RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0109p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MARK FARHNER,
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Plaintiff-Appellant,
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No. 09-4431
v.
,
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UNITED TRANSPORTATION UNION DISCIPLINE -
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Defendant-Appellee. -
INCOME PROTECTION PROGRAM,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 08-02880—Christopher A. Boyko, District Judge.
Argued: December 9, 2010
Decided and Filed: May 3, 2011
Before: GILMAN and GRIFFIN, Circuit Judges; COLLIER, Chief District Judge.*
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COUNSEL
ARGUED: Gregory G. Paul, EQUALITY AT WORK, PLLC, Sewickley,
Pennsylvania, for Appellant. Kevin C. Brodar, UNITED TRANSPORTATION UNION,
Cleveland, Ohio, for Appellee. ON BRIEF: Gregory G. Paul, EQUALITY AT WORK,
PLLC, Sewickley, Pennsylvania, for Appellant. Kevin C. Brodar, UNITED
TRANSPORTATION UNION, Cleveland, Ohio, for Appellee.
COLLIER, Chief D. J., delivered the opinion of the court, in which GRIFFIN,
J., joined. GILMAN, J. (pp. 13–14), delivered a separate opinion concurring in the
judgment reached.
*
The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District of
Tennessee, sitting by designation.
1
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OPINION
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CURTIS L. COLLIER, Chief District Judge. Plaintiff-Appellant Mark Farhner
(“Farhner”) appeals the district court’s order granting Defendant-Appellee United
Transportation Union Discipline Income Protection Program’s (the “Plan” or “DIPP”)
motion for summary judgment. Farhner brings this action pursuant to the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132, seeking judicial review
of the Plan’s denial of discharge benefits. Farhner argues that the Plan Administrator’s
decision to deny his benefits was arbitrary and capricious as a matter of
law. Specifically, Farhner contends that he should not have been denied income
replacement benefits by the Plan Administrator because his employer improperly
terminated him for insubordination. Rather, Farhner asserts that he was protected by the
Family and Medical Leave Act (“FMLA”). Farhner requests us to reverse the district
court’s grant of summary judgment in favor of the Plan and award him benefits with
applicable interest.
For the reasons set forth below, we AFFIRM the district court’s decision.
I. Relevant Facts/Procedural History
Farhner was employed by the Kansas City Southern Railway (“KCSR”) as a
trackman and conductor. In May 2004, he advised his supervisor about “some personal
things going on,” and he sought a medical leave of absence. The supervisor then advised
Farhner that he would have to supply a note from his medical doctor in order for KCSR
to evaluate whether Farhner’s request for leave was one under the FMLA. On May 11,
2004, Farhner submitted a letter from his treating physician stating that Farhner needed
a leave of absence for at least three months “for medical reasons.” Farhner’s supervisor
forwarded the letter to the Manager of Human Resources, who informed Farhner’s
supervisor that the letter did not provide sufficient information for KCSR to evaluate
Farhner’s request.
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On May 12, 2004, Farhner’s supervisor advised Farhner to contact the human
resources manager to determine what information Farhner needed to provide. The
supervisor also placed Farhner on vacation leave at that time. On May 13, 2004, Farhner
contacted the human resources manager, who informed him that in order to evaluate his
request, Farhner would need to provide a note from his treating physician describing
(1) the date Farhner first saw his doctor; (2) a diagnosis; (3) the nature of any treatment;
(4) a prognosis; and (5) a potential return date.
By May 25, 2004, Farhner had exhausted all of his vacation leave. Farhner’s
supervisor then contacted Farhner via telephone to inform him that if he could not
provide the requested information, he would have to return to work within 48 hours. The
supervisor followed up the conversation with a certified letter stating the same. Farhner
replied on the same day by faxing a request for FMLA leave. He did not, however,
provide the information that was requested by the human resources manager nor did he
return to work.
On June 7, 2004, KCSR issued Farhner a Notice of Investigation to determine
whether he was being insubordinate by failing to comply with the instructions given to
him on May 25, 2004. A hearing was held on July 22, 2004, and Farhner was discharged
from his employment with KCSR on July 30, 2004 for insubordination, in violation of
the General Code of Operating Rules 1.6 and 1.13.
