OpenJurist

214 F3d 446 Robert Harte v. Bethlehem Steel Corporation

214 F.3d 446 (3rd Cir. 2000)

ROBERT J. HARTE, Appellant
v.
BETHLEHEM STEEL CORPORATION; GENERAL PENSION BOARD OF THE BETHLEHEM STEEL CORPORATION AND SUBSIDIARY COMPANIES; MICHAEL P. DOPERA, Secretary, Employee Benefits Administration Committee

No. 98-2052

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: September 28, 1999
Opinion Filed February 29, 2000
Panel Rehearing Granted March 21, 2000
Submitted Under Third Circuit LAR 34.1(a) April 17, 2000
Opinion Filed May 26, 2000
As Amended July 19, 2000

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. No. 97-cv-06528) District Judge: Honorable Edward N. CahnDONALD P. RUSSO, ESQUIRE (ARGUED) 60 West Broad Street P.O. Box 1890, Suite 300 Bethlehem, PA 18016 Counsel for Appellant

G. STEWART WEBB, JR., ESQUIRE (ARGUED) RANDOLPH STUART SERGENT, ESQUIRE Venable, Baetjer and Howard, LLP 1800 Mercantile Bank & Trust Bldg. 2 Hopkins Plaza Baltimore, MD 21201, KATHLEEN M. MILLS, ESQUIRE Bethlehem Steel Corporation Law Department 1170 Eighth Avenue Bethlehem, PA 18016-7699 Counsel for Appellees

Before: BECKER, Chief Judge, McKEE, and NOONAN* Circuit Judges

OPINION OF THE COURT

BECKER, Chief Judge.

1

This appeal, arising out of a claim for pension benefits under ERISA, is set in the familiar factual pattern of an employee's being denied a more advantageous pension because of a minor shortfall in the required period of service. Robert J. Harte had accrued credit for fourteen years, eleven months, and eleven days at Bethlehem Steel when the benefits plan administrator terminated his continuous service (for pension purposes) because Harte had been absent from work for two years. When Harte's service was terminated, he was nineteen days short of eligibility for the "70/80" pension he now seeks. Harte claims that he did not learn that his service had been "broken," and hence that he had not accrued the fifteen years required for the pension, until approximately eight years later. After finally being notified of his shortfall, Harte sued, raising a host of arguments why Bethlehem Steel was required to give him the 70/80 pension, including arguments as to why his continuous service should never have been severed. The District Court granted summary judgment for Bethlehem Steel. Harte's strongest claim is a breach of fiduciary duty claim. He argues that (1) the plan document was unclear about when a break in service would be effected; (2) he reasonably believed that he was still employed under the terms of the plan; and therefore (3) Bethlehem Steel, as an ERISA fiduciary, should have notified him when it broke his service.

2

The Bethlehem Steel plan provides that an employee may receive a 70/80 pension after fifteen years of "continuous service." It states that although continuous service is broken two years after leaving work for a disability, it is not broken if the reason for leaving is a "compensable disability incurred during course of employment." Bethlehem Steel represents that the plan administrator, within his authority, has consistently interpreted this phrase to apply only to work-related disabilities that are compensated by state worker's compensation, which Harte did not receive. However, Harte applied for, received, and continued to receive (up to the date of suit), compensation for his disability through the company's long term disability program. On this ground, he contends that his service should never have been broken because he has a "compensable disability incurred during course of employment." Even if there are multiple plausible readings, he submits, the most natural reading of the term "compensable disability incurred during course of employment" encompasses disabilities compensated by long term disability benefits (which do not require a showing that the disability was work-related).

