Rees et al v. Iron Workers' Local No. 25 Fringe Benefit Funds et al

Filing 106

OPINION and ORDER granting in part and dismissing in part as moot plaintiff's MOTION for Summary Judgment 65 , dismissing as moot plaintiffs' expedited motion for injunctive relief 52 , dismissing as moot plaintiff's M OTION to Resolve Objections to the joint appendix 70 , dismissing as moot defendants' motion to resolve objections on the administrative record 69 , denying defendants' MOTION for Judgment on the Administrative Record 90 , and dismissing as moot plaintiffs' MOTION to Strike 102 Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID M REES and WENDY REES,
Plaintiffs,
CASE NO. 14-CV-12401
HONORABLE GEORGE CARAM STEEH

v.
IRON WORKERS’ LOCAL NO. 25
PENSION FUND, et al.,
Defendants.
/

OPINION AND ORDER GRANTING IN PART AND DISMISSING IN PART AS
MOOT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (DOC. #65),
DISMISSING AS MOOT PLAINTIFFS’ EXPEDITED MOTION FOR
INJUNCTIVE RELIEF (DOC. #52), DISMISSING AS MOOT PLAINTIFFS’
MOTION TO RESOLVE OBJECTIONS TO THE JOINT APPENDIX (DOC. #70),
DISMISSING AS MOOT DEFENDANTS’ MOTION TO RESOLVE OBJECTIONS
ON THE ADMINISTRATIVE RECORD (DOC. #69), DENYING DEFENDANTS’
MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD (DOC. #90),
AND DISMISSING AS MOOT PLAINTIFFS’ MOTION TO STRIKE (DOC. #102)
Plaintiff David Rees (“Mr. Rees”) retired effective August 1, 2012 and received early
special retirement benefits from the defendant Iron Workers’ Local No. 25 Pension Fund (the
“Pension Fund”) for thirteen months. Pursuant to the pension plan in effect at the time he retired,
Mr. Rees retired at the age of 51 under a special retirement benefit available to plan participants
with 30 years of service in the iron working industry. Mr. Rees planned on working until October
2012, at which time he would have obtained the necessary hours of service in the 2012 plan year
to retire, but a Pension Fund trustee met with Mr. Rees and told him that he could retire two
months earlier by using “banked hours,” i.e. hours that his employer had not previously made
contributions on to the Pension Fund, but for which Mr. Rees had actually worked.

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Shortly after Mr. Rees retired, on October 19, 2012, notice was given to plan participants
that, effective for participants commencing benefits on November 1, 2012, the particular special
retirement benefit Mr. Rees retired under would be eliminated. In other words, under the current
plan in effect, a plan participant’s years of service have no bearing on retirement eligibility; a plan
participant will not receive benefits until reaching age 55, and full actuarial reductions occur if the
participant retires before age 55. Retirement is no longer possible based on achieving 30 years
of service in the iron working industry.
After receiving special retirement benefits for thirteen months, the Pension Fund
discontinued Mr. Rees’s benefits on September 25, 2013. Mr. Rees was notified by the Pension
Fund Administrator that an audit revealed that he worked “unusually high” hours in the 2012 plan
year. Specifically, according to the Pension Fund Administrator, Mr. Rees could not use his
“banked hours” towards calculating his time of service. Rather, Mr. Rees was informed that he
had to have actually worked the hours in the 2012 plan year. As a result, the Pension Fund
discontinued Mr. Rees’s benefits. By this time, as explained above, the benefit under which Mr.
Rees retired was eliminated.
Mr. Rees returned to iron work in October 2013 for a different employer for six months,
obtaining an additional year of service. However, his health deteriorated. Under the current
Pension Plan in effect, Mr. Rees is not eligible to receive benefits unless and until he reaches
age 55.
Plaintiffs, Mr. Rees and his wife Wendy Rees (“Mrs. Rees”), filed this action to restore Mr.
Rees’s benefits and Mrs. Rees’s survivorship benefits, which are equal to the benefits Mr. Rees
was to receive for his lifetime under the Pension Plan in effect on August 1, 2012. The third
amended complaint (Doc. #43) alleges:
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Count I

Claim For Benefits Due Under ERISA §502(a)(1)(B)

Count II

Failure To Comply With Notice Requirements Under ERISA §§204(h) &
305(e)(8)(C)

Count III

Claim For Breach Of ERISA Fiduciary Duties In Violation Of ERISA
§§502(a)(2) And/Or (3)

Count IV

Violation Of ERISA §510

Count V

Violation Of ERISA §204(g)

Count VI

Claim For Co-Fiduciary Breach In Violation Of ERISA §405

Count VII

Federal Common-Law Equitable Estoppel

Now before the court are (1) plaintiffs’ expedited motion for injunctive relief (Doc. #52);
(2) plaintiffs’ motion for summary judgment (Doc. #65); (3) defendants’ motion to resolve
objections on the administrative record (Doc. #69); (4) plaintiffs’ motion to resolve objections to
the joint appendix (Doc. #70); (5) defendants’ motion for judgment on the administrative record
(Doc. #90); and (6) plaintiffs’ motion to strike defendants’ response to plaintiffs’ motion for
summary judgment (Doc. #102). The court held a hearing to address the motions on September
16, 2015. For the reasons that follow, the court will grant in part and dismiss in part as moot
plaintiffs’ motion for summary judgment, dismiss as moot plaintiffs’ expedited motion for
injunctive relief, dismiss as moot plaintiffs’ motion to resolve objections to the joint appendix,
dismiss as moot defendants’ motion to resolve objections to the administrative record, deny
defendants’ motion for judgment on the administrative record, and dismiss as moot plaintiff’s
motion to strike. Judgment shall enter in favor of plaintiffs and against the defendant Pension
Fund.
I. BACKGROUND