Subsequent to his discharge, Farhner filed an application for income-replacement
benefits through the DIPP, which is structured in accordance with ERISA, 29 U.S.C.
§§ 1001-1461. As a member of UTU, he was able to purchase coverage under the DIPP
for any suspension or discharge, subject to certain restrictions. Some of those
restrictions are found in Section 3.5(b) of the Plan, which explicitly states:
3.5(b) You will receive benefits under the Plan when you
are suspended or discharged from your permanent, non-
probationary employment for disciplinary reasons. You
will also receive benefits under the Plan if your employer
requires you to take remedial training with only “basic
day” compensation and this results in a reduction in your
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earnings. However, the following disciplinary reasons are
excluded from coverage; if you are suspended or
discharged for one or more of these reasons you will
NOT be entitled to benefits under the Plan:
(1) conduct endangering the life or livelihood of a fellow
employee;
(2) unavailability for duty; sleeping on duty; missing
calls;
(3) insubordination;
(4) misuse, theft or destruction of property of the
Participant’s employer;
(5) falsification of reports;
(6) failure to take or pass a required examination;
(7) use, possession or evidence of intoxicants or illegal
drugs while on duty or subject to duty; or
(8) discipline due to criminal or civil court action.
After reviewing the transcript of the hearing held by KCSR, the Plan
Administrator of the DIPP denied Farhner benefits in a letter dated September 13, 2004,
stating that “under Section 3.5(b)(3) of the plan document . . . , the Program does not
cover discharges/suspensions for [insubordination].” Farhner appealed this decision to
the Plan Administrator; however, his appeal was also denied on the same grounds. At
all times, the Plan Administrator considered only the information obtained during the
formal investigation conducted by KCSR, and it was not provided with (nor did it
request) any other documentation to consider.
On November 30, 2004, the general chairman of the DIPP requested that a
review committee reconsider the Plan Administrator’s benefits determination. On
December 9, 2004, the Chairperson of the review committee issued a final decision,
upholding the denial of benefits. As cause, the review committee stated that the “issue
[was] claimant’s failure to comply with instructions and provide the requested
information in a timely manner consistent with the FMLA.”
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On December 8, 2008, Farhner filed suit in the Northern District of Ohio,
challenging the Plan Administrator’s determination. The parties filed cross-motions for
summary judgment. The district court granted the DIPP’s motion for summary judgment
on the grounds that the express language of the Plan supported the denial of benefits.
Specifically, the district court found the Plan Administrator’s decision to be “the result
of a deliberate, principled reasoning process” and “supported by substantial evidence,”
quoting Bennett v. Kemper Nat’l Serv., Inc., 514 F.3d 547, 552 (6th Cir. 2008). Because
the evidence in the administrative record demonstrates that Farhner was discharged for
insubordination, which is a stated exclusion under the Plan, the district court found that
the Plan Administrator’s decision was not arbitrary or capricious. In addition, the
district court found it improper for Farhner to attempt to “litigate the lawfulness of his
discharge by his employer” where KCSR “is not a party to the suit and is not the
administrator of the Plan.” Likewise, the district court found that Farhner could not offer
any “policy provision or law requiring the Plan Administrator to review the basis of the
stated reasons for discharge or discipline by the employer to determine if it was valid or
not.” Farhner timely appealed the district court’s decision.
II. Standard of Review
A challenge to an ERISA plan’s denial of benefits should be reviewed de novo
“unless the benefit plan gives the [Plan] [A]dministrator . . . discretionary authority to
determine eligibility for benefits or to construe the terms of the [P]lan.” Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Here, the parties do not dispute that
the Plan grants such discretion to the Plan Administrator. In addition, the Plan
specifically provides “the Plan Administrator and other Plan fiduciaries shall have
discretionary authority to interpret the terms of the Plan and to determine eligibility for
and entitlement to Plan benefits in accordance with the terms of the Plan.” Where the
Plan grants such discretionary authority, the administrator’s decision is reviewed under
the “arbitrary and capricious” standard of review. Id.
