PAYNE v. OFFICE OF THE COMPTROLLER OF THE CURRENCY et al

Filing 82

ENTRY ON MOTION FOR SUMMARY JUDGMENT - The Pentegra DB Plan's Board of Directors did not abuse its discretion in denying retirement pension benefits under the Plan when it determined, consistent with the express terms of the Plan, that at the time of his death, Mr. Payne was not a retiree was only eligible to recover active service death benefits. While the decision of the board may seem unfair, it is appropriate under the law and the Court cannot say that it was unreasonable. Accordi ngly, the Court GRANTS Pentegra's Motion for Summary Judgment (Filing No. 71). Judgment is entered in favor of Pentegra on Mrs. Payne's sole ERISA claim, and Mrs. Payne's action is dismissed. Final appealable judgment will issue under separate order. **SEE ORDER** Signed by Judge Tanya Walton Pratt on 9/30/2016. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JENNIFER A. PAYNE, Individually and as
Personal Representative of the Estate of
Mark R. Payne,
Plaintiff,
v.
PENTEGRA DEFINED BENEFIT PLAN
FOR FINANCIAL INSTITUTIONS, and
PLAN ADMINISTRATOR OF THE
PENTEGRA DEFINED BENEFIT PLAN
FOR FINANCIAL INSTITUTIONS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:14-cv-00309-TWP-MJD

ENTRY ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment filed pursuant to
Federal Rule of Civil Procedure 56 by Defendants Pentegra Defined Benefit Plan for Financial
Institutions and Plan Administrator of the Pentegra Defined Benefit Plan for Financial Institutions
(collectively, “Pentegra”) (Filing No. 71). After being denied retirement benefits on behalf of her
late husband, Mark R. Payne (“Mr. Payne”), Plaintiff Jennifer A. Payne (“Mrs. Payne”) asserted a
claim to recover benefits under § 502(a)(1)(B) of the Employee Retirement Income Security Act
of 1974, 29 U.S.C. § 1001 et seq., (“ERISA”). After successfully moving to dismiss all but one
of Mrs. Payne’s claims, Pentegra filed a Motion for Summary Judgment on November 9, 2015,
asserting that the Board of Directors’ denial of retirement benefits was not arbitrary or capricious
and was in accordance with the Pentegra Defined Benefit Plan (“Pentegra DB Plan”). For the
following reasons, the Court GRANTS Pentegra’s Motion for Summary Judgment.

I.
A.

BACKGROUND

Factual Background
Mr. Payne, the late husband of Plaintiff Mrs. Payne, worked for more than thirty years for

the Federal Home Loan Bank, which was merged into the Office of the Comptroller of the
Currency (“the OCC”). Mr. Payne worked as a field manager in the Indianapolis, Indiana office
and, as an employee, was a participant in the Pentegra DB Plan which is a non-profit, IRS qualified,
tax-exempt, pension plan and trust through which Federal Home Loan Banks, Saving and Loan
Associations and similar institutions, or any other federally insured financial institution may
cooperate in providing for the retirement of their employees. The OCC engaged or assigned the
Pentegra DB Plan to Pentegra, as the third-party administrator of the Pentegra DB Plan.
While employed by the OCC, Mr. Payne was diagnosed with a brain tumor in December
2010. After his first surgery on December 27, 2010, the Paynes learned that Mr. Payne’s tumor
was a gliablastoma tumor, the deadliest type of brain tumor. Mr. Payne’s physicians informed him
that the life expectancy for this type of tumor was approximately twelve to sixteen months. During
the next fifteen months, Mr. Payne endured two additional surgeries as well as weeks of radiation
and chemotherapy. Tragically, Mr. Payne also experienced seizures, memory loss, difficulties in
speech and comprehension, and other neurological deficits prior to his death on March 5, 2012.
Shortly after Mr. Payne’s diagnosis in December 2010, the Paynes began working with
Valerie Waller (“Ms. Waller”), the Lead Expert for Compensation and Benefits at the OCC’s office
in Washington, D.C., to discuss Mr. Payne’s life insurance and pension benefits. Mr. Payne
wanted to ensure that his wife and their two children would be taken care of after his death. The
Paynes sought advice from Ms. Waller regarding the full impact of their options under the Pentegra
DB Plan. The Paynes and Mr. Payne’s supervisor, Jill Hoyle (“Ms. Hoyle”), communicated with

