Cynthia K. Gilliam v. Nevada Power Company

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CYNTHIA K. GILLIAM,
Plaintiff-Appellant,
v. No. 04-17201
NEVADA POWER COMPANY; NEVADA D.C. No.POWER COMPANY SUPPLEMENTAL  CV-03-01013-PMPEXECUTIVE RETIREMENT PLAN;
SIERRA PACIFIC RESOURCES; SIERRA OPINION
PACIFIC RESOURCES SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted
October 19, 2006—San Francisco, California
Filed May 31, 2007
Before: Melvin Brunetti, Diarmuid F. O’Scannlain, and
Stephen S. Trott, Circuit Judges.
Opinion by Judge O’Scannlain
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COUNSEL
Daniel Marks, Law Office of Daniel Marks, Las Vegas,
Nevada, argued the cause for the plaintiff-appellant, and filed
briefs.
Gerald Mikesell, Nevada Power Company, Las Vegas,
Nevada, argued the cause for the defendants-appellees, and
filed a brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We are asked to decide whether severance pay should be
included as “earnings” for purposes of calculating an employ-
ee’s retirement benefits.
I
In 1974 Cynthia K. Gilliam (“Gilliam”) began working for
Nevada Power Company, an investor-owned public utility
that provides electric service to southern Nevada. She ulti-
mately was promoted to Vice President of Retail Customer
Operations in 1993, where she remained until 1999.
In 1986, Nevada Power Company established the Nevada
Power Company Supplemental Executive Retirement Plan
(“NPC Plan”), a non-qualified pension plan intended to pro-
vide retirement benefits to certain highly-compensated execu-
tives selected by the Board of Directors. In 1989, the Board
made Gilliam a participant in the NPC Plan.
In anticipation of a possible merger, Gilliam and Nevada
Power Company executed a three-year employment agree-
ment in 1998. The agreement provided that Gilliam would
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receive severance pay and certain other benefits if her
employment was terminated as a result of a “change in con-
trol” of the company. Subsequently, Nevada Power Company
agreed to merge with Sierra Pacific Resources, an event that
qualified as a change in control, as defined in Gilliam’s
employment agreement.
As part of the merger process, Nevada Power Company and
Gilliam executed a voluntary severance agreement that can-
celled and replaced her employment agreement. Pursuant to
the severance agreement, Gilliam agreed voluntarily to termi-
nate her active employment with the company on April 19,
1999.1 The severance agreement also provided that Gilliam
would receive severance pay in an amount equal to twice her
base salary and twice her target bonus for 1999. The agree-
ment specified that Gilliam’s retirement benefits under the
NPC Plan would fully vest on April 19, 1999, her termination
date. In addition, it provided that Gilliam would be entitled to
early retirement on September 1, 2003. Finally, the severance
agreement stated that Nevada Power Company would pay
Gilliam $12,000 in lieu of providing her with outplacement
and related services, which would be excluded from the calcu-
lation of her retirement benefits. On April 26, 1999, Nevada
Power Company paid Gilliam $512,500 as severance pay pur-
suant to the agreement.
After the merger was complete, the resulting Board of
Directors combined the NPC Plan with the Sierra Pacific
Resources Supplemental Executive Retirement Plan (“SPR
Plan”), effective November 1, 1999. The preamble of the SPR
Plan stated in part:
1The severance agreement provided that Gilliam would remain an inac-
tive employee on personal leave after this date, but Nevada Power Com-
pany retained the right to terminate her employment as an inactive
employee at an unspecified date in the future. On June 30, 1999, Nevada
Power Company ultimately terminated Gilliam’s inactive employment
with the company, citing a “reduction in force” as the reason for the termi-
nation.
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The purpose of this amendment and complete
restatement is to integrate the provisions of the pre-
decessor Plan with the provisions of the Nevada
Power Supplemental Executive Retirement Plan [the
NPC Plan]. Effective November 1, 1999, this Plan
[the SPR Plan] shall become the successor to those
two predecessor plans and [the Sierra Pacific Com-
pany] will become the Plan Sponsor. Unless
expressly stated by any amendment to this Plan, ben-
efits for Participants who retire or terminate employ-
ment prior to the effective date of any amendment
shall not be affected by any such amendment.