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The arbitrary and capricious standard is “the least demanding form of judicial
review of administrative action.” Besten v. Delta Am. Reinsurance Co., 202 F.3d 267
(table), No. 98-6225, 1999 WL 1336061, at *2 (6th Cir. Dec. 22, 1999). Therefore, if
the Plan Administrator’s decision is supported by substantial evidence, then it should be
upheld. Id. In other words, the Plan Administrator’s decision should be “rational in
light of the [P]lan’s provisions.” Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1993);
see also Davis v. Kent. Fin. Cos. Ret. Plan, 887 F.3d 689, 693 (6th Cir. 1989) (“When
it is possible to offer a reasoned explanation, based on the evidence, for a particular
outcome, that outcome is not arbitrary or capricious.”). Nonetheless, this deferential
standard is “tempered” by any possible conflict of interest where the Plan Administrator
both determines eligibility and funds the Plan. Univ. Hosp. of Cleveland v. Emerson
Elec. Co., 202 F.3d 839, 846 (6th Cir. 2000).
Because Farhner appeals the district court’s grant of summary judgment, we must
review de novo the district court’s ruling. Glenn v. MetLife, 461 F.3d 660, 665 (6th Cir.
2006). Summary judgment should be granted where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). In other words, this Court must determine whether there is any genuine
issue of material fact as to whether the Plan Administrator’s actions were arbitrary and
capricious. Gismondi v. United Tech. Corp., 408 F.3d 295, 298 (6th Cir. 2005). Farhner
bears the burden of proving that the Plan Administrator’s decision was arbitrary or
capricious; otherwise, the decision of the Plan Administrator “must be sustained as a
matter of law.” Gardner v. Central States, Se. and Sw. Areas Pension Fund, et al., 14
F.3d 601 (table), No. 93-3070, 1993 WL 533540, at *3 (6th Cir. Dec. 21, 1993). Our
review is limited to the administrative record available to the Plan Administrator. Garst
v. Wal-Mart Stores, Inc., 30 F. App’x 585, 593 (6th Cir. 2002).
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III. Analysis
We conclude that the district court correctly granted the DIPP’s motion for
summary judgment on the grounds that the express language of the Plan supported the
denial of benefits. Although Farhner argues that KCSR improperly terminated his
employment in violation of the FMLA, and the Plan Administrator’s review committee
considered whether Farhner met his obligations under the FMLA when affirming the
Plan Administrator’s decision, the Court finds that the Plan Administrator was not
required to look beyond the language of the Plan where the language of the Plan was
unambiguous and the Plan did not require it to do so. Thus, because the Plan
Administrator’s benefits determination was supported by the plain meaning of the Plan,
such decision was not arbitrary or capricious.
A. Plain Language of Plan
“When interpreting ERISA plan provisions, general principles of contract law
dictate that we interpret the provisions according to their plain meaning in an ordinary
and popular sense. In applying the ‘plain meaning’ analysis, we must give effect to the
unambiguous terms of an ERISA plan.” Williams v. Int’l Paper Co., 227 F.3d 706, 711
(6th Cir. 2000) (internal citations and quotation marks omitted). In other words, the Plan
Administrator “must adhere to the plain meaning of [the Plan’s] language as it would be
construed by an ordinary person.” Kovack v. Zurich Am. Ins. Co., 587 F.3d 323, 332
(6th Cir. 2009) (citing Morgan v. SKF USA, Inc., 385. F.3d 989, 992 (6th Cir. 2004)).
Accordingly, in determining whether benefits were due under the Plan, the
starting point is the language of the Plan itself. See Wulf v. Quantum Chem. Corp.,
26 F.3d 1368, 1374 (6th Cir. 1994); Callahan v. Rouge Steel Co., 941 F.2d 456, 460 (6th
Cir. 1991) (explaining that “the most important factor to weigh is the language of the
plan itself as known by the employees, or as the employees should have known”). Such
review allows the Court to “construe [the] ERISA plan with a view toward effectuating
its general purpose.” Kolkowski v. Goodrich Corp., 448 F.3d 843, 850 (6th Cir. 2006).