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Mr. Rees was employed as an iron worker for the majority of his life. As an iron worker,
he was a member of the Iron Workers’ Local Union No. 25 and a participant in the defendant
Pension Fund and Iron Workers’ Local No. 25 Pension Plan (the “Pension Plan”). The Pension
Fund is a multi-employer pension trust fund established under Section 302 of the Labor
Management Relations Act (“LMA”), 29 U.S.C. § 186 and the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. The Pension Fund was established
through the Collective Bargaining Agreement entered into between Local Union No. 25
International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (the
“Union”), and multiple employers who employ members of the Union. A Board of Trustees
(comprised of three Union representatives and three employer association representatives)
administers the Pension Fund in accordance with the Pension Plan documents. (Doc. #104 at
7). As of April 14, 2015, the Pension Fund has been under Union supervision and control as an
emergency measure because it is in critical status. (Doc. #52-23).
In 2012, Mr. Rees applied for, and was granted, a special retirement benefit under the
Pension Plan commonly referred to as the “30 and Out” benefit. In short, at the time Mr. Rees
applied for retirement, the 30 and Out benefit allowed an eligible plan participant to retire after
obtaining 30 years of credited service, subject to certain reductions if the plan participant retired
prior to the age of 58. One year of credited service required 870 hours during a particular “Plan
Year.” An “Hour of Service” is defined in the Pension Plan:
Hour of Service (a) is each hour for which an Employee is paid or entitled to
payment by a Contributing Employer on account of a period of time during which
actual duties are performed; and (b) an Hour of Service shall be granted for each
hour for which back pay, irrespective of mitigation of damages, is either awarded
or agreed to by the Contributing Employer, to the extent that such award of
employment is intended to compensate the Employer for periods during which the
Employee would have been engaged in the performance of duties for the
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Employer. All Hours of Service shall be credited in accordance with Department
of Labor Regulation 2530.200b-3(d).
(2010 and 2013 Pension Plans).
Mr. Rees submitted his application for retirement at the age of 51. Under the 2010
Pension Plan in effect at the time he submitted his retirement application, Mr. Rees’s benefits
were subject to a full actuarial reduction until reaching age 55, and a 0.5% monthly reduction
thereafter until reaching age 58. However, as will be explained below, effective November 2012
the Pension Plan was amended to eliminate the 30 and Out benefit altogether such that a plan
participant cannot retire until reaching age 55, regardless whether the plan participant worked
for 30 years.
At the time he retired under the 2010 Pension Plan, Mr. Rees was working for Metro
Industrial Contracting (“Metro Industrial”). As it got closer to October 2012, Mr. Rees contacted
Metro Industrial’s president, Ed Buckle (“Buckle”), and communicated his intention of retiring in
October 2012 under the 30 and Out benefit because of his declining health. Buckle contacted
Jack O’Donnell (“Trustee O’Donnell”), a Union-representative trustee of the Pension Fund.
(Buckle Aff. ¶¶ 8–9; Doc. #52-24 at 2). Trustee O’Donnell requested a meeting with Mr. Rees
and Buckle to discuss Mr. Rees’s retirement options. (Id. ¶¶ 7,10; Doc. #52-24 at 3–4). The
meeting occurred on June 11, 2012. At the meeting, Trustee O’Donnell “made representations
to Mr. Rees relating to his eligibility for a Special Retirement benefit, and encouraged him to
apply for benefits under the 2010 Plan.” (Id. ¶ 7; Doc. #52-24 at 3). Mr. Rees informed Trustee
O’Donnell that he was “committed to fulfilling all requirements necessary to complete his 30
years of service, including working for 870 hours beginning with the” 2012 Plan Year, and, that
after working the 870 hours, he would retire effective October 1, 2012. (Id. ¶ 10; Doc. #52-24
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at 4). However, “[a]ware of Mr. Rees’ medical condition, Trustee O’Donnell suggested instead
. . . that Mr. Rees could retire earlier because he had previously actually worked hours for Metro
for which he was entitled to payment but for which he had not yet been paid[.]” (Id. ¶ 11).
Trustee O’Donnell told Mr. Rees that “these ‘banked hours’ actually worked [would] be distributed
among the months of May, June and July of 2012 (in addition to the 40-plus hours per week that
Mr. Rees performed services for Metro in May, June and July of 2012), so that he would be
eligible to retire with a Special Retirement, effective August 1, 2012.” (Id.).
Relying on Trustee O’Donnell’s statements to Mr. Rees that he could use his “banked
hours” towards attaining the 30 and Out benefit, Buckle, on behalf of Metro Industrial, submitted
documentation to the Fund Administrator’s office showing that Mr. Rees worked 1,008 hours in
the 2012 Plan Year. (Id. ¶ 13–14; Doc. #52-24 at 5). Metro Industrial made all of the necessary
contributions on those hours. Buckle attests that Metro Industrial would have retained Mr. Rees
as an employee until he reached the 870 hours of service required in 2012 to obtain the 30 and
Out benefit were it not for Trustee O’Donnell representing that Mr. Rees could use his “banked
hours” and retire effective August 1, 2012. (Id. ¶ 15). Mr. Rees received calculations from the
Fund Office explaining to him what his retirement benefits would be upon retiring on August 1,
2012. For example, on July 11, 2012, the Fund Office provided Mr. Rees with a pension
qualification report acknowledging that Mr. Rees would be eligible for early retirement effective
August 1, 2012, with a monthly benefit of $4,532.17 to him for his lifetime, and, in the event he
were to die, to his wife for her lifetime. (Wendy Rees Aff Ex. 3).
After working 40-plus hours per week through July 31, 2012, Mr. Rees submitted a
pension application for retirement, dated July 31, to be effective August 1, 2012. Mr. Rees

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selected the 100% Contingent Person Option for the remainder of his lifetime and the 100%
Qualified Joint and Survivor Option for the lifetime of his wife. The 2010 Pension Plan provided:
[E]ffective October 1, 2003, if the Active Participant dies having attained at least
30 Years of Service, the surviving spouse may elect the survivor portion of the
100% joint and survivor benefit, calculated as if the participant had retired on the
date of his death and elected the 100% joint and survivor option, to begin
immediately.
(2010 Pension Plan Section 6.1).
Pension Plan Administrator Dennis Kramer (“Plan Administrator Kramer”) contends that
he reviewed Mr. Rees’s application for retirement and determined that he was eligible for one
year of credited service for the 2012 Plan Year, totaling 30 years of service overall. (Kramer Aff.
at 3). In a letter dated August 1, 2012, the day after Mr. Rees submitted his application for
retirement, Plan Administrator Kramer explained to Mr. Rees that his application was approved:
Dear Mr. Rees:
Enclosed please find a check in the gross amount of $4,532.17 representing the
initial payment of your retirement benefits under the Iron Workers Local 25 Pension
Plan. This payment is for the month of August 2012. Subsequent pension checks
will be sent to you on the first day of the month for which such payment is due.
Your monthly benefit will be in the amount of $4,532.17 computed as follows:
(a)

Early Monthly Benefit Amount

$5,050.48

(b)

Reduced Monthly Benefit payable under the “100%
Continent Pension Option” for your remaining lifetime $4,532.17

(c)

Monthly Benefit payable under the Option for the
lifetime of your spouse, if she survives you