2

Ms. Waller regularly to discuss questions and to confirm information related to Mr. Payne’s life
insurance and the Pentegra DB Plan.
On January 1, 2011, Pentegra sent Mr. Payne a statement of his annual retirement benefits,
explaining that his active service death benefit, as of January 1, 2011, was $691,332.00, when
expressed as a single payment. In October 2011, Mr. Payne requested that Ms. Waller provide
pension calculations as of November 1, 2011 and April 1, 2012, so that the Paynes could
understand their various options. Mr. Payne also requested that all options be explained to him in
detail. The Paynes wanted this information to decide which option would benefit them the most.
In mid-October 2011, Mr. Payne received an estimate of the pension benefits from Pentegra and
Ms. Waller. The estimated pension benefit for early retirement on November 1, 2011, was a lump
sum payout of approximately $975,557.00, or an annuity of approximately $57,480.00. The
Paynes decided that the annuity was the best option as it provided a lifetime payout to Mrs. Payne.
In January 2012, the Paynes, Ms. Waller, and Ms. Hoyle participated in a telephone
conference call regarding Mr. Payne’s options. During the call, Ms. Waller advised Mr. Payne to
wait 120 days before he filed for a disability retirement. Ms. Waller explained there was no reason
for Mr. Payne to retire earlier than the 120 days. However, Ms. Waller failed to advise the Paynes
that the pension figures would differ substantially if Mr. Payne died while in active service rather
than after he retired. When the benefits calculation was eventually provided by Pentegra, Ms.
Waller admitted that she did not know there would be a significant difference in benefits based on
retirement. Ms. Waller was incorrect in her understanding when she advised the Paynes in January
2012.
Mr. Payne died on March 5, 2012, while he was still in active service with the OCC. He
did not retire prior to his death. Because of this, the Pentegra DB Plan never received a termination

3

form from the OCC indicating that Mr. Payne had terminated employment prior to the date of his
death. On March 15, 2012, ten days after Mr. Payne died, Mrs. Payne spoke with Ms. Waller and
Damien Samuals (“Mr. Samuals”), another OCC employee, regarding Mr. Payne’s pension
benefits. Ms. Waller explained that the annuity payout had not been calculated but stated that it
would not be significantly different from the information that was sent to the Paynes in October
2011. Ms. Waller specifically stated that it would not be “significantly less” and that it would be
“a little less, but not significantly” different.
In April 2012, Mrs. Payne received the benefits calculation from Pentegra. The lump sum
benefits that would be paid were more than $200,000.00 less than the estimate that was provided
in October 2011. After learning that the benefits would be significantly less than what the Paynes
were told in October 2011, Mrs. Payne participated in a conference call with Ms. Waller, Mr.
Samuals, and Lynn Phillips (“Mr. Phillips”), a representative of Pentegra, to discuss why there
was such a large discrepancy in benefit payments. Mr. Phillips explained that the discrepancy
resulted from the difference between a retirement benefit versus an active death benefit. He
explained that an active death benefit yielded a much lower benefit payment than a retirement
benefit. When Mrs. Payne expressed her surprise at the large difference between the two types of
benefits, Ms. Waller also stated that she was not aware that the two types of benefits yielded such
a significant difference. Mrs. Payne asked whether the fact that Mr. Payne did not retire, but died
in service, cost her more than $200,000.00 in lump sum benefits. Mr. Phillips confirmed that it
did. Mr. Payne had decided not to retire, relying on the faulty advice of Ms. Waller.
The Paynes frequently talked with Ms. Waller who knew of Mr. Payne’s imminent death
and who was the individual most knowledgeable about benefits at the OCC’s office. The Paynes
relied on Ms. Waller’s advice regarding Mr. Payne’s retirement and benefits. Additionally, the