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Starting with the language of the Plan, the relevant portion explicitly provides
that certain suspensions and discharges are excluded from coverage under the Plan.
Specifically, section 3.5(b) states that “if you are suspended or discharged for one or
more of these reasons,” including insubordination, “you will NOT be entitled to benefits
under the Plan.” Here, the language of the Plan is unambiguous, and it clearly mandates
where an employee is terminated by his employer on the grounds of insubordination,
such employee is not entitled to benefits under the Plan.
Having determined that the language of the Plan is unambiguous, we next turn
to whether the Plan Administrator had before it evidence that Farhner was suspended or
discharged for insubordination. It is clear from the record, and the parties do not dispute,
that Farhner was investigated by KCSR due to his failure to comply with the instructions
given to him on May 25, 2004. Following such investigation and after a formal hearing,
Farhner received a letter of dismissal on July 30, 2004, stating that he was being
terminated for violating General Code of Operating Rule 1.6, which prohibits employees
from being insubordinate, and for violating General Code of Operating Rule 1.13. As
a result of the stated reasons for Farhner’s discharge, the Plan Administrator found that
Farhner should not receive income-replacement benefits under the Plan.
B. Looking Beyond Plain Language of the Plan
Although we have determined that the plain language of the Plan supports the
Plan Administrator’s benefits determination, we will consider Farhner’s argument that
he should not have been denied benefits because KCSR terminated his employment in
violation of the FMLA. However, we find this argument to be misplaced because there
is no policy or case law that requires the Plan Administrator to look beyond the plain
meaning of the Plan where the terms of the Plan unambiguously do not require the Plan
Administrator to do so.
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1. Farhner’s Contentions
Farhner argues that even though he was terminated on the grounds of
insubordination, such termination was unlawful and the Plan Administrator should have
looked beyond the plain meaning of the Plan to accurately determine whether Farhner’s
termination was proper. The FMLA entitles a qualifying employee to take leave if the
employee has a serious health condition rendering the employee unable to perform
essential job duties. Culpepper v. BlueCross BlueShield of Tenn., Inc., 321 F. App’x
491, 495 (6th Cir. 2009). Before an employer can give FMLA leave, however, the
employee must provide notice and a qualifying reason for the leave. Id. Whether the
notice is sufficient depends on whether the employee provides enough information for
the employer to reasonably conclude that the leave is needed for a serious health
condition. Branham v. Gannett Satellite Info. Network, Inc., 619 F.3d 563, 572 (6th Cir.
2010); Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 723 (6th Cir. 2003); Gipson v.
Vought Aircraft Indus., Inc., No. 09-6026, 2010 WL 2776842, at * 7 (6th Cir. July 13,
2010) (“The information that the employee convey[s] to the employer [must be]
reasonably adequate to apprise the employer of the employee’s request to take leave for
a serious health condition that render[s] him unable to perform his job”).
Once the employee gives notice, the employer may request medical certification
from a health care provider; however, this request “must be in writing and must detail
the employee’s specific obligation to provide certification and the consequences of
failing to do so.” Branham, 619 F.3d at 572; 29 C.F.R. §§ 825.301(b)(1)(ii), 825.305(d).
In response, the employee must provide the certification in a timely manner or at least
within fifteen days. 29 U.S.C. § 2613(a).
Farhner contends that KCSR’s requests for additional medical documentation
were not sufficient to trigger Farhner’s duty to provide certification to KCSR. Rather,
Farhner alleges that KCSR failed to meet its obligations under the FMLA, and therefore,
Farhner was not insubordinate. Instead, he argues that his actions were protected by the
law. As a result, Farhner asserts that the Plan Administrator’s benefits determination
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was arbitrary and capricious because the Plan Administrator should have looked beyond
the stated reasons for Farhner’s termination and determined that it was unlawful.
