                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-1997

DeWitt v. Penn Del Directory
Precedential or Non-Precedential:

Docket 96-7163




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Recommended Citation
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                     UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                              No. 96-7163
                              ___________

          CAROL DEWITT,
                            Appellant

                v.

PENN-DEL DIRECTORY CORPORATION, a foreign corporation; NATIONAL
          TELEPHONE DIRECTORY CORPORATION PROFIT SHARING PLAN;
          NATIONAL TELEPHONE DIRECTOR CORPORATION PLAN
          ADMINISTRATOR OF PROFIT SHARING PLAN
                           ___________

          Appeal from the United States District Court
                  for the District of Delaware
                   (D.C. Civ. No. 93-cv-00581)
                           ___________

                              Argued
                         December 12, 1996
      Before:   BECKER, MANSMANN and LEWIS, Circuit Judges.
                            ___________

                       (Filed February 14, 1997)
                              ___________

John M. Stull, Esquire (ARGUED)
Suite 710
1220 North Market Street
P.O. Box 1947
Wilmington, DE 19899

    COUNSEL FOR APPELLANT

Francis M. Milone, Esquire (ARGUED)
Lynn A. Collins, Esquire
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, PA 19103

    COUNSEL FOR APPELLEES
                              ___________

                          OPINION OF THE COURT
                               __________




                                   1
MANSMANN,   Circuit Judge.

            Carol Dewitt appeals from the entry of summary judgment

against her in her action to recover benefits and for unlawful

termination intended to preclude attainment of her rights under

her profit sharing plan pursuant to sections 502(a)(1)(B) and 510

of the Employee Retirement Income Security Act (ERISA), 29 U.S.C.

§§ 1132(a)(1)(B).    Dewitt sought benefits allegedly due her as a

participant of the National Telephone Directory Profit Sharing

Plan for the 1990 plan year.

            We are asked to decide whether the Plan Administrator

acted arbitrarily and capriciously in denying additional accrued

benefits to Dewitt's account balance for the 1990 Plan year by

distributing Dewitt's benefits on an expedited basis, contrary to

the Plan's provisions.   Because we believe that the Plan

Administrator's interpretation of the Plan and expedited

distribution of benefits controverts the plain language of the

Plan, we conclude that the Administrator acted arbitrarily and

capriciously.    Accordingly, we will reverse the district court's

grant of summary judgment on this claim.

            Dewitt also alleges that her employer terminated her on

pretextual grounds with the specific intent to deny her status as

a Plan participant as of the Valuation Date at the end of

December 1990.   Because we agree with the district court that

Dewitt has not provided sufficient evidence of specific intent to

interfere with her benefits, we will affirm the district court's

grant of summary judgment in favor of her employer on Dewitt's

section 510 claim.


                                 2
                                 I.

           During the ten years that Carol Dewitt was an employee

of Penn-Del Directory Corporation, she was a participant in the

National Telephone Directory Corporation Profit Sharing Plan, an

employee pension plan governed by ERISA and administered by the

National Telephone Directory Corporation, a New Jersey

corporation and sister corporation to Penn-Del.    At the time of

her termination, Dewitt was 100% vested in her account under the

Plan.

           Pursuant to the Plan, "Employer Contributions" and

"Plan Forfeitures" are credited to the account of Plan

participants on a date referred to as the Valuation Date, defined

as the last business day of each December.    Plan ¶¶ 5.01, 5.02,

6.02(c)-(d).   The Plan requires, as a condition to receipt of

these benefits, that the Plan participant be employed as of the

Valuation Date.   Plan ¶¶ 5.01, 5.02.   In addition, the Plan

provides that each participant's account will be credited with

"Trust Income", i.e., the net increase or decrease in the fair

market value of trust assets as measured from the last Valuation

Date.   Plan ¶ 6.02(e).   Unlike the situation with Employer

Contributions and Plan Forfeitures, the receipt of Trust Income

is not conditioned upon the participant's employment on the

Valuation Date.   In order to receive Trust Income, however, a

Plan participant must have a viable Plan account on the Valuation

Date.   Plan ¶ 6.02(3).




