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Eisenrich v. Mpls. Retail Meat Cutters & Food Handlers Pension Plan: US District Court : ERISA - pension plan abused its discretion regarding "trade or craft"; summary judgment sua sponte

1 The Court previously dismissed Count 1 of the Complaint, which sought an order
compelling arbitration of the instant dispute.
Thomas Eisenrich,
Civ. No. 07-1845 (RHK/JSM)
Minneapolis Retail Meat Cutters and Food
Handlers Pension Plan,
Robert J. Hajek, Donald L. Beauclaire, Hajek, Meyer & Beauclaire, PLLC, Minneapolis,
Minnesota, for Plaintiff.
Carl S. Wosmek, David S. Anderson, Amy L. Court, McGrann Shea Anderson Carnival
Straughn & Lamb, Chartered, Minneapolis, Minnesota, for Defendant.
In this action, Plaintiff Thomas Eisenrich has sued his former pension plan, the
Minneapolis Retail Meat Cutters & Food Handlers Pension Plan (the “Plan”), alleging
that the Plan improperly suspended his pension payments. Eisenrich appealed the
suspension to the Plan’s Board of Trustees (the “Board”), but his appeal was denied; he
then commenced the instant action. Presently pending before the Court is the Plan’s
Motion for Summary Judgment on Counts 2 and 3 of Eisenrich’s Complaint.1 For the
2 Different rules apply to participants who began receiving pension payments after
October 1, 2003, but those rules are not at issue here.
reasons set forth below, the Court will deny the Motion and sua sponte grant summary
judgment for Eisenrich.
The relevant facts in this case are not in dispute and, accordingly, are recited
without citation to the record. Eisenrich was employed as a meat cutter for thirty years by
several Twin-Cities-area food retailers. During his employment, he was a member of
Local 653 of the United Food and Commercial Workers Union (the “Union”). The Plan
was created by the Union to provide pension benefits to its members. Upon his
retirement in June 2001, Eisenrich began receiving monthly pension payments from the
Under the terms of the Plan, any retired Plan participant who engages in 64 hours
(or more) of “disqualifying employment” in a given month will have his or her benefits
suspended for that month.2 “Disqualifying employment” is defined in the Plan as
“employment or self-employment that is: (a) in an industry . . . covered by the Plan when
the Participant’s pension payments began . . ., and (b) in the geographic area covered by
the Plan when the Participant’s pension payments began . . ., and (c) in a trade or craft in
which the Participant worked under the Plan at any time.” This language tracks a
provision in the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1001 et seq., that grants pension plans the right to suspend payments of accrued
pension benefits when a participant is employed “in the same industry, in the same trade
or craft, and [in] the same geographic area covered by the plan.” 29 U.S.C.
§ 1053(a)(3)(B)(ii).
On June 10, 2001, shortly after he began receiving pension payments, Eisenrich
accepted a position as an “Executive Team Meat Leader” with Target Corporation,
working at the Chaska, Minnesota, Super Target store. In that position, Eisenrich was
responsible for supervising the store’s meat department; the position also required him to
cut meat on some occasions. When the Plan learned of Eisenrich’s employment in
February 2002, it suspended his pension payments, asserting that his job amounted to
“disqualifying employment.”
Eisenrich appealed the suspension of his pension payments in accordance with the
procedures set forth in the Plan, which (at the time) included binding arbitration. He
acknowledged that his position was in the same industry as his prior work as a meat cutter
and in the same geographic area, but he asserted that his new, “supervisory” position was
not within the same “trade or craft” as his prior work. In support of that argument, he
relied on a regulation promulgated by the Department of Labor indicating that the term
“trade or craft,” as used in ERISA’s suspension-of-benefit rules, means “a skill or skills,
learned during a significant period of training or practice, which is applicable in
occupations in some industry.” 29 C.F.R. § 2530.203-3(c)(2)(ii). According to
Eisenrich, his new position did not require him to make substantial use of any skills he
3 Eisenrich’s appeal was not rendered moot by his resignation. Rather, it merely limited
the damages he could recover if successful on his claim: the total of the payments that allegedly
should have been made between the date the Plan suspended his pension benefits and the date it
resumed them.
had acquired during his 30 years as a meat cutter and, accordingly, could not be
considered in the same “trade or craft” as his prior employment.
