Paneccasio v. Unisource Worldwide, No. 06-3950 (2d Cir. 2008)

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06-3950-cv Paneccasio v. Unisource Worldwide 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: December 13, 2007 Decided: July 7, 2008) Docket No. 06-3950-cv - - - - - - - - - - - - - - - - - - - -X EUGENE PANECCASIO, Plaintiff-Appellant, - v.UNISOURCE WORLDWIDE, INC., GEORGIAPACIFIC CORP., IKON OFFICE SOLUTIONS, INC., FORMERLY KNOWN AS ALCO STANDARD CORP., BOARD OF DIRECTORS, IND. & AS FIDUCIARIES OF IKON OFFICE SOLUTIONS, INC., AND W.J. HOPE, JR., IND. & AS ADMIN. & FIDUCIARY OF THE 1991 IKON OFFICE SOLUTIONS INC. DEFERRED COMPENSATION PLAN, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -X Before: JACOBS, Chief Judge, POOLER and SACK, Circuit Judges. Appeal from a grant of summary judgment dismissing 37 ERISA and ADEA claims, and declining to reinstate state law 38 claims previously dismissed as preempted. Plaintiff argues 1 principally that defendants should be equitably estopped 2 from terminating a deferred compensation plan as to him by 3 reason of representations made in an early retirement 4 package. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Affirmed. ANDREW B. BOWMAN, Westport, Connecticut, for PlaintiffAppellant. FELIX J. SPRINGER (Howard Fetner, on the brief), Day Pitney LLP, Hartford, Connecticut, for DefendantsAppellees Unisource Worldwide, Inc. and Georgia-Pacific Corporation. KAY KYUNGSUN YU, Pepper Hamilton LLP, (Joseph J. Costello, Morgan Lewis & Bockius LLP, on the brief), Philadelphia, Pennsylvania, for DefendantsAppellees Alco Standard Corporation, Ikon Office Solutions, Inc, Board of Directors of Ikon Office Solutions, Inc., and W.J. Hope, Jr. DENNIS JACOBS, Chief Judge: Plaintiff Eugene Paneccasio ( Paneccasio ) elected to 32 participate in his company s deferred compensation plan at a 33 level designed to provide him, once fully vested, with a 34 $15,000 annuity for ten years following his retirement no 35 earlier than age 65, plus life insurance. 2 The plan was 1 subject to termination, at the company s election, on 2 payment of certain sums to participants depending on whether 3 they were or were not yet receiving benefits. 4 Paneccasio was 57, he was offered an early retirement 5 package, which he accepted, and which granted accelerated 6 vesting in the deferred compensation plan making him 7 eligible to receive 65 percent of the stated benefits 8 beginning at age 65, along with a number of other 9 inducements that are not at issue here. In 1994, when In 2000, six months 10 short of Paneccasio s 65th birthday, the company terminated 11 the deferred compensation plan and, as required by the 12 termination provision, paid Paneccasio his deferred income 13 at six percent interest. 14 provision, the life insurance benefit ended. Also pursuant to the termination 15 Paneccasio argues that the early retirement package 16 guaranteed that he would receive benefits under the deferred 17 compensation plan at age 65 and that the plan s termination 18 provision was ineffective as to him, or disabled by 19 estoppel. 20 retirement package that he would receive greater benefits if 21 he took it, and that his benefits under all plans would be 22 paid at age 65. In support he cites assurances in the early Paneccasio seeks his 65 percent 3 1 participation in the ten year annuity and life insurance 2 benefit that were to begin at age 65. 3 that a broad and bolded disclaimer in the early retirement 4 package referred Paneccasio to the plan documents (which 5 included the termination provision) and said that they would 6 control. 7 The company argues The United States District Court for the District of 8 Connecticut (Droney, J.), granted summary judgment 9 dismissing Paneccasio s complaint, which alleged violations 10 of the Age Discrimination in Employment Act ( ADEA ), 29 11 U.S.C. §§ 621 et seq., the Employment Retirement Income 12 Security Act of 1974 ( ERISA ), 29 U.S.C. §§ 1001 et seq., 13 and state statutory and common law. 14 affirm. Paneccasio appeals. We 15 16 BACKGROUND 17 From 1971 until he retired in 1994 at age 57, 18 Paneccasio worked for a division of defendant Unisource 19 Worldwide, Inc. ( Unisource ), which was a wholly-owned 20 subsidiary of defendant Alco Standard Corporation ( Alco ). 21 By the time Paneccasio retired, he was a vice president of 4 1 sales and national accounts.1 2 A. 3 4 1991 Deferred Compensation Plan Paneccasio elected to participate at its inception in 5 the Alco Standard Corporation 1991 Deferred Compensation 6 Plan (the 1991 Plan ), which was offered to certain highly 7 compensated employees of Alco and its subsidiaries including 8 Unisource. 