                                 3
           On December 12, 1990, Dewitt was terminated from her

position as a sales representative, allegedly for mishandling an

account.   At a meeting to discuss her termination, Penn-Del

Division Manager Victor Raad reviewed with Dewitt the incident

that precipitated her termination.   Pension benefits were also

discussed.   Although there is some dispute between Dewitt and

Raad regarding precisely what was said at this meeting on the

topic of Dewitt's benefits, both parties agree that Raad told

Dewitt that it takes approximately 30 to 90 days before Dewitt

would actually receive the distribution of the balance of her

Plan account.   Affidavit of Victor Raad, Exhibit C at ¶9.     Dewitt

asserts that this statement led her to believe that her

distribution check would not be processed until a date well

beyond the Valuation Date.   Dewitt also maintains that Raad told

her that her account would include Employer Contributions, Plan

Forfeitures and Trust Income through the end of the 1990 Plan

year.   To the contrary, in his affidavit, Raad states that no

discussion occurred regarding the nature of the benefits which

would be included in Dewitt's check.    Ex. C at ¶8.

           On December 14, 1990, Dewitt filled out a request for

distribution of her account balance.    A check was issued two

weeks later, on December 28, 1990, for Dewitt's total account

balance in the amount of $75,520.88.    Believing this figure to be

inaccurate because it did not contain any amounts representing

Employer Contributions, Plan Forfeitures or Trust Income, Dewitt

contacted Raad to discuss the amount.    After her conversation

with Raad, Dewitt pursued an appeal pursuant to the


                                4
administrative process established by the Plan.   Following the

denial of her appeal, Dewitt filed this action.

          In her complaint, Dewitt asserted claims against her

former employer (Penn-Del), the Plan (National Telephone

Directory Corporation Profit Sharing Plan) and the Plan's

Administrator (National Telephone Directory Corp.) under ERISA

for recovery of benefits and for unlawful termination intended to

preclude attainment of her rights under the Plan.   In Count I of

her complaint, Dewitt asserts that she had a right under the Plan

to receive the 1990 Plan year Employer Contributions, Plan

Forfeitures, and Trust Income allocable to her account.     In this

Count, Dewitt alleges that defendants violated 29 U.S.C. §

1132(a)(1)(B), ERISA § 502(a)(1)(B).   This section of ERISA

permits a plan participant or beneficiary to bring a civil action

"to recover benefits due to him under the terms of the plan."     In

support of her section 502(a)(1)(B) claim, Dewitt asserts that

the defendants "arbitrarily and capriciously denied additional

accrued benefits to [her] account balance in the Plan for the

plan year 1990 by having her benefits paid on an expedited basis

by the Plan Administrator, contrary to Plan provisions."

Complaint ¶16, A. 64.   Second, she asserts that "her account was

treated arbitrarily as indicated by the method used in another

former employee's Plan account payment. . . ."    Id.   Another

terminated employee, Stephen Byrne, received Employer

Contributions, Plan Forfeitures and Trust Income even though he

was not technically employed at the end of the Plan year.     Dewitt

asserted that Penn-Del terminated Byrne on December 14, 1988, but


                                5
that the Plan recorded Byrne's termination date as January 3,

1989, thereby qualifying Byrne for his share of the previous

year's Employer Contributions and Plan Forfeitures.     Complaint

¶16; Affidavit of Steven Byrne, A. 7.

          In Count II of her Complaint, Dewitt asserts that Penn-

Del discharged her to prevent her from qualifying for the 1990

Employer Contributions, Plan Forfeitures and Trust Income

allocable to her account.   In this Count, she asserts that her

termination violated 29 U.S.C. § 1140, ERISA § 510, which makes

it "unlawful to discharge . . . a participant . . . for the

purpose of interfering with the attainment of any right to which

such participant may become entitled under the Plan."

          On December 22, 1994, in ruling on the defendants'

joint motion to dismiss, the district court dismissed Dewitt's

section 502(a)(1)(B) claim for Employer Contributions and Plan

Forfeitures, benefits which formed the bulk of her prayer for

relief, because the terms of Dewitt's Plan expressly required

that she be employed on December 31, 1990 in order to be eligible

to receive those benefits, and she was not.1   Dewitt v. Penn-Del

Directory Corporation, 872 F. Supp. 126 (D. Del. 1994) (Dewitt

I).

1.        The court also dismissed DeWitt's section 510 claims
for interference with these same benefits as barred by the
applicable statute of limitations.

