Livick v. The Gillette Co.

• Decision Date: 17 April 2008
• Docket Number: No. 07-2108.,07-2108.
• Citation: 524 F.3d 24
• Parties: John W. LIVICK, Plaintiff, Appellant, v. THE GILLETTE COMPANY; The Gillette Company Retirement Plan, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

524 F.3d 24

John W. LIVICK, Plaintiff, Appellant, v. THE GILLETTE COMPANY; The Gillette Company Retirement Plan, Defendants, Appellees.

No. 07-2108.

United States Court of Appeals, First Circuit.

Heard January 10, 2008.

Decided April 17, 2008.

Thomas G. Moukawsher with whom Moukawsher & Walsh, LLC was on brief for appellant.

Richard P. Ward with whom M. Concetta Burton and Ropes & Gray LLP were on brief for appellees.

Before LYNCH, Circuit Judge, GIBSON,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

John Livick appeals a grant of summary judgment to his former employer, the Gillette Company, and the Gillette Company Retirement Plan (collectively "Gillette") in a dispute over the amount of his pension benefits under Gillette's employee benefit plan ("Plan"). Livick sued Gillette under the civil enforcement provisions of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461, arguing that Gillette must pay him the amount of the erroneous benefit estimates he received before he left Gillette instead of the lesser amount he was entitled to under the Plan. We affirm the district court's grant of summary judgment for defendants.

I.

Livick began working for Parker Pen Company in Janesville, Wisconsin, in 1976. In 1993, Parker Pen was bought by Gillette Stationary Products Group ("Gillette SPG"), a division of Gillette, and the pension plans of the two companies were merged together at the end of 1995. In 1997 and again in 1998, Livick received letters from Gillette SPG explaining how the Parker Pen pension he had already accrued would be treated under Gillette's Plan. These letters enclosed an estimate of Livick's Parker Pen pension — $1047 a month — and stated in the opening paragraphs that Livick would receive this pension "in addition to any benefit you accrue under the Gillette Plan for your service on and after January 1, 1996." The official Plan terms also included similar clear language under the heading "Former Participants in The Parker Pen Pension Plan."¹

Gillette decided to close the Janesville plant in 1999, so Livick moved to Boston to take another position within Gillette SPG. A year later, Gillette announced the sale of Gillette SPG to another company, resulting in the elimination of Livick's position.

Livick attended a meeting in October 2000 in which Gillette explained what benefits would be available for the Gillette SPG workers like Livick who were losing their jobs. This is the first time someone from Gillette suggested that Livick's Gillette pension might cover the years he worked for Parker Pen. Following up on that meeting, Livick met individually with Wayne Brundige, a human resources representative, the next week. Brundige calculated an estimate of Livick's Gillette pension based on a hire date of 1976 instead of the appropriate Gillette hire date of 1996. That estimate put Livick's Gillette pension at $2832 a month.

While still employed at Gillette SPG, Livick went online to check Brundige's estimate against Gillette's pension estimator ("Estimator"). Before the online Estimator can be accessed, the user must pass through a "Disclaimer" page that emphasizes repeatedly that the site only provides estimates. That page also notes that the Estimator does not take into account "some very specific features of the Gillette Retirement Plan." In capital, bold letters at the bottom of this disclaimer page, the Estimator website states "IN THE EVENT THERE IS ANY DISCREPANCY BETWEEN THE INFORMATION PROVIDED BY THE ESTIMATOR AND THE BENEFITS TO WHICH YOU ARE ENTITLED, THE TERMS OF THE GILLETTE PLANS WILL APPLY." In a more detailed "Definitions and Additional Information" section of the website, a subsection entitled "Parker Frozen Benefit" explains that former Parker Pen employees would receive their earned pension under the Parker Pen plan "plus the benefit [they] earn under the terms of the Gillette Retirement Plan for service after [December 31, 1995]." Livick printed this portion of the website in December 2000 while researching how his pension would be calculated. The website's calculator generated a pension estimate for Livick of $2914 a month based on a hire date of 1976, which was the incorrect date under the Parker Pen frozen benefit policy.

Livick's job was formally terminated on January 12, 2001.² Livick turned down another job offer, he says in reliance on the higher-than-expected pension estimates. In 2002, after Livick again visited the online Estimator and generated yet a higher estimated benefit, Livick called Gillette's Human Resource Center to ascertain which estimate — Brundige's or the Estimator's — was more correct. He was told that the online estimate was likely more correct, but that he would be sent a new estimate of his pension benefit.