9 referred to as a top hat plan, furnished benefits The 1991 Plan, which was a type of plan commonly 10 supplemental to the pension plan benefits already provided 11 by Unisource. 12 pension plan and in Alco s 1980 deferred compensation plan.) 13 (Paneccasio had previously vested in the The 1991 Plan allowed participants to defer a portion 14 of their income until retirement and provided two different 15 life insurance components: 16 a certain level prior to retirement, and transfer of a life 17 insurance policy to the participant at age 65. 18 employees had the choice of selecting among three options coverage for the participant at 1 Eligible In 1997, Alco changed its name to IKON Office Solutions, Inc. ( IKON ), and spun off Unisource. But Alco, and then IKON, retained control over the pertinent benefit plan during all times relevant to this lawsuit. In 1999, Georgia-Pacific Corporation ( Georgia-Pacific ) acquired Unisource. 5 1 under the Plan. 2 that when he retired and reached age 65 he would receive an 3 annuity in the amount of $15,000 per year for ten years, and 4 would own a life insurance policy with a $95,000 cash value 5 and a paid-up death benefit of $375,000. 6 before age 65, the death benefit would be $450,000. 7 Paneccasio chose Option II, which provided If Paneccasio died Paneccasio had the option to elect vesting after five 8 years, which he did when he signed up. An employee who 9 terminated employment before vesting would no longer be 10 allowed to participate in the Plan, and his aggregate salary 11 deferrals at the time his employment ended would be 12 reimbursed without interest. 13 14 The 1991 Plan also gave Alco s Board of Directors the sole authority to terminate the Plan: 15 16 17 18 19 20 21 22 Termination. The Board of Directors of Alco shall have the right to terminate the Plan in its entirety and not in part at any time it determines that proposed or pending tax law changes or other events cause, or are likely in the future to cause, the Plan to have an adverse financial impact upon Alco. 23 Upon termination, a participant would no longer be entitled 24 to an annuity and life insurance benefit. 25 participant would be entitled only to a lump-sum 26 distribution, in amounts calculated based on whether the 6 Instead, a 1 participant s benefit payments had commenced (Paneccasio s 2 payments had not when the Plan was terminated): 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Alco shall have no liability or obligation under the Plan or the Participant s Participation Agreement (or any other document), provided that 1) Alco distributes, in lump sum, to any participant whose benefits have not commenced, the value of the amount of the Participant s deferrals to the date of termination plus interest (compounded annually) at a rate of 6% per annum; and 2) Alco distributes, in a lump sum, to any Participant whose benefit payments have commenced, all amounts thereafter due, in an amount as calculated in accordance with Paragraph [20], Acceleration of Benefits. Such lumpsum distribution, at Alco s election, may be made in the form of cash, or life insurance, or both. 22 (emphasis added). At his deposition, Paneccasio testified 23 that he read and understood the terms of the 1991 Plan when 24 he elected to participate. 25 read the termination provision of the Plan, acknowledged 26 that the Board had the right to terminate the Plan under 27 that provision, and understood what benefit would be payable 28 if the Plan were terminated. He further testified that he had 29 30 31 B. Early Retirement Package In 1994, Unisource offered an Early Retirement Package 7 1 ( ERP ) to employees age 55 and older. Paneccasio, who was 2 57, accepted, and retired effective April 1, 1994. 3 was described in a brochure provided to Paneccasio entitled, 4 Your Personal Early Retirement Package: A Window of 5 Opportunity. 6 received, among other things: a one-time cash bonus of 7 $7,500; full vesting in the company s pension plan; 8 continued medical coverage until age 65; term life insurance 9 paid by Unisource until age 65; full vesting in an Alco The ERP As a result of his election, Paneccasio 10 stock participation plan, with stock worth $471,840; full 11 vesting in the 1980 deferred compensation plan, resulting in 12 a $3,024 monthly payment starting at age 65 and continuing 13 for 10 years; and 65 percent vesting in the 1991 Plan. 14 Other than his claims relating to the 1991 Plan, it is 15 undisputed that Paneccasio received all benefits pertaining 16 to his early retirement. 17 But for the ERP, an employee who left employment prior 18 to vesting in the 1991 Plan would be entitled only to the 19 return of the deferred salary in a lump sum, without 20 interest. 