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Bender v. Xcel Energy, Inc.: ERISA - top hat plans standard of review; deferred compensation, releases

United States Court of Appeals
No. 06-2634
James Bender; Roy R. Hewitt;
Craig Mataczynski; John Noer;
David Peterson,
Xcel Energy, Inc, in its corporate
capacity and as plan sponsor and
administrator of the Xcel Energy,
Inc. Deferred Compensation Plan,
Appeal from the United States
District Court for the
District of Minnesota.
Submitted: January 11, 2007
Filed: October 29, 2007
Before MURPHY, HANSEN, and SMITH, Circuit Judges.
HANSEN, Circuit Judge.
Appellants James Bender, Roy R. Hewitt, Craig Mataczynski, John Noer, and
David Peterson (collectively referred to as "Appellants") are former NRG Energy, Inc.
(NRG) executives who filed an action under the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. 1132(a), against Xcel Energy, Inc. (Xcel), the
successor of NRG's parent corporation, Northern States Power Company (NSP). The
Appellants claimed that Xcel denied benefits due to them under a deferred
compensation plan following their terminations from NRG. Appellants Bender and
Mataczynski also claimed that they were denied stock benefits owed to them under a
separate severance plan. The district court granted summary judgment to Xcel,
finding that the deferred compensation claims were discharged in NRG's 2003
bankruptcy proceedings. It further concluded that the Appellants had no cause of
action against Xcel under the plan documents. The district court granted summary
judgment on Appellants Bender's and Mataczynski's claims because they did not meet
the contractual obligations contained in the severance plan that would entitle them to
the claimed stock benefits. Appellants appeal, and we affirm.
Prior to June 2000, NRG was the wholly owned subsidiary of NSP, which
operated power plants and marketed and sold energy. Each of the Appellants except
Bender worked for NSP for several years before going to work for NRG at various
times between 1989 and 2000. Bender began his employment directly with NRG in
1994. In June 2000, NRG was spun off in an initial public offering (IPO). In August
2000, NSP merged with New Century Energies, Inc. to form Xcel, the appellee in this
case. Xcel retained approximately 74% of the outstanding shares of NRG following
the IPO.
NRG expanded rapidly following the IPO, becoming heavily leveraged in the
process. Following turmoil in the energy market in 2001 and 2002, NRG experienced
serious financial difficulties, and Xcel made a tender offer to repurchase NRG's
publicly-held stock in 2002. As part of the tender offer, NRG stock was converted to
Xcel stock at a 2-to-1 ratio, and NRG stock options were converted to Xcel stock
options. NRG was then merged with a wholly-owned subsidiary of Xcel. Each of the
Appellants' employment was terminated in June 2002 following the merger.
There are two types of plans at issue in this case. The first is the NRG
Executive Officer and Key Personnel Severance Plan (Severance Plan), which became
effective on May 31, 2001. Among other benefits, the Severance Plan provided that
stock options granted under the NRG Energy, Inc. Long-term Incentive and
Compensation Plan would continue to vest for a period of two years following
termination of employment. To receive the benefits provided under the Severance
Plan, the participant was "required to provide the Company [NRG] with a release in
a form to be provided by the Company." (Appellants' App. at 66-67.) Appellants
Bender and Mataczynski objected to the broad release provided by NRG for them to
sign, and instead submitted a substitute release that they asserted met all of the release
requirements of the Severance Plan.
Following their terminations in June 2002, the Appellants filed a federal
complaint on October 3, 2002, against NRG for failure to pay benefits under the
Severance Plan. Shortly thereafter on November 22, 2002, Appellants instituted
involuntary bankruptcy proceedings in the United States Bankruptcy Court for the
District of Minnesota against NRG under Chapter 11 of the Bankruptcy Code.
Appellants settled their severance claims with NRG in February 2003, accepting cash
payments (totaling some million) in lieu of their claims for severance benefits
related to their employment with NRG. The bankruptcy court approved the
Settlement Agreement and granted NRG's petition to dismiss the involuntary petition.
NRG thereafter filed a voluntary petition for bankruptcy in the United States
Bankruptcy Court for the Southern District of New York.
