Paneccasio v. Unisource Worldwide, Inc.

06-3950-cv
Paneccasio v. Unisource Worldwide

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term, 2007
5
6
7 (Argued: December 13, 2007 Decided: July 7, 2008)
8
9 Docket No. 06-3950-cv
10
11 - - - - - - - - - - - - - - - - - - - -X
12
13 EUGENE PANECCASIO,
14
15 Plaintiff-Appellant,
16
17 - v.-
18
19 UNISOURCE WORLDWIDE, INC., GEORGIA-
20 PACIFIC CORP., IKON OFFICE SOLUTIONS,
21 INC., FORMERLY KNOWN AS ALCO STANDARD
22 CORP., BOARD OF DIRECTORS, IND. & AS
23 FIDUCIARIES OF IKON OFFICE SOLUTIONS,
24 INC., AND W.J. HOPE, JR., IND. & AS
25 ADMIN. & FIDUCIARY OF THE 1991 IKON
26 OFFICE SOLUTIONS INC. DEFERRED
27 COMPENSATION PLAN,
28
29 Defendants-Appellees.
30
31 - - - - - - - - - - - - - - - - - - - -X
32

33 Before: JACOBS, Chief Judge, POOLER and SACK, Circuit
34 Judges.
35
36 Appeal from a grant of summary judgment dismissing

37 ERISA and ADEA claims, and declining to reinstate state law

38 claims previously dismissed as preempted. Plaintiff argues
1 principally that defendants should be equitably estopped

2 from terminating a deferred compensation plan as to him by

3 reason of representations made in an early retirement

4 package. Affirmed.

5
6 ANDREW B. BOWMAN, Westport,
7 Connecticut, for Plaintiff-
8 Appellant.
9
10 FELIX J. SPRINGER (Howard
11 Fetner, on the brief), Day
12 Pitney LLP, Hartford,
13 Connecticut, for Defendants-
14 Appellees Unisource Worldwide,
15 Inc. and Georgia-Pacific
16 Corporation.
17
18 KAY KYUNGSUN YU, Pepper Hamilton
19 LLP, (Joseph J. Costello, Morgan
20 Lewis & Bockius LLP, on the
21 brief), Philadelphia,
22 Pennsylvania, for Defendants-
23 Appellees Alco Standard
24 Corporation, Ikon Office
25 Solutions, Inc, Board of
26 Directors of Ikon Office
27 Solutions, Inc., and W.J. Hope,
28 Jr.
29
30 DENNIS JACOBS, Chief Judge:

31 Plaintiff Eugene Paneccasio (“Paneccasio”) elected to

32 participate in his company’s deferred compensation plan at a

33 level designed to provide him, once fully vested, with a

34 $15,000 annuity for ten years following his retirement no

35 earlier than age 65, plus life insurance. The plan was

2
1 subject to termination, at the company’s election, on

2 payment of certain sums to participants depending on whether

3 they were or were not yet receiving benefits. In 1994, when

4 Paneccasio was 57, he was offered an early retirement

5 package, which he accepted, and which granted accelerated

6 vesting in the deferred compensation plan making him

7 eligible to receive 65 percent of the stated benefits

8 beginning at age 65, along with a number of other

9 inducements that are not at issue here. In 2000, six months

10 short of Paneccasio’s 65th birthday, the company terminated

11 the deferred compensation plan and, as required by the

12 termination provision, paid Paneccasio his deferred income

13 at six percent interest. Also pursuant to the termination

14 provision, the life insurance benefit ended.

15 Paneccasio argues that the early retirement package

16 guaranteed that he would receive benefits under the deferred

17 compensation plan at age 65 and that the plan’s termination

18 provision was ineffective as to him, or disabled by

19 estoppel. In support he cites assurances in the early

20 retirement package that he would receive greater benefits if

21 he took it, and that his benefits under all plans would be

22 paid at age 65. Paneccasio seeks his 65 percent

3
1 participation in the ten year annuity and life insurance

2 benefit that were to begin at age 65. The company argues

3 that a broad and bolded disclaimer in the early retirement

4 package referred Paneccasio to the plan documents (which

5 included the termination provision) and said that they would

6 control.

7 The United States District Court for the District of

8 Connecticut (Droney, J.), granted summary judgment

9 dismissing Paneccasio’s complaint, which alleged violations

10 of the Age Discrimination in Employment Act (“ADEA”), 29

11 U.S.C. §§ 621 et seq., the Employment Retirement Income

12 Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq.,

13 and state statutory and common law. Paneccasio appeals. We

14 affirm.

15

16 BACKGROUND

17 From 1971 until he retired in 1994 at age 57,

18 Paneccasio worked for a division of defendant Unisource

19 Worldwide, Inc. (“Unisource”), which was a wholly-owned

20 subsidiary of defendant Alco Standard Corporation (“Alco”).

21 By the time Paneccasio retired, he was a vice president of

4
1 sales and national accounts.1

2

3 A. 1991 Deferred Compensation Plan

4 Paneccasio elected to participate at its inception in

5 the Alco Standard Corporation 1991 Deferred Compensation

6 Plan (the “1991 Plan”), which was offered to certain highly

7 compensated employees of Alco and its subsidiaries including

8 Unisource. The 1991 Plan, which was a type of plan commonly

9 referred to as a “top hat” plan, furnished benefits

10 supplemental to the pension plan benefits already provided

11 by Unisource. (Paneccasio had previously vested in the

12 pension plan and in Alco’s 1980 deferred compensation plan.)