3

We agree with Bethlehem Steel that the plan administrator had the authority to make the interpretation that he did and to effect the severance. However, our precedent leads us to conclude that a fact-finder could decide that the company also had a fiduciary duty to timely inform Harte of its interpretation. We have consistently held that a plaintiff may obtain relief under S 502(a)(3) of ERISA if he or she demonstrates detrimental reliance on inconsistent or confusing statements by a fiduciary. It follows that when a material plan provision regarding severance is interpreted in a manner such that beneficiaries might predictably and reasonably rely on an alternate interpretation, a fiduciary may be held liable for failing to inform a beneficiary that his service has been broken in a timely manner, i.e., at or near the time his service was broken (so that he might attempt to protect himself). We believe that this standard has been met in this case. Someone receiving benefits under the company's long term disability program might predictably, and reasonably, expect to be covered under the umbrella of those who are not severed, thinking they have a "compensable disability incurred during the course of employment."

4

Since all the requisites are met, we vacate the grant of summary judgment and remand the case for further proceedings on the breach of fiduciary duty claim.1 The District Court properly granted summary judgment for Bethlehem on all other issues, and we affirm summarily with respect to these claims.2

I.

5

As far as is pertinent to this appeal, Harte worked at Bethlehem in several capacities between 1973 and 1986.3 On January 27, 1986, Harte, then a project engineer, left active work because of cardiac problems (angina from a prior anteriolateral myocardial infarction). He did not apply for, or receive, state worker's compensation benefits. He did, however, file for, and receive, long term disability (LTD) benefits through the company's benefits program, which he was still receiving as of the date he learned that he had been severed. His application noted that he was not eligible for worker's compensation benefits. Although his application suggests that his disability was partly due to job-related stress and job-related exhaustion from travel and field work, and his doctor's accompanying statement of disability included an assertion that Harte was incapable of work because his cardiac condition is incompatible with "much stress at company", the doctor also included a notation that Harte's disability was not "due to injury or sickness arising out of patient's employment."

6

On January 27, 1988, after crediting Harte with 14 years, 11 months, and 11 days of "continuous service," Bethlehem terminated his service. This left Harte nineteen days short of being eligible for pensions which would provide greater benefits than the deferred vested pension to which he is currently entitled.

7

The Bethlehem Plan provides that continuous service breaks two years after active employment ends due to layoff or a disability, but does not break if an employee leaves active employment due to a "compensable disability incurred during course of employment."4 Michael Dopera, plan administrator of the Bethlehem Pension Plan, testified by deposition that he broke Harte's continuous service in January 1988, because Harte left for medical reasons but did not have a "compensable disability" within the meaning of the plan. According to Dopera, "compensable disability incurred during course of employment" has always been interpreted by his office to apply only to those disabilities "where the recipient is getting worker's compensation benefits"; not those in which the employee is compensated by the company. Dopera acknowledged that there was no document available to the employees in which this interpretation was announced or formalized. Nor did he suggest that the plan mandated that interpretation, but rather that the plan "provides that we have the right to interpret provisions under the administration section. We interpret the compensable disability [incurred] during course of employment to mean someone actually getting worker's compensation payments." (Emphasis added.)

8

In November 1995, Harte received a letter stating that his continuous employment had been severed as of January 27, 1988, seven years and ten months earlier, and that he was eligible for a deferred vested pension. He immediately objected and wrote several letters to the company. Bethlehem apologized for not informing him earlier, blaming the lack of official notice on a "clerical error." Bethlehem represents that it has a policy of notifying plan participants that their service has been broken shortly after the severance and there is no evidence that it does not generally do so, or that Bethlehem was acting in bad faith when it failed to notify Harte in 1988.

9

Harte filed suit in District Court advancing several claims. As far is as is relevant for this appeal, the Court rejected Harte's contention that Bethlehem had an obligation to notify him when he was severed because: (1) it concluded that there was no evidence that Bethlehem had acted in bad faith; and (2) it believed that there was no fiduciary obligation to inform Harte that his service had broken. The Court granted summary judgment across the board for Bethlehem, and this appeal followed.5 After we issued a panel opinion reversing the judgment and remanding the case on the breach of fiduciary duty claim, Bethlehem Steel petitioned for rehearing and rehearing en banc. We granted the petition for the panel rehearing so that we might clarify and narrow our opinion in light of some of the arguments raised therein.

II.