Gilliam was never a participant in the SPR Plan, as defined
in the plan documents.
In a letter dated February 3, 2003, Gilliam asked Nevada
Power Company to confirm the amount of her early retire-
ment benefits under the NPC Plan and informed the company
that she would like to begin receiving her benefits on the early
retirement date specified in her severance agreement. Relying
on the income reported in Box 1 of her federal Form W-2s for
the years 1997-1999, the latter year including her $512,500
severance payment, Gilliam claimed that her retirement bene-
fits under the NPC Plan totaled $145,279.56 per year
($12,106.63 per month).
In response, the plan administrator for Sierra Pacific
Resources considered Gilliam’s letter a claim for benefits and
denied it. The plan administrator informed Gilliam that she
“mistakenly included” her severance pay in her calculation of
retirement benefits, which, the plan administrator contended,
“has consistently been excluded from [the NPC Plan] earnings
because it is not ‘wages and salary.’ ” Excluding Gilliam’s
severance pay from the calculation, the plan administrator
asserted that Gilliam was entitled to receive retirement bene-
fits of only $60,289.56 per year ($5,024.13 per month).
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Gilliam appealed the denial of benefits to the Sierra Pacific
Benefits Committee, which unanimously upheld the plan
administrator’s decision. Gilliam then filed suit in district
court against Nevada Power Company, Nevada Power Com-
pany Supplemental Executive Retirement Plan, Sierra Pacific
Resources, and Sierra Pacific Resources Supplemental Execu-
tive Retirement Plan (hereinafter collectively “Nevada Power
Company”), challenging the denial of her retirement benefits
under the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1132(a)(1)(B).2 On cross-motions for
summary judgment, the district court granted summary judg-
ment in favor of Nevada Power Company. Concluding that a
de novo standard of review applied to its review of the plan
administrator’s denial of Gilliam’s benefits, the district court
held that the plan administrator properly excluded Gilliam’s
severance pay from the calculation of retirement benefits.
Gilliam timely appealed.
II
As a threshold matter, Nevada Power Company argues on
appeal that the district court erred in reviewing the plan
administrator’s denial of Gilliam’s claim de novo rather than
for abuse of discretion.3
2The cited section permits a participant in an ERISA-regulated plan to
bring a civil action “to recover benefits due to [her] under the terms of
[her] plan, to enforce [her] rights under the terms of the plan, or to clarify
[her] rights to future benefits under the terms of the plan.” 29 U.S.C.
§ 1132(a)(1)(B). Neither party disputes that the NPC Plan is an “employee
benefit plan” governed by ERISA, 29 U.S.C. §§ 1001-1461.
3We reject Gilliam’s suggestion at oral argument that, because Nevada
Power Company failed to cross-appeal, we are precluded from considering
its argument that the district court erred by not applying an abuse of dis-
cretion standard of review. Generally, “ ‘a cross-appeal is required to sup-
port modification of the judgment,’ ” Engleson v. Burlington N. R.R. Co.,
972 F.2d 1038, 1041 (9th Cir. 1992) (citation omitted), and “[a]n appellee
who fails to file a cross-appeal cannot attack a judgment with the view
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Gilliam maintained in the district court, and Nevada Power
Company conceded, that the NPC Plan is a so-called “top hat”
plan under ERISA. The Act defines a top hat plan as one
“which is unfunded and is maintained by an employer primar-
ily for the purpose of providing deferred compensation for a
select group of management or highly compensated employ-
ees.” 29 U.S.C. §§ 1051(2), 1081(a)(3), 1101(a)(1). This is no
small matter. “Because of these limitations, top hat plans form
a rare sub-species of ERISA plans, and Congress created a
special regime to cover them.” In re New Valley Corp., 89
F.3d 143, 148 (3d Cir. 1996). ERISA exempts such plans
towards enlarging his own rights,” Spurlock v. FBI, 69 F.3d 1010, 1018
(9th Cir. 1995). However, “arguments that support the judgment as
entered can be made without a cross-appeal . . . . even where the argument
being raised has been explicitly rejected by the district court.” Engleson,
972 F.2d at 1041 (citations and internal quotation marks omitted). Here,
Nevada Power Company does not seek to enlarge its rights or lessen Gil-
liam’s. Instead, as the prevailing party, Nevada Power Company offers a
slightly different ground to support affirming the judgment of the district
court. Thus, we may consider Nevada Power Company’s standard-of-
review argument even though it failed to cross-appeal. See Johnson v.