13 The 1991 Plan allowed participants to defer a portion

14 of their income until retirement and provided two different

15 life insurance components: coverage for the participant at

16 a certain level prior to retirement, and transfer of a life

17 insurance policy to the participant at age 65. Eligible

18 employees had the choice of selecting among three options

1
In 1997, Alco changed its name to IKON Office
Solutions, Inc. (“IKON”), and spun off Unisource. But Alco,
and then IKON, retained control over the pertinent benefit
plan during all times relevant to this lawsuit. In 1999,
Georgia-Pacific Corporation (“Georgia-Pacific”) acquired
Unisource.

5
1 under the Plan. Paneccasio chose Option II, which provided

2 that when he retired and reached age 65 he would receive an

3 annuity in the amount of $15,000 per year for ten years, and

4 would own a life insurance policy with a $95,000 cash value

5 and a paid-up death benefit of $375,000. If Paneccasio died

6 before age 65, the death benefit would be $450,000.

7 Paneccasio had the option to elect vesting after five

8 years, which he did when he signed up. An employee who

9 terminated employment before “vesting” would no longer be

10 allowed to participate in the Plan, and his aggregate salary

11 deferrals at the time his employment ended would be

12 reimbursed without interest.

13 The 1991 Plan also gave Alco’s Board of Directors the

14 sole authority to terminate the Plan:

15 Termination. The Board of Directors of
16 Alco shall have the right to terminate
17 the Plan in its entirety and not in part
18 at any time it determines that proposed
19 or pending tax law changes or other
20 events cause, or are likely in the future
21 to cause, the Plan to have an adverse
22 financial impact upon Alco.

23 Upon termination, a participant would no longer be entitled

24 to an annuity and life insurance benefit. Instead, a

25 participant would be entitled only to a lump-sum

26 distribution, in amounts calculated based on whether the

6
1 participant’s benefit payments had commenced (Paneccasio’s

2 payments had not when the Plan was terminated):

3 Alco shall have no liability or
4 obligation under the Plan or the
5 Participant’s Participation Agreement (or
6 any other document), provided that 1)
7 Alco distributes, in lump sum, to any
8 participant whose benefits have not
9 commenced, the value of the amount of the
10 Participant’s deferrals to the date of
11 termination plus interest (compounded
12 annually) at a rate of 6% per annum; and
13 2) Alco distributes, in a lump sum, to
14 any Participant whose benefit payments
15 have commenced, all amounts thereafter
16 due, in an amount as calculated in
17 accordance with Paragraph [20],
18 “Acceleration of Benefits.” Such lump-
19 sum distribution, at Alco’s election, may
20 be made in the form of cash, or life
21 insurance, or both.

22 (emphasis added). At his deposition, Paneccasio testified

23 that he read and understood the terms of the 1991 Plan when

24 he elected to participate. He further testified that he had

25 read the termination provision of the Plan, acknowledged

26 that the Board had the right to terminate the Plan under

27 that provision, and understood what benefit would be payable

28 if the Plan were terminated.

29

30 B. Early Retirement Package

31 In 1994, Unisource offered an Early Retirement Package

7
1 (“ERP”) to employees age 55 and older. Paneccasio, who was

2 57, accepted, and retired effective April 1, 1994. The ERP

3 was described in a brochure provided to Paneccasio entitled,

4 “Your Personal Early Retirement Package: A Window of

5 Opportunity.” As a result of his election, Paneccasio

6 received, among other things: a one-time cash bonus of

7 $7,500; full vesting in the company’s pension plan;

8 continued medical coverage until age 65; term life insurance

9 paid by Unisource until age 65; full vesting in an Alco

10 stock participation plan, with stock worth $471,840; full

11 vesting in the 1980 deferred compensation plan, resulting in

12 a $3,024 monthly payment starting at age 65 and continuing

13 for 10 years; and 65 percent vesting in the 1991 Plan.

14 Other than his claims relating to the 1991 Plan, it is

15 undisputed that Paneccasio received all benefits pertaining

16 to his early retirement.

17 But for the ERP, an employee who left employment prior

18 to vesting in the 1991 Plan would be entitled only to the

19 return of the deferred salary in a lump sum, without

20 interest. For such employees, the ERP conferred the benefit

21 of accelerated partial vesting. Partial vesting allowed the

22 retiring employee to leave his deferred salary in the Plan

8
1 where it would continue appreciating, and thereby enjoy the

2 deferral of tax on the income until age 65, at which time he

3 would receive annuity and life insurance benefits

4 proportionate to his vesting. Partial vesting also allowed

5 the retiring employee to retain his interest in the

6 pre-age-65 life insurance benefit of $450,000, as long as he

7 continued to pay a quarterly premium of $231.75 through age

8 65.

9 Attached to Paneccasio’s copy of the ERP brochure was a

10 personalized statement called, “A Personal Look . . . At

11 Your Retirement,” which estimated the benefit enhancements

12 specifically applicable to Paneccasio under the various

13 Unisource benefit plans. As to the 1991 Plan, the “Personal

14 Look” calculated that Paneccasio would be eligible at age 65

15 to receive 65 percent of the Plan’s Option II benefits,

16 i.e., $9,750 each year for 10 years. With respect to the

17 1991 Plan’s life insurance policy, the ERP’s partial vesting

18 would allow for a post-age-65 cash value of $61,750 and a

19 death benefit of $243,750.