10

Harte seeks equitable relief under ERISA S 502(a)(3) (codified at 29 U.S.C. S 1132(a)(3)), a "catchall" provision, which "act[s] as a safety net, offering appropriate equitable relief for injuries caused by violations that S 502 does not elsewhere adequately remedy." Varity v. Howe , 516 U.S. 489, 512 (1996). The alleged violation of ERISA involves S 404, which defines fiduciary duties owed by plan administrators to their beneficiaries. Section 404(a)(1) provides that:

11

a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and(A) for the exclusive purpose of:

12

(i) providing benefits to participants and their beneficiaries; and

13

(ii) defraying reasonable expenses of administering the plan;

14

(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims . . . .

15

29 U.S.C. S 1104.

16

In interpreting claims similar to those of Harte, we have looked to ERISA's policy declarations to aid our understanding of the scope of the fiduciary duty:

17

[O]wing to the lack of employee information and adequate safeguards concerning their operation, it is desirable in the interests of employees and their beneficiaries . . . that disclosure be made and safeguards be provided with respect to the establishment, operation, and administration of such plans. . . .

18

It is hereby declared to be the policy of this chapter to protect . . . the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.

19

29 U.S.C. SS 1001(a),(b). These statements demonstrate that ERISA was enacted, in part, to ensure that employees receive sufficient information about their rights under employee benefit plans to make well-informed employment and retirement decisions. See Jordan v. Federal Express Corp., 116 F.3d 1005, 1012 (3d Cir. 1997). The goals of the "fiduciary duty jurisprudence" arising out of ERISA are " `to protect and strengthen the rights of employees, to enforce fiduciary standards, and to encourage the development of private retirement plans.' " Id. at 1014 (quoting In re Unisys Savings Plan Litig., 74 F.3d 420, 434 (3d Cir. 1996)).6

20

The Supreme Court has recognized that the contours of fiduciary duties must be defined by the courts in "develop[ing] a federal common law of rights and obligations under ERISA-regulated plans." Varity, 516 U.S. at 497 (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110-11(1989)). In our own efforts to develop a federal common law of ERISA rights, we have held that administrators generally have a fiduciary duty"not to misinform employees through material misrepresentations and incomplete, inconsistent or contradictory disclosures." Unisys, 57 F.3d at 1264. A misleading statement or omission by a fiduciary is actionable if "there is a substantial likelihood that it would mislead a reasonable employee in making an adequately informed retirement decision." Unisys, 57 F.3d at 1264. This is an issue for the fact-finder if reasonable minds can differ on whether a misleading statement or omission would affect a reasonable employee's retirement decision. See Fischer v. Philadelphia Elec. Co., 994 F.2d 130, 135 (3d Cir. 1993).

21

This case does not involve affirmative misrepresentations in the traditional sense. However, we have made clear that a fiduciary not only has a negative duty not to misrepresent material facts to plan beneficiaries, but also a corresponding affirmative duty to speak "when the trustee knows that silence might be harmful." Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir. 1993). The duty extends to "those material facts, known to the fiduciary but unknown to the beneficiary, which the beneficiary must know for its own protection." Glaziers & Glassworkers Union Local No. 252 Annuity Fund v. Newbridge Sec., Inc., 93 F.3d 1171, 1182 (3d Cir. 1996). "The duty to disclose material information is the core of a fiduciary's responsibility." Id. at 1281 (quoting Bixler, 12 F.3d at 1300).

22

In Bixler, a widow sued her husband's former employer for failing to provide complete and accurate information about her insurance options, a failure which she claimed harmed her by leading her not to select a particular option. See 12 F.3d at 1296. We held that an ERISA fiduciary who explains insurance benefits has a "duty to convey complete and accurate information," and remanded part of the case to the district court to determine whether material facts were withheld from her and whether the defendant was acting as a fiduciary. Id. at 1302.