Before an arbitrator could rule on Eisenrich’s appeal, however, he voluntarily
resigned his position with Target. He notified the Plan of his resignation by two letters
dated April 27, 2004. His counsel also sent the Plan a letter stating that “[i]n June [2004]
[Eisenrich] is forming his own business, which is a delivery route for Pepperidge Farms
baked products.” Based on Eisenrich’s resignation from his position with Target, the
Plan resumed making pension payments to him on June 1, 2004.
Despite his resignation from Target, Eisenrich’s arbitration claim remained
pending, and a hearing was held before an arbitrator on October 19, 2004.3 On December
20, 2004, the arbitrator upheld the Plan’s suspension of Eisenrich’s pension benefits. The
arbitrator rejected as “myopic” Eisenrich’s contention that he engaged in very little meat
cutting in his Target position and, accordingly, that his new job was not within the same
“trade or craft” as his prior meat-cutting work:
The Federal Regulations, as espoused by the Trustees, make it clear that the
scope of the law is focused upon the involved industry, not the narrower
concept of trade or craft. Mr. Zweig [the President of the Union] rendered a
very comprehensive explanation of the historical evolution of the meat cutter
trade in the greater Minneapolis area. The shift to wholesalers performing the
bulk of the actual meat cutting has meant that meat cutters at the retail level
have had to perform the stocking, ordering, product rotating, sanitary measures
and supervisory functions in order to maintain bargaining unit positions in this
(emphases in original). Because Eisenrich performed many of these functions in his new
position with Target, the arbitrator ruled that the job amounted to “disqualifying
employment” under the Plan.
Meanwhile, in 2005 the Plan began requiring participants receiving pension
payments, like Eisenrich, to fill out an annual questionnaire concerning the work they
performed, so that the Plan could determine whether such participants were engaged in
“disqualifying employment.” Eisenrich filled out the questionnaire and stated that he was
employed 160 hours per month as the “owner-operator” of Farm Snacks, Inc., a company
he had formed for his Pepperidge Farm distributorship. He described his job duties as
“delivering + merchandi[s]ing Pepperidge Farm products.”
The Plan believed that Eisenrich’s job might constitute “disqualifying
employment,” depending upon where, and to whom, he was delivering Pepperidge Farm
products. Accordingly, it hired a private investigator to observe and document
Eisenrich’s work activities. From October 24, 2005, to November 30, 2005, the
investigator followed Eisenrich nearly every day; he observed Eisenrich picking up
Pepperidge Farm products and delivering them to grocery stores and other stores within
the geographic jurisdiction of the Plan. The Plan then accessed the Pepperidge Farm
website and learned that the position held by Eisenrich is called “Sales Development
Associate” (“SDA”) – the duties of that position include delivering and merchandising
4 By this time, the Plan’s terms had been amended to remove arbitration as a step in the
appeal process.
Pepperidge Farm baked goods to grocery stores and other stores, and rotating, stocking,
shelving, and ordering baked goods.
Based on these facts, the Plan concluded that Eisenrich was again engaged in
“disqualifying employment” and suspended his pension payments. Eisenrich appealed
the suspension to the Board, arguing (as with his previous appeal) that his Pepperidge
Farm work was not in the same “trade or craft” as his prior meat-cutting work.4 The
Board disagreed, concluding that “[t]he duties of Pepperidge Farm SDAs are similar to,
and in several instances, overlap with collectively bargained work performed by other
Plan Participants.” (Board of Trustees Decision (“Decision”) at 5.) The Board
In . . . interpreting the phrase “trade or craft,” the Department [of Labor]
explains that . . . “the determination whether a particular job classification, job
description or industrial occupation constitutes or is included in a trade or craft
shall be based upon the facts and circumstances of each case.” Hence, a
particular occupation may either individually “constitute,” or may be included
in, a trade or craft.