20 Other than providing for accelerated vesting in the

21 1991 Plan, the ERP brochure did not address any other

22 feature of the Plan. It did not alert participants that

9
1 Alco retained the right to terminate the 1991 Plan, or

2 explain how early termination might affect the 1991 Plan’s

3 annuity and life insurance provisions. The ERP brochure

4 did, however, include a broad disclaimer applicable to all

5 benefits plans discussed in the brochure. In bold type in a

6 highlighted box, it said:

7 In an effort to keep the language as
8 clear and non-technical, yet correct, as
9 possible, the benefits described in this
10 brochure are only summaries of the Early
11 Retirement window’s major provisions.
12 More detailed information is available
13 from plan documents and insurance
14 contracts. In case of any dispute, the
15 official legal documents or contracts
16 will govern over this brochure.
17
18 This disclaimer is followed by a more specific one in which

19 Alco “reserves the right to change the medical and dental

20 plans, including offering other plan(s) of comparable

21 coverage and cost.” (No such specific reservation is made

22 as to the 1991 Plan.)

23 The brochure counsels employees to “ask your local

24 Human Resources representative for assistance in making this

25 very important decision,” and to “gather your personal

26 resources, consider the advantages and disadvantages, talk

27 to your financial advisor, and make your decision.” The

28 description of the ERP’s effect on various benefit plans,

10
1 including deferred compensation plans, concludes with the

2 warning: “IMPORTANT: This section is not meant as legal or

3 financial advice; please consult with your tax advisor or

4 financial planner before making any decisions.” Paneccasio

5 testified at his deposition that the only person he

6 consulted before accepting early retirement was his spouse.

7 He did not attend company presentations regarding the ERP

8 and did not consult a human resources representative at the

9 company or a personal financial advisor. He does not recall

10 reviewing 1991 Plan documents before making his decision.

11

12 C. Termination of the 1991 Plan

13 In 1997, Alco was renamed IKON Office Solutions, Inc.

14 (“IKON”). In 2000, the IKON Board of Directors decided to

15 terminate the 1991 Plan on the grounds of unfavorable

16 interest rates and declining participation. Paneccasio and

17 other participants of the 1991 Plan were notified in October

18 2000 of the pending termination, which became effective on

19 December 31, 2000. In accordance with the termination

20 provision, participants who were receiving monthly benefits

21 would receive a lump sum “Acceleration of Benefits,”

22 essentially the present value of future benefits payments.

11
1 Participants who were not yet receiving monthly benefits

2 (including Paneccasio), whether or not vested, would receive

3 a lump sum repayment of deferrals plus six percent interest.

4 All participants would lose any continuing claim to the life

5 insurance benefits.

6 At the time of termination, Paneccasio was

7 approximately six months shy of his 65th birthday and

8 therefore had not yet commenced receiving benefits under the

9 1991 Plan. As a result, he was informed he would receive a

10 lump sum termination benefit of $75,419.22, composed of

11 $46,283.25 in deferrals plus $29,135.97 in interest.

12 By letter to IKON dated November 10, 2000, Paneccasio:

13 expressed his belief that because he was 65 percent vested

14 in the 1991 Plan under the ERP, he was entitled to reject

15 the termination lump sum payment; claimed that the ERP

16 modified the 1991 Plan so that it could not be terminated as

17 to him; and demanded benefits under the original terms of

18 the 1991 Plan, i.e., (1) the $9,750 annuity beginning at age

19 65 and continuing for 10 years, and (2) the life insurance

20 benefit of a post-age 65 cash value of $61,750 and death

21 benefit of $243,750. These are the benefits in dispute in

22 this lawsuit.

12
1 IKON, through the Plan Administrator, W.J. Hope, Jr.,

2 responded on November 30, 2000 that Paneccasio had no option

3 other than to take the lump sum payment described in the

4 termination provision because “[v]esting does not supercede

5 the termination provisions found in Section 19 . . . of the

6 Plan.” On December 15, 2000, Paneccasio appealed this

7 denial of benefits, and Hope referred the matter to IKON’s

8 Retirement Plans Committee for review. On July 3, 2001,

9 Paneccasio’s appeal was denied, and he was entitled to

10 receive his termination payment of $75,419.22.

11

12 D. EEOC Complaint and Federal Lawsuit

13 In July 2001, more than seven years after his

14 retirement from Unisource, Paneccasio filed a complaint with

15 the Equal Employment Opportunity Commission (“EEOC”),

16 alleging that Unisource, Alco, IKON, Georgia-Pacific, the

17 IKON Board of Directors and Hope (collectively,

18 “defendants”), had discriminated against him on the basis of

19 age by terminating the 1991 Plan after inducing him to elect

20 early retirement. On August 9, 2001, the EEOC dismissed

21 Paneccasio’s complaint for failure to state a claim under

22 the ADEA, and issued a right to sue letter.

