Dina Del Rio v. Toledo Edison Co.

*The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0337n.06
Filed: April 29, 2005
No. 04-3740
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DINA DEL RIO,
Plaintiff-Appellant,
v.
TOLEDO EDISON CO.,
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
O P I N I O N
Before: MOORE and ROGERS, Circuit Judges, and RESTANI, * Judge.
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Dina Del Rio (“Del Rio”)
brought suit against Defendant-Appellee Toledo Edison Co. (“Toledo Edison”) pursuant to the
Employee Retirement Income Security Act of 1974 (“ERISA”), on various claims arising out of the
denial of long-term disability (“LTD”) benefits. The district court held that Del Rio’s claims were
without merit and granted summary judgment in favor of Toledo Edison. Upon review, we conclude
that none of Del Rio’s arguments are persuasive, and therefore, the district court’s grant of judgment
in favor of Toledo Edison is AFFIRMED. Accordingly, Toledo Edison’s pending motion to strike
the joint appendix or dismiss the appeal because of omissions in the joint appendix is DISMISSED
as moot.

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1In 1997, the parent company of Toledo Edison merged with Ohio Edison Company. The
new entity is now known as FirstEnergy Corp. (“FirstEnergy”). The merger of the companies does
not affect the outcome of this case.
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I. BACKGROUND
Del Rio was employed by Toledo Edison,1 an electric generation company, from October 22,
1984 until September 9, 1992. During her employment at Toledo Edison, Del Rio performed a
number of administrative jobs. As part of her employment, Del Rio was a member of a union and
covered by a collective bargaining agreement (“CBA”). She was also a participant in the Centerior
Energy Corporation Retirement Plan (the “Plan”), which entitled her to receive certain benefits
provided by Toledo Edison. Though the Plan provided a disability pension, Del Rio was within a
category of employees who were not entitled to this benefit.
Del Rio’s employment at Toledo Edison also entitled her to coverage under the company’s
LTD benefits plan (the “LTD Plan”). Under the LTD Plan, a full-time employee was eligible to
receive LTD benefits if the employee had “ten years of Company service at the time of the disability
which rendered the employee totally disabled.” Letter from Richard LaFleur to Del Rio 2 (Nov. 20,
2001). Because Del Rio’s employment at Toledo Edison lasted only eight years, she was not
eligible for benefits under this provision. The LTD Plan also stated that “[t]here is no Company
service requirement if total disability resulted from an on the job injury while performing Company
work duties.” Id. To be eligible to receive LTD benefits, an employee “must be certified totally
disabled, and receive and [sic] award of benefits, by the Social Security Administration.” Id.
On May 5, 1994, more than a year and a half after her employment with Toledo Edison
ended, Del Rio was awarded disability benefits by the Social Security Administration (“SSA”). The
SSA found that she suffered from a number of impairments, including: “somatoform pain disorder,

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dysthymia, personality disorder, rotator cuff tear of the right shoulder, tenosynovitis of the right
hand and wrist; and status post operative anterior cervical diskectomy and fusion at C5-6 and C6-7.”
SSA Decision 2 (May 25, 1994). The SSA determined, however, that the “totally disabling
component is her emotional problems which includes severe depression and a personality disorder
with histrionic and paranoid features.” Id. The SSA found that the disability began on May 7, 1992,
during which time she was still employed at Toledo Edison. Because there were no jobs available
that she could perform in light of this condition, the SSA awarded her disability benefits.
Del Rio alleges that between 1994 and 2000 she periodically called the benefits department
at Toledo Edison inquiring about her rights under the LTD Plan. She claims that each time she
called, a Toledo Edison employee would inform her that she was not eligible for LTD benefits
because she was not employed for a full ten years. On August 14, 2001, Del Rio wrote a letter to
Toledo Edison, by then FirstEnergy, demanding LTD benefits. Richard LaFleur (“LaFleur”), the
director of employee benefits for FirstEnergy, responded to Del Rio via a letter on November 20,
2001. In the letter, LaFleur explained the terms of the LTD Plan and enclosed a description from
the employee handbook. Furthermore, he stated that because there was no evidence that she was
“totally and permanently disabled” at the time her employment ended, she was ineligible to receive
benefits. Letter from LaFleur to Del Rio 1 (Nov. 20, 2001). LaFleur invited Del Rio to appeal the
determination as well as submit documentation substantiating her claim.
On January 21, 2002, Del Rio responded by faxing a letter to LaFleur accompanied with the
SSA determination finding her disabled since May 1992. She also included a determination from
the Industrial Commission of Ohio (the “IC”), which found that Del Rio had suffered several work-
related injuries affecting her arms and wrists. LaFleur forwarded Del Rio’s letter and supporting

