
      of property, arson, sabotage, embezzlement, harassment, acts or
      omissions which violate the Employer's rules or policies (such as
      breaches of confidentiality), or other conduct which demonstrates a
      willful or reckless disregard of the interests of the Employer or its
      Affiliates ... Circumstances constituting Cause shall be determined in the
      sole discretion of [U.S. Bancorp].
      Employees who were terminated without cause within twenty-four
      months of the merger were eligible for severance payments of up to the
      equivalent of 104 weeks' salary.


                                           -2-
      Anderson was a long time employee of U.S. Bank, a subsidiary of U.S.
Bancorp, and was a participant in the Plan. Anderson was employed as a lead
financial analyst in the Consumer Banking and Payment Services division of U.S.
Bank. His supervisor was Mark Fields. A separate division of U.S. Bank, the
Business Line Reporting & Planning Division, was headed by Kathy Ashcraft.
Ashcraft's subordinates included Lynn Sato, Jason Albeck, and Burcin Iz.

       In 2002, following the U.S. Bancorp/Firstar merger, Anderson had
conversations with Iz and Albeck hinting that Anderson was privy to information as
to personnel changes and modification of responsibilities in both the division in which
Anderson worked and Ashcraft's division. These comments were reported to Ashcraft
who became concerned because Anderson's comments implied that he indeed
possessed knowledge of Ashcraft's confidential, planned personnel changes within her
division. Ashcraft suspected that such information had been improperly obtained
from her individual computer files, specifically an organization chart contained in a
folder in the Corporate Analysis and Planning ("CAP") drive of the U.S. Bank
document management system. The CAP drive of the U.S. Bank document
management system included personal folders for Ashcraft and other employees that
were labeled with the employee's name. Under the U.S. Bank system, such folders
were not password protected or otherwise secure and could be accessed by certain
other U.S. Bank employees, including Anderson.

      Ashcraft notified Jenny Morgan, an employee in the Human Resources
Division, who instituted an investigation. The Information Security Department
examined Ashcraft's computer files and was able to determine the last individual to
access each of Ashcraft's personal files. These included: John Anderson who last
accessed the 2002 Consolidated Salary Reconciliation File (the "salary file"), Nancy
Johnson who last accessed a 2002 Performance Goals File and other personal files,
and, Lynn Sato, who last accessed Ashcraft's Final Merit and Incentive File.



                                          -3-
       On April 19, 2002, Morgan called Anderson and left a voicemail message
advising that she "needed to talk to him about the files that had been inappropriately
accessed in the Ashcraft folder." Anderson returned the call later that day. According
to Morgan's handwritten notes of the conversation, when asked if the file had anything
to do with Anderson's normal business and transactions, Anderson responded "no."
When asked why he accessed the file, he responded "just tried to see if I could access -
did & then close (sic) right away." Anderson told Morgan that he did not talk to
anyone about the information contained in the salary file. Morgan's notes were
transcribed later producing a version of the conversation which included the
following:

      Q: Does the information that you accessed have anything to do with your
         normal course of business or anything that you would have needed to
         access in a project you were working on?

      A: No, there are other files that are used for what I do, but none of these.
         (The files in the Ashcraft folder).

      Q: Why did you access this file?

      A: Just tried to see if I could access it. I did and then closed it right
         away.

      Q: Did you copy/forward/print this information or talk to anyone about
         what you accessed?

      A: No, I didn't talk to anyone about it.

     Anderson later told Morgan that he would have answered differently if he had
known that he was going to be terminated for accessing the document.

      Ashcraft and Morgan concluded that Anderson had violated company policies
by accessing Ashcraft's file. U.S. Bancorp's Computer and Information Security


                                          -4-
Policy provides: "all of your computer access is on a need-to-know basis and is
limited to the information required to perform your job." U.S. Bancorp's
confidentiality policy provides: "The use of any information stemming from your
employment shall be restricted to that which is absolutely necessary for the legitimate
and proper business purposes of U.S. Bancorp." On April 3, 2002, Anderson was
tendered a notice of termination by Morgan, which stated as the basis of the
termination: "You have engaged in unethical conduct by violating U.S. Bancorp Code
of Conduct."

       On June 21, 2002, Anderson submitted, through counsel, a letter making a
claim for severance benefits alleging that he was wrongfully terminated based on an
inadequate investigation by Morgan. Anderson denied accessing any file containing
confidential and proprietary information or that his actions constituted "cause" as
defined in the Plan. He stated that "he had conversations with employees regarding
only well known integration issues." Anderson admitted that he had accessed the
salary file in the Ashcraft folder, but stated that the file was "indirectly related to one
of his job responsibilities."