As the record details in Eisenrich’s previous suspension appeal, he
learned skills in his various meat cutting positions that extended beyond
physically cutting meat. The job category of “meat cutter,” as negotiated in
the collective bargaining agreement, focuses on merchandising and supervising
as well. Under this classification, skills such as food safety, product rotation,
guest service, ordering, supervising, and other merchandising skills are all
included within the trade or craft of meat cutting.
Clearly, both Eisenrich’s past employment as a meat cutter/meat cutting
supervisor and his present employment as a Pepperidge Farm SDA
encompassed the skill of merchandising. He admitted as much in his annual
employment affidavit. . . . According to the relevant DOL regulations, if a
participant’s reemployment position includes merely one skill learned in
his/her covered occupation, the new position may constitute disqualifying
employment. See 29 C.F.R. § 2530.203[-3](c)(2)(ii) (defining a “trade or
craft” as “(a) a skill or skills” applicable in some occupations in an industry)
(emphasis added).
Eisenrich’s employment with Pepperidge Farm appears to encompass
other skills he learned as a meat cutter or meat cutting supervisor as well. For
instance, in order to fill purchase orders for his various Pepperidge Farm retail
customers, Eisenrich invariably relies on skills such as product rotation,
inventory, and ordering. The private investigation record confirms this
supposition. Eisenrich was observed on numerous occasions at a supply
center, loading and unloading plastic bags full of items into his trailer.
According to the investigation record, he would then travel to various Twin
Cities area retail grocery stores and carry plastic bags full of items into those
stores’ stocking areas. These actions suggest Eisenrich does more than merely
drive a set distribution route and deliver Pepperidge Farm products to the
stores. Rather, he appears to be actively engaged in inventory control,
ordering, and product rotation.
(Id. at 6-7.) As a result, the Board concluded that Eisenrich was engaged in
“disqualifying employment” and upheld the suspension of his pension payments.
Eisenrich then commenced the instant action, alleging inter alia that the
suspension of his pension payments violated ERISA (Count 2) and that the Plan should be
equitably estopped from refusing to make pension payments based on his work as a
Pepperidge Farm SDA (Count 3). The Plan now seeks summary judgment on these
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Celotex, 477 U.S. at 322; Mems v. City of St.
Paul, Dep’t of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The Court must
view the evidence, and the inferences that may be reasonably drawn from it, in the light
most favorable to the nonmoving party. Graves v. Ark. Dep’t of Fin. & Admin., 229 F.3d
721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir.
1997). The nonmoving party may not rest on mere allegations or denials, but must show
through the presentation of admissible evidence that specific facts exist creating a genuine
issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik v.
County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
Parroting the argument he raised on appeal to the Board, Eisenrich argues that the
Plan improperly suspended his pension payments because his Pepperidge Farm work
cannot be considered to be in the same “trade or craft” as his prior work as a meat cutter.
Eisenrich also argues, in the alternative, that the Plan is equitably estopped from denying
him pension benefits. Because the Court concludes that Eisenrich is not employed in the
same “trade or craft” as his prior work as a meat cutter and, accordingly, the Plan’s
5 Although the Court does not reach the equitable-estoppel argument, it believes that
there is merit to that argument. There can be little doubt that the Plan was fully aware of
Eisenrich’s Pepperidge Farm work when it resumed making pension payments in June 2004;
indeed, Eisenrich informed the Plan by letter in April 2004 that he was “forming his own
business, which is a delivery route for Pepperidge Farms baked products.” Eisenrich asserts that
he reasonably viewed the resumption of such payments and the continuation thereof for 18
months as evidence that the Plan believed his Pepperidge Farm work was not “disqualifying
employment.” The Plan counters that its resumption of pension payments cannot be viewed as a
tacit admission that Eisenrich’s work was not disqualifying because his April 2004 letter did not
state whether he intended to work (1) in the same geographic area as the Plan and (2) more than
64 hours per month, two prerequisites to a finding of disqualifying employment. The Plan’s
argument is not persuasive, because its resumption of payments and the continuation thereof for
18 months occurred shortly after the Plan had litigated the propriety of suspending Eisenrich’s
pension payments due to his work at Target. The resumption of payments, therefore, occurred
under auspices that would leave a reasonable person with the impression that the Plan had
carefully scrutinized Eisenrich’s new employment and found the resumption of payments
appropriate. Moreover, the Plan waited more than 16 months after it resumed the payments
before taking steps to determine whether Eisenrich’s new work was precluded under the Plan;
each passing month further cemented Eisenrich’s view that the Plan took no issue with his work
as an SDA. In the Court’s view, under these facts it was reasonable for Eisenrich to assume that
the Plan had determined that his Pepperidge Farm work was not disqualifying employment.