4

Paynes relied on the benefits calculations provided by Pentegra. Because Mr. Payne died while in
active service with the OCC instead of retiring before his death, Mrs. Payne was entitled to
approximately $205,000.00 less in lump sum benefits.
As the beneficiary of Mr. Payne’s estate, Mrs. Payne filed a written claim with the
Administrator of the Pentegra DB Plan on December 27, 2012, pursuant to the disputed claims
procedure in the summary plan description of the Pentegra DB Plan. She requested the additional
$205,000.00, asserting that because the Paynes relied on the advice of Ms. Waller, Mrs. Payne was
entitled to retirement benefits rather than the active service death benefits. This disputed claim
was denied on March 22, 2013. In denying the claim, Pentegra explained that Mr. Payne was in
active service at the time of his death, rather than retired, because Mr. Payne did not terminate his
employment with the OCC prior to his death, and thus, he was entitled to active service death
benefits, not retirement benefits. Pentegra also explained that the active service death benefits had
been described to the Paynes in the January 2011 statement as well as the retirement benefits in
the October 2011 correspondence.
On May 22, 2013, Mrs. Payne requested that the Pentegra DB Plan Board of Directors
(“the Board”) review the denial of the December 27, 2012 claim. On October 10, 2013, Pentegra
responded to Mrs. Payne and explained that the Board had reviewed and upheld Pentegra’s
decision to deny the claim for retirement benefits. Pentegra explained the reasons for the Board’s
denial of the claim and noted that the Pentegra DB Plan must pay benefits according to the plain
terms and regulations of the Pentegra DB Plan.
B.

Procedural Background
On February 28, 2014, Mrs. Payne initiated this lawsuit against the OCC and Pentegra. In

her Complaint, Mrs. Payne asserted claims for violations of ERISA, promissory estoppel, breach

5

of fiduciary duty, negligence, breach of contract, and breach of duty to exercise good faith. Each
claim was based on the same set of facts: (1) Ms. Waller represented to the Paynes that their
benefits would not be significantly different whether Mr. Payne retired and that he should continue
working for an additional 120 days; (2) relying on Ms. Waller’s representations, Mr. Payne did
not retire and eventually died while still in service; and (3) because Mr. Payne died before he
retired, the benefits payable to Mrs. Payne as Mr. Payne’s beneficiary are approximately
$205,000.00 less than if Mr. Payne had retired before his death.
In May 2014, Pentegra filed a motion to dismiss all claims except the ERISA claim.
Pentegra also filed a motion to strike Mrs. Payne’s request for compensatory and punitive damages
and her jury demand. In June 2014, the OCC (through the United States as its substituted party)
filed a motion to dismiss based on sovereign immunity. In July 2014, Mrs. Payne responded to
the motions and explained that she was “seeking to recover benefits due to her under Section
502(a)(1)(B) of ERISA” and was “not seeking injunctive relief under 502(a)(3).” (Filing No. 37
at 8.) Then in October 2014, Mrs. Payne requested leave to amend her Complaint.
On March 3, 2015, the Court dismissed all of Mrs. Payne’s claims except Count I regarding
the unpaid benefits under § 502(a)(1)(B) of ERISA (Filing No. 52). The Court also granted
Pentegra’s motion to strike the OCC’s motion to dismiss. This Order left the ERISA claim against
Pentegra as the only remaining claim. On November 9, 2015, Pentegra filed its Motion for
Summary Judgment, asserting that the Board’s denial of retirement benefits was not arbitrary or
capricious and was in accordance with the plain regulations of the Pentegra DB Plan because Mr.
Payne was not retired at the time of his death.

6

II.

SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only where
there exists “no genuine issue as to any material facts and . . . the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56. In ruling on a motion for summary judgment,
the court reviews “the record in the light most favorable to the non-moving party and draw[s] all
reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009)
(citation omitted). “However, inferences that are supported by only speculation or conjecture will
not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir.
2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of
proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by
specific factual allegations, that there is a genuine issue of material fact that requires trial.”
Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007) (citation omitted). “The
opposing party cannot meet this burden with conclusory statements or speculation but only with
appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F. Supp.
1065, 1072 (S.D. Ind. 1995) (citations omitted).
The standard of review of the denial of benefits under Section 502(a)(1)(B) of ERISA is
unique, however, because the Court uses a “de novo standard unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe
the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If the
plan gives the administrator or fiduciary discretionary authority, then denial of benefits is reviewed
under the “arbitrary and capricious” standard. Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d
355, 360 (7th Cir. 2011); Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008); Jenkins
v. Price Waterhouse Long Term Disability Plan, 564 F.3d 856, 860–61 (7th Cir. 2009). “Under

7

the arbitrary and capricious standard, the reviewing court must ensure only that a plan
administrator’s decision has rational support in the record. Put simply, an administrator’s decision
will not be overturned unless it is downright unreasonable.” Edwards, 639 F.3d at 360 (citations
and quotation marks omitted).
Review under this deferential standard is not a “rubber stamp.” Hackett v. Xerox Corp.
Long–Term Disability Income Plan, 315 F.3d 771, 774 (7th Cir. 2003). The Court’s review
focuses on whether:
(1) it is possible to offer a reasoned explanation, based on the evidence, for a
particular outcome, (2) the decision is based on a reasonable explanation of relevant
plan documents, or (3) the administrator has based its decision on a consideration
of the relevant factors that encompass the important aspects of the problem.
Sisto v. Ameritech Sickness & Accident Disability Benefit Plan, 429 F.3d 698, 700 (7th Cir. 2005)
(citation omitted).
Pentegra asserts that the deferential “arbitrary and capricious” standard of review applies
in this case because the Pentegra DB Plan gives the “Board exclusive right and full discretionary
authority to interpret the Regulations and any questions arising under or in connection with the
administration of the Pentegra DB Plan” and “to determine . . . eligibility for membership and
benefits, and the amount and mode of all contributions, benefits and other payments under the
Regulations.” (Filing No. 72-1 at 153.) Pentegra provided the only designated evidence on this
point, and Mrs. Payne failed to respond to this argument regarding the standard of review or
designate any evidence. Assuming that Mrs. Payne does not dispute the proposed standard of
review, the Court reviews the Board’s (and Pentegra’s) decision to deny retirement benefits under
the arbitrary and capricious standard.

8

III.

DISCUSSION

Mrs. Payne currently receives active service death benefits under the Pentegra DB Plan as
Mr. Payne’s beneficiary as a result of his many years of employment with the OCC. However,
Mrs. Payne seeks to recover retirement benefits, an additional $205,000.00, under the Pentegra
DB Plan pursuant to Section 502(a)(1)(B) of ERISA. (See Filing No. 37 at 8.) “A civil action
may be brought by a participant or beneficiary . . . to recover benefits due to him under the terms
of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits
under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
Pentegra argues that according to the plain and unequivocal terms of the Pentegra DB Plan,
Mrs. Payne is due and receiving active service death benefits because Mr. Payne died while he
was actively employed by the OCC. Under the plain terms of the Pentegra DB Plan, Mr. Payne,
and thus Mrs. Payne, is not entitled to retirement benefits because Mr. Payne did not retire from
his employment prior to his death.
Pentegra lays out the plain terms of the Pentegra DB Plan and designates evidence to
support its explanation. The president of the Pentegra DB Plan is the chief administrative officer
and, for purposes of ERISA, also is the plan administrator. The Board is the “named fiduciary.”
The general administration of the Pentegra DB Plan and the general responsibility for carrying out
the provisions of the Pentegra DB Plan’s regulations is placed in the Board. The members of the
Board must be members of the Pentegra DB Plan. (Filing No. 72-1 at 151.)
Under the terms of the Pentegra DB Plan,
The Board shall have the exclusive right and full discretionary authority to interpret
the Regulations and any questions arising under or in connection with the
administration of the Pentegra DB Plan, including without limitation, the authority
to determine eligibility for employer participation, eligibility for membership and
benefits, and the amount and mode of all contributions, benefits and other payments
under the Regulations.
9