$4,532.17

****
The Trustees of this Fund wish to take this opportunity to express to you their
gratitude for the years of services that you have given to the Industry.
Good luck on your retirement.
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(Wendy Rees Aff. Ex. 4).
However, there is evidence in the record that Plan Administrator Kramer never actually
reviewed the hours worked by Rees in the 2012 plan year prior to communicating on behalf of
the Pension Fund that Mr. Rees’s retirement application was approved. A report of Mr. Rees’s
hours worked at Metro Industrial in the 2012 plan year was not generated until August 2, 2012
at approximately 1:30 p.m., the day after Plan Administrator Kramer sent the letter to Mr. Rees.
(Doc. #101).
After receiving the August 1 letter from Plan Administrator Kramer, Mr. Rees continued
to receive retirement benefits for thirteen months. Early on during that time period, on October
19, 2012, the Pension Fund issued a notice informing participants of upcoming changes to the
Pension Plan. Relevant here, the notice informed participants of a change to the Pension Plan
eliminating the 30 and Out benefit:
Special Retirement Benefit Based on 30 Years of Service
Currently, the Plan provides that an Active Participant with 30 Years of Service will
be eligible for an unreduced pension benefit when he reaches age 58. If he
chooses to retire prior to age 58, his pension benefit is reduced 0.5% per month
(6% per year) from age 55 to 58, with a full actuarial reduction for each year prior
to age 55 (not to exceed 6% per year).
Effective for participants commencing benefits on or after November 1, 2012, an
Active Participant will not be eligible to retire prior to age 55, even if he/she has 30
Years of Service. Further, the benefit of an early retiree will be subject to a full
actuarial reduction for each year prior to age 62.
(Doc. 52-7 at 3). The notice informed participants that the changes applied “to any participant
or beneficiary who begins receiving benefits on or after November 1, 2012, and will take effect
with December 1, 2012 benefit payments (for example, if a participant retires and begins
receiving benefits November 1, his November benefit payment will be calculated under the
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existing rules and benefits payable on or after December 1 will be calculated under the new
rules).” (Id. at 2).
Moreover, although not in the notice, the amended Pension Plan changed the joint and
survivor benefit. Under the existing 2013 Pension Plan, if an active plan participant dies on or
before the date on which the participant would have attained the earliest retirement age, the
surviving spouse’s benefits are subject to a full actuarial reduction. (2013 Pension Plan Section
6.1).
After receiving benefits for thirteen months (and after the special retirement benefit was
eliminated), Plan Administrator Kramer notified Mr. Rees that a routine audit of Metro Industrial
revealed that Mr. Rees worked an “unusual number of hours” in May, June and July 2012.
(Wendy Rees Aff. Ex. 9). In a letter dated June 14, 2013, Kramer asked Mr. Rees to submit:
•

Proof that you worked 360 hours in May 2012, to support the additional 200
hours contributed on your behalf. If you did not in fact work these hours,
the Fund Office must return these contributions to Metro, which would mean
you did not have sufficient hours to retire and begin drawing a benefit as of
August 1, 2012.

•

Proof that you actually worked 288 (or 296) hours in June 2012 and 360
hours in July 2012. These are unusually high hours. You may provide any
proof you may have, including descriptions of the jobs involved and why it
was necessary for you to work these hours. If you did not in fact work these
hours, the Fund Office must return the excess contributions to Metro, which
may mean you did not have sufficient hours to retire and begin drawing a
benefit as of August 1, 2012.

(Id.). Mr. Rees alleges that he received this letter after he questioned some of the Pension
Fund’s foreign investments.
In response to the June 14 letter sent to Mr. Rees, Metro Industrial sent Plan
Administrator Kramer its payroll register. However, in a letter dated June 27, 2013, Plan
Administrator Kramer informed Mr. Rees that “this is the same payroll register reviewed by the
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Fund auditor that led to our questions regarding the accuracy of hours reported.” (Wendy Rees
Aff. Ex. 10). Plan Administrator Kramer again asked Mr. Rees to provide support for the hours
contributed by Metro Industrial on his behalf, otherwise “the Fund Office cannot continue benefit
payments beyond July 2013.” (Id.). In response to this letter, Mrs. Rees obtained Mr. Rees’s
W-2 tax forms for the year ending December 31, 2012 and sent them to Plan Administrator
Kramer. (Doc. 52-2 at 9). Moreover, Mrs. Rees contends that Mr. Rees told her that he had
been in contact with Trustee O’Donnell who was resolving the issue for him with Plan
Administrator Kramer. (Id.).
Mr. Rees responded to Plan Administrator Kramer’s June 27th letter in a letter dated July
16, 2013. (Wendy Rees Aff. Ex. 12). Mr. Rees informed Kramer that “[t]he hours in question
were accumulated over a year or so period.” (Id.). Mr. Rees explained the hours were “banked”
from overtime hours worked during the week and on Saturdays. (Id.). The letter attached a
worksheet explaining the hours worked in the 2012 plan year.
Plan Administrator Kramer responded to Mr. Rees again by letter on August 5, 2013.
(Wendy Rees Aff. Ex. 11). The letter states, in pertinent part:
Perhaps there has been some misunderstanding. We would like to provide
you with an additional opportunity to provide the information needed to avoid
cessation of your benefits.
A Year of Service is credited to a participant when they have 870 hours of
work in a plan year. The plan year for the Iron Workers’ No. 25 Pension Fund
begins May 1st. To establish that you had sufficient credited service to retire as
of August 1, 2012, the Fund Office must receive proof that you actually worked 870
hours from May 1, 2012, through July 31, 2012.
Therefore, proof of hours worked in 2010, 2011, or in 2012 prior to May 1,
2012, are not taken into consideration.
(Id.).
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Mrs. Rees says that, during the time Plan Administrator Kramer was sending letters to her
husband, Mr. Rees was in constant contact with Trustee O’Donnell who advised him how to
respond. (Doc. #52-2 at 11). She contends that Trustee O’Donnell told Mr. Rees that his
responses to Plan Administrator Kramer would “satisfy the inquiry into his credited hours of
service.” (Id.). Moreover, on August 15, 2013, Buckle and Mr. Rees sent letters to Plan
Administrator Kramer in support of the hours worked by Mr. Rees in the 2012 plan year. (Defs’.
Preliminary Injunction Br., Ex. C). Buckle explained to Kramer that he was submitting time
sheets on behalf of Mr. Rees that, “to the best of [his] knowledge and ability, accurately
reflect[ed] the wages and fringe benefits paid to Mr. Rees for the period in question and [were]
consistent with documentation previously provided.” (Id.).
Plan Administrator Kramer was not satisfied with the responses. In a letter dated
September 25, 2013, Plan Administrator Kramer informed Mr. Rees that his retirement benefits
would be suspended:
After reviewing all the information you have submitted, we have concluded
that you did not have 870 Hours of Service from May 1, 2012, through July 31,
2012. As a result, you did not have 30 Years of Service as of August 1, 2012, and
were not eligible to retire. See Plan at Section 3.2 and 4.7. Therefore, you will not
receive any further benefit payments. When you are eligible to retire, your benefit
will be adjusted for any benefit payments made to date.
(Wendy Rees Aff. Ex. 15). The decision to discontinue benefits was made long after the 90-day
period (180 days if special circumstances exist) the Pension Plan sets forth as the relevant
period for making a decision regarding benefits. (Id., Ex. 7 at 21). Plan Administrator Kramer
explained that Mr. Rees had the opportunity to appeal the determination to the Board of
Trustees.