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documentation to the Appeals Committee, which reviews benefit claims from present and former
employees of FirstEnergy and its predecessor companies. On March 25, 2002, the Appeals
Committee denied her claim, finding that she neither worked at Toledo Edison for the requisite ten-
year period, nor could she demonstrate that her disability resulted from an on-the-job injury. The
Appeals Committee relied upon the SSA determination that her emotional problems were the
disabling component of her injuries. While the SSA found that the disability began in May 1992
during her employment with Toledo Edison, there was no evidence in the record that the disability
“resulted from an on the job injury while performing Company work duties.” Letter from LaFleur
to Del Rio 2 (Nov. 20, 2001).
On May 23, 2002, Del Rio brought suit against Toledo Edison in the United States District
Court for the Northern District of Ohio on several grounds. Specifically, Del Rio alleged that
Toledo Edison violated ERISA by breaching its fiduciary duties, failing to disclose statutorily
required information, and failing to pay her pension benefits within sixty days of the end of her
employment. Del Rio also alleged that Toledo Edison breached the CBA by failing to provide her
with LTD benefits. Following discovery, the parties filed cross motions for summary judgment.
On April 19, 2004, the district court issued its order granting Toledo Edison summary judgment on
all claims. Del Rio appeals from this ruling.
II. ANALYSIS
A. Standard of Review
We review “the grant of summary judgment de novo, viewing all evidence in the light most
favorable to the nonmoving party.” Boone v. Spurgess, 385 F.3d 923, 927 (6th Cir. 2004). “Under
Rule 56(c), summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories,

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2In her brief, Del Rio attempts to distinguish her case from Tregoning by arguing that its
holding pertained to ERISA § 409, 29 U.S.C. § 1109, while she is seeking redress for violations of
ERISA § 404, 29 U.S.C. § 1104. Appellant’s Br. at 17. This argument is wholly without merit.
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and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). The Court has noted that
“the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the
district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at
325.
B. Breach of Fiduciary Duty
Del Rio’s first argument on appeal is that the district court erred by granting summary
judgment in favor of Toledo Edison on her claim of a breach of fiduciary duty. Upon review of the
record, we conclude that Del Rio has not presented sufficient evidence to support her claim, and
therefore the grant of summary judgment in favor of Toledo Edison is appropriate.
Del Rio presents two theories in support of her breach-of-fiduciary-duty claim against
Toledo Edison. First, in her complaint, Del Rio alleged that Toledo Edison breached its fiduciary
duties “[b]y using the Plaintiff’s pension funds for its own personal use.” Compl. at 4. We agree
with the district court that Del Rio’s allegation is nothing more than a bare assertion, devoid of any
support in the record. Moreover, to the extent that Del Rio was seeking damages in her individual
capacity as a result of this alleged breach rather than on behalf of the plan itself, ERISA does not
afford her an avenue of redress. Tregoning v. Am. Cmty. Mut. Ins. Co., 12 F.3d 79, 83 (6th Cir.
1993) (citing Mass. Mut. Life. Ins. Co. v. Russell, 473 U.S. 134, 140-144 (1985)), cert. denied, 511
U.S. 1082 (1994). 2

