STANLEY HOFFMAN, Individually and on behalf of the Estate of Phyllis Hoffman v. AMERICAN SOCIETY FOR TECHION- ISRAEL INSTITUTE OF TECHNOLOGY, INC, AKA American…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STANLEY HOFFMAN, Individually and
on behalf of the Estate of Phyllis Hoffman,
Plaintiff-Appellant,
v.
AMERICAN SOCIETY FOR TECHION-
ISRAEL INSTITUTE OF
TECHNOLOGY, INC, AKA American
Technion Society, AKA ATS, a business
entity or entities, form unknown,
Defendant-Appellee.
No. 15-55756
D.C. No.
3:09-cv-02482-BEN-KSC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted February 9, 2017
Pasadena, California
Before: SCHROEDER, PREGERSON, and MURGUIA, Circuit Judges.
Stanley Hoffman appeals the district court’s grant of summary judgment to
defendant American Society for Technion-Israel Institute of Technology (“ATS”)
FILED
FEB 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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in this case arising under the Employee Retirement Income Security Act of 1974,
29 U.S.C. §§ 1001 et seq. (“ERISA”). Stanley Hoffman’s late wife Phyllis was
employed by ATS until her terminal illness forced her to leave her job. ATS’s
employee benefit plan provides that an employee “whose employment terminates
for any reason other than malfeasance, retirement or voluntary resignation shall be
entitled to . . . severance pay.” The district court ruled Phyllis Hoffman’s departure
was a “voluntary resignation,” an undefined term in the plan. Stanley Hoffman
contends that the term does not encompass an employee who leaves her job due to
a disabling illness that renders her incapable of performing her job duties.
The district court erred in holding that unless there had been an affirmative
act by the employer, the employment termination was voluntary. Terms in an
ERISA plan “should be interpreted in an ordinary and popular sense as would a
person of average intelligence and experience.” Richardson v. Pension Plan of
Bethlehem Steel Corp., 112 F.3d 982, 985 (9th Cir. 1997) (internal citation and
quotation omitted). A person of average intelligence and experience would
understand the term “voluntary” to mean as “proceeding from the will or from
one’s own choice or consent.” See Webster’s Ninth New Collegiate Dictionary.
Being forced to leave a job due to a disabling illness does not proceed from the will
or from one’s own choice or consent. Cf. Stephan v. UNUM Life Ins. Co. of
2

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America, 697 F.3d 917, 936 (9th Cir. 2012) (noting that it is not “sensible to
understand [an] inability to work due to disability as a voluntary termination of
employment”).
Two other issues must be addressed. First, ATS argues that in the context of
the plan as a whole, severance benefits are not warranted because Phyllis Hoffman
received disability benefits. The long term disability plan, however, expressly
contemplated that an employee might receive both severance and disability by
providing an offset for “any amounts that are paid under your Employer’s . . .
Severance . . . program.”
Second, there is no merit to ATS’s alternative argument that Phyllis
Hoffman lost her severance pay when she became a part time employee. ATS’s
own records show that Phyllis Hoffman’s termination date was February 29, 2008,
before she attempted any part time work.1
The district court’s order is REVERSED, and this case is REMANDED
with instructions to enter summary judgment in favor of Stanley Hoffman.
1 Stanley Hoffman’s motion to withdraw a citation is granted.
3

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