The Settlement Agreement between the Appellants and NRG specifically
provided that it did "not in any way alter or affect any contractual obligations arising
out of or related to any [Appellant's] employment with any entity other than NRG, or
any [Appellant's] participation in any deferred compensation, pension, or other
employee benefit plan maintained or sponsored by either" NSP or Xcel. (Appellants'
App. at 129.) It further provided that
1"A top hat plan is so called because it provides 'deferred compensation for a
select group of management or highly compensated employees,' 29 U.S.C. 1051(c),
without being subject to the Internal Revenue Code's maximum annual benefit and
compensation limits." Craig v. Pillsbury Non-Qualified Pension Plan, 458 F.3d 748,
749 (8th Cir. 2006).
none of the terms of this Agreement in any way constitutes a waiver or
compromise of any claims or rights that any of the [Appellants] may
have with respect to NSP or Xcel, including but not limited to, claims for
deferred compensation, . . . as well as any rights to stock or stock options
. . . under any stock plan or grant of stock, maintained by either of those
two companies, including NRG stock or options that were previously
converted to Xcel Energy, Inc. stock or options . . . .
(Appellants' App. at 132.) It is this exclusion that Appellants Bender and Mataczynski
rely on to assert a continuing claim against Xcel for the asserted stock benefits,
particularly the two-year posttermination vesting period for stock options.
The second plan is the NSP Deferred Compensation Plan, also referred to as the
Top Hat Plan,1 which was first established in 1980 by NSP. NSP was the original
Principal Sponsor of the Top Hat Plan and was replaced by Xcel following NSP's
merger with New Century Energies in 2000. The parties disputed which of several
versions of the Top Hat Plan covered payment of the Appellants' deferred
compensation benefits. The Top Hat Plan was restated in 1992 (the 1992
Restatement). The parties dispute whether a 2000 Statement was a stand-alone plan
or whether it was a restatement of the 1992 Restatement. Following the NSP-New
Energies merger, several plans, including both the 1992 Restatement and the 2000
Statement (whether a restatement of the 1992 Restatement or not) were merged into
a single plan in 2002 (the 2002 Restatement). The 1992 Restatement and the 2002
Restatement both included language that required participants to look only to "the
Participating Employer which last employed" them for payment (see id. at 117 &
172), a provision which would have precluded the Appellants, who were all employed
by NRG at the time of their terminations, from seeking deferred compensation
benefits from Xcel under the Top Hat Plans. The 2000 Statement did not contain the
quoted language, but other language in the 2000 Statement led to a dispute between
the parties about whether, if covered by the 2000 Statement, the Appellants were
similarly limited to looking only to the assets of NRG, their former employer, for
payment under the plan. The retroactivity of the 2002 Restatement, which was
enacted in January 2003 but claimed an effective date of January 1, 2002, further
clouded the issue of which plan covered the Appellants' claims for deferred
compensation benefits.
During the time Appellants were negotiating the involuntary bankruptcy
settlement of their severance benefits with NRG, Appellants sought their deferred
compensation benefits under the Top Hat Plan from Xcel as the plan administrator.
After NRG filed its voluntary bankruptcy petition in New York, in letters dated June
13, 2003, Xcel denied in part each of the Appellants' demands for deferred
compensation benefits, asserting that Xcel had verified with both its accounting office
and NRG's accounting office that the obligation to pay deferred compensation benefits
had been transferred to NRG pursuant to Section 2 of the 1992 Restatement or Section
5.9 of the 2002 Restatement at the time each Appellant transferred his employment
from Xcel's predecessor to NRG. (Appellants' App. at 153-68.) Xcel further
determined that both the 1992 Restatement and the 2002 Restatement required Plan
beneficiaries to seek benefits solely from their last employer, NRG. Xcel
acknowledged, however, for each of the Appellants, except Bender (who never
worked for NSP), that it had previously communicated to the Appellants that it had
an obligation based on the Appellants' prior employment with NSP, and that it would
honor the obligation and pay certain amounts directly to the Appellants. Thus, Xcel,
as Plan Administrator, approved the claims in part in an amount that Xcel itself had
previously determined to be based on the Appellants' deferred compensation account
balances at the time each Appellant transferred employment to NRG. Appellants
sought administrative review of the denial, which was affirmed by the review
2The review committee asserted that the partially approved amounts were an
offer made by Xcel as plan sponsor, not by the review committee, to settle the claims.