          The court, however, declined to dismiss DeWitt's claims
for 1990 Trust Income pursuant to both section 502(a)(1)(B) and
510 because it concluded that DeWitt's complaint stated those
claims. See 872 F. Supp. at 136.

          The court also denied a motion for summary judgment
filed by DeWitt.


                                6
          On July 31, 1995, Dewitt moved for summary judgment on

those claims which survived dismissal in Dewitt I.    As a result

of the district court's holdings in Dewitt I, only Dewitt's

claims for Trust Income pursuant to ERISA §§ 502(a)(1)(B) and

510, an amount between $1,400 and $2,200, were deemed viable by

the court.   See 912 F. Supp. at 711.   The defendants filed a

cross-motion for summary judgment asserting that Dewitt was not

entitled to Trust Income under ERISA § 502(a)(1)(B) because the

administration of the Plan was not arbitrary and capricious, and

that Dewitt was not entitled to Trust Income pursuant to ERISA §

510 because she had not met her burden of proving that Penn-Del

had specific intent to interfere with her benefits.

          The district court held a hearing on these motions2 on

October 22, 1995.   By order dated January 17, 1996, the district

court denied Dewitt's motion for summary judgment for Trust

Income based both upon the terms of the Plan and upon a breach of

fiduciary duty theory.   Instead, the court granted the

defendants' motion for summary judgment for Trust Income pursuant

to ERISA § 502(a)(1)(B), based upon the reasonableness of the

Plan Administrator's interpretation of the Plan and the district

court's deferential standard of review of the Plan

Administrator's actions.   The court also granted Penn-Del's

motion for summary judgment for Trust Income pursuant to section


2.        In addition to the cross-motions for summary judgment,
DeWitt also filed a motion to compel discovery responses from the
defendants. Defendants moved to strike DeWitt's motion to compel
discovery responses. The court denied DeWitt's motion to compel
discovery and instead granted the defendants' motion to strike.



                                7
 510 of ERISA, 28 U.S.C. § 1140.    The district court found that

the facts as alleged by Dewitt were not sufficient to provide

circumstantial evidence of specific intent.3   On January 29,

1996, Dewitt filed a Motion for Clarification and Reargument of



3.        DeWitt also sought summary judgment with respect to her
request for Employer Contributions and Plan Forfeitures on the
ground that the defendants breached their fiduciary duty by
making misleading statements to her. The district court had
previously found that DeWitt was not entitled to Employer
Contributions and Plan Forfeitures in DeWitt I, 872 F. Supp. at
130, based upon the court's findings that the Plan required, as a
condition to receipt of those benefits, employment as of the
Valuation Date. The court observed that in attempting to renew
her request for these benefits, DeWitt had changed her theory of
relief from the terms of the Plan (which did not provide for
those benefits), to her current argument that Employer
Contributions and Plan Forfeitures should be granted to her as
equitable relief for the Plan administrator's fiduciary breach
caused by Raad's alleged misrepresentation of her benefits. The
court concluded that DeWitt had failed to plead a breach of
fiduciary duty in her complaint and, in any event, had failed to
allege facts sufficient to establish an actionable claim for
breach of fiduciary duty and therefore denied DeWitt's motion for
summary judgment for Employer Contributions and Plan Forfeitures
on the fiduciary breach theory.

          As an additional ground for recovery of the previously-
denied Employer Contributions and Plan Forfeitures, DeWitt also
argued that the Plan was administered in an arbitrary and
capricious fashion due to the disparity in treatment between her
and the other employee, Byrne. The court concluded that the
differential treatment of Byrne and DeWitt did not amount to an
arbitrary and capricious administration of the Plan because Byrne
and DeWitt were not similarly situated as presented to the Plan
Administrator for the purpose of distribution of benefits. See
912 F. Supp. at 722. We will not disturb these rulings on
appeal.

          Finally, in her motion DeWitt sought reconsideration of
the court's ruling that DeWitt's section 510 claims for Employer
Contributions and Plan Forfeitures were time barred. The
district court found untimely her request that it reconsider its
ruling in DeWitt I that DeWitt's claims for Employer
Contributions and Plan Forfeitures were time-barred because
DeWitt's motion for reconsideration was not filed within ten days
of the entry of judgment.



                                8
Order.   On February 15, 1996, the court denied this motion.    This

appeal followed.4

          Dewitt raises numerous issues on appeal, many of which

we find to be without merit.5   Two principal issues remain which

we address.