Even if Farhner’s arguments regarding KCSR’s obligations under the FMLA are
meritorious, Farhner cannot identify, and the Court has not found, any cases to support
his proposition that the Plan Administrator was required under the Plan to make an
accurate determination regarding those obligations. Even Besten v. Delta America
Reinsurance Company, which is factually similar, is distinguishable from this case.
There, this Court found the Plan Administrator’s denial of severance pay benefits was
arbitrary and capricious because the Plaintiff-Appellant’s termination was not proper.
Specifically, the Plaintiff-Appellant’s employment was terminated by his employer,
Delta, on the grounds of insubordination after he wrote a memorandum to the president
of the company “complaining about the denial of his request . . . to attend a tax update
seminar.” Besten, 1999 WL 1336061, at *1. As a result of Plaintiff-Appellant’s
discharge, he was denied severance pay benefits by Delta, who also served as the Plan
Administrator. Id. This Court concluded that a finding of insubordination was not
justified because “writing memoranda to management, supervisors, or personnel clerks
appear[ed] to be reasonably consistent with the directives of the Delta Employee
Manual.” Id. at *5. Accordingly, Delta’s decision to deny Plaintiff-Appellant severance
pay benefits was held to be arbitrary and capricious. Id.
However, in Besten, the plain language that governed differed from the plain
language in this case. There, “the terms of the Plan state[d] that benefits [would] be
denied when . . . a beneficiary [was] dismissed for cause as defined in the Delta
Employee Manual.” Id. at *4. In other words, the benefits determination was directly
intertwined with the decision to dismiss the Plaintiff-Appellant. Under the clear terms
of the Plan, it was necessary for the Plan Administrator to look at the conduct of the
potential beneficiary to determine if he was properly discharged for cause as defined in
the employee manual. Here, the terms of the Plan are specifically defined by the plain
language of the Plan itself. Therefore, the Plan Administrator needed to look only at the
stated reason for Farhner’s termination, not the underlying conduct, to determine if such
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reason fell under the list of exclusions outlined by the Plan. See also Cline v. Ret. Plan
for the Glass Rock Plant & Millwood Plant of Oglebay Norton Indus. Sands, Inc., 346
F. App’x 8, 9 (6th Cir. 2009) (finding that the relevant inquiry was not whether Plaintiff
was actually disabled at the time of termination, but whether “he was terminated because
the employer considered him disabled,” where the plain language of the Plan stated that
“a participant who terminates employment as a result of a disability . . . shall be entitled
to [d]isability [b]enefits hereunder”).
This case is also distinguishable from Besten because there Delta served as both
the Plaintiff-Appellant’s employer and as the Plan Administrator. Id. at *1. Therefore,
Delta had the ability to accurately ascertain the lawfulness of the Plaintiff-Appellant’s
discharge. In contrast, KCSR and the DIPP are two separate entities. Thus, the DIPP
would not be a proper party to a suit alleging a violation of the FMLA, and it would not
have the ability to properly defend against such type of suit.
2. Review Committee’s Decision
Furthermore, the fact that the Plan Administrator’s review committee considered
the lawfulness of Farhner’s termination under the FMLA when making its decision is not
determinative. Although the review committee went beyond the plain language of the
Plan, such action did not modify the express terms of the Plan. Here, looking at the plain
language of the Plan, it is clear that the Plan does not qualify the listed exclusions found
in section 3.5(b) by providing, for example, that an employee’s suspension or discharge
must have been proper or lawful. The mere fact that the review committee attempted to
make this determination does not change the requirement that the Plan Administrator
must adhere to the plain meaning of the Plan when making its decision.
As a general proposition, it would not be sound for this Court to penalize a party
for attempting to go beyond its duties as defined by a contract. Moreover, in a case such
as this one, where the Plan Administrator did not make the termination decision and had
no involvement in the termination decision, it would be imprudent to require the Plan
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Administrator to look beyond the terms of the Plan to accurately ascertain the underlying
facts where such action is not required by the language of the Plan itself.