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Mr. Rees filed a timely appeal (prepared by his wife) with the Board of Trustees. (Id., Ex.
16). In his appeal, Mr. Rees informed the Board of Trustees that, “every year, beginning in 1986,
I was credited with more than a year of service. At no point has anyone . . . questioned my
overtime hours for any year of service until 2012.” (Id.). Mr. Rees also explained that his
application for early retirement was completed only after discussing his hours worked, including
the banked hours, with Trustee O’Donnell and Metro Industrial. (Id.). Mr. Rees’s appeal was
denied on December 23, 2013. (Id., Ex. 17).
While his appeal was pending before the Board of Trustees, Mr. Rees returned to iron
work in October 2013 primarily in confined spaces such as blast furnaces. (Doc. 52-2 at 15).
He continued in iron work until April 30, 2014 when he obtained 870 hours to add an additional
year of service. (Id. at 16). However, as explained, by this time the 30 and Out benefit was
eliminated.
As explained above, plaintiffs seek immediate consideration and a preliminary injunction
given Mr. Rees’s current health, which became worse after his return to iron work in 2014. The
specific medical conditions Mr. Rees suffers from are part of the sealed record in this case.
II. LEGAL STANDARD1
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment
"forthwith if the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law." See Redding v. St. Eward, 241

1

Given the court’s decision granting summary judgment to plaintiffs and
dismissing the remaining motions as moot, as explained below, the summary judgment
standard is the only relevant standard the court applies in this opinion and order.
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F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court's use of summary
judgment as an integral part of the fair and efficient administration of justice. The procedure is
not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see
also Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995).
The standard for determining whether summary judgment is appropriate is "'whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.'" Amway Distrib. Benefits Ass’n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986)). The evidence and all reasonable inferences must be construed
in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original); see also Nat’l
Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule 56(c) that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing
party must come forward with "specific facts showing that there is a genuine issue for trial." First
Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v. 988011 Ontario,
Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the non-movant's
pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the nonmoving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence from which a

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jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477
U.S. at 252).
III. ANALYSIS
As explained above, plaintiffs allege multiple violations under ERISA, as well as a claim
of federal common law equitable estoppel. The court begins its analysis by addressing the
equitable estoppel claim (Count VII). For the reasons explained below, the court determines that
plaintiffs are entitled to summary judgment on their equitable estoppel claim. Therefore, the
court does not reach the remainder of the claims. Moreover, the court will deny defendants’
motion for judgment on the administrative record because plaintiffs are entitled to judgment in
their favor.
A. Equitable Estoppel (Count VII)
Plaintiffs bring a claim under federal common law seeking equitable estoppel against
defendants. This claim only applies against the Pension Fund. Cataldo v. U.S. Steel Corp., 676
F.3d 542, 553 (6th Cir. 2012) (“Moreover, only the Fund can potentially be estopped from doing
anything, because it is the only defendant that pays pension benefits in accordance with plan
documents.”) (citing Armistead v. Vernitron Corp., 944 F.2d 1287, 1299 (6th Cir. 1991)).
The Sixth Circuit recently explained that equitable estoppel claims are cognizable claims
in ERISA pension benefit cases “where the representation was made in writing and where the
plaintiff can demonstrate extraordinary circumstances.”