                                II.

           ERISA was "designed to promote the interests of

employees and their beneficiaries in employee benefit plans."

Shaw v. Delta Air Lines, 463 U.S. 85, 90 (1983).   As we have

observed on many occasions, ERISA's concern is with the

administration of benefit plans and not with the precise design

of the plans themselves.   Indeed, in enacting ERISA, Congress did

not impose a duty on employers to provide health care or other


4.        The district court had jurisdiction pursuant to 28
U.S.C. § 1331 and 29 U.S.C. § 1132. We have jurisdiction
pursuant to 28 U.S.C. § 1291. When reviewing grants of summary
judgment our scope of review is plenary. We apply the same test
the district court should have applied initially. Goodman v.
Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert.
denied, 429 U.S. 1038 (1977). The proper interpretation of the
Plan at issue is a question of law. Ulmer v. Harsco Corp., 884
F.2d 98, 101-102 (3d Cir. 1989).

5.        On appeal to us DeWitt asserts, inter alia, that she is
entitled to receive the Employer Contributions and Plan
Forfeitures applicable to her 1990 account balance as equitable
restitution based upon the Plan Administrator's fiduciary breach
and because such benefits were provided to the account of another
employee, Byrne. She also challenges the district court's
decision that her section 510 claims for these same benefits were
time-barred. Lastly, she contends that the district court abused
its discretion by denying Dewitt's motion to compel discovery
responses because Dewitt failed to comply with the requirements
of Rule 7.1.1 of the Local Rules of the United States District
Court for the District of Delaware. We have reviewed each of
these allegations and find that they are without merit.



                                 9
benefits to their employees.     In Hlinka v. Bethlehem Steel Corp.,

we observed that "ERISA is not a direction to employers as to

what benefits to grant their employees.        Rather, ERISA is

concerned with the administration of an established plan and its

elements."     863 F.2d 279, 286 (3d Cir. 1988).    See also Nazay v.

Miller, 949 F.2d 1323, 1329 (3d Cir. 1991) ("The clear emphasis

of the statute is to ensure the proper execution of plans once

established.").

            Pursuant to ERISA, a plan administrator must act "in

accordance with the documents and instruments governing the plan

insofar as such documents and instruments are consistent" with

ERISA's statutory requirements.       29 U.S.C. § 1104(a)(1)(D), ERISA

§ 504 (a)(2)(D).6    Accordingly, ERISA plans are required to be in

writing.    29 U.S.C. § 1102(a)(1).      They are to be administered by

fiduciaries who are obligated to comply with the terms of the

plan.    Nazay, 949 F.2d at 1329.

            The award of benefits under any ERISA plan is governed

in the first instance by the language of the plan itself.         A plan

administrator may have discretion when interpreting the terms of

6.           This provision provides:

(1)     Subject to sections 1103 (c) and    (d), 1342, and 1344 of
             this title, a fiduciary shall discharge his duties with
             respect to a plan solely in the interest of the
             participants and beneficiaries and --

                                *   *    *

(D)     in accordance with the documents and instruments governing
                  the plan insofar as such documents and instruments
                  are consistent with the provisions of this
                  subchapter and subchapter III of this chapter.



                                    10
the plan; however, the interpretation may not controvert the

plain language of the document.     Gaines v. Amalgamated Ins. Fund,

753 F.2d 288, 289 (3d Cir. 1985).      We must uphold a plan

interpretation even if we disagree with it, so long as the

administrator's interpretation is rationally related to a valid

plan purpose and is not contrary to the plain language of the

plan.    Id. at 288.   Dewitt argues that the Plan Administrator's

denial of additional benefits controverts the plain language of

the Plan.

             Although we exercise plenary review over the court's

grant of summary judgment, our authority to review a plan

administrator's decision to deny benefits is significantly more

limited.     In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

110-12 (1989), the Supreme Court held that where an ERISA-

governed benefits plan grants discretionary authority to the plan

administrator to determine eligibility for benefits under the

plan, a court reviewing the plan administrator's actions should

apply the arbitrary and capricious standard of review.         Thus, a

fiduciary's interpretation of a plan will not be disturbed if

reasonable.     Id. at 111; Heasley v. Belden & Blake Corp., 2 F.3d
1249 (3d Cir. 1993).     The Plan in this case contains a clause

granting discretion to the Plan Administrator, see Plan ¶

12.01(d);7 thus only if the Plan Administrator's decision to deny

7.           Paragraph 12.01(d) provides:

(d)     Powers of the Committee. The Committee is specifically
             authorized and empowered, but not by way of limitation,

(1)To construe or interpret the provisions of the Plan whenever
               necessary to carry out its intention and purpose.