23

In Jordan v. Federal Express Corp., 116 F.3d 1005, 100610 (3d Cir. 1997), the plaintiff learned--only after retirement and divorce--that he could not transfer the benefits of his plan to his new wife, and that the plan was irrevocable. These details about the plan were in the plan document itself, but Jordan never requested nor received a complete copy of the plan, and he claimed that he would have chosen a different plan had he known. He did receive a written summary of his retirement options that did not include a reference to irrevocability. He never requested particular information about revocability. We held that a reasonable fact-finder could conclude that, despite its full compliance with ERISA and plan-based reporting requirements, the plan administrator had breached its fiduciary duty by failing to provide him this information. See id. at 1016. More specifically, we held that there was a genuine issue of material fact as to whether irrevocability was the kind of thing likely to affect a reasonable employee's retirement decisions, and whether a failure to explain it constituted a breach of the fiduciary's duties. See id. at 1017.

24

Bethlehem argues that Jordan is inapposite to this case because in Jordan the plan administrator had provided incomplete information. See id. at 1016-17. It contends that sending Jordan information triggered a duty to provide complete information about the plan, and since Bethlehem did not provide any information, a duty of completeness cannot have been triggered here. This argument fails for two reasons. First, as we have recognized before, without the administrator providing the relevant information, "the beneficiary may have no reason to suspect that it should make inquiry into what may appear to be a routine matter." Glaziers, 93 F.3d at 1181. The Jordan panel relied on this logic, as well as the fact that the fiduciary was providing some information, in its finding that there was a disputed issue regarding the duty to inform. See 116 F.3d at 1016. Second, and perhaps more importantly, providing a written plan is itself an affirmative act. In a plan, as in a summary plan document, beneficiaries have reason to expect that complete information about all material provisions is available to them when they review the document. Confusing or incomplete information in a plan is at least as likely to cause reliance as is confusing or incomplete information in a summary of the plan. Indeed, when a summary plan or letter includes incomplete information, the employee retains the possibility of reviewing the entire plan, whereas there are no more authoritative documents to review when the potentially misleading provision is in the plan itself.

25

Therefore, we conclude that an administrator who does not inform a beneficiary that his employment is severed when he might predictably and reasonably presume, after reading the pertinent part of the plan, that he is still employed, may be held liable for a breach of fiduciary duty. The "duty to convey complete and accurate information," Bixler, 12 F.3d at 1302, logically encompasses a duty to use clear language when describing severance terms in a plan, or explain them when they are unclear and likely to be misunderstood. A fiduciary's failure to notify an employee that he has been severed when he might predictably and reasonably presume, on the basis of the plan, that his service is unbroken, falls within the category of breaches of duty for "failure to disclose" outlined in Bixler, Jordan, Glaziers, and Unisys. Naturally, in considering the "reasonableness" of a beneficiary's interpretation, the company's own pronouncements and widely-known company practice must be taken into account; if a company adequately informs beneficiaries of its interpretation of a term (when it retains discretion to interpret), it would be patently unreasonable to understand it otherwise. Relatedly, although we focus on whether Bethlehem's failure to notify in this case might be actionable, we note that it could have fulfilled its duties by using clear language in the plan--e.g., a statement that "compensable disability" only applied to individuals receiving worker's compensation benefits.

26

In order to place our holding in perspective it will be useful to make clear what we are not holding, i.e., that a fiduciary may have an independent duty to inform a beneficiary of its interpretation of a plan at any point before the time at which his service was broken. Such a claim is not before us, and might implicate administrative burdens not present here.7 Likewise, and for similar reasons, we are also confining our holding to situations where an employee is severed. We need not address whether other changes in status would give rise to a similar fiduciary duty to notify. Harte merely argues--and we agree--that an administrator acting with care, skill, prudence and diligence would notify a beneficiary that he is severed pursuant to a plan interpretation when the beneficiary could predictably and reasonably rely on a different interpretation.