13
1 Paneccasio then filed a complaint in the District of

2 Connecticut alleging violations of the ADEA and ERISA,

3 breach of contract, and related state statutory and common

4 law claims. Defendants moved to dismiss Paneccasio’s

5 complaint, and the district court granted the motion as to

6 the state law claims, holding them preempted under ERISA

7 because they related to the 1991 Plan. Following discovery,

8 the district court granted defendants’ motion for summary

9 judgment on the remaining ADEA and ERISA claims.

10 As to the ADEA claim, the district court ruled that it

11 was untimely filed and that there was no ground for

12 equitable tolling, and (in the alternative) that Paneccasio

13 could not establish a prima facie case of age

14 discrimination. As to the ERISA claim, the court ruled

15 (inter alia) that defendants could not be equitably estopped

16 from denying liability on Paneccasio’s ERISA claim because

17 Paneccasio failed to present evidence of promises or

18 misrepresentations at the time of the ERP that contradicted

19 1991 Plan provisions. See Paneccasio v. Unisource

20 Worldwide, Inc., No. 3:01-cv-2065, 2006 WL 2128647, 2006

21 U.S. Dist. LEXIS 84821 (D. Conn. July 26, 2006). Paneccasio

22 appeals the district court’s summary judgment ruling and its

14
1 refusal to reinstate the state law claims.

2 We affirm the dismissal of the ADEA claim as untimely.

3 We affirm the dismissal of the ERISA claim on the merits.

4 Because the tolling issue that bears upon the ADEA claim

5 depends on the merits of the ERISA claim, we discuss the

6 ERISA claim first.

7

8 DISCUSSION

9 We review de novo the district court’s grant of summary

10 judgment, drawing all factual inferences in favor of the

11 non-moving party. See Miller v. Wolpoff & Abramson, L.L.P.,

12 321 F.3d 292, 300 (2d Cir. 2003).

13

14 A. ERISA

15 The complaint alleges that: the 1991 Plan is subject

16 to ERISA; it was modified by the ERP brochure to guarantee

17 future benefits; termination of the Plan breached

18 defendants’ fiduciary duties and denied benefits in

19 violation of ERISA; and defendants are equitably estopped

20 from denying liability because Paneccasio relied to his

21 detriment on representations about future benefits in the

22 ERP brochure. Paneccasio seeks to recover the benefits due

15
1 to him had the Plan not been terminated.

2 “Top hat plans,” such as the 1991 Plan, “are exempt

3 from many provisions of ERISA, including the participation

4 and vesting, funding, and fiduciary responsibility

5 requirements, see 29 U.S.C. §§ 1051(2), 1081(a)(3),

6 1101(a)(1), but like qualified plans, they are subject to

7 disclosure requirements, to civil enforcement, and to the

8 duty to have a claims procedure, see 29 U.S.C. §§ 1021,

9 1132, 1133.” Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215,

10 217 (2d Cir. 2006). Thus, to the extent Paneccasio’s ERISA

11 claim relies on an assertion of breach of fiduciary duty, it

12 was properly dismissed. See Demery v. Extebank Deferred

13 Comp. Plan (B), 216 F.3d 283, 290 (2d Cir. 2000) (“[T]he

14 fiduciary responsibility provisions of ERISA do not apply to

15 top hat plans . . . .”). ERISA’s civil enforcement

16 provisions afford Paneccasio his sole remedies for recovery

17 of benefits due, or for enforcement of the terms of the 1991

18 Plan. See ERISA § 501(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B);

19 Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204,

20 209 (2002) (expressing reluctance to “extend[] remedies not

21 specifically authorized by [ERISA’s] text”); Mertens v.

22 Hewitt Assocs., 508 U.S. 248, 254 (1993) (noting that

16
1 ERISA’s “carefully crafted and detailed enforcement scheme

2 provides ‘strong evidence that Congress did not intend to

3 authorize other remedies that it simply forgot to

4 incorporate expressly’” (quoting Massachusetts Mut. Life

5 Ins. Co. v. Russell, 473 U.S. 134, 146-47 (1985))).2

6 “[A] denial of benefits challenged under §

7 1132(a)(1)(B) is to be reviewed under a de novo standard

8 unless the benefit plan gives the administrator or fiduciary

9 discretionary authority to determine eligibility for

10 benefits or to construe the terms of the plan.” Firestone

11 Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If

12 the benefit plan confers such discretion, we review the

13 administrator’s decisions under the arbitrary and capricious

14 standard. See Krauss v. Oxford Health Plans, Inc., 517 F.3d

15 614, 622 (2d Cir. 2008).

16 The 1991 Plan’s termination provision grants

2
A claim for recovery of benefits under ERISA
§ 501(a)(1)(B) can be brought only against a covered plan,
its administrators or its trustees. See Chapman v.
ChoiceCare Long Island Term Disability Plan, 288 F.3d 506,
509-10 (2d Cir. 2002) (“‘In a recovery of benefits claim,
only the plan and the administrators and trustees of the
plan in their capacity as such may be held liable.’”
(quoting Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d
Cir. 1989))). Unisource and Georgia-Pacific fall into none
of these categories, and therefore the ERISA claim against
these defendants fails on this alternative ground.
17
1 discretionary authority to the IKON Board of Directors to

2 terminate the Plan “at any time it determines that proposed

3 or pending tax law changes or other events cause, or are

4 likely in the future to cause, the Plan to have an adverse

5 financial impact on Alco.” This language empowers the IKON

6 Board alone to decide whether to terminate the Plan, at any

7 time and based on any events it considers likely to have an

8 adverse financial impact. Its decision is not constrained

9 by any objective or third-party measures of the company’s

10 fiscal distress. See id. at 623 (holding that a plan’s

11 grant to an administrator of the right to “determine” an

12 issue conferred discretion where the decision-making power

13 was not constrained by objective standards); Nichols v.