                                  11
Trust Income to Dewitt was arbitrary and capricious can we

overturn his decision.

           Under the terms of Dewitt's Plan, entitlement to Trust

Income is contingent upon the existence of a viable account as of

the Valuation Date.   Plan ¶ 6.02(e).   Here, Dewitt did not have

an account on the Valuation Date because her act of requesting

distribution of her account balance, and the processing of that

request on December 28, 1996, had the effect of closing out her

account.   Dewitt contends that under Paragraph 8.01, the Plan

Administrator was forbidden from paying out the account proceeds

until January 1, 1991.   Paragraph 8.01, entitled "Distribution of

Benefit," provides for the timing of distribution of account

proceeds as follows:
8.01 Distribution of Benefit. Any Benefit of a
          Participant that becomes payable under
          Article 7 shall be paid in the form of a
          single lump-sum cash distribution.
          Distribution shall be made under this section
          8.01 as soon as practicable after the end of
          the calendar month in which termination of
          employment occurs . . . . (Emphasis added.)
(..continued)

(2)To engage or employ such accountants, legal counsel, other
               advisors, agents and such clerical, medical and
               other services as may be required by Applicable
               Law or as it may deem advisable to assist in the
               administration of the Plan.

(3)To establish from time to time rules for the administration of
               the Plan and the transaction of its business. The
               determination of the Committee as to any disputed
               question arising hereunder including, but without
               limitation, questions of construction,
               administration and interpretation shall be final
               and conclusive upon all persons including, but not
               by way of limitation, Employees, Participants and
               Beneficiaries; their heirs, distributees and
               personal representatives; and any other person
               claiming an interest under the Plan.



                                12
            The Plan Administrator argues that Paragraph 8.01's

mandatory language is reasonably construed to be directed at

protecting the Plan participant from "unreasonable delay" in

receipt of benefits.    He relies on Paragraph 8.03 of the Plan

which directs the Trustee to make distributions "as soon as is

reasonably practicable" after receiving notice of the

distribution from the Plan committee.     This provision of the Plan

provides:
            8.03 Notice to Trustee.

The Committee shall notify the Trustee whenever any
          Participant or Beneficiary is entitled to
          receive a distribution under the Plan . . .
          upon receipt of such notice from the
          Committee, the Trustee will, as soon as is
          reasonably practicable, distribute such
          amount . . . . (Emphasis added).


The Plan Administrator argues that it was "reasonably

practicable" to make a distribution to Dewitt on December 28 and

that she could not complain because she received her distribution

earlier than she had expected or hoped.    The Plan Administrator

argues that Dewitt failed to state a claim because she "requested

and received a distribution of her benefits prior to the last

business day of December," thereby forfeiting any interest in the

1990 Trust Income otherwise allocable to her account.

            The district court agreed with this interpretation that

Paragraph 8.01 prevented the Plan from taking too long to pay out

benefits but contained no prohibition on paying early.    The court

held, "It is not unreasonable to interpret Paragraph 8.01 as

setting the `subsequent month' rule for payment merely as a


                                 13
mechanism to ensure prompt payment and avoid unreasonable delay

which may adversely effect the Plan participant."   912 F. Supp.

at 719.   The court found that this interpretation was not

arbitrary and capricious, but rather, was grounded in the letter

and spirit of the provision.   We disagree.

           Even under our deferential standard of review, we

conclude that the Plan Administrator's interpretation of these

Plan provisions is unreasonable, because it disregards the

language of the Plan which expressly provides that "Distribution

shall be made . . . as soon as practicable after the end of the

calendar month in which termination of employment occurs. . . ."

 Plan, ¶8.01.   A Plan participant reading this provision could

believe that it clearly prohibited distribution of an account

prior to the end of the calendar month in which the employee was

terminated.   Dewitt was thus entitled to the Trust Income from

her account because the Plan Administrator acted in violation of

this Plan provision which prohibits the Plan Administrator from

making a final distribution prior to January 1, 1991, the month

following the calendar month in which Dewitt's termination of

employment occurred.