Moreover, Eisenrich relied on the resumption of his pension payments to his detriment; he was
required to obtain a loan to pay for the Pepperidge Farm distributorship, and the amount and
timing of the payments on that loan were tied to his monthly pension payments.
suspension of his pension payments was improper, it need not reach his alternative
equitable-estoppel argument.5
I. Review of decisions by ERISA plan administrators
Where an ERISA plan delegates discretionary authority to an administrator to
determine a participant’s eligibility for benefits, the administrator’s decision to deny
benefits typically is reviewed under an abuse-of-discretion standard. E.g., Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 114-15 (1989); Pralutsky v. Metro. Life Ins. Co.,
6 This standard does not apply where there exists “a serious procedural irregularity” that
causes a “serious breach” of the plan administrator’s fiduciary duty to the claimant. Pralutsky,
435 F.3d at 837. No such procedural irregularity is alleged here.
435 F.3d 833, 837 (8th Cir. 2006).6 There is no dispute in this case that the Plan grants
discretionary authority to the Board to determine eligibility for benefits and to construe
the terms of the Plan. Accordingly, both parties agree that the Board’s decision
upholding the suspension of Eisenrich’s pension payments must be reviewed under the
abuse-of-discretion standard. (See Def. Mem. at 17; Mem. in Opp’n at 8-9.)
Abuse-of-discretion review is “highly deferential” and “reflects the fact that courts
are hesitant to interfere with the administration of a pension plan.” Maune v. IBEW,
Local No. 1, Health & Welfare Fund, 83 F.3d 959, 962-63 (8th Cir. 1996) (citation
omitted). Under this standard, an administrator’s decision must only be reasonable, that
is, it need only be “supported by substantial evidence.” Alexander v. Trane Co., 453 F.3d
1027, 1031 (8th Cir. 2006). Stated differently, the question is whether a “reasonable
person could have reached a similar decision, given the evidence before him, [and] not
[whether] a reasonable person would have reached that decision.” Groves v. Metro. Life
Ins. Co., 438 F.3d 872, 875 (8th Cir. 2006) (emphases in original).
Yet, abuse-of-discretion review is not a toothless tiger – as this Court has noted,
while such review is deferential, it is not the same as no review at all. Lao v. Hartford
Life & Accident Ins. Co., 319 F. Supp. 2d 955, 959 (D. Minn. 2003) (Kyle, J.) (quoting
Gallo v. Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1996)). Indeed, abuse-of-discretion
review must not devolve into a judicial “rubber stamp” of an administrator’s decision.
Torres v. UNUM Life Ins. Co. of Am., 405 F.3d 670, 680 (8th Cir. 2005); accord Bennett
v. Kemper Nat’l Servs., Inc., 514 F.3d 547, 552 (6th Cir. 2008) (noting that such review
is more than a “mere formality”). A court examining whether an administrator abused its
discretion, therefore, must carefully scrutinize the administrator’s decision and determine
whether it was “extremely unreasonable, extraordinarily imprudent, or arbitrary and
capricious.” Meyers v. Hartford Life & Accident Ins. Co., 489 F.3d 348, 351 (8th Cir.