14 Prudential Ins. Co. of Am., 406 F.3d 98, 108 (2d Cir. 2005)

15 (“A reservation of discretion need not actually use the

16 words ‘discretion’ or ‘deference’ to be effective, but it

17 must be clear.”).

18 We agree with the district court that the IKON Board’s

19 decision to terminate the 1991 Plan was not arbitrary or

20 capricious. IKON presented evidence that the Plan was

21 terminated because of declining interest rates, greater cash

22 outlays related to the lower interest rates for the split-

18
1 dollar life insurance policies, and a reduction in the

2 number of participants in the plan, all of which had an

3 adverse financial impact on IKON. Specifically, there was

4 evidence that, in 1999, in connection with the 1991 Plan,

5 IKON incurred a cash outlay of $2.4 million as compared to

6 the $1.5 million originally anticipated, and suffered a loss

7 of $1.3 million instead of the $1 million gain originally

8 anticipated. Paneccasio’s only rebuttal was the conclusory

9 assertion that IKON Board’s “real” reason for terminating

10 the Plan was a financial need relating to the settlement of

11 an unrelated securities class action. Paneccasio thus

12 failed to raise a genuine issue of material fact as to the

13 lawfulness of the Plan’s termination and the payment of

14 termination benefits. See Pagan v. NYNEX Pension Plan, 52

15 F.3d 438, 442 (2d Cir. 1995) (holding that administrator’s

16 decision will be overturned “only if it was without reason,

17 unsupported by substantial evidence or erroneous as a matter

18 of law” (internal quotation marks omitted)).

19 Paneccasio argues that, even if the 1991 Plan was

20 properly terminated, defendants should be estopped from

21 terminating the Plan as to him because the ERP brochure

22 falsely induced him to retire by misrepresenting the future

19
1 benefits available under the Plan. Promissory or equitable

2 estoppel is available on ERISA claims only in “extraordinary

3 circumstances.” Devlin v. Transp. Commc’n Int’l Union, 173

4 F.3d 94, 101 (2d Cir. 1999) (internal quotation marks

5 omitted); see Bonovich v. Knights of Columbus, 146 F.3d 57,

6 62 (2d Cir. 1998); Lee v. Burkhart, 991 F.2d 1004, 1009 (2d

7 Cir. 1993). To prevail on an estoppel claim under ERISA,

8 Paneccasio must prove “(1) a promise, (2) reliance on the

9 promise, (3) injury caused by the reliance, and (4) an

10 injustice if the promise is not enforced,” and must

11 “adduce[] . . . facts sufficient to [satisfy an]

12 ‘extraordinary circumstances’ requirement as well.” Aramony

13 v. United Way Replacement Benefit Plan, 191 F.3d 140, 151

14 (2d Cir. 1999) (internal quotation marks omitted)

15 (alterations in original).

16 Panecassio claims to have relied on an implicit

17 guarantee in the ERP brochure that he would receive the 1991

18 Plan benefits at age 65. No such promise was made in so

19 many words, either in the ERP brochure or in any oral

20 representations at the time Paneccasio elected early

21 retirement. Paneccasio advances several theories.

22 Paneccasio would infer a guarantee of future benefits

20
1 from this statement in the ERP brochure: “If you retire

2 under this special Early Retirement window, you will receive

3 greater benefits than you would if you retire later.”

4 Paneccasio also relies on the brochure’s chart comparing

5 benefits from the “Special Early Retirement Window”

6 (providing for “partial vesting in the 1991 Alco program;

7 benefit payable at age 65"), and the “Regular Early

8 Retirement” (providing for “[v]esting in your benefits, if

9 any, under . . . 1991 Alco program[] based on plan

10 participation at retirement; benefit payable at age 65").

11 Paneccasio argues that the promise of “greater benefits”

12 amounted to a guarantee that he would be paid an annuity and

13 retain his life insurance at age 65. This interpretation is

14 not supported by the cited language, which promises no more

15 than a “greater benefit” by virtue of immediate partial

16 vesting. Paneccasio received the entire value of partial

17 vesting: continued participation in the 1991 Plan after

18 early retirement, with the concomitant tax advantages and

19 appreciation of his investment. Without vesting, early

20 retirement would have required Paneccasio to exit the 1991

21 Plan, receiving only repayment of his deferred income

22 without interest. The promise of “greater benefits” was

21
1 thus fulfilled.

2 Paneccasio argues that by modifying the vesting

3 provision of the 1991 Plan, the ERP brochure essentially

4 rescinded the termination provision as well. Nothing in the

5 1991 Plan documents suggests this sort of interdependence

6 between the two provisions. Neither provision refers to the

7 other. The Board’s authority to terminate the Plan is not

8 qualified by the vested status of participants, and the

9 compensation owed to participants upon termination depends

10 solely on whether they began receiving benefits payments;

11 vesting is irrelevant to that calculation. The ERP’s

12 silence on every provision of the 1991 Plan other than

13 vesting cannot be read to rescind the termination provision,

14 especially in view of the ERP’s disclaimer referring

15 participants to Plan documents. See Tocker v. Phillip

16 Morris Cos., 470 F.3d 481, 488-89 (2d Cir. 2006) (holding

17 that summary plan description did not divest administrator

18 of discretion to determine benefit eligibility when it was

19 silent on subject and referred participants to governing

20 documents).