21 of accelerated partial vesting. 22 retiring employee to leave his deferred salary in the Plan For such employees, the ERP conferred the benefit 8 Partial vesting allowed the 1 where it would continue appreciating, and thereby enjoy the 2 deferral of tax on the income until age 65, at which time he 3 would receive annuity and life insurance benefits 4 proportionate to his vesting. 5 the retiring employee to retain his interest in the 6 pre-age-65 life insurance benefit of $450,000, as long as he 7 continued to pay a quarterly premium of $231.75 through age 8 65. 9 Partial vesting also allowed Attached to Paneccasio s copy of the ERP brochure was a 10 personalized statement called, A Personal Look . . . At 11 Your Retirement, which estimated the benefit enhancements 12 specifically applicable to Paneccasio under the various 13 Unisource benefit plans. 14 Look calculated that Paneccasio would be eligible at age 65 15 to receive 65 percent of the Plan s Option II benefits, 16 i.e., $9,750 each year for 10 years. 17 1991 Plan s life insurance policy, the ERP s partial vesting 18 would allow for a post-age-65 cash value of $61,750 and a 19 death benefit of $243,750. 20 As to the 1991 Plan, the Personal With respect to the Other than providing for accelerated vesting in the 21 1991 Plan, the ERP brochure did not address any other 22 feature of the Plan. It did not alert participants that 9 1 Alco retained the right to terminate the 1991 Plan, or 2 explain how early termination might affect the 1991 Plan s 3 annuity and life insurance provisions. 4 did, however, include a broad disclaimer applicable to all 5 benefits plans discussed in the brochure. 6 highlighted box, it said: The ERP brochure In bold type in a In an effort to keep the language as clear and non-technical, yet correct, as possible, the benefits described in this brochure are only summaries of the Early Retirement window s major provisions. More detailed information is available from plan documents and insurance contracts. In case of any dispute, the official legal documents or contracts will govern over this brochure. 7 8 9 10 11 12 13 14 15 16 17 18 This disclaimer is followed by a more specific one in which 19 Alco reserves the right to change the medical and dental 20 plans, including offering other plan(s) of comparable 21 coverage and cost. 22 as to the 1991 Plan.) (No such specific reservation is made 23 The brochure counsels employees to ask your local 24 Human Resources representative for assistance in making this 25 very important decision, and to gather your personal 26 resources, consider the advantages and disadvantages, talk 27 to your financial advisor, and make your decision. 28 description of the ERP s effect on various benefit plans, 10 The 1 including deferred compensation plans, concludes with the 2 warning: 3 financial advice; please consult with your tax advisor or 4 financial planner before making any decisions. 5 testified at his deposition that the only person he 6 consulted before accepting early retirement was his spouse. 7 He did not attend company presentations regarding the ERP 8 and did not consult a human resources representative at the 9 company or a personal financial advisor. 10 IMPORTANT: This section is not meant as legal or Paneccasio He does not recall reviewing 1991 Plan documents before making his decision. 11 C. 12 13 Termination of the 1991 Plan In 1997, Alco was renamed IKON Office Solutions, Inc. 14 ( IKON ). In 2000, the IKON Board of Directors decided to 15 terminate the 1991 Plan on the grounds of unfavorable 16 interest rates and declining participation. 17 other participants of the 1991 Plan were notified in October 18 2000 of the pending termination, which became effective on 19 December 31, 2000. 20 provision, participants who were receiving monthly benefits 21 would receive a lump sum Acceleration of Benefits, 22 essentially the present value of future benefits payments. Paneccasio and In accordance with the termination 11 1 Participants who were not yet receiving monthly benefits 2 (including Paneccasio), whether or not vested, would receive 3 a lump sum repayment of deferrals plus six percent interest. 4 All participants would lose any continuing claim to the life 5 insurance benefits. 6 At the time of termination, Paneccasio was 7 approximately six months shy of his 65th birthday and 8 therefore had not yet commenced receiving benefits under the 9 1991 Plan. As a result, he was informed he would receive a 10 lump sum termination benefit of $75,419.22, composed of 11 $46,283.25 in deferrals plus $29,135.97 in interest. 