27

The petition for rehearing relies heavily on Maxa v. John Alden Life Insurance Co., 972 F.2d 980 (8th Cir. 1992) for its argument that there can never be a duty to inform individual beneficiaries, who have not inquired, about the interpretation of plan provisions. In Maxa, the plaintiff claimed that his father's employing company had breached its fiduciary duty by not informing him that his benefits would be reduced by the Medicare coverage he could have received. See id. at 982. That court concluded that ERISA imposes no such duty, reasoning that it would be institutionally impossible to inform each and every participant about the effects of all terms in a summary plan description on their benefits. While the Maxa court determined that the part of the summary plan which described the benefits-reduction was not entirely clear, the section in which it discussed the ambiguity of the term was analytically separate from the section in which it discussed the lack of a fiduciary duty individually to warn. Moreover, the Maxa plaintiff demonstrated no reliance. We read Maxa as standing for the uncontroversial proposition that a fiduciary does not have to regularly inform beneficiaries every time a plan term effects them.8

28

Interestingly, Maxa also cites (indirectly, by way of Stahl v. Tony's Building Materials, Inc., 875 F.2d 1404 (9th Cir. 1989)) this Court's affirmance of a District Court case, Allen v. Atlantic Richfield Retirement Plan, 480 F. Supp. 848, 85152 (E.D. Pa. 1979), aff'd, 633 F.2d 209 (3d Cir. 1980). That case actually helps explain our position, for although it held that there was no duty to warn, it did so in part because the summary plan document was clear: "There was nothing `misleading or incomprehensible' in the booklet's explanation of the waiting period, and an `average and reasonable worker participant' could easily understand" the requirement at issue. Allen, 480 F.Supp. at 851. As we explain presently, this case is very different.

29

We are not blind to the potential administrative strain on an ERISA administrator. A broad fiduciary duty to inform beneficiaries about the effects of all plan provisions upon them could give rise to a "practically impossible burden of anticipating, and comprehensively addressing, the individualized concerns of thousands of employees." Childers v. Northwest Airlines, Inc., 688 F.Supp. 1357, 1362 (D.Minn. 1988). However, in this case at least, there is no evidence that it is too great a burden for Bethlehem Steel to inform plan participants when they are severed. In fact, notification was Bethlehem Steel's own policy. This case could have been avoided were there a mechanism to ensure the effectiveness of that policy.

III.

The disputed phrase is:

30

[A]bsence in excess of two years due to a compensable disability incurred during course of employment shall not break continuous service.

31

The meaning of this phrase affects whether one's employment is considered continuous or broken off, and hence a fact-finder could conclude that a fiduciary acting with care, skill, and prudence would know that an employee would want--and need--to know whether his or her disability fell within this category. It is the kind of phrase that one could conclude is likely to "mislead a reasonable employee in making an adequately informed retirement decision." Unisys, 57 F.3d at 1264.

32

Bethlehem submits that this phrase has consistently been interpreted to cover only those cases where a participant applied for and received worker's compensation for a work-related injury. However, Dopera himself called his reading of the phrase an "interpretation," suggesting that the language did not mandate a particular result. Although the phrase could refer only to those disabilities arising out of work, a reasonable person could reasonably and predictably read this phrase to apply to any disability, illness, or injury that came upon an employee during the broad time frame of "active employment." Certainly, someone such as Harte who was actually receiving compensation for his medical condition through Bethlehem's long term disability program could predictably think that he had suffered a "compensable disability incurred during course of employment."

33

Of course, the phrase we question cannot be read in a vacuum, and it is possible that Bethlehem Steel will present evidence at trial that will demonstrate that in the context of employment with that company, it was not reasonable to expect that the phrase would be interpreted more broadly than it was. However, construing the facts in the light most favorable to Harte, as we must at this juncture, we conclude that the phrase was interpreted in a manner such that a fact-finder could decide that the administrator should have anticipated that Harte would predictably rely on a reasonable, but different, interpretation.

34

As to the detrimental reliance question, Bethlehem Steel argues that there is insufficient evidence that Harte relied on the presumption that he was not severed. Therefore, the argument continues, since no harm flowed from the failure of communication, the failure to notify should not be actionable. Harte counters that had he learned of his severance, either immediately or within a short time afterwards, he would have taken several steps. He submits that he could have gone back to work for nineteen days and then attempted to join those days to his previous fourteen odd years (as the plan allows), or, alternatively, he could have applied for different pensions or invested in separate insurance.