      The Severance Administration Committee consisted of DeeAnn Neri, a senior
vice president in the Human Resources Department, Edward Caillier, a human
resources employee; and, Diane Thoromsgaard, a senior manager in the trust division.
Thoromsgaard was not present at the meeting during which Anderson's initial claim
was denied.

       The Committee considered Anderson's attorney's letter of June 21, 2002, as a
claim for benefits under the Plan, and denied Anderson's claim on August 26, 2002,
by letter. The Committee concluded that the termination was for cause within the
meaning of the Plan because: (1) Anderson's access to the salary file in the Ashcraft
folder was without authorization or a business purpose and Anderson had admitted the
same; (2) Anderson disclosed employee information obtained from the accessed file

                                            -5-
to others in violation of the U.S. Bancorp confidentiality policy; (3) Anderson was not
truthful in his statements to Morgan that he did not disclose accessed information to
others; and (4) Anderson's conduct violated policies requiring integrity and proper use
of company resources.

        Anderson appealed the Committee's decision by letter from his attorney to the
Committee dated October 11, 2002. In this appeal letter Anderson admitted accessing
the salary file but stated that he had a business purpose for doing so and denied that
the salary file contained individual salary figures. He stated that he made a mistake
in initially stating to Morgan that he did not need access to the salary file to perform
his job duties. Anderson also denied disclosing the acquired information to anyone
else.

       In this letter, Anderson requested that the Committee provide him with
documents including his entire personnel file, documents as to other similarly situated
employees who had been terminated or denied severance benefits during the preceding
five years, a copy of the salary file accessed by Anderson, and documents showing the
salary file to be classified. Anderson also requested permission to speak to specified
U.S. Bank employees.

       Anderson supplemented his appeal by way of an additional letter on February
4, 2003, after U.S. Bancorp provided Anderson the opportunity to interview
employees. In this letter, Anderson submitted to the Committee certain factual
stipulations which he had elicited from U.S. Bank. He further submitted argument
with respect to the Committee's findings that Anderson had improperly disclosed
information, that he had accessed an Ashcraft file containing individual salary data,
and that Anderson's accessing the salary file was sufficient cause for termination.

    The Committee denied Anderson's appeal by letter dated March 21, 2003. The
Committee conceded that there was insufficient evidence to conclude that Anderson

                                          -6-
accessed the organizational chart file or that he had shared confidential information,
as the Committee had previously concluded. However, the Committee upheld its
finding that Anderson was terminated for cause based upon his unauthorized access
of the salary file. The Committee noted in support of its conclusion: Anderson's
statements to Morgan that he had no business reason for accessing the file and that he
did so simply to see if he could access the file; his statement that he would have
answered differently if he had known that termination would follow; and his inability
to "describe with specificity the business purpose he claims he had to access the
document."

      U.S. Bank employee Nancy Johnson was also terminated for accessing the
Ashcraft files without permission and without a business purpose. She brought an
ERISA action against the Committee and prevailed before the district court. On
appeal, this Court found that the Committee reasonably interpreted "cause" to include
knowing and willful violations of U.S. Bancorp's computer security policy and that
the Committee reasonably exercised its discretion in applying uncertain terms of the
Plan. Johnson, 424 F.3d at 739. The Court also held that substantial evidence
supported the Committee's determination that Johnson's actions in accessing
Ashcraft's files constituted a knowing and willful violation of the computer security
policy. Id.

                                         II.

       Anderson brought an action in the district court pursuant to 29 U.S.C. §§
1132(a)(1)(B), alleging that the Committee's action constituted an abuse of discretion
and a breach of its fiduciary duty. The district court found that the Committee had
discretionary authority under the terms of the Plan and that, accordingly, an abuse of
discretion standard applies. Applying this standard, the district court concluded that
the Committee did not abuse its discretion in finding that Anderson accessed the
computer file in question without permission and without a business purpose. In this

                                         -7-
regard, the Court noted that Anderson did not assert that he had a business purpose for
accessing the file until his appearance before the Committee, despite earlier
questioning by Morgan.

       In light of Johnson the district court found that "the Committee's interpretation
of the term 'cause' in the Plan as including Anderson's access of Ashcraft's file, was
reasonable." The district court noted that the Plan includes as gross or willful
misconduct "acts or omissions which violate the Employer's rules or policies (such as
breaches of confidentiality)." Accordingly, the district court found that "because
Anderson had violated the Computer and Information Security policy, his termination
was for cause, was reasonable and therefore not an abuse of discretion." The district
court granted summary judgment for the Committee.