(Appellants' App. at 248, 251, 254, and 257.) Although it is unclear from the record,
it appears that Xcel did not pay these partially approved amounts to any of the
Appellants, apparently because the Appellants refused the offer to settle.
committee.2 Throughout the administrative claim process, the parties referred to and
quoted portions of the 1992 Restatement and the 2002 Restatement. None of the
Appellants sought benefits pursuant to the 2000 Statement.
Meanwhile, NRG filed a joint plan of reorganization in the New York
bankruptcy proceeding, which included a proposed settlement between NRG and Xcel
referred to as the Employee Matters Agreement. That Agreement collectively referred
to the Xcel Energy Inc. Nonqualified Deferred Compensation Plan (the 2002
Restatement) and the Xcel Energy Inc. Nonqualified Pension Plan (a plan not at issue
here) as the NQRPs, and allocated to Xcel the obligations owed to NRG employees
as of the date of the settlement (December 5, 2003) that were legally allocable to Xcel
by virtue of the employees' prior service with Xcel or NSP. The Employee Matters
Agreement referred to this allocated portion as the Xcel NQRP Amount, and it
specifically provided that "[t]o the extent Xcel has not previously satisfied such
obligation, Xcel will maintain responsibility for payment of the Xcel NQRP Amount."
(Appellants' App. at 274.)
After the review committee denied the Appellants' claims for deferred
compensation benefits, the Appellants brought this federal action against Xcel, both
in its corporate capacity and as plan sponsor and administrator of the Xcel Energy,
Inc. Deferred Compensation Plan, seeking deferred compensation benefits. Bender
and Mataczynski also sought redress for Xcel's denial of stock options, to which they
claimed entitlement based on the extended two-year vesting period contained in the
Severance Plan. In the initial stages of the litigation, the parties referred to the 1992,
2000, and 2002 Plans as all restatements of the original Top Hat Plan. On Xcel's
3The district court also granted summary judgment to Xcel on the Appellants'
claims that Xcel interfered with the Appellants' exercise of their ERISA rights by
denying their benefits and by discharging them in violation of 510 of ERISA, 29
U.S.C. 1140. The Appellants do not appeal these rulings.
motion for summary judgment, the district court initially determined that a fact dispute
existed both concerning whether the Appellants were covered by the 2000 Statement,
potentially making Xcel liable, and whether the 2002 Restatement applied
retroactively to the Appellants, thereby excluding Xcel from liability. The district
court denied Xcel's motion for summary judgment on this point. The district court
granted summary judgment to Xcel on Bender's and Mataczynski's claims related to
stock options premised on the Severance Plan because they each had failed to provide
the release required by the Severance Plan to be entitled to the two-year vesting
After further discovery, the parties filed a second round of cross-motions for
summary judgment. Xcel raised for the first time the notion that the 2000 Statement
was a stand-alone plan that did not provide coverage to the Appellants, none of whom
were employed by NSP or Xcel during the relevant period. The district court agreed.
The district court also concluded that the undisputed evidence established that upon
each Appellant's transfer of employment to NRG, NSP had made book entries,
supported by cash payments, transferring NSP's liability for the Appellants' deferred
compensation to NRG. Thus, the Appellants' Settlement Agreement and release of
claims with NRG in the involuntary Minnesota bankruptcy proceedings satisfied their
entitlement to deferred compensation from Xcel, because at that time any deferred
compensation obligation was NRG's alone.
Appellants appeal, arguing that their claims for deferred compensation were not
settled out in the NRG involuntary bankruptcy proceeding and that Xcel, as plan
administrator, erred in retroactively applying the 2002 Restatement and denying their
claims, which the Appellants argue are governed by the 2000 Statement. Appellants
Bender and Mataczynski also appeal the district court's grant of summary judgment
on their claims for stock options premised on the extended vesting period contained
in the Severance Plan.
We review the district court's grant of summary judgment de novo, applying the
same standard used by the district court and viewing the evidence in the light most
favorable to the Appellants as the nonmoving parties. See Pralutsky v. Metro. Life
Ins. Co., 435 F.3d 833, 838 (8th Cir.), cert. denied, 127 S. Ct. 264 (2006). Appellants
brought this civil action under 502 of ERISA to recover benefits allegedly due under
an ERISA-qualifying plan. See 29 U.S.C. 1132(a)(1)(B). While we generally give
deference to plan administrators that are granted discretionary authority under the
applicable plan, see Pralutsky, 435 F.3d at 837, we recently explained that the same
deference is not owed to administrators of top hat plans. See Craig, 458 F.3d at 752
("'[T]op hat plans should be treated as unilateral contracts' and reviewed 'in
accordance with ordinary contract principles' because the policy considerations relied
upon in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), to trigger
abuse-of-discretion review . . . are simply not present in the case of a top hat plan."