21 Paneccasio sees a guarantee of future benefits in the

22 brochure’s statement: “Your benefits under all of the Plans

22
1 will be paid to you monthly at age 65.” This sentence is

2 troublesome when read in isolation because of its

3 unqualified assurances that benefits “will be paid.”

4 However, the sentence is part of the brochure’s section on

5 deferred compensation plans, which makes clear that the only

6 new benefit offered by the ERP in connection with such plans

7 is immediate vesting.3 This section of the brochure does

8 not suggest rescission of the 1991 Plan’s termination

9 provision, especially in light of the brochure’s other

10 representations about the 1991 Plan and the disclaimer that

11 “the official legal documents or contracts will govern” in

12 any conflict between benefit plans and the ERP brochure.

13 The ERP’s disclaimer nonetheless poses some

3
The section of the ERP brochure titled “Alco Standard
Corporation Deferred Compensation Plans” reads in its
entirety:

If you participate in the 1980 or 1985 Alco
Standard Corporation Deferred Compensation Plans,
your benefit(s) will become fully vested.
Benefits in the 1991 Plan will become 65% vested
if you elected the five year option and 32.5%
vested if you elected the ten year option. Under
the 1991 Plan, you must continue to pay life
insurance premiums to age 65.
Your benefit(s) under all of the Plans will be
paid to you monthly at age 65. If you participate
in any of these programs, see your personalized
statement for the monthly benefit payable at age
65 under all of these programs.
23
1 interpretive problems. On its face, the disclaimer is

2 comprehensive--it applies to all benefit plans affected by

3 the ERP, it discounts the ERP brochure’s descriptions of

4 those plans as “only summaries,” and it refers employees to

5 “the plan documents and insurance contracts.” But this

6 general disclaimer is followed by a specific reservation of

7 the right to modify the medical and dental plans, which may

8 have suggested to employees that benefit plans other than

9 medical and dental plans were not subject to a similar

10 reservation of rights. As to the 1991 Plan, the absence of

11 a specific reservation of rights may have suggested that the

12 Plan’s provisions for amendment or termination were

13 superseded by the ERP.

14 On balance we reject this interpretation. The rules of

15 contract construction require us to adopt an interpretation

16 which gives meaning to every provision of the contract. In

17 this case, the contract consists of the ERP and its

18 constituent benefits plans, which must be read together,

19 giving effect to all terms. See Restatement (Second) of

20 Contracts § 202(2) (2008) (“all writings that are part of

21 the same transaction are interpreted together”); Adams v.

22 Suozzi, 433 F.3d 220, 228 (2d Cir. 2005). Although specific

23 language in a contract will prevail over general language
24
1 where there is an inconsistency between two provisions, see

2 ABN Amro Verzekeringen BV v. Geologistics Americas, Inc.,

3 485 F.3d 85, 102 (2d Cir. 2007) (citing Muzak Corp. v. Hotel

4 Taft Corp., 1 N.Y.2d 42, 46 (N.Y. 1956)), there is no

5 inconsistency between the ERP’s general disclaimer addressed

6 to all constituent benefits plans, and its more specific one

7 dealing with medical and dental plans . The specific

8 disclaimer does not on its face modify or limit the effect

9 of the general disclaimer, and each disclaimer may be fully

10 enforced without compromising the other. We thus conclude

11 there is “no factual predicate for application of the

12 principle that where a specific contract provision conflicts

13 with a more general provision, the specific provision

14 controls[,] . . . [s]ince there is no inconsistency.” Croce

15 v. Kurnit, 737 F.2d 229, 237-38 (2d Cir. 1984); see also

16 India.Com, Inc. v. Dalal, 412 F.3d 315, 321 (2d Cir. 2005)

17 (holding that specific provision in contract did not

18 supersede general language where doing so would nullify

19 express intent of latter); cf. United States v. Mohammed, 27

20 F.3d 815, 820-21 (2d Cir. 1994) (holding inapplicable the

21 rule of statutory construction giving specific language

22 precedence over more general language where “there is no

23 conflict of language”). Striving, as we do, to give meaning
25
1 to every part of the parties’ agreement, we see no basis in

2 the specific disclaimer for curtailing the general

3 disclaimer’s affirmation of the continuing validity of all

4 other benefit plan documents.

5 Yet the wording of the ERP makes this a close question.

6 It would have been advisable for the ERP’s general

7 disclaimer to reference the right of termination of the 1991

8 Plan, especially in view of the specific reservation of the

9 right to modify the medical and dental plans. A specific

10 reservation of rights is especially prudent when the

11 exercise of a right of termination will dramatically revise

12 financial outcomes for plan participants, in this case by

13 replacing an annuity and life insurance benefit with a lump

14 sum payment.