                                          III.

       This court reviews a district court's grant of summary judgment de novo,
viewing the record in the light most favorable to the nonmoving party. Smith v.
United TV, Inc., 474 F.3d 1033, 1035 (8th Cir. 2007). "We also review de novo the
district court's determination of the appropriate standard of review under ERISA."
Phillips-Foster v. UNUM Life Ins. Co. of Am., 302 F.3d 785, 794 (8th Cir. 2002).

      As pertinent to this appeal, Anderson asserted in the district court a claim for
breach of fiduciary duty pursuant to 29 U.S.C. § 1104 and a claim under 29 U.S.C. §
1132(a)(1)(B) seeking judicial review of the denial of benefits under the ERISA plan.
The district court correctly dismissed the breach of fiduciary duty claim as "29 U.S.C.
§ 1104 cannot independently support a claim of fiduciary duty. Section 1132(a)
provides the exclusive causes of action for claims by ERISA plan participants and
beneficiaries seeking to enforce rights under an ERISA plan." Sahulka v. Lucent
Techs., Inc., 206 F.3d 763, 768 n.9 (8th Cir. 2000) (internal citation omitted).



                                          -8-
       An administrator's decision is reviewed for an abuse of discretion where the
plan in question gives the administrator "discretionary authority to determine
eligibility for benefits." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989); Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833, 837 (8th Cir. 2006) ("Where
the plan reserves discretionary authority to the plan administrator, we apply a
deferential standard of review, considering whether the administrator abused its
discretion."). The parties agree that under the Plan, U.S. Bancorp has discretionary
authority to determine eligibility.

      U.S. Bancorp's Plan gives the Committee full discretion to "interpret and
      administer the terms and conditions of the Plan, decide all questions
      concerning the eligibility of any persons to participate in the Plan, [and]
      grant or deny benefits under the Plan," (Appellant's App. at 35), so the
      district court was required to review the Committee's interpretation of the
      Plan for abuse of discretion. See Firestone, 489 U.S. at 115; King v.
      Hartford Life & Accident Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005) (en
      banc).

Johnson, 424 F.3d at 738.

      Nevertheless, Anderson contends that a less deferential standard should have
been applied by the district court in this case.

      A plan administrator's decision will be afforded less deference if a
      claimant presents "material probative evidence demonstrating that (1) a
      palpable conflict of interest or a serious procedural irregularity existed,
      which (2) caused a serious breach of the plan administrator's fiduciary
      duty to [the claimant]." Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th
      Cir. 1998). A plaintiff must also "show that the conflict or procedural
      irregularity has 'some connection to the substantive decision reached.'"
      Id. at 1161 (quoting Buttram v. Cent. States, S.E. & S.W. Area Health &
      Welfare Fund, 76 F.3d 896, 901 (8th Cir. 1996)).



                                          -9-
      The need to show a serious breach of fiduciary duty "presents a
      considerable hurdle for plaintiffs." Barnhart v. UNUM Life Ins. Co. of
      Am., 179 F.3d 583, 588 n.9 (8th Cir. 1999) (citations and quotations
      omitted). In order to prevail the claimant must offer evidence which
      causes "serious doubts as to whether the result reached was the product
      of an arbitrary decision or the plan administrator's whim." Id., at 589
      (quoting Layes v. Mead Corp., 132 F3d 1246, 1250 (8th Cir. 1998)).

Phillips-Foster, 302 F.3d at 795. When these two tests are satisfied the court will
apply a "sliding scale" approach, under which, "'the evidence supporting the plan
administrator's decision must increase in proportion to the seriousness of the conflict
or procedural irregularity.'" Id. (quoting Woo, 144 F.3d at 1162).

        In this case, Anderson argues that both a "palpable conflict of interest" was
present as well as procedural irregularities. Anderson asserts that the conflict of
interest was two-fold. First, a conflict of interest was presented by virtue of the fact
that U.S. Bancorp would pay any severance benefits awarded, thus the fund is self
funded, and, second, the Committee included employees of the Human Resources
department of U.S. Bank, the department which had, at the least, approved Anderson's
firing.

       We have recognized that "when an entity funds a plan and is also the plan
administrator there is a rebuttable presumption of a palpable conflict of interest,"
Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1197 (8th Cir. 2002), and, in this
case, the Committee has not articulated any "ameliorating circumstances" to rebut this
presumption. See Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944, 948 (8th Cir.
2000).