Enron Corp., 906 F.2d 1234, 1238 (8th Cir. 1990) (concluding that an
appellee could challenge the standard of review applied by the district
court without cross-appealing); Butts v. Cont’l Cas. Co., 357 F.3d 835,
837 n.2 (8th Cir. 2004) (same).
We review de novo the district court’s grant of summary judgment.
Simkins v. NevadaCare, Inc., 229 F.3d 729, 733 (9th Cir. 2000). “Viewing
the evidence in the light most favorable to the nonmoving party and draw-
ing all reasonable inferences in its favor, an appellate court must deter-
mine whether the district court correctly applied the relevant substantive
law and whether there are any genuine issues of material fact.” Id. But see
Bard v. Boston Shipping Ass’n, 471 F.3d 229, 235 (1st Cir. 2006) (“We
review the district court’s grant of summary judgment de novo. In the
ERISA context, summary judgment is merely a vehicle for deciding the
case; the factual determination of eligibility for benefits is decided solely
on the administrative record, and ‘the non-moving party is not entitled to
the usual inferences in its favor.’ ” (citations omitted)). We also “review
de novo a district court’s choice and application of the standard of review
to decisions by fiduciaries in ERISA cases.” Abatie v. Alta Health & Life
Ins. Co., 458 F.3d 955, 962 (9th Cir. 2006) (en banc).
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“from the fiduciary, funding, participation and vesting
requirements applicable to other employee benefit plans.”
Duggan v. Hobbs, 99 F.3d 307, 310 (9th Cir. 1996) (citing 29
U.S.C. § 1101(a)(1) (exemption from fiduciary responsibili-
ties); id. § 1081(a)(3) (exemption from minimum funding
standards); id. § 1051(2) (exemption from participation and
vesting requirements)).
Nevertheless, the parties and the district court assumed that
the standard-of-review framework set forth in Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101 (1989), applies to top
hat plans. There, the Supreme Court held that a court reviews
a plan administrator’s denial of benefits for abuse of discre-
tion if the ERISA plan unambiguously grants the plan admin-
istrator discretionary authority to determine the eligibility for
benefits or to construe the terms of the plan. Firestone, 489
U.S. at 115.4 On the other hand, if the ERISA plan fails unam-
biguously to grant the plan administrator such discretionary
authority, the Supreme Court held that a court reviews the
plan administrator’s denial of benefits de novo. Firestone, 489
U.S. at 115. Notably, Firestone involved employee pension
benefit plans and employee welfare benefit plans under
ERISA, not top hat plans.5
4See also Abatie, 458 F.3d at 967 (“We read Firestone to require abuse
of discretion review whenever an ERISA plan grants discretion to the plan
administrator, but a review informed by the nature, extent, and effect on
the decision-making process of any conflict of interest that may appear in
the record.”).
5ERISA defines an “employee pension benefit plan” as “any plan, fund,
or program which was heretofore or is hereafter established or maintained
by an employer or by an employee organization, or by both, to the extent
that by its express terms or as a result of surrounding circumstances such
plan, fund, or program—(i) provides retirement income to employees, or
(ii) results in a deferral of income by employees for periods extending to
the termination of covered employment or beyond, regardless of the
method of calculating the contributions made to the plan, the method of
calculating the benefits under the plan or the method of distributing bene-
fits from the plan.” 29 U.S.C. § 1002(2)(A).
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We are less certain than the parties that the Firestone
standard-of-review framework also applies to top hat plans.