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Though § 404 establishes the fiduciary duties under ERISA, § 409 is the only provision which
provides for liability for breach of those duties. See ERISA § 502(a)(2) (authorizing a civil action
“by a participant, beneficiary or fiduciary for appropriate relief under §409”). There is no cause of
action under § 404 itself.
3This argument was not addressed by the district court and was only fully presented for the
first time in Del Rio’s brief to this court. While arguments not presented to the district court are
considered waived on appeal, United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 758 (6th
Cir. 1999), cert. denied, 530 U.S. 1274 (2000), Del Rio alludes to the argument in her memorandum
in support of summary judgment to the district court. See Pl.’s Mem. in Supp. of Summ. J. at 4.
Therefore, we will address the merits argument in this case.
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Del Rio’s second argument is that Toledo Edison breached its fiduciary duty by making
material misrepresentations to her regarding her LTD benefits.3 We have stated that “[a] fiduciary
breaches his duty by providing plan participants with materially misleading information, regardless
of whether the fiduciary’s statements or omissions were made negligently or intentionally.” James
v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 449 (6th Cir. 2002) (internal quotation omitted), cert.
denied, 538 U.S. 1033 (2003). “Misleading communications to plan participants regarding plan
administration (for example, eligibility under a plan, the extent of benefits under a plan) will support
a claim for a breach of fiduciary duty.” Drennan v. Gen. Motors Corp., 977 F.2d 246, 251 (6th Cir.
1992) (internal quotation omitted), cert. denied, 508 U.S. 940 (1993). We have explained that “a
misrepresentation is material if there is a substantial likelihood that it would mislead a reasonable
employee in making an adequately informed decision in pursuing disability benefits to which she
may be entitled.” Krohn v. Huron Mem’l Hosp., 173 F.3d 542, 547 (6th Cir. 1999). We have noted
our approval of other cases from sister circuits which have held that “once an ERISA beneficiary
has requested information from an ERISA fiduciary . . . the fiduciary has an obligation to convey
complete and accurate information material to the beneficiary’s circumstance, even if that requires

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conveying information about which the beneficiary did not specifically inquire.” Id. In such cases,
we have awarded equitable relief, including denied benefits.
We have stated that to establish a claim for a breach of a fiduciary duty under ERISA based
on a material misrepresentation, “a plaintiff must show: (1) that the defendant was acting in a
fiduciary capacity when it made the challenged representations; (2) that these constituted material
misrepresentations; and (3) that the plaintiff relied on those misrepresentations to [his or her]
detriment.” James, 305 F.3d at 449. In this case, Del Rio asserts that during the years 1994-2000,
Toledo Edison misrepresented her eligibility for LTD benefits each time she called. Specifically,
she states that a person named Mr. Stevers told her that she did not qualify for LTD benefits because
she did not work at Toledo Edison for the requisite ten-year period. Assuming arguendo that Toledo
Edison was acting in a fiduciary capacity during that conversation, Del Rio has still not
demonstrated a breach of a fiduciary duty. Del Rio has not put forth any evidence to demonstrate
a material misrepresentation. Mr. Stevers informed Del Rio that she was not entitled to benefits,
which is accurate. See infra Part D. Furthermore, she did not rely on these conversations at all, but
rather sent a letter to Toledo Edison in 2001 requesting benefits nonetheless. Because she cannot
satisfy the elements of a material misrepresentation claim, Toledo Edison is entitled to summary
judgment on this ground as well.
C. Failure to Provide Documentation
Del Rio’s second argument on appeal is that Toledo Edison violated ERISA-imposed
disclosure requirements. Because we conclude that ERISA does not provide a substantive remedy
for the violation Del Rio alleges and that Toledo Edison furnished information upon written request,
we affirm the grant of summary judgment in favor of Toledo Edison on this claim.

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4Del Rio apparently moved from Ohio to South Carolina in 1995. She claims that though
she moved, she kept a post office box in Toledo, Ohio, where the information should have been sent.
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ERISA requires a plan administrator to provide summary plan descriptions and annual
reports to all participants and beneficiaries of an ERISA plan. ERISA § 104(b), 29 U.S.C.
§ 1024(b). Del Rio alleges that Toledo Edison failed to provide her with any documents concerning
the LTD Plan throughout the years until she requested information in 2001. In her complaint, Del
Rio claimed that she suffered harm as a result of this failure to disclose information. Compl. at 5.
Toledo Edison disputes this claim and states that “each year’s summary annual report was mailed
by first class mail to [Del Rio’s] last known address.”4 Appellee’s Br. at 17. Though there is a
factual dispute on this matter, even assuming that Toledo Edison failed to provide the information,
we conclude that Del Rio does not have a remedy within the ERISA statutory scheme. We have
stated that “[n]othing in [ERISA’s civil enforcement provision] suggests that a plan beneficiary
should receive a benefit award based on a plan administrator’s failure to disclose required
information.” Lewandowski v. Occidental Chem. Corp., 986 F.2d 1006, 1009 (6th Cir. 1993).
Therefore, “even assuming that [Toledo Edison] violated its statutory disclosure duties, ERISA does
not afford the type of substantive remedy [Del Rio] seeks.” Id. at 1008.
In her brief to this court, Del Rio argues that even if she is not entitled to damages on this
claim, she should be able to recover a statutory penalty for Toledo Edison’s failure to provide
information which she requested. This argument is equally unpersuasive. ERISA requires that an
“administrator shall, upon written request of any participant or beneficiary, furnish a copy of the
latest updated summary plan description, and the latest annual report . . . [and the agreement] under
which the plan is established or operated.” ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4). If the