35

Bethlehem Steel notes that Harte had no absolute right to return to work, and that he was physically infirm and incapable of working according to his own physician. However, just as we cannot assume that Bethlehem Steel would have responded favorably to an entreaty for a brief, three week return, we similarly cannot assume that it would not have. Although Harte's cardiac condition might have been incompatible with long term labor, he might have been able to put in a few weeks of consulting (his work did not require heavy labor) to achieve his desired pension, and Bethlehem Steel might have accommodated him. Harte's long term disability application is far from clear on his ability to work for a short period of time. He answered "yes" to the question whether he was "wholly unable to engage in any and all work, and any and every occupation of business" but also suggested that travel, field work, and stress contributed to his disability. His doctor gave slightly contradictory indications in the accompanying statement of disability, noting that Harte was "totally disabled" but also that he was "Class 4", i.e., "capable of clerical/ administrative (`sedentary') activity." (394). A fact-finder could conclude from the self-diagnosis and the medical diagnosis that while long term work in his old capacity might have been impossible, a three week tour in a clerical position might have been feasible for Harte. Moreover, as noted above, Harte could have sought out alternate sources of insurance.

36

We are satisfied that although Harte had no absolute right to return to work and possibly lacked the ability to do so, a reasonable fact-finder could conclude, even on this spare record, that had he known that he was no longer receiving credit for "continuous service" he could have acted in some manner to protect himself.9 Now, eight years later, his physical condition may have deteriorated such that he can no longer obtain the protections he might previously have sought.

37

In view of the foregoing, the judgment with respect to the claim for a breach of fiduciary duty for failure to notify will be vacated, and the case remanded to the District Court for further proceedings. In all other respects the judgment will be affirmed. Parties to bear their own costs.

Notes:

*

Honorable John Noonan, United States Circuit Judge for the Ninth Circuit, sitting by designation.

1

Bethlehem argues that Harte should not be allowed to proceed on this claim because it was inadequately pled. Harte did not cite S 502(a)(3) in his complaint, nor did he seek to amend the complaint. His complaint does, however, allege the lack of notification, and his papers refer to several cases that revolve around S 502(a)(3) claims. Moreover, the District Court discussed this claim in the context of one of those cases, Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993) (a breach of fiduciary duty case that we discuss more fully infra Section II). We are satisfied that, given our broad notice pleading standards, Harte's breach of fiduciary duty claim has been adequately pled.

2

Harte contends that, given the ambiguity of the plan provisions, Bethlehem could not interpret the plan in a fashion that inured to its own benefit. However, Paragraphs 5.3(a) and 8.1 of the Bethlehem plan grant the administrator the discretion to interpret the "continuous service" provision. Under the aegis of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 114-15 (1989), when the plan administrator has this kind of discretion, we generally apply the arbitrary and capricious standard of review in the absence of evidence that bias influenced the decision, even where the employing company is both the plan sponsor and plan administrator. See Abnathya v. Hoffman-La Roche, Inc., 2 F.3d 40, 45 n.5 (3d Cir. 1993). Applying that standard, Bethlehem's plan administrator did not abuse his discretion. The documents available to him did not indicate that Harte's disability was work-based, and it was within the plan administrator's discretion to conclude that those on worker's compensation should be credited for continuous service for the time that they were on worker's compensation, while those who left for non-work related disabilities should not be so credited. The issue decided in the text is, of course, a different one.

Harte also argues that the District Court erred in holding that Bethlehem's 1985 pension plan applied to his case; in misunderstanding the import of Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 (1981); in misunderstanding the import of a reimbursement agreement; in holding that Bethlehem did not "wilfully discriminate" against Harte; in holding that Bethlehem did not violate COBRA; in holding that Harte's bridging of service request was barred by the statute of limitations; and in holding that ERISA's rule of parity did not apply. We find none of these arguments to have merit and reject them without further discussion.