(Filing No. 72-1 at 153). The Pentegra DB Plan unequivocally states that “[n]o Employer shall
under any circumstances or for any purpose be deemed an agent of the Board, the Trustee or the
Pentegra DB Plan.” Id. at 152.
The Pentegra DB Plan provides that “[i]n lieu of the basic death benefit, . . . an Employer
may adopt an active service death benefit which is payable upon the death of a Member in Service.”
Id. at 66. A “Member” is defined as “[a]n Employee enrolled in the membership of the Pentegra
DB Plan’s Comprehensive Retirement Program.” Id. at 12. And an “Employee” is defined, in
part, as “any person in the Service of an Employer who receives a Salary.” Id. at 9. Under the
terms of the Pentegra DB Plan, “Service” is defined, in part, as “Employment with an Employer.”
Id. at 17. Lastly, a “Retiree” is defined as “[a] former Member who has been retired.” Id. at 14.
Based on these plain definitions and provisions under the Pentegra DB Plan, Pentegra
asserts that on March 5, 2012, Mr. Payne died while in “active service” with the OCC. Prior to
his death, Mr. Payne never retired. “The Pentegra DB Plan never received a termination form
from the OCC indicating that Mr. Payne had terminated employment prior to the date of his death.”
(Filing No. 72-2 at 32.) As a result, under the terms of the Pentegra DB Plan, Mr. Payne was
entitled to a death benefit, not a retirement benefit. Furthermore, under the unequivocal terms of
the Pentegra DB Plan, no statements or representations regarding retirement and death benefits
made by Ms. Waller, as an employee of OCC, could bind the Board or the Pentegra DB Plan.
Pentegra explains that ERISA requires “[e]very employee benefit plan [to] be established
and maintained pursuant to a written instrument,” 29 U.S.C. § 1102(a)(1), “specify[ing] the basis
on which payments are made to and from the plan.” 29 U.S.C. § 1102(b)(4). Moreover, the plan
administrator and fiduciaries are statutorily required to act “in accordance with the documents and
instruments governing the plan insofar as such documents and instruments are consistent with the
10

provisions of [Title I] and [Title IV]” of ERISA. 29 U.S.C. § 1104(a)(1)(D). As the Supreme
Court noted, “ERISA provides no exemption from this duty when it comes time to pay benefits.”
Kennedy v. Plan Administrator for DuPont Sav. & Inv. Plan, 555 U.S. 285, 300 (2009). Therefore,
Mrs. Payne’s claim for benefits “stands or falls by the terms of the plan.” Id. (citation and
quotation marks omitted).
Pentegra explains that the Board’s decision to deny retirement benefits to Mrs. Payne—
when Mr. Payne did not retire from the OCC before his death—was based on a straightforward
application of the plain definitions and provisions of the Pentegra DB Plan. Importantly, Mrs.
Payne does not dispute that Mr. Payne died while actively employed with the OCC. Thus, Pentegra
asserts, the decision to deny retirement benefits and to provide only death benefits was not arbitrary
or capricious.
In response to the Motion for Summary Judgment, Mrs. Payne does not put forward any
disputes of material fact. She also does not affirmatively argue that the Board’s decision to deny
retirement benefits was arbitrary or capricious or that the decision was not based on the evidence
and the facts. In fact, Mrs. Payne does not even refute Pentegra’s argument and evidence that the
Board’s decision was based on the plain language of the Pentegra DB Plan and was not arbitrary
or capricious. Instead, Mrs. Payne asserts that the policy was confusing, the Payne’s relied on the
negligent directives of Ms. Waller, an employee/representative of Pentegra and Pentegra failed to
properly train Ms. Waller. In essence, Mrs. Payne merely reargues her fiduciary duty argument
that she raised during the motion to dismiss proceedings. However, the Court dismissed Mrs.
Payne’s claims for breach of fiduciary duty, promissory estoppel, negligence, breach of contract,
and breach of duty to exercise good faith after the parties had fully briefed those claims.