     Anderson speculates that since Committee members worked in the U.S. Bank
Human Resources department they would be reluctant to find that no cause existed for
Anderson's termination, an action which was presumably approved by that

                                         -10-
department, thus creating a conflict of interest. However, we know of no authority
which would support Anderson's contention that a "palpable" conflict of interest was
created by this situation and Anderson provides no proof that the relationship had a
tangible or perceptible impact upon the impartiality of the members of the Committee.
We believe that the mere fact of the cited employment relationship is not sufficient to
support a finding of a conflict of interest. See Brandis v. Kaiser Aluminum & Chem.
Corp., 47 F.3d 947, 950 (8th Cir. 1995) (employee can serve a dual role as employee
and plan fiduciary) (citing 29 U.S.C. § 1108(c)(3)); see also Barnhart v. UNUM Life
Ins. Co., 179 F.3d 583, 588 (8th Cir. 1999) ("ERISA itself contemplated the use of
fiduciaries who might not be entirely neutral"). Further, the Committee members dual
status does not present the type of personal conflict of interest which has been found
to warrant consideration of less deferential review. See, e.g., Armstrong v. Aetna Life
Ins. Co., 128 F.3d 1263, 1265 (8th Cir. 1997) (claim reviewers paid incentives and
bonuses based upon criteria that included "claim savings").

      As to procedural irregularities, Anderson asserts that the Committee failed to
engage in a meaningful dialogue with Anderson, seek additional information from
Anderson, and specify for Anderson what information would be adequate to secure
benefits.

       We find that the district court's determination that no serious procedural
irregularity existed is supported by the record. Similarly, and in line with this finding,
we conclude that any conflict of interest created by U.S. Bancorp funding the
severance plan administered by a committee composed of its employees did not cause
a "serious breach of the plan administrator's fiduciary duty." See Woo, 144 F.3d at
1160; see also Barnhart, 179 F.3d at 589 (to show serious breach of administrator's
fiduciary duty caused by a conflict of interest, conflict of interest must be shown to
have a connection with the substantive decision reached).




                                          -11-
       Every employee benefit plan shall provide understandable written notice to a
participant whose claim has been denied setting forth the specific reasons for the
denial and afford reasonable opportunity for a full and fair review by the fiduciary of
the decision denying the claim. See 29 U.S.C. § 1133. After consideration of
Anderson's claim for severance benefits, the Committee indeed provided written
notice setting forth the basis for the denial of the claim. Further, the notice advised
Anderson as to the procedure to be followed in order to appeal the decision. Anderson
availed himself of the appeal opportunity. He was represented by counsel throughout
and was repeatedly permitted to present evidence to the Committee in support of his
claim. Anderson was furnished with all documents requested as well as information
as to terminations and denials of severance benefits by U.S. Bank over the five year
period specified by Anderson. Anderson, through his attorney, was afforded the
opportunity to interview U.S. Bank employees, per his request. Further, there is no
indication in the record that any affidavit, written statement, document, or other item
proffered by Anderson to the Committee was refused and the Committee's appeal
decision indicates that it considered all submissions.

       Anderson points to the failure of the Committee to specify, for Anderson's
benefit, what information could be submitted which would cause the Committee to
sustain his appeal. However, Anderson was clearly aware of the fact at issue: whether
he had a legitimate business reason to warrant his accessing Ashcraft's salary
reconciliation file. Anderson attempted to convince the Committee that his admitted
action was required in order for him to "perform his job." Notably, Anderson was
never prevented from presenting to the Committee the statement of his supervisor or
his own statement specifying the particular project in which he was engaged, which
necessitated his accessing the 2002 salary reconciliation file. However, Anderson did
not do so. Significantly, the Committee, after considering submissions provided
through Anderson's counsel, reversed itself as to three of the four original grounds
upon which Anderson's claim was denied.



                                         -12-
       Mere disagreement with the Committee's decision is not enough. See Tillery,
280 F.3d at 1197 ("It is not enough simply to show the plan administrator did not act
in the sole interest of the claimant. The plan administrator's fiduciary duties extend
to everyone covered by the plan, and an administrator who fails properly to investigate
a claim breaches its fiduciary duty to all beneficiaries by granting benefits to
unqualified claimants.").