15 In Paneccasio’s case, however, he adduced no facts

16 raising a genuine issue of material fact as to a promise of

17 benefits notwithstanding termination. Nothing in the ERP

18 constitutes a guarantee of benefits at age 65, and

19 Paneccasio has presented no evidence of any promises or

20 misrepresentations outside the ERP. In the absence of such

21 a promise, there can be no detrimental reliance. See

22 Aramony, 191 F.3d at 151. To the extent Paneccasio relied

26
1 on his own misreading of the ERP to retire earlier than he

2 would have otherwise, his reliance was unreasonable and does

3 not support estoppel. See id. at 152-153. On this record,

4 Paneccasio’s ERISA claim was properly dismissed on summary

5 judgment.

6

7 B. ADEA

8 Paneccasio alleges that, based on his age, Alco and

9 Unisource wrongfully induced him to take early retirement in

10 1994 to his financial detriment.4 Paneccasio filed an EEOC

11 charge raising this claim in July 2001, seven years after

12 his retirement. Under the ADEA, Paneccasio was required to

13 file a charge with the EEOC within 300 days of the allegedly

14 unlawful employment practice. See 29 U.S.C. § 626(d)(1)-

15 (2); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325-28

16 (2d Cir. 1999) (filing deadline of 180 days is extended to

17 300 days where the alleged discrimination occurs in a state

18 with its own anti-discrimination laws and enforcement

19 agency, regardless of whether the charge is initially filed

20 with the state). Paneccasio argues that the period between

4
Paneccasio does not argue that the termination of the
1991 Plan, effective December 31, 2000, was motivated by age
bias.
27
1 his March 31, 1994 retirement and the December 31, 2000

2 termination of the 1991 Plan should be tolled because the

3 defendants fraudulently concealed his ADEA claim from him.

4 Although ADEA time periods ordinarily start running

5 upon the employer’s commission of a discriminatory act, we

6 have recognized that equitable tolling might be applied if,

7 inter alia, “the employee was actively misled by his

8 employer” or “he was prevented in some extraordinary way

9 from exercising his rights.” Miller v. Int’l Tel. & Tel.

10 Corp., 755 F.2d 20, 24 (2d Cir. 1985); see Zerilli-Edelglass

11 v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir.

12 2003) (“[E]quitable tolling is only appropriate in rare and

13 exceptional circumstances, in which a party is prevented in

14 some extraordinary way from exercising his rights.”

15 (internal quotation marks, citations and alterations

16 omitted)). “[T]o merit equitable relief, a plaintiff must

17 have acted with reasonable diligence during the time period

18 she seeks to have tolled.” Chapman v. ChoiceCare Long

19 Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir.

20 2002). Paneccasio argues that he was prevented from

21 exercising his ADEA rights by his employers’ active

22 misrepresentation of the inducements to early retirement.

28
1 The misrepresentation claim stands on no better footing

2 than the allegations offered to support Paneccasio’s ERISA

3 estoppel claim (that the ERP guaranteed payment of the 1991

4 Plan benefits when Paneccasio turned 65, and that

5 termination of the 1991 Plan would not be effective as to

6 him). Consistent with our ruling on the ERISA claim, we

7 conclude that the ERP brochure’s representations about the

8 1991 Plan do not constitute fraudulent inducement justifying

9 equitable tolling. Read fairly, as a whole, the ERP did not

10 call into question the continuing validity of the 1991 Plan

11 documents, which included the termination provision. The

12 termination provision explained that, if the employer

13 exercises its discretion to terminate the Plan, participants

14 would receive lump sum pay-outs, and not the monthly benefit

15 and continued life insurance. Paneccasio testified that

16 when he enrolled in the 1991 Plan, he read and understood

17 the 1991 Plan’s termination provision. He has identified no

18 misrepresentation or ambiguity in the 1991 Plan, or the

19 ERP’s discussion of the 1991 Plan, that prevented him from

20 timely exercising his rights under the ADEA, if any, with

21 respect to the offer of early retirement.

22 There is no record evidence that defendants anticipated

29
1 early termination of the 1991 Plan, or euchred Paneccasio

2 into early retirement while they were planning to terminate

3 the Plan before he could begin collecting benefits.

4 Paneccasio testified that he had no information suggesting

5 that defendants knew in 1994 that the 1991 Plan would be

6 terminated in 2000. The undisputed evidence is that

7 defendants began discussing termination of the Plan in 1999

8 or 2000, and decided to terminate the Plan in 2000.

9 Paneccasio has thus failed to adduce evidence that he was

10 kept in ignorance by misleading conduct of defendants at the

11 time the ERP was offered, or since. Zerilli-Edelglass, 333

12 F.3d at 79-81 (upholding denial of equitable tolling where

13 plaintiff was in possession of all relevant documents and

14 failed to act diligently). Because his EEOC charge was

15 untimely, his ADEA claim is barred.

16

17 C. Preemption

18 Paneccasio seeks to revive his state law claims,

19 arguing that they are not preempted by ERISA because the

20 1991 Plan is a top hat plan exempt from certain ERISA

21 requirements. The argument has no merit. As noted

22 previously, top hat plans are not exempt from ERISA’s

30
1 administration and enforcement provisions. See 29 U.S.C. §§

2 1132-1145. Among these provisions is the preemption rule,

3 by which ERISA “supersede[s] any and all State laws insofar

4 as they may now or hereafter relate to any employee benefit

5 plan” covered by ERISA. 29 U.S.C. § 1144(a) (with

6 exceptions not relevant here). The wording provides no

7 basis for holding that, of the various administration and

8 enforcement provisions, the preemption provision alone is

9 inapplicable to top hat plans.