2007). In making that determination, the court must consider the five factors set forth in
Finley v. Special Agents Mutual Benefit Ass’n, Inc., 957 F.2d 617, 621 (8th Cir. 1992):
(1) whether the administrator’s interpretation of the plan’s terms is consistent with the
goals of the plan, (2) whether the interpretation renders any of the plan meaningless or
inconsistent, (3) whether the interpretation conflicts with the requirements of ERISA,
(4) whether the plan has interpreted the words at issue consistently, and (5) whether the
interpretation is contrary to the clear language of the plan. While these factors serve as
useful guideposts, in some cases “simple common sense will require the court to
pronounce an administrator’s determination arbitrary and capricious.” Lao, 319 F. Supp.
2d at 959 (quoting Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir.
2001)); accord Gallo, 102 F.3d at 922.
7 Although the language of the Plan controls, both parties agree that the meaning of the
term “trade or craft” in the Plan is consistent with the definition of that term in 29 C.F.R.
§ 2530.203-3(c)(2)(ii). (See Def. Mem. at 12; Mem. in Opp’n at 11-12.)
II. Application of the abuse-of-discretion standard here
As the foregoing makes clear, the question the Court must answer is whether the
Board abused its discretion when it determined that Eisenrich’s Pepperidge Farm work is
within the same “trade or craft” as his prior work as a meat cutter. In reaching its
decision, the Board noted that, under ERISA, the term “trade or craft” focuses on the
skills utilized and learned in a specific job. (Decision at 7.)7 It then found that Eisenrich
had learned “skills such as . . . product rotation, . . . ordering, . . . and other merchandising
skills” while employed as a meat cutter, and that he used the skills of “merchandising,
product rotation, inventory, and ordering” as a Pepperidge Farm SDA. (Id.)
Accordingly, it concluded that Eisenrich was using skills in his SDA job that he learned
while he was a meat cutter and, as a result, the jobs were in the same “trade or craft.”
(Id.) In the Court’s view, the Board’s conclusion resulted from a strained interpretation
of the term “trade or craft” and amounted to an abuse of discretion.
First, the regulations promulgated pursuant to ERISA indicate that a “trade or
craft” is a “skill or skills, learned during a significant period of training or practice,
which is applicable in occupations in some industry.” 29 C.F.R. § 2530.203-3(c)(2)(ii)
(emphasis added). There is no evidence before the Court, nor does there appear to have
been any evidence before the Board, that skills like “ordering,” “inventory,” and “product
8 In fact, the Board appears to have relied on the description of the “meat cutter” position
in the Union’s collective-bargaining agreement, rather than on the skills Eisenrich actually
learned in his position. (See Decision at 7 (“The job category of ‘meat cutter,’ as negotiated in
the collective bargaining agreement, focuses on merchandising and supervising . . . . Under this
classification, skills such as food safety, product rotation, guest service, ordering, supervising,
and other merchandising skills are all included within the trade or craft of meat cutting.”)
(emphases added); see also id. at 5 (“[t]he duties of Pepperidge Farm SDAs are similar to, and in
several instances, overlap with collectively bargained work performed by other Plan
Participants”) (emphasis added).) The Plan confirmed as much at oral argument, asserting that
it was appropriate for the Board to focus on duties typically performed by meat cutters rather
than on the job functions actually performed by Eisenrich; were extensive fact finding
concerning a participant’s job functions required, it purportedly would be “impossible” to
appropriately administer the Plan. This argument, however, is belied by 29 C.F.R. § 2530.203-
3(c)(2)(ii), which requires an examination of “the facts and circumstances of each case” in
determining whether two jobs fall within the same “trade or craft.”
rotation” were learned by Eisenrich during a “significant period of training or practice” in
his position as a meat cutter.8 The Court agrees with Eisenrich that “looking at an
expiration date on a box and removing product that has expired [does not] amount[] to a
skill learned during a significant period of training.” (Mem. in Opp’n at 12; accord id. at
14 (“The plan’s argument that tasks such as product rotation, stocking shelves, etc., are
skills that he ‘learned’ while in covered employment is . . . unavailing. These ‘skills’ as
they are called by the Plan, were not learned while in covered employment – most people
learn them at a young age, when a parent tells a child not to drink milk that is past its
expiration date.”).)