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administrator “fails or refuses to comply with a request for any information which such
administrator is required by this subchapter to furnish to a participant or beneficiary,” the
administrator “may in the court’s discretion be personally liable to such participant or beneficiary
in the amount of up to $100 a day from the date of such failure or refusal.” ERISA § 502(c)(1)(B),
29 U.S.C. § 1132(c)(1)(B). There is no evidence in the record that Toledo Edison failed to honor
a written request for information from Del Rio. In fact, the record reveals that Del Rio only made
one written request for information, to which Toledo Edison quickly responded. As result, we
conclude that Toledo Edison is entitled to summary judgment on this claim as well.
D. Denial of LTD Benefits
Del Rio’s final argument on appeal is that the district court erred in finding that she was not
entitled to benefits under the LTD Plan. Upon review of the terms of the LTD Plan, we conclude
that Del Rio is not entitled to benefits, and therefore we affirm the grant of summary judgment in
favor of Toledo Edison on this claim.
First, we agree with the district court that though Del Rio styled her arguments as a denial
of benefits under the CBA, her claim is essentially a request for denied benefits under the LTD Plan.
We have stated that “‘a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under
a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority
to determine the eligibility for benefits or to construe the terms of the plan.’” Smith v. Ameritech,
129 F.3d 857, 863 (6th Cir. 1997) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989)). Where the benefit plan gives the administrator or fiduciary such discretionary authority,
we have stated that “a court reviewing [the actions of the administrator or fiduciary] should apply
the arbitrary and capricious standard of review.” Williams v. Int’l Paper Co., 227 F.3d 706, 711 (6th

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5Del Rio also argues that Toledo Edison failed to abide by the terms of the LTD plan because
the appeals committee did not independently review the medical evidence in the case. Appellant’s
Br. at 25. We find this argument to be without merit. First, Del Rio did not offer any medical
evidence to the appeals committee to review. Second, assuming arguendo that Toledo Edison failed
to abide by the LTD Plan’s procedures, Del Rio would be entitled to only equitable relief, not the
compensatory and punitive damages which she is seeking. ERISA § 502(a)(3); see also Mertens
v. Hewitt Assocs., 508 U.S. 248, 255-59 & n.7 (1993) (holding that equitable relief under § 502(a)(3)
does not include compensatory and punitive damages). Because we conclude that Del Rio is
ineligible for benefits under the LTD Plan, ERISA does not provide her with any other relief for
Toledo Edison’s failure to abide by the terms of the LTD Plan.
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Cir. 2000). In this case, Toledo Edison concedes that it is not vested with any discretionary
authority under the LTD Plan, and therefore de novo review is appropriate.
Under the LTD Plan, a full-time employee is entitled to benefits if she has worked for the
company for ten years “at the time of the disability which rendered the employee totally disabled.”
Letter from LaFleur to Del Rio 2 (Nov. 20, 2001). It is undisputed that Del Rio worked for Toledo
Edison for only eight years, and therefore is not entitled to benefits under that provision. The LTD
Plan also states that “[t]here is no Company service requirement if total disability resulted from an
on the job injury while performing Company work duties.” Id. Determination of total disability is
made by the SSA, not the employer. The SSA determined that Del Rio was disabled as a result of
her emotional problems, not her physical injuries. Therefore, to qualify for benefits under the LTD
Plan, she must demonstrate that her emotional problems were a result of an on-the-job injury while
performing her work duties. Because Del Rio has not presented any evidence to that effect, we
conclude that she is not eligible for benefits under the LTD Plan.5 Therefore, the district court’s
grant of summary judgment on this claim is affirmed as well.

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III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment on
all claims in favor of Toledo Edison. Toledo Edison’s motion to strike the joint appendix or dismiss
the appeal because of omissions in the joint appendix is DISMISSED as moot.

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