That new benefit statement correctly showed that Livick's Gillette pension would be based solely on the years he worked for Gillette. This dropped his Gillette pension down to $789 a month; his Parker Pen pension ($1047 a month) presumably remained unchanged.

Livick sued Gillette in U.S. District Court in May 2005, claiming that Gillette was in breach of its fiduciary duty to Livick under ERISA because of these "misrepresentations." He requested equitable relief under ERISA § 502(a)(3), specifically a "declaration" that he was entitled to a Gillette pension that accounted for his years at both Gillette and Parker Pen.

The defendants moved for summary judgment, which the District Court granted on June 12, 2007. Livick v. Gillette Co., 492 F.Supp.2d 1, 15 (D.Mass.2007). This appeal followed.

II.

A. Motion To Strike Affidavit

We turn first to Livick's appeal of an evidentiary matter. On defendants' motion, the district court struck a portion of the affidavit of Peter Miller, who worked as a human resources manager for Gillette in Janesville from 1993 to 1999. Id. at 5. When reviewing a grant of summary judgment, we often first consider challenges to the district court's evidentiary rulings, as such rulings define the record on which the summary judgment rests. See Hoffman v. Applicators Sales & Serv., Inc., 439 F.3d 9, 13 (1st Cir.2006); Schubert v. Nissan Motor Corp., 148 F.3d 25, 29 (1st Cir.1998); Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir.1998). We review the district court's decision to exclude evidence, such as affidavits, for abuse of discretion. Hoffman, 439 F.3d at 13. Under that standard, we will not disturb the district court's ruling unless the record demonstrates an error of law or a serious lapse of judgment on the part of the court. Id. at 14; Schubert, 148 F.3d at 30.

Under Rule 56(e), an affidavit at the summary judgment stage must "be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(e)(1). This "requisite personal knowledge must concern facts as opposed to conclusions, assumptions, or surmise." Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir.2001). The district court struck ¶ 5 of Miller's affidavit³ because it would be inadmissible due to its lack of relevance to and probity of the issues of the case. See Livick, 492 F.Supp.2d at 5. The court did not abuse its discretion in striking the paragraph.

B. Section 502(a)(3) Claim

Our review of a grant of summary judgment is de novo, and we resolve all reasonable inferences in favor of the non-moving party. Mellen v. Trs. of Boston Univ., 504 F.3d 21, 24 (1st Cir.2007). Summary judgment is appropriate when the pleadings, the discovery, and any affidavits "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

Section 502(a)(3) of ERISA enables plan beneficiaries to sue in their individual capacities to "obtain ... appropriate equitable relief" (beyond the relief otherwise provided under the statute) to redress violations or enforce any provisions of either ERISA or the plan itself. 29 U.S.C. § 1132(a)(3); Varity Corp. v. Howe, 516 U.S. 489, 510-15, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996).

As his basis for § 502(a)(3) relief, Livick claims that Gillette was in breach of its fiduciary duty under ERISA. We disagree as we explain below. Because we disagree, we do not reach the question of whether the relief he seeks is the type of equitable relief available under § 502(a)(3).⁴ Livick also argued before the district court that Gillette should be held liable under § 502(a)(3) based on a theory of estoppel. That basis for his claim was not specified in his original complaint and is not argued in precise terms before this court. However, Livick's theory of his case is largely built on a reliance argument: that he relied to his detriment on the mistaken pension estimates he received. Thus we briefly address the estoppel theory, though we find it also unavailing.

Under ERISA, a fiduciary is defined functionally: a party is a fiduciary "to the extent" that he or she exercises discretion over the management of the plan or its funds or over its administration. 29 U.S.C. § 1002(21)(A); Pegram v. Herdrich, 530 U.S. 211, 225-26, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000); Varity, 516 U.S. at 498, 116 S.Ct. 1065. A fiduciary named in an ERISA plan can undertake non-fiduciary duties, and a party not identified as a plan fiduciary can become one if, but only to the extent that, he or she undertakes discretionary tasks related to the plan's management or administration. See Pegram, 530 U.S. at 225-26, 120 S.Ct. 2143 (employer can switch between wearing its "fiduciary" and "employer" hats); Varity, 516 U.S. at 498, 116 S.Ct. 1065 (same); Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 18 (1st Cir.1998) (person can become fiduciary to extent she undertakes fiduciary duties). Thus in cases alleging breach of ERISA fiduciary duty, "the threshold question is not whether the actions of some person employed to provide...