           Accordingly, we conclude as a matter of law that the

Plan Administrator's interpretation of the Plan was inconsistent

with the plain language of the Plan and, therefore, there was no

reasonable basis for the Plan Administrator's denial of benefits.

We will reverse the judgment in favor of Penn-Del on Dewitt's




                                14
claim for Trust Income and direct that summary judgment be

entered in favor of Dewitt on this claim.8



                               III.

           Section 510 of ERISA, 29 U.S.C. § 1140, provides:
§ 1140.   Interference with protected rights

It shall be unlawful for any person to discharge, fine,
          suspend, expel, discipline, or discriminate
          against a participant or beneficiary for
          exercising any right to which he is entitled
          under the provisions of an employee benefit
          plan. . . for the purpose of interfering with
          the attainment of any right to which such
          participant may become entitled under the
          plan. . . .



Congress enacted section 510 primarily to prevent "unscrupulous

employers from discharging or harassing their employees in order

to keep them from obtaining vested pension benefits."   Haberern

v. Kaupp Vascular Surgeons Ltd., 24 F.3d 1491, 1501 (3d Cir.

1994) (citations omitted).

          In Count II of her complaint, Dewitt alleges that

"[t]he Company and Raad . . . discharged her from her employment

8.        In her appeal DeWitt also argued that she was entitled
under ERISA § 502(a)(1)(B) to the Trust Income for the 1990 Plan
year based upon the Plan Administrator's fiduciary breach in
expediting payment in violation of the Plan's terms and an IRS
Notice Regulation requiring 30 to 90 notice days prior to
distribution. DeWitt asserts that the Plan Administrator
committed a fiduciary breach by "rushing payment in order to
remove [her] account from the books of the plan before the end of
the year." DeWitt contends she is also entitled to restitution
as an equitable remedy because of the misleading statement made
by Raad. Because we conclude that DeWitt is entitled to Trust
Income under the terms of her Plan, we do not reach the merits of
her claim that she is entitled to this same Trust Income based on
the theory of fiduciary breach. See Hein v. Federal Deposit
Insurance Corp., 88 F.3d 210 (3d Cir. 1996).




                                15
on a pretextual basis on December 12, 1990, with specific intent

to deny her status as a participant in the Plan prior to the end

of the calendar year and thereby specifically intended to deny

and interfere with the accrual of additional accrued benefit

amounts due her account, in violation of ERISA section 510, 29

U.S.C. § 1140."    Complaint ¶24.

          To establish a prima facie case under section 510 of

ERISA, Dewitt must demonstrate:

          1.   prohibited employer conduct;

          2. taken for the purpose of interfering;
3. with the attainment of any right to which the employee may
               become entitled.


Gavalik v. Continental Can Co., 812 F.2d 834, 852 (3d Cir.),

cert. denied, 484 U.S. 979 (1987), 29 U.S.C. § 1140.        If Dewitt

succeeds in establishing each of these elements, a rebuttable

presumption is created that section 510 has been violated.

Gavalik, 812 F.2d at 853.

          Interpreting section 510 of ERISA in Gavalik, we held

that in order to recover under section 510, a plaintiff need not

prove that "the sole reason for his [or her] termination was to

interfere with pension rights."       Nonetheless, a plaintiff must

demonstrate that the defendant had the "specific intent" to

violate ERISA.    812 F.2d at 851.       Proof of incidental loss of

benefits as a result of a termination will not constitute a

violation of section 510.   Id.      (Citing Titsch v. Reliance Group,

Inc., 548 F. Supp. 983, 985 (S.D.N.Y. 1982), aff'd, 742 F.2d 1441

(2d Cir. 1983) ("No ERISA cause of action [under § 510] lies



                                    16
where the loss of . . . benefits [i]s a mere consequence of, but

not a motivating factor behind, a termination of employment.")).