Bloemker v. Laborers’ Local 265

Pension Fund, 605 F.3d 436, 441 (6th Cir. 2010).
The Sixth Circuit explained:
Under our precedent, the elements of an equitable estoppel claim are: 1) conduct
or language amounting to a representation of material fact; 2) awareness of the
true facts by the party to be estopped; 3) an intention on the part of the party to be
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estopped that the representation be acted on, or conduct toward the party
asserting the estoppel such that the latter has a right to believe that the former’s
conduct is so intended; 4) unawareness of the true facts by the party asserting the
estoppel; and 5) detrimental and justifiable reliance by the party asserting estoppel
on the representation.
Id. at 442 (citation omitted).
In Bloemker, the plaintiff applied for early retirement benefits after receiving an “estimate”
of what his benefits would be from the pension plan’s third-party administrator. Id. at 439. Less
than one month after he applied for the benefits, the third-party administrator certified that,
“[b]ased on our records of your hours worked under the Plan and the contributions which have
been made on your behalf . . . , you are entitled to receive the retirement benefit specified
above[.]” [$2,339.47 per month for his life and $1,169.75 per month to his wife if she were still
living after his death]. Id. However, after receiving benefits for approximately two years, the plan
administrator contacted the plaintiff and explained that an audit revealed that the calculation of
benefits was incorrect due to a computer programming error. Id. The plaintiff was informed that
his benefit should have been $1,829.71 per month and that he was required to pay $11,215.16
overpaid to him. Id. The plaintiff exhausted his administrative appeals and filed a federal lawsuit
against the pension fund alleging, among other things, a theory of federal common law equitable
estoppel. Id. at 440.
Reversing the district court’s decision dismissing the equitable estoppel claim, the Sixth
Circuit reasoned:
Bloemker has alleged a valid claim for equitable estoppel. . . He alleges that he
received a document stating that he could elect a pension benefit of $2,339.40 per
month for life with an additional benefit of $1,169.75 per month for his wife after his
death if she survived him. This document stated that [the plan administrator]
certified that Bloemker was entitled to receive that benefit. It clearly satisfies the
first estoppel requirement. The second element requires the plaintiff to
demonstrate that the defendant’s actions “contain[ed] an element of fraud, either
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intended deception or such gross negligence as to amount to constructive fraud,”
Crosby v. Rohm & Haas Co., 480 F.3d 423, 431 (6th Cir. 2007) (quoting Trs. of
Mich. Laborers’ Health Care Fund v. Gibbons, 209 F.3d 587, 591 (6th Cir. 2000)),
which Bloemker has done by alleging that the Plan and [the plan administrator]
were aware of the true facts and that they intended for Blomker to rely upon their
representations. These allegations also satisfy the third estoppel element. Finally,
Bloemker has alleged that he was not aware of the true facts, and that he relied
upon these misrepresentations when deciding to retire, which is sufficient to satisfy
the remaining elements of estoppel.
Id. at 442–43.
The Sixth Circuit in Bloemker recognized that its decision in Sprague v. General Motors
Corp., 133 F.3d 388 (6th Cir. 1998) (en banc), held that estoppel “‘cannot be applied to vary the
terms of the unambiguous plan documents.’” Id. at 443 (citing Sprague, 133 F.3d at 404).
Nevertheless, the court explained that the two justifications in Sprague [1) reliance can seldom
be reasonable or justifiable if inconsistent with the clear language of the unambiguous plan
documents; and 2) allowing estoppel to override clear plan document terms would enforce
something other than the plan documents themselves], did not apply to the extraordinary
circumstances before the court. Thus, as explained, the court held that “a plaintiff can invoke
equitable estoppel in the case of unambiguous pension plan provisions where the plaintiff can
demonstrate the traditional elements of estoppel, including that the defendant engaged in
intended deception or such gross negligence as to amount to constructive fraud, plus (1) a
written representation; (2) plan provisions which, although unambiguous, did not allow for
individual calculation of benefits; and (3) extraordinary circumstances in which the balance of
equities strongly favors the application of estoppel.” Id. at 444.
Important to the court’s decision in Bloemker was that, even under the unambiguous plan
documents, it was “impossible for the plaintiff to determine his correct pension benefit due to the
complexity of the actuarial calculations and his lack of knowledge about the relevant actuarial
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assumptions used.” Cataldo, 676 F.3d at 554 (citing Bloemker, 605 F.3d at 443). In other
words, “[i]t was not a situation where a clear answer to the plaintiff’s question about his plan was
easily answered by reference to plan documents, and the information provided by the plan
administrator—how much the plaintiff would receive each month in benefits—could not be
contradicted by the plan documents.” Id. C.f. Haviland v. Metropolitan Life Ins. Co., 876
F.Supp.2d 946, 960–61 (E.D. Mich. 2012) (Cohn, J.), aff’d 730 F.3d 563 (2013) (“[P]laintiffs here
knew, or should have known, from the unambiguous language of the Plan documents that GM
could reduce or eliminate their continuing life insurance benefits at any time. Bloemker cannot
save plaintiffs’ estoppel claim.”).
Applying the Sixth Circuit’s decision in Bloemker, Judge Sean Cox recently granted
summary judgment to a plaintiff plan participant on a federal common law equitable estoppel
theory under similar facts as this case. Paul v. Detroit Edison Co., — F.Supp.3d —, 2015 WL
1469314 (E.D. Mich. 2015). In Paul, the plaintiff worked for Michigan Consolidated Gas
Company (“MichCon”) from 1984 until his retirement in 2009, and he participated in the DTE Gas
Company Retirement Plan. Id. at *1. The plaintiff began considering retirement in late 2007.
Id. To facilitate the plaintiff’s retirement, the third-party plan administrator sent the plaintiff
pension calculation statements on multiple occasions estimating his potential retirement benefits.
Id. In addition, the plaintiff and his wife met with a company representative for a retirement
interview in 2009, where pension calculations and credited service were discussed, among other
things. Id. The plaintiff and his wife were also given a pension election authorization form
detailing the specific pension benefits they would receive upon the plaintiff’s retirement. Id. at
*2. This form certified that “DTE Energy reserves the right to correct any errors. . . Under the
law, a plan must be operated in accordance with its terms.” Id.
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After meeting with a company representative, the plaintiff in Paul retired under an early
retirement benefit on July 1, 2009, two years prior to when he would have been eligible to receive
an unreduced early retirement benefit. Id. After the plaintiff had received benefits for two years,
during an audit in 2011, the plan administrator “discovered that the years of credited service used
to calculate Plaintiff’s pension benefit were overstated by 3.00365 years.” Id. The plaintiff was
notified of the error in December 2011, and informed that his monthly annuity would be reduced
by $54.42 per month. Id. at *3. In addition, the plaintiff was told that he had been overpaid in
the amount of $17,776.35, and he was given multiple options to repay the excess benefits. Id.
The plaintiff objected to the correction of his benefits arguing that he would not have retired if he
was not assured that the calculation of his credited service and monthly benefits was correct.
Id. The pension plan’s committee representative denied the plaintiff’s appeal insofar as it related
to the monthly reduction of benefits but reversed the decision requiring the plaintiff to repay the
excess benefits he received in error. Id. The plaintiff filed suit against the pension fund alleging
a theory of equitable estoppel seeking to prevent the pension fund from reducing his monthly
benefits.
Applying the equitable estoppel factors articulated in Bloemker, the court concluded that
there were no genuine issues of material fact precluding summary judgment in favor of the
plaintiff. First, the court held that plaintiff was misled by a plan representative into believing that
(1) a statement given to him at his retirement interview accurately represented his credited years
of service; and (2) his multiple pensions would be bridged together beginning with his 1984 hire
date. Id. at *6. Second, the court determined that the assurances made to the plaintiff, which
were a “crucial aspect” of his decision to retire, “were so grossly negligent as to amount to
constructive fraud upon Plaintiff.” Id. at *7 (citations omitted). Third, the court explained that the
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plan administrator’s meeting with plaintiff and his wife for the very purpose of conducting a
retirement interview evidenced an intention that plaintiff rely on the representations made to him
and conduct “meant to facilitate Plaintiff’s retirement.” Id. at *8. Fourth, the court held that
plaintiff was unaware of the true facts because he did not calculate his own benefits and the
defendants conceded that the third-party plan administrator calculated the benefits. Id. Fifth,
the court reasoned that the plaintiff justifiably relied on the assurances made to him and suffered
financial damage when his pension was reduced. Id. Sixth, the court determined that the
pension calculation statements provided to the plaintiff satisfied the “written representation”
requirement. Seventh, the court found that it was impossible for the plaintiff “to have known that
his benefits were miscalculated by simply looking at the unambiguous plan language because
those calculations required complex actuarial knowledge.” Id. at *9 (citation omitted). Finally,
the court held that the circumstances surrounding the plaintiff’s reliance on the representations
made to him were “nothing short of extraordinary.” Id. at *10.
The court finds that Paul is persuasive authority in this case. Here, like Paul, plaintiffs
have conclusively established their equitable estoppel claim. Applying the Bloemker factors, the
court determines that plaintiffs are entitled to summary judgment on this claim.
1. Representations of material fact
Multiple material factual representations were made to Mr. Rees at the time he was
considering early retirement under the 30 and Out benefit. First, as explained above, Trustee
O’Donnell represented to Mr. Rees in a meeting at Metro Industrial on June 11, 2012 that Mr.
Rees could use his “banked hours” to retire as early as August 1, 2012 under the 30 and Out
benefit. At the time Trustee O’Donnell made the representation, he knew of Mr. Rees’ declining
health, and he was aware that Mr. Rees intended to work until he obtained the requisite 870
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hours needed for the 2012 Plan Year before retiring under the special retirement benefit. When
Trustee O’Donnell met with Mr. Rees and Buckle, he knew that Mr. Rees had not worked 870
hours in the 2012 Plan Year, yet he told Mr. Rees he could retire using his “banked hours.”
Notably absent in response to plaintiffs’ motion for summary judgment is a denial that
Trustee O’Donnell represented to Mr. Rees that he could retire earlier than expected using his
“banked hours.” Defendants instead argue that the Pension Fund cannot be bound by Trustee
O’Donnell’s representation to Mr. Rees that he could retire using his “banked hours,” and that
there is no evidence that Trustee O’Donnell ever told Plan Administrator Kramer of his
conversation with Mr. Rees. Indeed, Plan Administrator Kramer denies that Trustee O’Donnell
ever told him about the conversation. The court is not persuaded by this argument. At a
minimum Trustee O’Donnell had apparent authority to make representations on behalf of the
Pension Fund and Plan when dealing with a plan participant such as Mr. Rees. Thus, it makes
no difference whether Trustee O’Donnell relayed his conversation with Mr. Rees and Buckle to
Plan Administrator Kramer. As a union representative of the Pension Fund, Trustee O’Donnell
was in a position to make representations that would influence Mr. Rees’s retirement decisions.
Moreover, it was Trustee O’Donnell who initiated the meeting with Buckle and Mr. Rees when
Buckle told Trustee O’Donnell that Mr. Rees was planning on retiring in October 2012. To
suggest that Trustee O’Donnell was not in a position of authority when he met with Buckle and
Mr. Rees is not a credible argument.
At oral argument, counsel for defendants suggested that Trustee O’Donnell may be
personally liable for the representations he made to Mr. Rees, but that the Pension Fund cannot
be liable. The court disagrees. As explained above, the Pension Fund, not Trustee O’Donnell,
has revoked Mr. Rees’s benefits. Thus, it is the Pension Fund that can potentially be estopped
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from doing anything. Cataldo, 676 F.3d at 553. In meeting with Buckle and Mr. Rees, Trustee
O’Donnell essentially was acting on behalf of the Pension Fund.
Defendants also argue that it would be unfair to grant summary judgment to plaintiffs and
to credit their version of what Trustee O’Donnell said when discovery is ongoing and it is not
clear what Trustee O’Donnell may say at a deposition. Counsel for defendants argued that
Trustee O’Donnell is no longer a trustee of the Pension Fund, and, that at some point in the
future, it may be necessary for Trustee O’Donnell to obtain separate counsel. However, counsel
for defendants remains counsel of record for Trustee O’Donnell.