       We conclude that Anderson has failed to show that a breach of the Committee's
fiduciary duty occurred. See Woo, 144 F.3d at 1160. The circumstances of this case
are dissimilar to those circumstances where we have found either a serious procedural
irregularity or a serious breach of the plan administrator's fiduciary duty. Janssen v.
Minneapolis Auto Dealers Benefit Fund, 447 F.3d 1109, 1113 (8th Cir. 2006) (no
meaningful review by plan trustees where decision was reached without adequate
information and Plan failed to explain to claimant the plan provisions upon which its
decision was based); Harden v. Am. Express Fin. Corp., 384 F.3d 498, 499-500 (8th
Cir. 2004) (plan administrator misled claimant as to records which were part of the
administrative record being considered); see Tillery, 280 F.3d at 1196 (plan
administrator's failure to provide timely notice of the denial of benefits recognized as
a serious procedural irregularity); Morgan v. Contractors, Laborers, Teamsters &
Eng'rs Pension Plan, 287 F.3d 716, 722-23 (8th Cir. 2002) (trustees of pension plan
violated plan provisions by withholding relevant information from claimant prior to
appeal hearing; trustees denied claim based upon their own "preconceptions and
personal observations").

       Under the circumstances of this case, we find that there exists no "serious
doubts as to whether the result reached was the product of an arbitrary decision or the
plan administrator's whim," which would warrant a less deferential standard of review.
Barnhart, 179 F.3d at 589 (quoting Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th
Cir. 1998)). Accordingly, we find that the district court did not err in reviewing the
Committee's decision under an abuse of discretion standard.

                                         -13-
                                          IV.

       Anderson contends that the Committee abused its discretion by withholding
severance benefits from him. Under the abuse of discretion standard "we consider
whether the administrator abused its discretion – that is, whether its interpretation of
the plan was reasonable, and whether its decision was supported by substantial
evidence." Pralutsky, 435 F.3d at 838. Substantial evidence is "more than a scintilla
but less than a preponderance." Schatz, 220 F.3d at 949. "If the decision is supported
by a reasonable explanation, it should not be disturbed, even though a different
reasonable interpretation could have been made." Cash v. Wal-Mart Group Health
Plan, 107 F.3d 637, 641 (8th Cir. 1997). "We do not, however, substitute our own
weighing of the evidence for that of the administrator." Farley v. Arkansas Blue Cross
Blue Shield, 147 F.3d 774, 777 (8th Cir. 1998). In this review, we consider only the
evidence that was before the Committee when the claim was denied. Id.

      "The Plan provided that employees terminated for 'Cause' would not receive
severance pay under the Plan." Johnson, 424 F.3d at 736. This court has already
determined that the Committee could reasonably interpret "Cause" to include:

        "violations of U.S. Bancorp's policies forbidding an employee to 'access
       data that you are not authorized to access,' and requiring an employee to
       '[e]nsure that all of your computer access is on a need-to-know basis and
       is limited to the information required to perform your job,' at least where
       such violations are knowing and willful."

Id., at 739.

      Accordingly, the issue before the Committee was whether Anderson had
knowingly and willfully violated U.S. Bancorp policy by accessing the salary file
without permission or an adequate job related reason. The Committee's decision that



                                          -14-
Anderson knowingly and willfully violated these policies is supported by substantial
evidence.

       When first asked about his accessing of the file, Anderson made statements to
Morgan that could be reasonably construed as admitting that he had accessed the file
without authorization and without a job related purpose. Morgan's notes reflect that
Anderson told her that he opened the file simply to see if he could do so. He later told
Morgan that he would have answered differently if he had known that it was going to
"lead to this."

        Although Anderson submitted to the Committee that he was mistaken when he
initially denied having a business reason for accessing the file, he never identified for
the Committee's benefit the project in which he was engaged that would have required
access to the file. As in Johnson it was reasonable for the Committee to take into
account Anderson's admissions and his failure to assert a lack of knowledge as a
defense in concluding that he acted knowingly and willfully, as opposed to
unintentionally, in accessing the file. See id. at 739-40.

        In summary, the Committee considered the results of the investigation ordered
by Ashcraft, but also afforded Anderson ample opportunity to present additional
information. The Committee complied with Anderson's requests for documents,
information, and access to employees. Through the claim and appeal process,
Anderson conceded that he had deliberately accessed the 2002 salary reconciliation
file, although he had asserted that he had a legitimate need to do so. The Committee
conducted a full and fair review, and its finding that Anderson was terminated for
cause is supported by substantial evidence.

                                           V.

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________

                                          -15-