Accordingly, the issue is not whether the Plan Administrator properly applied the
law under the FMLA or whether Farhner was unlawfully terminated. Rather, we
conclude that the Plan Administrator’s decision was rational in light of the express terms
of the Plan without further consideration. Although this case presents a unique issue for
this Court, it is evident from the record that there are no genuine issues of material fact
as to whether the Plan Administrator’s decision was arbitrary or capricious. The stated
reason for Farhner’s discharge was insubordination, which was a listed exclusion under
the Plan.
IV. Conclusion
For these reasons, we AFFIRM the decision of the district court.
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CONCURRENCE
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RONALD LEE GILMAN, Circuit Judge, concurring. I agree with the lead
opinion that the Plan Administrator’s decision to deny Farhner’s benefits request was not
arbitrary or capricious. Despite my concurrence in the ultimate result reached, however,
I disagree with portions of the lead opinion’s analysis.
Under the arbitrary-and-capricious standard of review employed in this case, a
Plan Administrator’s decision must be upheld if it results from “a deliberate principled
reasoning process and is supported by substantial evidence.” Schwalm v. Guardian Life
Ins. Co. of Am., 626 F.3d 299, 308 (6th Cir. 2010) (internal quotation marks omitted).
So long as there is a “reasoned explanation, based on the evidence, for a particular
outcome, that outcome is not arbitrary and capricious.” Id. (internal quotation marks
omitted).
In this case, the Plan Administrator initially conducted a relatively cursory
review to determine whether Farhner was discharged for insubordination. The Plan
Administrator simply looked at Farhner’s claim report and KCS’s letter of discipline,
concluding that because KCS’s stated reason for discharge was insubordination, Farhner
was not entitled to benefits. Farhner appealed this initial decision to the Plan
Administrator’s Review Committee. The Review Committee then conducted an in-depth
review of Farhner’s discharge. After reviewing the transcript of KCS’s formal
investigation that led to Farhner’s discharge, the Committee concluded that “there has
been no evidence presented to negate the fact that [Farhner] was, on several occasions,
placed on notice to provide specific information with regard to the reason for a medical
leave of absence. [Farhner] failed to comply with the FMLA and . . . the written
instructions of [KCS].” The Plan Administrator, based on this more detailed review,
upheld the original denial of benefits.
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Instead of blindly relying on KCS’s stated reasons for Farhner’s discharge, the
Plan Administrator ultimately reviewed the evidence and determined that Farhner was
in fact insubordinate. Farhner’s main contention on appeal is that this decision is
inconsistent with the technical requirements of the FMLA. Although the administrative
record does show some contradictory evidence regarding whether both Farhner and KCS
complied with the FMLA, the evidence is not so one-sided that the Plan Administrator’s
decision to deny Farhner benefits can be considered arbitrary and capricious. See
Schwalm, 626 F.3d at 312 (concluding that although the administrative record includes
contradictory evidence, “the evidence suggesting that Schwalm suffered from a
continuing disability is not so one-sided that the decision to deny benefits can be
considered arbitrary or capricious”).
My purpose in pointing out that the Plan Administrator ultimately conducted an
independent review of Farhner’s discharge is to highlight that this is not a case where the
Plan Administrator blindly relied on the employer’s stated reasons for its actions.
Because the Plan Administrator in fact engaged in an independent review, the lead
opinion did not need to reach the issue of whether the Plan Administrator was required
to look beyond the language of the Plan and KCS’s stated reasons for the discharge. The
lead opinion’s conclusion that the Plan Administrator had no obligation to conduct an
independent review is therefore not necessary to its holding, and is thus dicta. See
United States v. Swanson, 341 F.3d 524, 530 (6th Cir. 2003) (“[T]his holding might be
considered dicta in that it was not necessary to the determination of the issue on
appeal.”). Moreover, the very fact that the Plan Administrator made an independent
inquiry into the justification for Farhner’s termination is evidence that it likely
recognized its duty to do so under the Plan.
In sum, I concur in the judgment reached, but I respectfully disagree with
portions of the lead opinion’s analysis.