Thus, the court is not

persuaded by this argument. Moreover, there are procedures set forth in the Federal Rules of
Civil Procedure when a party, in responding to a summary judgment motion, believes that further
discovery is warranted.2 Defendants did not follow those procedures. The Federal Rules allow
the court to defer ruling on a motion for summary judgment when additional discovery is
requested. Rule 56(d) directs:
When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). Defendants have not, through affidavit or declaration, stated what
additional discovery is necessary and how that discovery would change anything. Failure by
2

At oral argument, defendants’ counsel argued that further discovery could be
gained from Mr. Rees who, at this juncture, is not capable of answering discovery or
appearing for a deposition. Moreover, defendants’ counsel stated that Trustee
O’Donnell’s deposition testimony may be helpful.
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defendants’ counsel to file an affidavit or declaration defeats any claim that additional discovery
is needed. See Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (“We, like other
reviewing courts, place great weight on the Rule 56[(d)] affidavit, believing that ‘[a] party may not
simply assert in its brief that discovery was necessary and thereby overturn summary judgment
when it failed to comply with the requirement . . . to set out reasons for the need for discovery
in an affidavit.’”).
Second, material representations were made to Mr. Rees even after his conversation with
Buckle and Trustee O’Donnell. Before Mr. Rees decided to retire, he received multiple written
communications from the Fund Office confirming the amount of benefits he would receive upon
retirement. Most notably, on July 11, 2012, the Fund Office provided Mr. Rees with a pension
qualification report acknowledging that Mr. Rees would be eligible for early retirement effective
August 1, 2012, with a monthly benefit of $4,532.17 to him for his lifetime, and, in the event he
were to die, to his wife for her lifetime. After Mr. Rees applied for early retirement, Plan
Administrator Kramer sent him a letter on August 1, 2012 enclosing his first retirement check in
the amount of $4,532.17 (consistent with the calculations Mr. Rees received from the Fund
Office), and informing him of the benefits he should continue to expect. (Wendy Rees Aff. Ex.
4). As explained above, Kramer’s letter informed Mr. Rees that his “monthly benefit will be in the
amount of $4,532.17 computed as follows:”
(a)

Early Monthly Benefit Amount

(b)

Reduced Monthly Benefit payable under the “100%
Continent Pension Option” for your remaining lifetime $4,532.17

(c)

Monthly Benefit payable under the Option for the
lifetime of your spouse, if she survives you