12 By letter to IKON dated November 10, 2000, Paneccasio: 13 expressed his belief that because he was 65 percent vested 14 in the 1991 Plan under the ERP, he was entitled to reject 15 the termination lump sum payment; claimed that the ERP 16 modified the 1991 Plan so that it could not be terminated as 17 to him; and demanded benefits under the original terms of 18 the 1991 Plan, i.e., (1) the $9,750 annuity beginning at age 19 65 and continuing for 10 years, and (2) the life insurance 20 benefit of a post-age 65 cash value of $61,750 and death 21 benefit of $243,750. 22 this lawsuit. These are the benefits in dispute in 12 1 IKON, through the Plan Administrator, W.J. Hope, Jr., 2 responded on November 30, 2000 that Paneccasio had no option 3 other than to take the lump sum payment described in the 4 termination provision because [v]esting does not supercede 5 the termination provisions found in Section 19 . . . of the 6 Plan. 7 denial of benefits, and Hope referred the matter to IKON s 8 Retirement Plans Committee for review. 9 Paneccasio s appeal was denied, and he was entitled to 10 On December 15, 2000, Paneccasio appealed this On July 3, 2001, receive his termination payment of $75,419.22. 11 12 13 D. EEOC Complaint and Federal Lawsuit In July 2001, more than seven years after his 14 retirement from Unisource, Paneccasio filed a complaint with 15 the Equal Employment Opportunity Commission ( EEOC ), 16 alleging that Unisource, Alco, IKON, Georgia-Pacific, the 17 IKON Board of Directors and Hope (collectively, 18 defendants ), had discriminated against him on the basis of 19 age by terminating the 1991 Plan after inducing him to elect 20 early retirement. 21 Paneccasio s complaint for failure to state a claim under 22 the ADEA, and issued a right to sue letter. On August 9, 2001, the EEOC dismissed 13 1 Paneccasio then filed a complaint in the District of 2 Connecticut alleging violations of the ADEA and ERISA, 3 breach of contract, and related state statutory and common 4 law claims. 5 complaint, and the district court granted the motion as to 6 the state law claims, holding them preempted under ERISA 7 because they related to the 1991 Plan. 8 the district court granted defendants motion for summary 9 judgment on the remaining ADEA and ERISA claims. 10 Defendants moved to dismiss Paneccasio s Following discovery, As to the ADEA claim, the district court ruled that it 11 was untimely filed and that there was no ground for 12 equitable tolling, and (in the alternative) that Paneccasio 13 could not establish a prima facie case of age 14 discrimination. 15 (inter alia) that defendants could not be equitably estopped 16 from denying liability on Paneccasio s ERISA claim because 17 Paneccasio failed to present evidence of promises or 18 misrepresentations at the time of the ERP that contradicted 19 1991 Plan provisions. 20 Worldwide, Inc., No. 3:01-cv-2065, 2006 WL 2128647, 2006 21 U.S. Dist. LEXIS 84821 (D. Conn. July 26, 2006). 22 appeals the district court s summary judgment ruling and its As to the ERISA claim, the court ruled See Paneccasio v. Unisource 14 Paneccasio 1 2 refusal to reinstate the state law claims. We affirm the dismissal of the ADEA claim as untimely. 3 We affirm the dismissal of the ERISA claim on the merits. 4 Because the tolling issue that bears upon the ADEA claim 5 depends on the merits of the ERISA claim, we discuss the 6 ERISA claim first. 7 DISCUSSION 8 9 We review de novo the district court s grant of summary 10 judgment, drawing all factual inferences in favor of the 11 non-moving party. 12 321 F.3d 292, 300 (2d Cir. 2003). See Miller v. Wolpoff & Abramson, L.L.P., 13 A. 14 15 ERISA The complaint alleges that: the 1991 Plan is subject 16 to ERISA; it was modified by the ERP brochure to guarantee 17 future benefits; termination of the Plan breached 18 defendants fiduciary duties and denied benefits in 19 violation of ERISA; and defendants are equitably estopped 20 from denying liability because Paneccasio relied to his 21 detriment on representations about future benefits in the 22 ERP brochure. Paneccasio seeks to recover the benefits due 15 1 2 to him had the Plan not been terminated. Top hat plans, such as the 1991 Plan, are exempt 3 from many provisions of ERISA, including the participation 4 and vesting, funding, and fiduciary responsibility 5 requirements, see 29 U.S.C. §§ 1051(2), 1081(a)(3), 6 1101(a)(1), but like qualified plans, they are subject to 7 disclosure requirements, to civil enforcement, and to the 8 duty to have a claims procedure, see 29 U.S.C. §§ 1021, 9 1132, 1133. Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 10 217 (2d Cir. 2006). Thus, to the extent Paneccasio s ERISA 11 claim relies on an assertion of breach of fiduciary duty, it 12 was properly dismissed. 