The Third Circuit, for one, has held that de novo review
applies to top hat plans even when they grant plan administra-
tors discretion because “a top hat administrator has no fidu-
ciary responsibilities” under ERISA. Goldstein v. Johnson &
Johnson, 251 F.3d 433, 443 (3d Cir. 2001). Recently follow-
ing suit, the Eighth Circuit concluded that Firestone does not
apply to top hat plans, because “the policy considerations
relied upon in [that case] to trigger abuse-of-discretion review
. . . are simply not present in the case of a top hat plan.” Craig
v. Pillsbury Non-Qualified Pension Plan, 458 F.3d 748, 752
(8th Cir. 2006). The Seventh Circuit, however, assumed with-
out discussion that Firestone applied to top hat plans. See
Olander v. Bucyrus-Erie Co., 187 F.3d 599, 606-08 (7th Cir.
1999).
An “employee welfare benefit plan” is defined by ERISA as “any plan,
fund, or program which was heretofore or is hereafter established or main-
tained by an employer or by an employee organization, or by both, to the
extent that such plan, fund, or program was established or is maintained
for the purpose of providing for its participants or their beneficiaries,
through the purchase of insurance or otherwise, (A) medical, surgical, or
hospital care or benefits, or benefits in the event of sickness, accident, dis-
ability, death or unemployment, or vacation benefits, apprenticeship or
other training programs, or day care centers, scholarship funds, or prepaid
legal services, or (B) any benefit described in section 186(c) of this title
(other than pensions on retirement or death, and insurance to provide such
pensions).” Id. § 1002(1).
“A comparison of the statutory definitions of a welfare plan and a pen-
sion plan shows that the only significant difference between these varieties
of employee benefit plans is the nature of the benefit furnished—a pension
plan provides retirement income or other deferred income, while a welfare
plan provides benefits upon the occurrence of various specified contingen-
cies.” 1 ERISA Practice & Procedure § 2:5, 2-16 to -17 (2d ed. 2005).
“Top hat plans represent a special category of ERISA [pension benefit
plans] that provide compensation arrangements to a select group of
management-level employees.” Id. § 2:4, at 2-9.
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We need not decide as a matter of first impression in this
circuit whether the Firestone standard-of-review framework
applies to top hat plans or, if it does, whether the district court
should have applied an abuse of discretion rather than a de
novo standard of review.6 The question in this case turns on
the interpretation of the term “earnings” under the NPC Plan
and we would reach the same conclusion under either stan-
dard of review. See Richardson v. Pension Plan of Bethlehem
Steel Corp., 112 F.3d 982, 985 (9th Cir. 1997) (declining to
rule on whether the de novo or abuse of discretion standard
of review applied, because the former employees’ claims
failed even under the more stringent de novo standard).
III
The parties agree that the NPC Plan governs the calculation
of Gilliam’s retirement benefits. Gilliam, however, contends
that the district court erred in concluding that her severance
pay of $512,500 should be excluded from the calculation of
her retirement benefits under that plan. We consider this argu-
ment now.
A
Although “[a]n ERISA plan is a contract,” see Bland v.
Fiatallis N. Am., Inc., 401 F.3d 779, 783 (7th Cir. 2005),
“ERISA does not contain a body of contract law to govern the
interpretation and enforcement of employee benefit plans,”
Richardson, 112 F.3d at 985. We therefore “apply contract
principles derived from state law . . . guided by the policies
expressed in ERISA and other federal labor laws.” Id. “Ac-
cordingly, we have held that terms in an ERISA plan should
be interpreted ‘in an ordinary and popular sense as would a
6If the Firestone framework controlled in this case, we would have to
decide another novel question in this circuit: when determining the appli-
cable standard of review, should a court look to Nevada Power Company’s
NPC Plan in effect when Gilliam’s benefits vested or Sierra Pacific
Resources’ SPR Plan in effect when her benefit claim was denied?
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[person] of average intelligence and experience.’ ” Id. (alter-
ation in original) (quoting Evans v. Safeco Life Ins. Co., 916
F.2d 1437, 1441 (9th Cir. 1990)). More specifically, “ ‘[w]hen
disputes arise, courts should first look to explicit language of
the agreement to determine, if possible, the clear intent of the
parties. The intended meaning of even the most explicit lan-
guage can, of course, only be understood in the light of the
context that gave rise to its inclusion.’ ” Id. (alteration in orig-
inal) (quoting Armistead v. Vernitron Corp., 944 F.2d 1287,
1293 (6th Cir. 1991) (citations omitted)). Moreover, we
endeavor to interpret each provision consistent “with the
entire document such that no provision is rendered nugatory.”