Second, the Board found that the term “trade or craft . . . includes generally
applicable skills learned in an occupation,” citing merchandising as one such “generally
applicable skill.” (Decision at 7 (emphasis added).) By this line of reasoning, however,
Eisenrich would be precluded from working in almost any job in the retail food industry
9 As the Board itself recognized, merchandising is “within the scope of work of [all] retail
grocery employees. Regular store personnel perform [merchandising] duties on virtually all of
the products sold in the stores.” (Decision at 7.)
in the Twin Cities. Indeed, the entire purpose of food retailing is to sell food, and
merchandising is an integral part of doing so. Hence, it is difficult for the Court to
conceive of an occupation connected with the retail sale of food – whether as a cashier at
a grocery store or as the driver of a delivery truck – that could be said not to include some
component of “merchandising.”9 Yet, the Plan clearly contemplated that Eisenrich could
work in the food industry without losing his pension benefits – a participant engages in
“disqualifying employment” under the Plan only if (1) his work is in the food industry
and (2) his work is in the same “trade or craft” as his prior employment.
Further evidence of the overbreadth of the Board’s interpretation of the term “trade
or craft” is found in its reliance on the arbitration award in Eisenrich’s previous appeal.
There, the arbitrator expressly stated that “[t]he Federal Regulations, as espoused by the
Trustees, make it clear that the scope of the law is focused upon the involved industry, not
the narrower concept of trade or craft.” That conclusion – with which the Board agreed
(see Decision at 8-9, 13 (emphases in original)) – is at odds with ERISA, which expressly
distinguishes between an “industry” and a “trade or craft” within an industry. See 29
U.S.C. § 1053(a)(3)(B)(ii) (authorizing pension plans to suspend pension payments when
a participant is employed “in the same industry, in the same trade or craft, and the same
geographic area covered by the plan”); Thompson v. Asbestos Workers Local No. 53
Pension Fund, 716 F.2d 340, 343 (5th Cir. 1983) (“The trade or craft classification is
obviously oriented at someone who moves into some other kind of employment within the
industry.”) (emphasis added).
In the Court’s view, the only reasonable interpretation of the term “trade or craft”
consistent with both the Plan and ERISA (as well as the regulations promulgated
thereunder) must be something narrower than all of the “generally applicable skills” one
might learn in a particular occupation. Under such a broad reading of the term, a person
who developed the “skill” of juggling multiple telephone calls could be precluded from
taking any subsequent job in which he or she would have to answer a telephone, a plainly
absurd result. Simply put, allowing the term “trade or craft” to sweep within its ambit an
overly broad range of “skills” would, in most circumstances, preclude an employee from
accepting any job in the same industry. Such an interpretation would be inconsistent with
both ERISA and the express language of the Plan: it would render the term “trade or
craft” duplicative of the term “industry” in the “disqualifying employment” section of the
Plan and in 29 U.S.C. § 1053(a)(3)(B)(ii). The Court will not subscribe to an
interpretation that would render nugatory the term “trade or craft.” Rather, it believes that
the only reasonable basis upon which to conclude that two jobs are within the same “trade
or craft” is that they involve a material overlap of job responsibilities. See Smith v.
CMTA-IAM Pension Trust, 654 F.2d 650, 659 n.12 (9th Cir. 1981) (suggesting that two
10 At oral argument, the Plan asserted that in order to determine whether two jobs are
within the same trade or craft, the Court should determine whether those jobs are “competitive.”
The Court disagrees that two jobs are within the same “trade or craft” whenever they might be
labeled as “competitive.” In any event, the Court believes that Eisenrich’s Pepperidge Farm
work is not “competitive” with his work as a meat cutter, for the reasons discussed above.