13 Comp. Plan (B), 216 F.3d 283, 290 (2d Cir. 2000) ( [T]he 14 fiduciary responsibility provisions of ERISA do not apply to 15 top hat plans . . . . ). 16 provisions afford Paneccasio his sole remedies for recovery 17 of benefits due, or for enforcement of the terms of the 1991 18 Plan. 19 Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 20 209 (2002) (expressing reluctance to extend[] remedies not 21 specifically authorized by [ERISA s] text ); Mertens v. 22 Hewitt Assocs., 508 U.S. 248, 254 (1993) (noting that See Demery v. Extebank Deferred ERISA s civil enforcement See ERISA § 501(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B); 16 1 ERISA s carefully crafted and detailed enforcement scheme 2 provides strong evidence that Congress did not intend to 3 authorize other remedies that it simply forgot to 4 incorporate expressly (quoting Massachusetts Mut. Life 5 Ins. Co. v. Russell, 473 U.S. 134, 146-47 (1985))).2 6 [A] denial of benefits challenged under § 7 1132(a)(1)(B) is to be reviewed under a de novo standard 8 unless the benefit plan gives the administrator or fiduciary 9 discretionary authority to determine eligibility for 10 benefits or to construe the terms of the plan. 11 Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). 12 the benefit plan confers such discretion, we review the 13 administrator s decisions under the arbitrary and capricious 14 standard. 15 614, 622 (2d Cir. 2008). 16 Firestone If See Krauss v. Oxford Health Plans, Inc., 517 F.3d The 1991 Plan s termination provision grants 2 A claim for recovery of benefits under ERISA § 501(a)(1)(B) can be brought only against a covered plan, its administrators or its trustees. See Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 509-10 (2d Cir. 2002) ( In a recovery of benefits claim, only the plan and the administrators and trustees of the plan in their capacity as such may be held liable. (quoting Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir. 1989))). Unisource and Georgia-Pacific fall into none of these categories, and therefore the ERISA claim against these defendants fails on this alternative ground. 17 1 discretionary authority to the IKON Board of Directors to 2 terminate the Plan at any time it determines that proposed 3 or pending tax law changes or other events cause, or are 4 likely in the future to cause, the Plan to have an adverse 5 financial impact on Alco. 6 Board alone to decide whether to terminate the Plan, at any 7 time and based on any events it considers likely to have an 8 adverse financial impact. 9 by any objective or third-party measures of the company s This language empowers the IKON Its decision is not constrained 10 fiscal distress. 11 grant to an administrator of the right to determine an 12 issue conferred discretion where the decision-making power 13 was not constrained by objective standards); Nichols v. 14 Prudential Ins. Co. of Am., 406 F.3d 98, 108 (2d Cir. 2005) 15 ( A reservation of discretion need not actually use the 16 words discretion or deference to be effective, but it 17 must be clear. ). 18 See id. at 623 (holding that a plan s We agree with the district court that the IKON Board s 19 decision to terminate the 1991 Plan was not arbitrary or 20 capricious. 21 terminated because of declining interest rates, greater cash 22 outlays related to the lower interest rates for the split- IKON presented evidence that the Plan was 18 1 dollar life insurance policies, and a reduction in the 2 number of participants in the plan, all of which had an 3 adverse financial impact on IKON. 4 evidence that, in 1999, in connection with the 1991 Plan, 5 IKON incurred a cash outlay of $2.4 million as compared to 6 the $1.5 million originally anticipated, and suffered a loss 7 of $1.3 million instead of the $1 million gain originally 8 anticipated. 9 assertion that IKON Board s real reason for terminating Specifically, there was Paneccasio s only rebuttal was the conclusory 10 the Plan was a financial need relating to the settlement of 11 an unrelated securities class action. 12 failed to raise a genuine issue of material fact as to the 13 lawfulness of the Plan s termination and the payment of 14 termination benefits. 15 F.3d 438, 442 (2d Cir. 1995) (holding that administrator s 16 decision will be overturned only if it was without reason, 17 unsupported by substantial evidence or erroneous as a matter 18 of law (internal quotation marks omitted)). 