           Consequently, to recover under section 510, the

employee must show that the employer made a conscious decision to

interfere with the employee's attainment of pension eligibility

or additional benefits.   Gavalik, 812 F.2d at 860.   We have

recognized that in most cases, however, "smoking gun" evidence of

specific intent to discriminate does not exist.   As a result, the

evidentiary burden in these cases may also be satisfied by the

introduction of circumstantial evidence.   Id. at 851 (citing

Maxfield v. Sinclair Int'l, 766 F.2d 788, 791 (3d Cir. 1985),

cert. denied, 474 U.S. 1057 (1986)).     Dewitt asserts that she

has indeed established such a circumstantial case "by combining

the factors of her termination, expedited distribution as

compared with the plain terms of the Plan, the comparable

situation of Steven Byrne, and the misleading statements made by

Raad."   We address each factor alone and in combination.

           We begin our analysis with Dewitt's proffer of her

termination on December 12, two weeks prior to the Valuation

Date.9   In Turner v. Schering-Plough Corp., we observed that
"where the only evidence that an employer specifically intended

to violate ERISA is the employee's lost opportunity to accrue

additional benefits, the employee has not put forth evidence

sufficient to separate that intent from the myriad of other


9.        DeWitt acknowledges that the mere fact that she was
terminated near the end of the year, standing alone, would be
insufficient to support a section 510 claim.



                                17
possible reasons for which an employer might have discharged

him."   Turner, 901 F.2d 335, 347 (3d Cir. 1990) (quoting Clark v.

Resistoflex Co., 854 F.2d 762, 771 (5th Cir. 1988)).     This kind

of deprivation occurs every time an ERISA employer discharges an

employee and is not alone probative of an intent to interfere

with pension rights.    Accordingly, a prima facie case requires

additional evidence suggesting that pension interference was a

motivating factor.

           With respect to the expedited distribution of benefits,

there is nothing in the record to suggest that the prompt payment

of Dewitt's benefits by the Plan Administrator was made in order

to avoid paying her amounts which would be due on December 31,

1990, and that this was done by the Plan Administrator to achieve

some benefit for the employer.    We observe as we did in Turner,

supra, that "the record contains no evidence that the savings to

the employer resulting from [the plaintiff's] termination were of

sufficient size that they may be realistically viewed as a

motivating factor."    See Turner, 901 F.2d at 347.10   Here, too,

the savings to Penn-Del and its Plan were not sufficiently

significant to be a motivating factor.
10.       Indeed, the expedited distribution of DeWitt's account
balance did not result in any additional savings to her employer
or to the Plan in terms of DeWitt's entitlement to the Employer
Contributions and Plan Forfeitures allocable to her account. Due
to the fact that DeWitt was terminated on December 12, 1990,
under the terms of her Plan, she was no longer eligible to
receive these benefits in any event. Plan ¶¶5.01, 5.02 and
6.02(c)-(d).

          With respect to the Trust Income allocable to her
account, the distribution of DeWitt's account prior to January 1,
1991, resulted in a savings of approximately $1,400-$2,200.



                                 18
          Likewise, we are not persuaded that Raad's alleged

misrepresentation regarding the timing for distribution of

benefits gives rise to an inference of specific intent to

interfere with Dewitt's benefits.      Significantly, Raad's alleged

statements could not have affected Dewitt's receipt of Employer

Contributions or Plan Forfeitures which, under the terms of the

Plan, are available only to those employed on the Plan's

Valuation Date.   Plan ¶¶5.01, 5.02.    As well, as we pointed out

above, these statements could not affect Dewitt's entitlement to

the Trust Income allocable to her account pursuant to Paragraph

8.01 of her Plan.

          Lastly, we agree with the district court that the

manner in which Byrne's benefits were handled by the Plan

Administrator are not relevant.    Even assuming that the Plans for

Dewitt and Byrne were identical, and the record does not inform

us one way or the other, Dewitt's employer had elected to make

Byrne's termination effective on January 3, 1989, but fired

Dewitt on December 12, 1990.   Because Dewitt was an at-will

employee, her employer could terminate her employment, for any

reason and on any date the employer chose.     Thus, "[e]ach former

employee's respective position relative to the Valuation Date

renders the differential treatment of their benefits proper."

See 912 F. Supp. at 720.
          Because we agree with the district court that all of

these facts, taken together, do not constitute sufficient

evidence of an intent to interfere with benefits, we will affirm




                                  19
the court's grant of summary judgment in Penn-Del's favor on this

claim.



                               IV.