(quoting Goldstein v. Johnson & Johnson, 251 F.3d 433, 443 (3d Cir. 2001))).
Although we review the interpretation of a contract de novo, we note that each
of the plans gives the administrator discretionary authority to interpret the plan. We
construe that term as we do any other contract term and give effect to its meaning.
"Ordinary contract principles require that, where one party is granted discretion under
the terms of the contract, that discretion must be exercised in good faith-a requirement
that includes the duty to exercise the discretion reasonably." Id. (internal marks
omitted). We therefore review for reasonableness, a deferential standard, Xcel's
determination that the Appellants could seek deferred compensation benefits only
from NRG under either the 1992 Restatement or the 2002 Restatement.
A. Deferred Compensation under the Top Hat Plans
The district court concluded that Xcel, as plan administrator, appropriately
denied deferred compensation benefits to the Appellants because the clear language
of each of the plans revealed that the Appellants' benefits were covered by either the
1992 Restatement or the 2002 Restatement, both of which required the Appellants to
seek benefits solely from their last employer, NRG. (See Appellants' App. at 172,
1992 Restatement 2 ("Payments shall be made only by the Participating Employer
which last employed the Participant before payments commence."); id. at 117, 2002
Restatement, 5.9 ("Payment of distributions from this Plan shall be made only by
the Employer which last employed the Participant before payments commence.").)
Appellants succinctly define "[t]he only issue [as] whether the 2000 Statement was a
stand-alone plan or one of a series of amendments to the underlying Plan."
(Appellants' Br. at 26.)
In arguing that the 2000 Statement was an amendment to the original Top Hat
Plan, the Appellants rely heavilynearly exclusivelyon admissions made by Xcel in
response to Plaintiffs' Requests for Admissions under Federal Rule of Civil Procedure
36. During discovery, Xcel forwarded a copy of the 2000 Statement to Appellants
along with the other plans in response to a request for documents. Prior to this time,
the 2000 Statement had not been at issue; in fact, the Appellants' alleged rights to
recover under its terms was never raised in the administrative proceedings. In its
Responses to Plaintiffs' Request for Admissions No. 10, which asked Xcel to "[a]dmit
the 2002 Restatement signed on January 6, 2003, amended the 2000 Statement"
(Appellants' App. at 261), Xcel "object[ed] to this Request because the 2002
Restatement amended the Top Hat Plan which was created in the 1980s, of which the
2000 Statement was one of a series of amendments to the underlying plan" (id.).
Subject to that objection, Xcel admitted that the 2002 Restatement amended the 2000
Statement. In other admissions, Xcel admitted the content of various sections of the
2000 Statement to the extent that the Request for Admissions quoted directly from the
plan language, but continually denied any request that sought to establish the 2000
Statement as applicable to the Appellants, asserting instead that the Appellants' claims
were covered by the 2002 Restatement. Xcel did not assert that the 2000 Statement
was a stand-alone plan until after the district court denied its first motion for summary
judgment. That the 2000 Statement was a stand-alone plan formed the basis for Xcel's
subsequent motion for summary judgment, which the district court granted.
We agree with the Appellants that as a general rule, admissions made in
response to a Rule 36 request for admissions are binding on that party. See Fed. R.
Civ. P. 36(b) ("Any matter admitted under this rule is conclusively established unless
the court on motion permits withdrawal or amendment of the admission."). Following
the district court's first denial of summary judgment on the deferred compensation
claim, Xcel submitted the affidavit of Parker Newcomb, III, a Senior Attorney for
NSP in 2000 when the 2000 Statement was created, and later its Vice President of
Total Compensation and Human Resource Operations, who left Xcel in 2004.
Newcomb stated in his affidavit that the 2000 Statement was a newly created plan,
that it was not a restatement of the 1992 Restatement, and that none of the Appellants
was covered by the 2000 Statement because they were not employed by NSP when
it was created.
