Summary Calendar PEGGY JO BOLIVER v. American Telephone & Telephone Company, Etc;

* Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 9, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60374
Summary Calendar
PEGGY JO BOLIVER,
Plaintiff-Appellant,
v.
AMERICAN TELEPHONE & TELEPHONE COMPANY, ETC; ET AL,
Defendants,
BELLSOUTH PENSIONS SERVICE CENTER; ET AL,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Mississippi, Jackson
3: 04-CV-750
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Peggy Jo Boliver challenges the district court’s grant of
summary judgment for Bellsouth Telecommunications, Inc.
(“Bellsouth”). Boliver argues that the district court erred by
reviewing her denial of disability pension benefits for abuse of

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discretion. Boliver also argues that even if the abuse of
discretion standard applies, it was an abuse of discretion to find
that she was not entitled to a disability pension. We AFFIRM.
Boliver worked for South Central Bell Telephone (“SCB”)from
1957 until her termination on November 23, 1975. Boliver alleges
that she was totally and permanently disabled due to a herniated
disk in May, 1974, and received sickness disability benefits until
the time of her termination more than a year later. At that time,
SCB offered a pension plan that allowed employees to collect
disability pension benefits if they satisfied certain requirements,
including the completion of at least fifteen years of service and
the receipt of 52 weeks of sickness disability benefits.
Boliver filed a claim for disability pension benefits with
Bellsouth, the successor in interest to SCB, on August 28, 2003,
nearly three decades after her termination. The director of the
retirement plan denied Boliver’s claim on January 5, 2004, and she
appealed to the Employee’s Benefit Claim Review Committee
(“EBCRC”). The EBCRC denied Boliver’s claim on June 7, 2004, and
she appealed to the district court, which granted summary judgment
for Bellsouth. We review the district court’s grant of summary
judgment de novo under the same criteria that governs that court’s
consideration of whether summary judgment was appropriate. Atkins
v. Hibernia Corp., 182 F.3d 320, 323 (5th Cir. 1999).
Boliver argues that the district court should have reviewed

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the EBCRC’s denial of her claim under a less deferential standard
than abuse of discretion. The pension plan in question is covered
by the Employment Retirement Income Security Act, 29 U.S.C. § 1001
et seq. (“ERISA”), under which the standard for reviewing a plan
administrator’s decision can be either abuse of discretion or de
novo depending on whether the plan gives the administrator
discretionary authority to determine eligibility for benefits.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). We
need not determine what type of plan this is, however, because the
disputed issue is whether Boliver received 52 weeks of disability
benefits during 1974 and 1975 — a purely factual determination.
“[A] plan administrator’s factual determinations are always
reviewed for abuse of discretion[.]” Vercher v. Alexander &
Alexander, Inc., 379 F.3d 222, 225 (5th Cir. 2004).
Because this is an ERISA case, however, the abuse of
discretion standard is still not necessarily as deferential as it
ordinarily would be. “The existence of a conflict is a factor to
be considered in determining whether the administrator abused its
discretion in denying a claim. The greater the evidence of
conflict on the part of the administrator, the less deferential our
abuse of discretion standard will be.” Vega v. Nat’l Life Ins.
Servs., Inc., 188 F.3d 287, 297 (5th Cir. 1999). A conflict of
interest exists, and the court must apply this “sliding scale”
standard of review when “the plan administrator is self-interested,

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i.e. the administrator potentially benefits from every denied
claim.” Id. at 295.
Boliver argues that a conflict existed, and that the district
court should have therefore applied a less deferential standard of
review. However, Boliver presented no evidence of a conflict
beyond making the conclusory allegation that the claim
administrator and Bellsouth are the same entity. In the context of
a corporate benefit plan, we do not automatically assume that a
conflict of interest arises every time paid personnel of a
corporation evaluate claims for benefits. MacLachlan v. ExxonMobil
Corp., 350 F.3d 472, 479 n.8 (5th Cir. 2003). Moreover, the
plaintiff has the burden of producing evidence that a conflict
exists. Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d
262, 271 n. 18 (5th Cir. 2005). Boliver has failed to meet her
burden of producing evidence of a conflict, and the district court
was correct in reviewing the EBCRC’s ruling for abuse of
discretion.
Finally, Boliver argues that the district court erred by not
finding that the EBCRC abused its discretion when it denied her
claim for benefits. The plaintiff has the burden of proving that
she is eligible to receive the benefits, Kirschenheuter v. Bd. of
Trustees of the GSC-ILA Pension Plan & Trust, 341 F.Supp.2d 624,
628 (S.D. Miss. 2004), but the only proof offered by Boliver was
her earnings statement, her own affidavit claiming to have received

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1Even were we to review the decision under a less deferential
standard, Boliver would still fail to meet her burden to prove her
eligibility.
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the benefits, and a certificate and letters from a doctor stating
that she was indeed sick.
The earnings statement shows that she did not receive income
in the third and fourth quarters of 1974, but does not prove that
she received disability benefits during that time, and provides no
information at all for 1975. The affidavit is self-serving and
lacks any details verifying her receipt of the benefits. The
doctor’s materials simply reinforce the undisputed fact that
Boliver was injured. Accordingly, it was not an abuse of
discretion for the EBCRC to find that Boliver failed to meet her
burden of proving her eligibility for the benefits.1 Because we
find that the EBCRC did not abuse its discretion, we need not reach
Bellsouth’s argument that Boliver’s claim is barred by the doctrine
of laches.
For the foregoing reasons, we AFFIRM the district court.

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