Id. When a plan is ambiguous, however, a court typically
“will examine extrinsic evidence to determine the intent of the
parties.” Id.
B
1
[1] With these principles in mind, we now return to the plan
at issue in this case. The NPC Plan provides that Gilliam’s
retirement benefits at a normal retirement date equal “3.0% of
Final Average Earnings times Service up to 15 years, plus
1.5% of Final Average Earnings times Service in excess of 15
years less 100% of the Participant’s benefit payable at Retire-
ment under the Qualified Plan.” (emphasis added.) The plan
defines “Final Average Earnings” to mean “the average of the
highest consecutive 36 months of Service Earnings of a Par-
ticipant.” (emphasis added.) The plan further defines the term
“Service” as “a Participant’s full and partial years of employ-
ment (calculated in completed calendar months) from date of
hire to date of termination, but not later than attainment of
Age 65,” and defines “Earnings” as “a Participant’s total
wages and salary as reported by the Company for federal
income tax purposes for the calendar year. However, bonuses
will be reflected in the year earned (not in the year paid) and
will be assumed to be earned ratably over the months actually
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worked during such year.” (emphasis added.) Not surpris-
ingly, the definition of the term “earnings” under the NPC
Plan is at the center of this dispute. Our task therefore is to
determine whether “total wages and salary as reported by the
Company for federal income tax purposes for the calendar
year”—the plan’s definition of “earnings”—includes Gil-
liam’s severance pay of $512,500.
2
Significant portions of the parties’ briefs are devoted to
arguments as to whether severance pay is considered “wages
or salary” as defined under the Internal Revenue Code. While
interesting, we do not consider it necessary to venture through
the intricacies of that complex body of law here. We believe
that a natural reading of the plan’s definition of “earnings”
suggests that the parties intended two separate inquires: First,
is the payment—here, the $512,500 severance payment to
Gilliam—“wages and salary”? Second, if the payment is
“wages and salary,” was it “reported by the [Nevada Power]
Company for federal income tax purposes for the calendar
year”? (emphasis added.) Neither inquiry requires us to deter-
mine whether the payment is “wages and salary” as defined
under the Internal Revenue Code. Instead, the plan agreement
simply defines the term “earnings” as “total wages and salary
as reported by the Company for federal income tax purposes
for the calendar year.” (emphasis added.) Accordingly, we do
not believe the parties intended to incorporate by reference
the definition of “wages and salary” from the Internal Reve-
nue Code. And it is a familiar principle of contract law that
unless a contract is voidable, we “must enforce it as drafted
by the parties, according to the terms employed, and may not
make a new contract for the parties or rewrite their contract
while purporting to interpret or construe it.” 11 Williston on
Contracts § 31:5, at 299 (4th ed. 1999) (footnotes omitted).
3
[2] Because the plan is silent as to the definition of the
phrase “wages and salary,” we look to the dictionary defini-
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tion to determine the ordinary and popular meaning. See Dee-
gan v. Cont’l Cas. Co., 167 F.3d 502, 507 (9th Cir. 1999).
Black’s Law Dictionary defines the term “wage” as
“[p]ayment for labor or services, usu[ally] based on time
worked or quantity produced . . . . [and includes] every form
of remuneration payable for a given period to an individual
for personal services, including salaries, commissions, vaca-
tion pay, bonuses, and the reasonable value of board, lodging,
payments in kind, tips, and any similar advantage received
from the employer.” Black’s Law Dictionary 1610 (8th ed.
1999). Similarly, Black’s defines the term “salary” as “[a]n
agreed compensation for services—esp[ecially] professional
or semiprofessional services—usu[ally] paid at regular inter-
vals on a yearly basis.” Id. at 1365. The parties do not con-
tend, nor do we believe, that the phrase “wages and salary”
is ambiguous. In short, we are persuaded that the ordinary and
common meaning of “wages and salary,” as used in the NPC
Plan, is remuneration for services.