While self-serving subsequent affidavits that conflict with a prior Rule 36
admission may not warrant setting aside the admission, the district court did not rely
only on Newcomb's subsequent affidavit filed by Xcel. Rather, the court looked to the
language of the 2000 Statement itself as well as language from the 2002 Restatement,
which recounted the history of the relevant deferred compensation plans. Rule 36
allows a party to withdraw or amend an admission "when the presentation of the
merits of the action will be subserved thereby and the party who obtained the
admission fails to satisfy the court that withdrawal or amendment will prejudice
[him]." Fed. R. Civ. P. 36(b); see also Beatty v. United States, 983 F.2d 908, 909 (8th
Cir. 1993) (allowing a late amendment and noting that the plaintiff was not prejudiced
by the amended admission; rather "he [wa]s prejudiced by the true facts contained in
the [late] response"). The district court did not err in considering the plain language
of the documents to supercede the admission made by Xcel. See F.D.I.C. v. Prusia,
18 F.3d 637, 641 (8th Cir. 1994) ("Permitting the amendment of responses to a request
for admissions is in the interests of justice if the record demonstrates that the
'admitted' facts are contrary to the actual facts."); Kerry Steel, Inc. v. Paragon Indus.,
Inc., 106 F.3d 147, 153-54 (6th Cir. 1997) (affirming district court that deemed
counsel's argument to be a request to withdraw a prior admission).
We turn then to the language of the plans to assess whether the district court
properly concluded that the Appellants were not participants in the 2000 Statement
and therefore could not maintain their action against Xcel for deferred compensation
benefits. If the 2000 Statement does not apply to the Appellants, they must comply
with either the 1992 Restatement or the 2002 Restatement to recover their deferred
compensation benefits, both of which require the Appellants to look only to their last
employer, NRG, for payments.
We agree with the district court that the 2000 Statement was a separate plan
from the 1992 Restatement, and the only evidence in the record reveals that the
Appellants were participants in the 1992 Restatement, but not in the 2000 Statement.
The 2000 Statement is titled "NSP Nonqualified Deferred Compensation Plan," and
states that it is "First Effective January 1, 2000." (Appellants' App. at 79.) It further
provides that
[e]ffective January 1, 2000, Northern States Power Company . . .
(hereinafter sometimes referred to as "Principal Sponsor") hereby creates
a nonqualified, unfunded, elective deferral plan for the purposes of
allowing a select group of management and highly compensated
employees of the Principal Sponsor and other Employers to defer the
receipt of compensation which would otherwise be paid to those
(Id. at 83 (emphasis added).)
In 2002, following the merger of NSP and New Century Energies, Xcel restated
the 2000 Statement and merged several top hat plans into it. The 2002 Plan is titled
"Xcel Energy Inc. Nonqualified Deferred Compensation Plan (2002 Restatement)" (id.
at 102) and explains in its Purpose section that NSP and New Century Energies, Inc.
had each established nonqualified deferred compensation plans and that the two
companies had merged as of August 2000 to become Xcel. It further explains that in
addition to the NSP Deferred Compensation Plan, which was restated as amended
through January 1, 1992, and referred to as the NSP 1992 Plan, "[e]ffective January
1, 2000, NSP established this Plan, the NSP Nonqualified Deferred Compensation
Plan (2000 Statement)." (Id. (emphasis added).) It further explained that "[e]ffective
January 1, 2002, this restatement of the NSP Nonqualified Deferred Compensation
Plan was adopted and the name of the Plan was changed to the 'Xcel Nonqualified
Deferred Compensation Plan,' effective as to amounts credited to Accounts on and
after January 1, 2002." (Id.) Finally, the 2002 Restatement provided that "as of such
date [January 1, 2002] or such subsequent date as the Committee may select" the
Committee would cause to be transferred all benefits previously credited to Participant
accounts under the New Century Energies, Inc. Plans and "the NSP 1992 Plan (the
'Regular Deferred Compensation Account')," "to this Plan" and that the transferred
benefits "shall become part of and payable pursuant to the terms of this Plan." (Id.)
It is clear from a review of all of the documentary evidence that there existed
two separate NSP plans that were eventually merged together in 2002. NSP
sponsored the "NSP Deferred Compensation Plan" beginning in 1980, which was
restated in 1992. There is no dispute that each of the Appellants participated in the
1992 Restatement. In 2000, NSP created a new plan with a different titlethe "NSP
Nonqualified Deferred Compensation Plan." There is no evidence that any of the
Appellants participated in this new 2000 plan, which required that an individual be
designated as eligible to participate by the plan committee and complete a Plan
Enrollment Form before becoming a participant. (Id. at 86, 2000 Statement 2.1.)