10 The preemption “provisions of ERISA are deliberately

11 expansive, and designed to ‘establish pension plan

12 regulation as exclusively a federal concern.’” Pilot Life

13 Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46 (1987) (quoting

14 Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523

15 (1981)). In Alessi, the Supreme Court observed that “[t]he

16 only relevant state laws, or portions thereof, that survive

17 this pre-emption provision are those relating to plans that

18 are themselves exempted from ERISA’s scope.” Alessi, 451

19 U.S. at 523 n.20. Preemption thus applies to every plan

20 covered by ERISA, which necessarily includes top hat plans.

21 The purpose of ERISA preemption is to ensure that all

22 covered benefit plans will be governed by unified federal

31
1 law, thus simplifying life for employers administering plans

2 in several states, because “[a] patchwork scheme of

3 regulation would introduce considerable inefficiencies in

4 benefit program operation.” Fort Halifax Packing Co. v.

5 Coyne, 482 U.S. 1, 11 (1987). Employers might well cut back

6 on benefit plans if faced with the expense and difficulty of

7 satisfying varied and conflicting requirements of state

8 laws. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 105

9 n.25 (1983). We see no reason to create an exception for

10 top hat plans, and subject them to the impracticalities and

11 counter-incentives of state-level interference in their

12 administration. Other circuits that have reached this issue

13 agree, dismissing state law claims that involve top hat

14 plans. See Cogan v. Phoenix Life Ins. Co., 310 F.3d 238,

15 242-43 (1st Cir. 2002) (affirming dismissal based on

16 preemption of state law breach of contract claim for top hat

17 benefits); Reliable Home Health Care, Inc. v. Union Cent.

18 Ins. Co., 295 F.3d 505, 516 (5th Cir. 2002) (affirming

19 dismissal based on preemption of state law fraud claims

20 because “[t]he underlying conduct alleged by [plaintiff]

21 cannot be severed from its connection to the [top hat]

22 Plan”); see also Starr v. MGM Mirage, No. 2:06-cv-00616,

32
1 2006 WL 3290299, at *3 (D. Nev. Nov. 7, 2006) (dismissing as

2 preempted plaintiff’s state law claims for breach of

3 fiduciary duty, fraud, oppression and malice relating to a

4 top hat plan); cf. Garratt v. Knowles, 245 F.3d 941, 944-45,

5 949 (7th Cir. 2001) (holding that state law complaint

6 seeking benefits under top hat plan was properly removed to

7 federal court because all state law claims were preempted).

8 Accordingly, we hold that ERISA preempts state law claims

9 that relate to top hat plans.

10 Preemption in this case depends on whether Paneccasio’s

11 state law claims “relate to” the 1991 Plan. “A law ‘relates

12 to’ an employee benefit plan, in the normal sense of the

13 phrase, if it has a connection with or reference to such a

14 plan.” Shaw, 463 U.S. at 96-97. As to state statutory

15 claims, ERISA preempts those that “provide an alternative

16 cause of action to employees to collect benefits protected

17 by ERISA, refer specifically to ERISA plans and apply solely

18 to them, or interfere with the calculation of benefits owed

19 to an employee.” Aetna Life Ins. Co. v. Borges, 869 F.2d

20 142, 146 (2d Cir. 1989). As to state common law claims,

21 ERISA preempts those that seek “to rectify a wrongful denial

22 of benefits promised under ERISA-regulated plans, and do not

33
1 attempt to remedy any violation of a legal duty independent

2 of ERISA.” Aetna Health Inc. v. Davilla, 542 U.S. 200, 214

3 (2004); see Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,

4 145 (1990) (ERISA preempts claims that “purport[] to provide

5 a remedy for the violation of a right expressly granted by

6 [ERISA]”).

7 Paneccasio’s state law claims sound in breach of

8 contract, breach of the covenant of good faith and fair

9 dealing, violation of the Connecticut Unfair Trade Practices

10 Act, reckless misrepresentation, negligent

11 misrepresentation, and tortious interference with contract.

12 Each claim is premised on the termination of the 1991 Plan

13 and resulting denial of benefits under that Plan; each makes

14 explicit reference to the Plan; and each would require

15 reference to the Plan in the calculation of any recovery.

16 Consequently, each of Paneccasio’s state law claims “relates

17 to” a covered plan and is preempted by ERISA. Accord Devlin

18 v. Transp. Commc’n Int’l Union, 173 F.3d 94, 101 (2d Cir.

19 1999) (applying preemption to contract claim that

20 “challenges the [union’s] effort to modify [a medical

21 benefits] plan”); Kolasinski v. Cigna Healthplan of CT,

22 Inc., 163 F.3d 148, 149 (2d Cir. 1998) (per curiam)

34
1 (applying preemption to breach of contract and unfair trade

2 practices claims arising out of failure to pay medical

3 benefits); Smith v. Dunham-Bush, Inc., 959 F.2d 6, 10 (2d

4 Cir. 1992) (applying preemption to breach of contract and

5 negligent misrepresentation claims because “the oral

6 representation underlying this suit deals expressly and

7 exclusively with the appellant’s [pension] benefits”).

8

9 For the foregoing reasons, the judgment of the district

10 court is affirmed.

35