11 This is not to say that the Court has ignored Finley. Indeed, the foregoing analysis
makes clear that several Finley factors have been satisfied here – for example, the Board’s
interpretation of the term “trade or craft” effectively renders that term meaningless and conflicts
with ERISA (and the regulations promulgated thereunder).
jobs are in the same “trade or craft” when they involve “significantly the same” skills, not
just some overlap in job functions). That is simply not the case here.10
At bottom, “simple common sense . . . require[s] the court to pronounce [the]
administrator’s determination arbitrary and capricious” in this case. Lao, 319 F. Supp. 2d
at 959.11 Stated differently, “[t]his case brings to mind [an] old adage: ‘if it walks like a
duck, quacks like a duck and looks like a duck, it has got to be a duck.’ However, merely
calling something a duck does not make it a duck.” In re Constitutional Trust No. 2-562,
114 B.R. 627, 633 n.14 (Bankr. D. Minn. 1990) (citations omitted); see also Mavity v.
Fraas, 456 F. Supp. 2d 29, 31 n.1 (D.D.C. 2006) (“at the end of the day, even if you put a
calico dress on it and call it Florence, a pig is still a pig”). Eisenrich previously worked
as a meat cutter; he now delivers Pepperidge Farm crackers, cookies, and baked goods to
grocery stores. Common sense dictates that this job is not in the same “trade or craft” as
Eisenrich’s prior work as a meat cutter because he does not primarily utilize skills learned
over a substantial period of time as a meat cutter, notwithstanding that work as an SDA
might involve some “merchandising” of Pepperidge Farm products. Accordingly, the
12 At oral argument, Eisenrich requested that the Court grant summary judgment sua
sponte on Count 2.
Court determines that it was unreasonable for the Board to conclude that Eisenrich is
engaged in “disqualifying employment” and, as a result, the suspension of his pension
payments was an abuse of discretion. Hence, the Court will deny the Plan’s Motion visa-
vis Count 2.
Moreover, because there exists no genuine issue of material fact, the Court will
grant summary judgment to Eisenrich sua sponte on that claim. Although Eisenrich has
not cross-moved for summary judgment,12 no fact-finding is required in order to resolve
Count 2 (whether the Plan’s suspension of his pension payments violated ERISA) – that
issue can be determined solely from the evidence before the Board when it adjudicated
Eisenrich’s appeal. E.g., Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th
Cir. 1997) (Kyle, J., sitting by designation) (review for abuse of discretion typically
limited to evidence before plan administrator). It is appropriate for the Court to enter
summary judgment in Eisenrich’s favor sua sponte under these circumstances, because
the Board has thoroughly briefed the issue of whether its decision constituted an abuse of
discretion. See, e.g., Madewell v. Downs, 68 F.3d 1030, 1048 (8th Cir. 1995) (district
court may enter summary judgment sua sponte where party had adequate opportunity to
address issues and was on notice that right to judgment as a matter of law was at issue).
Lastly, as a result of the foregoing, Eisenrich’s alternative equitable-estoppel claim
is moot, and it will be dismissed.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED as follows:
1. Defendant’s Motion for Summary Judgment (Doc. No. 28) is DENIED;
2. Summary Judgment is GRANTED to Eisenrich sua sponte on Count 2 of
the Complaint;
3. Count 3 of the Complaint is DISMISSED WITH PREJUDICE as moot;
4. Eisenrich shall submit a memorandum on or before April 15, 2008,
addressing the amount of the judgment to be entered in this case and any request for
attorneys’ fees (including the amount of such fees). The Plan may file a memorandum in
response on or before April 22, 2008, limited to the issues raised in Eisenrich’s
memorandum; the Plan shall not reargue the propriety of summary judgment for
Eisenrich. No further submissions (whether by memorandum, letter, affidavit, or
otherwise) will be permitted absent further Order of the Court.
Dated: April 3, 2008 s/Richard H. Kyle
United States District Judge


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



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Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.