3

Harte also worked for Bethlehem briefly in 1952 and again between 1962 and 1967. One of his arguments on appeal, that we reject without further discussion, see supra note 2, is that this previous employment must be used to calculate the time he can credit towards his pension.

4

In section 5.1 the term "continuous service" is defined (emphasis added):

The term "continuous service" as used in this Plan means continuous service in the employ of one or more of the Employing Companies, except as in this Section 5 otherwise provided, prior to retirement calculated from the Employee's last hiring date (this means in the case of a break in continuous service, continuous service shall be calculated from the date of reemployment following the last unremoved break in continuous service) in accordance with the following provisions; provided, however, that the last hiring date prior to the effective date of this Plan shall be based on the practices in effect at the time the break occurred:

(a) There shall be no deduction for any time lost which does not constitute a break in continuous service, except that in determining length of continuous service for pension purposes:

(1) that portion of any absence which continues beyond two years from commencement of absence due to a layoff or disability shall not be creditable as continuous service; provided, however, that absence in excess of two years due to a compensable disability incurred during course of employment shall be creditable as continuous service, if the Employee is returned to work or retires within 30 days afterfinal payment of statutory compensation for such disability or after the end of the period used in calculating lump sum payment. . .

(b) Continuous service shall be broken by:

(4) absence which continue for more than two years, except that (i) absence in excess of two years due to a compensable disability incurred during course of employment shall not break continuous service, provided the Employee is returned to work or retires . . . .; (ii) if an Employee is absent on account of layoff or disability in excess of two years . . .

5

We exercise plenary review over such a decision, see Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996), and apply the same test the District Court should have applied in the first instance, see Lawrence v. National Westminster Bank, New Jersey , 98 F.3d 61, 65 (3d Cir. 1996). We must therefore determine whether the record, when viewed in the light most favorable to Harte, shows that there is no genuine issue of material fact and that defendants are entitled to judgment as a matter of law. See Salley v. Circuit City Stores, Inc., 160 F.3d 977, 980 (3d Cir. 1998).

6

These ends are partially served through ERISA's reporting requirements. But the fiduciary duty to disclose and explain is not achieved solely by technical compliance with the statutory notice requirements. In In re Unisys Corp. Retiree Med. Benefit "ERISA" Litig., 57 F.3d 1255 (1995), we stated that

satisfaction by an employer as plan administrator of its statutory disclosure obligations under ERISA does not foreclose the possibility that the plan administrator may nonetheless breach its fiduciary duty owed plan participants to communicate candidly, if the plan administrator simultaneously or subsequently makes material misrepresentations to those whom the duty of loyalty and prudence are owed.

Id. at 1264.

7

The burdens on an employer are relevant in analyzing whether the ERISA administrator "discharge[d] his duties with respect to a plan solely in the interest of the participants and beneficiaries . . . with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims." 29 U.S.C. S 1104.

8

In the cases on which it relies in the duty-to-warn section of the opinion, plaintiffs sought notification of the effect of straightforward terms on their particular circumstances. Maxa cited, for example, Stahl v. Tony's Building Materials, Inc., 875 F.2d 1404 (9th Cir. 1989), in which the Ninth Circuit held that when there was no evidence concerning the feasibility of individual notice, there was no duty to inform individual participants about the effect of terms which were "adequately explained" in the summary plan description. Id. at 1410. It also cited Childers v. Northwest Airlines, Inc. , 688 F.Supp. 1357 (D.Minn. 1988), in which the court held that there was no duty individually to notify plaintiffs about the potential bad side effects of accepting promotions when the summary plan descriptions were adequate. See id. at 1361.

9

Bethlehem Steel also argues that even if it had a duty to notify Harte, it would not apply to the moment of discharge, but rather, as is its policy, "within a reasonable period following a break in service." Therefore, "[t]he date on which Plaintiff received a Notice of Deferred Vested Pension could not possibly alter the benefits to which he is entitled under the Plan." We need not settle on a precise date on which notification would be required, because Harte claims that there are actions he could have undertaken even had he been notified within a short time after the break.