The only record evidence addressing the Appellants' plan participation in 2000 reveals
that they participated in the "NSP Deferred Compensation Plan," referred to as the
1992 Restatement. Ultimately, the 2000 Statement was restated in 2003, made
retroactive to January 1, 2002, and the 1992 Restatement was merged into that plan
at that time.
The Appellants were participants in the 1992 Restatement, which was merged
into the 2002 Restatement. Although there may be a dispute about whether the 2002
Restatement could be applied to the Appellants because it did not come into existence
until after their terminations, the 1992 Restatement and the 2002 Restatement both
leave the Appellants in the same placewith no cause of action against Xcel.
Appellants' argument that the broad definition of "Employer" in the 2002 Restatement
includes Xcel ignores the qualifying language that payment be made by the "Employer
which last employed the Participant before payments commence." (Id. at 117, 2002
Restatement, 5.9 (emphasis added); see also id. at 172, 1992 Restatement 2 (using
identical language).) There is no dispute that the Appellants were each last employed
by NRG, a separate entity from Xcel, before payments were to commence. We
understand the Appellants' frustration with Xcel's changing posture during this
litigation, but the documents are clear on their face that Appellants were never
participants of the 2000 Statement merely by being participants in the 1992
Restatement. The documents speak for themselves. It is also clear to us that both
parties changed positions. Appellants did not rely on the 2000 Statement until
discovery began in this litigation, originally asserting their claims under the 1992
Restatement and the 2002 Restatement, as attached to their district court complaint.
Based upon the plain language of all of the plan documents, Xcel reasonably
determined that the Appellants could seek deferred compensation benefits only from
4References to "Appellants" in this subsection II.C. refer only to Appellants
Bender and Mataczynski.
B. Discharge in Bankruptcy
The district court also concluded that the Appellants' claims for deferred
compensation were discharged in NRG's voluntary bankruptcy proceedings because
NSP transferred to NRG NSP's obligation related to Appellants' deferred
compensation for the time each of them worked for NSP, such that the Employee
Matters Agreement between NRG and Xcel did not exempt the claims from the
discharge. Having determined that the Appellants have no cause of action against
Xcel for deferred compensation under the relevant plans, we need not address whether
these claims were discharged in NRG's bankruptcy.
C. Stock Benefits Under the Severance Agreement
Appellants Bender and Mataczynski4 challenge the district court's conclusion
that the releases they provided for purposes of participating in the Severance Plan did
not satisfy their obligations under that plan. Appellants claim that the release
provided by the company under the Severance Plan that they were required to sign
was much broader than what they term a "standard release of claims" because it
included a confidentiality agreement, a noncompete agreement, a return of property
agreement, a nondisparagement agreement, and an agreement as to injunctive relief.
Appellants also assert that the substitute release that they provided included
everything required by the Severance Plan for a valid release.
An employer may validly condition the payment of severance benefits on the
employee's agreement to release the employer from any and all claims. See Lockheed
Corp. v. Spink, 517 U.S. 882, 893-94 (1996) (explaining that requiring an employee
to waive employment-related claims is a permissible quid pro quo in exchange for the
employer's promise to provide increased benefits, such as provided in a severance
plan); Petersen v. E.F. Johnson Co., 366 F.3d 676, 680 (8th Cir. 2004) (upholding an
employer's requirement that a participant must release claims under an old plan before
he is entitled to benefits under a new plan). The plain language of the plan required
the participants "to provide the Company with a release in a form to be provided by
the Company." (Appellants' App. at 66-67.) This condition clearly was not met.
Further, the substitute release provided by the Appellants omitted an explicit element
required of the release. The substitute release limited its coverage to known claims
by providing that it covered claims arising out of actions "occurring to the date of the
execution of this Release of which the Participant is or has been made aware or has
been reasonably put on notice." (Id. at 76.) The Severance Plan required that
unknown claims be included in the release by covering claims "whether or not any
such claim is known at the time of separation." (Id. at 67.) Appellants' substitute
release did not meet the conditions of the Severance Plan, and the district court did not
err in granting summary judgment to Xcel on Appellants Bender's and Mataczynski's
claims for stock benefits.
The judgment of the district court granting summary judgment to Xcel on all
claims is affirmed.


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