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$5,050.48

$4,532.17

(Id.). These were representations made to Mr. Rees, in writing, that he was eligible for the
special retirement benefits he applied for in July 2012. These representations are sufficient to
satisfy the first equitable estoppel element even if the court does not consider Trustee
O’Donnell’s statements made to Mr. Rees and Buckle.
2. Awareness of the true facts by the party to be estopped
To establish awareness of the true facts by the party to be estopped (the Pension Fund),
plaintiffs must show an element of fraud, “either intended deception or such gross negligence
as to amount to constructive fraud.” Bloemker, 605 F.3d at 443. Defendants argue that there
has been no showing of fraud. However, the court finds that plaintiffs have established gross
negligence sufficient to establish constructive fraud.
This case is similar to Paul. In Paul, Judge Cox explained:
The Court finds that what transpired in this case was more complicated than the
“honest mistake” in Stark [v. Mars, Inc., 879 F.Supp.2d 752 (S.D. Ohio 2012), aff’d,
518 F. App’x 477 (6th Cir. 2013))]. Cognizant that the different union and nonunion positions Plaintiff held during his employment complicated the calculation of
his years of credited service, Plaintiff sought clarification of those calculations from
the company representative at the retirement interview.
The company
representative assured Plaintiff that the calculation of his years of credited service
was correct. The Overpayment Notice, however, clearly states that the very
calculations that the company representative assured Plaintiff were correct at the
retirement interview were in fact miscalculated. The Court finds that the company
representative’s assurances, which were a crucial aspect of Plaintiff’s decision to
retire effective July 1, 2009, were so grossly negligent as to amount to constructive
fraud upon Plaintiff. [citations omitted].
2015 WL 1469314, at *7.
Here, Mr. Rees met with Trustee O’Donnell and Buckle in June 2012 when he had less
than four months remaining before reaching the 870 hours required in the 2012 plan year to
retire under the 30 and Out benefit in October 2012. Mr. Rees expressed his intention to retire
in October 2012, but it was Trustee O’Donnell who told him he could retire under the special
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retirement benefit two months early, effective August 1, 2012, by using his “banked hours.” It
was these very “banked hours” that Mr. Rees was later notified could not be counted towards his
time of service.
Knowing that retirement decisions are substantial decisions for plan participants, the
Pension Fund provided Mr. Rees with calculations in July 2012 informing him of what his lifetime
benefits would be if he retired effective August 1, 2012. Plan Administrator Kramer then notified
Mr. Rees on August 1, 2012 that his pension application was approved. As explained above,
Plan Administrator Kramer attested that he confirmed that Mr. Rees worked the necessary hours
in the 2012 plan year prior to sending the August 1 letter. However, the report of Mr. Rees’s
hours worked at Metro Industrial for the 2012 plan year was not generated until August 2, 2012
at approximately 1:30 p.m., the day after Plan Administrator Kramer sent the letter to Mr. Rees.
(Doc. #101). Thus, it is doubtful that Plan Administrator Kramer would have been able to verify
Mr. Rees’s hours worked at Metro Industrial in the 2012 plan year.
The multiple representations made to Mr. Rees, dealing with his significant life decision
to retire under the 30 and Out benefit, were made with gross negligence without any reasonable
attempt to verify the accuracy of the representations. Subsequent to making the representations
to Mr. Rees that he was eligible for the 30 and Out benefit, Mr. Rees received pension payments
for thirteen months. Despite the Pension Plan requiring decisions on benefits to be made within
90 days, the Pension Fund waited thirteen months to terminate Mr. Rees’s benefits. These
assurances, like the assurances made in Paul, “were so grossly negligent as to amount to
constructive fraud. . . .” Paul, 2015 WL 1469314, at *7. Indeed, like Paul, the assurances were
a crucial aspect of Mr. Rees’s decision to retire and his decision not to work until October 2012
to obtain the necessary hours of service without use of the “banked hours.”
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3. Intention that representation be acted on
Next, plaintiffs must establish that the Pension Fund intended that the representation be
acted on, or conduct toward the plaintiffs such that they had a right to believe that the Pension
Fund’s conduct was so intended. Plaintiffs have established this element of their equitable
estoppel claim.
When Mr. Rees notified Buckle that he intended on retiring in October 2012 under the 30
and Out benefit, Buckle contacted Trustee O’Donnell. It was Trustee O’Donnell who requested
a meeting with Buckle and Mr. Rees for the very purposes of discussing Mr. Rees’s retirement.
Trustee O’Donnell learned that Mr. Rees would work until October 2012 yet he told him that he
could retire two months earlier in August 2012 by using the “banked hours.” Like Paul, the
“logical implications are that [Trustee O’Donnell’s] conduct was meant to facilitate [Mr. Rees’s]
retirement, and that [Trustee O’Donnell] fielded [Mr. Rees’s] questions with the intention of [Mr.
Rees] acting on [Trustee O’Donnell’s] assurances.” 2015 WL 1469314, at *8. Nothing prevented
Mr. Rees from working until October 2012 aside from Trustee O’Donnell’s assurances that the
“banked hours” allowed Mr. Rees to retire two months earlier. Indeed, Mr. Rees returned to work
in 2013 evidencing his willingness to have worked the requisite hours in the 2012 plan year were
he aware that his “banked hours” would not count toward attaining the 30 and Out benefit.
Moreover, the Fund Office’s confirmation of benefits and Plan Administrator Kramer’s
notification to Mr. Rees by letter that his pension application was approved was intended to
communicate to Mr. Rees that he could retire. Plan Administrator Kramer intended that Mr. Rees
retire after knowing that his pension application was approved and that he and his wife were
entitled to specific monthly benefits for life. These assurances, standing alone, are sufficient to
satisfy this equitable estoppel element.
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4. Unawareness of the true facts
Next, plaintiffs must show that they were unaware of the true facts, i.e. that Mr. Rees was
unaware that he was ineligible to retire under the 30 and Out benefit effective August 1, 2012.
Plaintiffs have established unawareness of the true facts.
As explained above, Mr. Rees did not intend to retire until October 2012 when he would
have worked sufficient hours in the 2012 plan year to obtain the 30 and Out benefit. Trustee
O’Donnell explained to Mr. Rees that he could retire using his “banked hours.” Until this time,
Mr. Rees intended on working until October 2012, and he did not know that he could not use
“banked hours” towards calculating his credited service. The Pension Plan defines “Hour of
Service” as “each hour for which an Employee is paid or entitled to payment by a Contributing
Employer on account of a period of time during which actual duties are performed.” Mr. Rees
was unaware that, despite Trustee O’Donnell’s statements to the contrary, and although he was
entitled to payment by Metro Industrial for the period of time which actual duties were performed,
the Pension Fund interprets the Pension Plan as requiring the actual duties be performed within
the plan year in which the hours are contributed. Plaintiffs have satisfied this element of
estoppel.
5. Detrimental and justifiable reliance
The final traditional element of equitable estoppel plaintiffs are required to prove is
detrimental and justifiable reliance on the Pension Fund’s representations.
There can be no dispute that Mr. Rees detrimentally relied on Trustee O’Donnell’s
representation that “banked hours” would be counted towards obtaining the 30 and Out benefit,
the Fund Office’s written calculations in July 2012 detailing the amount of his and his wife’s

-26-

lifetime benefits if he retired effective August 1, 2012, and Plan Administrator Kramer’s August
1 letter informing him that his pension application was approved. Mr. Rees intended to work until
October 2012 — a mere two months longer than he actually worked for Metro Industrial. Mr.
Rees’s decision to retire was influenced, in large part, by his declining health. At the time he
made the decision, he could have worked until October 2012 without any problems. It was not
until Trustee O’Donnell told Mr. Rees that he could retire in August 2012 using his “banked
hours” that he decided to forego working until October 2012. Moreover, Mr. Rees detrimentally
relied on the fact that the Pension Fund did not take any action within 90 days to revoke his
benefits, despite the Pension Plan requiring decisions to be made on pension applications within
90 days (120 for unusual circumstances).