11

Mrs. Payne did not respond to Pentegra’s argument that the Board’s decision was
reasonable and based on the plain language of the Pentegra DB Plan. ERISA requires that
employee benefit plans must be established and maintained pursuant to a written instrument that
specifies the basis on which payments are made to and from the plan, and the plan administrator
and fiduciaries must act in accordance with the documents and instruments governing the plan.
Given that ERISA provides no exemption from these duties when it comes time to pay benefits,
and claims for benefits stand or fall by the terms of the plan, the Court cannot find that the Board
acted arbitrarily or capriciously when it denied Mrs. Payne’s claim for retirement benefits, after
Mr. Payne failed to retire from the OCC. Thus, Mrs. Payne’s ERISA claim must fail.
The Court briefly addresses footnote 4 of Mrs. Payne’s Response Brief in opposition to the
Motion for Summary Judgment. (See Filing No. 75 at 12). In that footnote, Mrs. Payne asks the
Court to reconsider its prior rulings in the Order on the motions to dismiss and to strike the motion
for leave to file an amended complaint (Filing No. 52). The Court declines to consider and address
Mrs. Payne’s request to reconsider the Order for several reasons. First, a footnote in a response
brief is not the proper vehicle to make such a motion. See S.D. Ind. Local Rule 7-1 (“A motion
must not be contained within a brief, response, or reply to a previously filed motion, unless ordered
by the court.”). Next, motions to reconsider are not specifically authorized by the Federal Rules of
Civil Procedure, however, courts in the Seventh Circuit apply Rule 59(e) or Rule 60(b) standards
to these motions. Smith v. Utah Valley Univ., 2015 U.S. Dist. LEXIS 70271, at *3–4 (S.D. Ind.
June 1, 2015). A motion to alter or amend under Rule 59(e) “must be filed no later than 28 days
after the entry of the judgment.” Fed. R. Civ. P. 59(e). Thus, Mrs. Payne’s request is not timely.
Finally, even if the Court were to consider the merits of her request to reconsider, the motion would
be denied because Mrs. Payne has advanced no argument and provided no case law to support her

12

request. A Rule 59(e) motion will be successful only where the movant clearly establishes: (1)
that the court committed a manifest error of law or fact, or (2) that newly discovered evidence
precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013)
(citation and quotation marks omitted). Mrs. Payne has not shown a manifest error of law or that
an amended complaint would not be futile, because she has not shown any waiver of sovereign
immunity.
IV.

CONCLUSION

The Pentegra DB Plan’s Board of Directors did not abuse its discretion in denying
retirement pension benefits under the Plan when it determined, consistent with the express terms
of the Plan, that at the time of his death, Mr. Payne was not a retiree was only eligible to recover
active service death benefits. While the decision of the board may seem unfair, it is appropriate
under the law and the Court cannot say that it was unreasonable. Accordingly, the Court GRANTS
Pentegra’s Motion for Summary Judgment (Filing No. 71). Judgment is entered in favor of
Pentegra on Mrs. Payne’s sole ERISA claim, and Mrs. Payne’s action is dismissed. Final
appealable judgment will issue under separate order.

SO ORDERED.

Date: 9/30/2016
DISTRIBUTION:
Jamie A. Maddox
BETZ & ASSOCIATES
[e-mail]
Sandra L. Blevins
BETZ & ASSOCIATES
[e-mail]

13

Kevin W. Betz
BETZ & BLEVINS
[e-mail]
Michael W. Padgett
JACKSON LEWIS P.C.
[e-mail]
Kirsten A. Milton
JACKSON LEWIS P.C.
[e-mail]
William H. Payne, IV
JACKSON LEWIS P.C.
[e-mail]

14