          For the foregoing reasons we will reverse the district

court's entry of summary judgment against DeWitt on the claim for

Trust Income pursuant to section 502(a)(1)(B) of ERISA.   We will

affirm the judgment of the district court on DeWitt's section 510

claim and in all other respects.



CAROL DEWITT, APPELLANT V. PENN-DEL DIRECTORY CORPORATION, A

FOREIGN CORPORATION; NATIONAL TELEPHONE DIRECTORY CORPORATION

PROFIT SHARING PLAN; NATIONAL TELEPHONE DIRECTOR CORPORATION PLAN

ADMINISTRATOR OF PROFIT SHARING PLAN, NO. 96-7163



BECKER, CIRCUIT JUDGE, CONCURRING IN PART, DISSENTING IN PART:

          Although I join in parts I and III of the majority's

opinion, I cannot agree with the conclusion that the majority

reaches in part II as to the proper interpretation of the ERISA

plan at issue.   Unlike the majority, I do not believe that the

plan administrator acted arbitrarily or capriciously in

interpreting the plan to allow the distribution of benefits in

the same month in which the termination of employment occurs.

                                I.

          The relevant provisions of the ERISA plan at issue are

Paragraphs 8.01 and 8.03, both of which are excerpted in the

majority opinion.   The plain language of the two paragraphs does


                                20
not, as the majority contends, lead ineluctably to a single

interpretation.    Rather, when read together, the two paragraphs

are ambiguous.    On the one hand, Paragraph 8.01 requires that

distribution of benefits be made "as soon as practicable after

the end of the calendar month in which . . . termination of

employment occurs . . . ."    On the other hand, Paragraph 8.03

requires that, when he is notified that a beneficiary is due

benefits, the Trustee of the plan will distribute the benefits

"as soon as is reasonably practicable."    Paragraph 8.03 goes no

further in describing when the distribution is to be made.

          Therefore, assuming that a beneficiary is entitled to a

distribution, there is the possibility of conflicting demands on

the Trustee.   If, as was the case here, it was reasonably

practicable for the Trustee to distribute the benefits before the

end of the calendar month in which the termination occurred, is

the Trustee to wait for the month to end, as Paragraph 8.01

suggests, or, is the Trustee to distribute the benefits when they

are ready, as Paragraph 8.03 suggests?

          In my view, given the ambiguity inherent in Paragraphs

8.01 and 8.03, the plan administrator did not act arbitrarily or

capriciously in interpreting the plan to mean that distribution

of benefits would occur in this case as soon as reasonably

practicable.   Certainly, the language itself allows for this as

one possible reading of the plan.     This is especially so because

it is sound policy and makes good sense to encourage plan

administrators to distribute benefits due beneficiaries sooner

rather than later.    More often than not, beneficiaries need their


                                 21
benefits immediately; delaying distribution might be highly

detrimental.11   Requiring the plan administrator to wait to

distribute the benefits until the end of the calendar month in

which the termination of employment occurs would inject

unnecessary delay into a process that should function

expeditiously.

          In sum, I cannot fault the plan administrator for

expediting the distribution of DeWitt's benefits in this case.12

 I would therefore affirm the judgment of the district court in

all respects.




     11
      Although she did not communicate her need to her employer,
DeWitt's own situation provides an example. DeWitt stated in her
deposition that she needed her distribution almost immediately.
She did not know how long she would be out of a job, and she
wanted to help her son, who had just entered college, with his
tuition.
     12
      I am troubled by Raad's failure to inform DeWitt that if
she were to wait until after the Valuation Date to fill out a
request for a distribution of her benefits she would be ensured
of receiving a greater distribution. However, as the majority
notes supra in footnotes 3 and 5, DeWitt failed to allege facts
sufficient to show that Raad stood in a fiduciary relationship to
her. Moreover, even assuming such a fiduciary relationship, Raad
did not have a duty to inform DeWitt that waiting to request a
distribution might be beneficial; DeWitt did not allege that she
made known to Raad any facts that would create such a duty. See
In re Unisys Corp. Retiree Medical Benefit "ERISA" Litig., 57
F.3d 1255, 1261-67 (3d Cir. 1995) (describing the scope of the
affirmative fiduciary duty to provide ERISA beneficiaries with
information about the ERISA plan); Bixler v. Central Pa.
Teamsters Health & Welfare Fund, 12 F.3d 1292, 1301-03 (3d Cir.
1993) (same).




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