That the term “earnings” is modified by the term “service”
in the NPC Plan further bolsters our conclusion that the mean-
ing of “wages and salary” is limited to remuneration for the
performance of services. Specifically, Gilliam’s retirement
benefits are calculated based on her “Service Earnings,” and
the term “Service” is limited to her “full and partial years of
employment (calculated in completed calendar months) from
date of hire to date of termination.” (emphasis added.)
With these definitions in hand, we now must determine
whether the severance payment to Gilliam in the amount of
$512,500 was remuneration for services. Her severance pay
was part of a severance agreement whereby Gilliam agreed
voluntarily to terminate her employment, to preserve as confi-
dential certain information, to refrain from competing with
Nevada Power Company for a limited period in a specified
area, and to waive and to release certain rights and claims
against Nevada Power Company. The severance agreement
further provided that it “is intended as a final settlement of
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any and all claims, known or unknown, that [Gilliam] may
have against [Nevada Power] Company, including but not
limited to all rights [Gilliam] may have pursuant to her
Employment Agreement.” This comports with the common
understanding of the term “severance pay,” which Black’s
defines as “[m]oney (apart from back wages or salary) paid by
an employer to a dismissed employee . . . . often made in
exchange for a release of any claims that the employee might
have against the employer.” Black’s Law Dictionary 1406.
And we have previously observed that severance pay “in gen-
eral is intended to tide an employee over while seeking a new
job, [and] certainly could be considered an ‘unemployment
benefit.’ ” Jung v. FMC Corp., 755 F.2d 708, 711 n.2 (9th
Cir. 1985) (internal quotation marks omitted), abrogated by
Firestone, 489 U.S. at 115.
[3] We are unpersuaded that the plain meaning of “wages
and salary,” for purposes of defining “earnings” in the NPC
Plan, includes Gilliam’s severance pay. Simply put, “wages
and salary,” as used in the definition of “earnings” in the plan,
includes only payment for services.7 Gilliam’s severance pay
was not for services, but for her voluntary termination of
employment, confidentiality, non-competition, and waiver of
7We reject Gilliam’s argument that the district court’s conclusion is
contrary to the plain language of the NPC Plan because her severance pay
was reported in Box 1 of the federal Form W-2 for 1999 and because
“[t]here is but one way a company reports an employee’s ‘total wages and
salary for federal income tax purposes for the calendar year,’ and that is
with a federal Form W2, Wage and Tax Statement.” This argument rests
on the logical fallacy of affirming the consequent. While Nevada Power
Company must report “wages and salary” on Box 1 of the federal Form
W-2, not all amounts reported in Box 1 of the federal Form W-2 must be
“wages and salary.” For example, the 1999 Instructions for Forms W-2
and W-3 explain that Box 1 includes many employee income items other
than “wages and salary.” See Internal Revenue Service, 1999 Instructions
for Forms W-2 and W-3, at 7 (1999), available at http://www.irs.gov/pub/
irs--prior/iw2-1999.pdf; see also Cent. Ill. Pub. Serv. Co. v. United States,
435 U.S. 21, 25 (1978) (“Wages usually are income, but many items qual-
ify as income and yet clearly are not wages.”).
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claims against Nevada Power Company. Accordingly, we
conclude that the district court did not err in holding that “a
plain reading of the NPC [Plan’s] definition of Earnings . . .
cannot reasonably be interpreted to include severance pay
given to an employee to no longer work, notwithstanding the
fact that severance pay may be subject to federal income tax.”8
AFFIRMED.
8Nevada Power Company also challenges the district court’s purported
consideration of evidence not before the plan administrator. While we
question whether Nevada Power Company may raise this argument with-
out cross-appealing, we are ultimately unpersuaded by this contention.
Nevada Power Company has failed to show that the district court abused
its discretion by admitting any additional evidence. See Abatie, 458 F.3d
at 970 (concluding that, “in general, a district court may review only the
administrative record when considering whether the plan administrator
abused its discretion, but may admit additional evidence on de novo
review”). Moreover, even if the district court had erred, Nevada Power
Company has failed to demonstrate prejudice.
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