Because Mr. Rees’s pension application was

approved and his benefits were being paid, he did not have an opportunity to return to work and
obtain the necessary hours without using the “banked hours.” Plaintiffs suffered financial
damage from the revocation of benefits and future reduction to the amount of benefits. These
adverse changes in position as a result of plaintiffs’ reliance on the Pension Fund’s
representations amount to detrimental reliance. Paul, 2015 WL 1469314, at *8.
Moreover, plaintiffs’ reliance was justifiable. Mr. Rees’s decision to retire was influenced
by Trustee O’Donnell’s representation that “banked hours” could be used towards retirement,
and the Fund Office’s and Plan Administrator Kramer’s written representations detailing the
amount he and his wife would receive in benefits. Mr. Rees was then paid benefits for thirteen
months. Plaintiffs justifiably relied on the above representations.
6. A written representation
Next, the court turns to the question of whether plaintiffs have offered any evidence of
written representations made by the Pension Fund. The Bloemker court held that, in addition to
-27-

the traditional equitable estoppel elements, a plaintiff must also point to a written representation
by the pension fund. Here, multiple representations were made to Mr. Rees in writing. First, the
Fund Office in July 2012 provided Mr. Rees with specific calculations detailing the amount of his
benefits effective upon retirement on August 1, 2012. Second, Plan Administrator Kramer
essentially confirmed the Fund Office’s calculations when he sent Mr. Rees a letter informing him
that his pension application was approved and the amount of benefits he should expect to
continue to receive. Indeed, Mr. Rees received the very amount the Fund Office told him to
expect and Plan Administrator Kramer’s letter informed him that he would receive for a period
of thirteen months. These representations satisfy Bloemker’s writing requirement.
Although there is nothing in writing from Trustee O’Donnell confirming that Mr. Rees could
use his “banked hours” to retire, there is no requirement that all representations be in writing,
only that a representation be in writing. The above representations are sufficient to satisfy the
writing requirement. Trustee O’Donnell’s statement provides additional evidence above and
beyond the written representations that were made by defendants.
7. Unambiguous plan provisions
The next factor the Bloemker court requires is a showing that the plaintiff could not obtain
a clear answer to the determination of benefits by resorting to the unambiguous plan provisions.
Plaintiffs have established this element of their equitable estoppel claim.
Here, a determination of whether Mr. Rees’s banked hours could be used towards his
hours of service is not determinable by reference to the plan documents alone. As explained,
the Pension Plan defines “Hour of Service” as “each hour for which an Employee is paid or
entitled to payment by a Contributing Employer on account of a period of time during which
actual duties are performed.” Mr. Rees could not simply refer to the plan documents, which do
-28-

not explain that the hours of service must be performed in the particular plan year that the
employer makes a contribution, in determining whether “banked hours” could be used for
retirement. Nothing in the unambiguous language of the Pension Plan speaks to “banked hours,”
including whether “banked hours” could be used towards achieving the requisite hours of service
in a particular plan year.
Moreover, given the complexities involved in calculating the amount of lifetime benefits,
plaintiffs could not refer to the Pension Plan to determine whether the Pension Fund Office and
Plan Administrator Kramer had accurately calculated Mr. Rees’s years of service and the amount
of benefits he was entitled to receive. This case, like Paul, involves a situation where plaintiffs
could not simply look to the Pension Plan language to determine whether the representations
made to Mr. Rees were accurate.
8. Extraordinary circumstances
Finally, Bloemker requires “extraordinary circumstances in which the balance of equities
strongly favors the application of estoppel.” The court finds that plaintiffs have established
extraordinary circumstances.
The facts of this case are more extraordinary than the court found in Paul. In Paul, the
court determined that “the circumstances surrounding Plaintiff’s reliance on Defendants’
assurances and the subsequent reduction of Plaintiff’s benefits are nothing short of
extraordinary.” 2015 WL 1469314, at *10. The court explained:
Relying on the written Pension Calculation Statements from
Defendants—statements that Defendants’ company representative also expressly
and personally assured Plaintiff accurately reflected Plaintiff’s hire date and years
of credited service—Plaintiff elected for early retirement. Plaintiff received the
benefits reflected on those written statements for more than two years before
Defendants notified him that, due to an actuarial miscalculation stumbled upon
during an audit: (1) Plaintiff’s benefits were overstated, (2) Plaintiff’s benefits would
-29-

be permanently reduced, and (3) Plaintiff would be required to pay back overstated
benefits. These are precisely the extraordinary circumstances that strongly favor
the application of estoppel under Bloemker. [citations omitted].
Id.
Here, like Paul, plaintiffs relied on (1) Trustee O’Donnell’s representation that “banked
hours” would count towards obtaining special retirement; and (2) written representations from
the Fund Office and Plan Administrator Kramer representing to Mr. Rees what he and his wife
would obtain in lifetime retirement benefits if he retired effective August 1, 2012. Moreover, like
Paul, Mr. Rees received the benefits reflected on those written statements provided by the Fund
Office for thirteen months before being notified that an audit revealed that he did not obtain 30
years of service. The difference making this case more egregious than Paul is that, at the time
Mr. Rees was notified that he did not obtain 30 years of service, there was no way he could turn
back the clock because the Pension Fund had eliminated the benefit subsequent to Mr. Rees’s
decision to retire. Moreover, unless and until Mr. Rees lives to be age 55, his wife may never
obtain benefits in the event of his death. Like the court determined in Paul, “[t]hese are precisely
the extraordinary circumstances that strongly favor the application of estoppel under Bloemker.”
The balance of the equities favors granting plaintiffs’ motion for summary judgment on the
equitable estoppel claim.
Accordingly, judgment shall separately enter in favor of plaintiffs and against the
defendant Pension Fund reinstating the special retirement benefits effective August 1, 2012, and
directing the Pension Fund to pay Mr. Rees the benefits that have been suspended since
September 2013.
B. Remaining Claims and Motions

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Given that judgment shall enter in favor of plaintiffs, it is not necessary to reach the
remaining claims in plaintiffs’ third amended complaint. Thus, plaintiffs’ motion for summary
judgment as it relates to these claims will be dismissed as moot. Likewise, plaintiffs’ motions for
a preliminary injunction and to strike defendants’ response brief are moot because they have
obtained final relief.
In addition, the court will dismiss as moot the parties’ cross-motions to resolve objections
to the administrative record/joint appendix. These motions only relate to Count I, which the court
does not reach.
The court will also deny defendants’ motion for judgment on the administrative record.
For the reasons explained above, plaintiffs’ are entitled to judgment, and the Pension Fund shall
be equitably estopped from revoking the special retirement benefits. Therefore, defendants are
not entitled to judgment on the administrative record.
Finally, because the equitable estoppel claim applies only to the Pension Fund, the claims
against the remaining defendants are dismissed without prejudice.
IV. CONCLUSION
For the reasons explained above, plaintiffs’ motion for summary judgment is GRANTED
IN PART and DISMISSED IN PART AS MOOT, plaintiffs’ expedited motion for injunctive relief
is DISMISSED AS MOOT, plaintiffs’ motion to resolve objections to the joint appendix is
DISMISSED AS MOOT, defendants’ motion to resolve objections on the administrative record
is DISMISSED AS MOOT, defendants’ motion for judgment on the administrative record is
DENIED and plaintiffs’ motion to strike is DISMISSED AS MOOT.
IT IS SO ORDERED.
Dated: September 30, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
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UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 30, 2015, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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