19 Paneccasio thus See Pagan v. NYNEX Pension Plan, 52 Paneccasio argues that, even if the 1991 Plan was 20 properly terminated, defendants should be estopped from 21 terminating the Plan as to him because the ERP brochure 22 falsely induced him to retire by misrepresenting the future 19 1 benefits available under the Plan. Promissory or equitable 2 estoppel is available on ERISA claims only in extraordinary 3 circumstances. 4 F.3d 94, 101 (2d Cir. 1999) (internal quotation marks 5 omitted); see Bonovich v. Knights of Columbus, 146 F.3d 57, 6 62 (2d Cir. 1998); Lee v. Burkhart, 991 F.2d 1004, 1009 (2d 7 Cir. 1993). 8 Paneccasio must prove (1) a promise, (2) reliance on the 9 promise, (3) injury caused by the reliance, and (4) an Devlin v. Transp. Commc n Int l Union, 173 To prevail on an estoppel claim under ERISA, 10 injustice if the promise is not enforced, and must 11 adduce[] . . . facts sufficient to [satisfy an] 12 extraordinary circumstances requirement as well. 13 v. United Way Replacement Benefit Plan, 191 F.3d 140, 151 14 (2d Cir. 1999) (internal quotation marks omitted) 15 (alterations in original). 16 Aramony Panecassio claims to have relied on an implicit 17 guarantee in the ERP brochure that he would receive the 1991 18 Plan benefits at age 65. 19 many words, either in the ERP brochure or in any oral 20 representations at the time Paneccasio elected early 21 retirement. 22 No such promise was made in so Paneccasio advances several theories. Paneccasio would infer a guarantee of future benefits 20 1 from this statement in the ERP brochure: If you retire 2 under this special Early Retirement window, you will receive 3 greater benefits than you would if you retire later. 4 Paneccasio also relies on the brochure s chart comparing 5 benefits from the Special Early Retirement Window 6 (providing for partial vesting in the 1991 Alco program; 7 benefit payable at age 65"), and the Regular Early 8 Retirement (providing for [v]esting in your benefits, if 9 any, under . . . 1991 Alco program[] based on plan 10 participation at retirement; benefit payable at age 65"). 11 Paneccasio argues that the promise of greater benefits 12 amounted to a guarantee that he would be paid an annuity and 13 retain his life insurance at age 65. 14 not supported by the cited language, which promises no more 15 than a greater benefit by virtue of immediate partial 16 vesting. Paneccasio received the entire value of partial 17 vesting: continued participation in the 1991 Plan after 18 early retirement, with the concomitant tax advantages and 19 appreciation of his investment. 20 retirement would have required Paneccasio to exit the 1991 21 Plan, receiving only repayment of his deferred income 22 without interest. This interpretation is Without vesting, early The promise of greater benefits was 21 1 thus fulfilled. 2 Paneccasio argues that by modifying the vesting 3 provision of the 1991 Plan, the ERP brochure essentially 4 rescinded the termination provision as well. 5 1991 Plan documents suggests this sort of interdependence 6 between the two provisions. 7 other. 8 qualified by the vested status of participants, and the 9 compensation owed to participants upon termination depends 10 solely on whether they began receiving benefits payments; 11 vesting is irrelevant to that calculation. 12 silence on every provision of the 1991 Plan other than 13 vesting cannot be read to rescind the termination provision, 14 especially in view of the ERP s disclaimer referring 15 participants to Plan documents. 16 Morris Cos., 470 F.3d 481, 488-89 (2d Cir. 2006) (holding 17 that summary plan description did not divest administrator 18 of discretion to determine benefit eligibility when it was 19 silent on subject and referred participants to governing 20 documents). 21 22 Nothing in the Neither provision refers to the The Board s authority to terminate the Plan is not The ERP s See Tocker v. Phillip Paneccasio sees a guarantee of future benefits in the brochure s statement: Your benefits under all of the Plans 22 1 will be paid to you monthly at age 65. This sentence is 2 troublesome when read in isolation because of its 3 unqualified assurances that benefits will be paid. 4 However, the sentence is part of the brochure s section on 5 deferred compensation plans, which makes clear that the only 6 new benefit offered by the ERP in connection with such plans 7 is immediate vesting.3 8 not suggest rescission of the 1991 Plan s termination 9 provision, especially in light of the brochure s other This section of the brochure does 10 representations about the 1991 Plan and the disclaimer that 11 the official legal documents or contracts will govern in 12 any conflict between benefit plans and the ERP brochure. 13 The ERP s disclaimer nonetheless poses some 3 The section of the ERP brochure titled Alco Standard Corporation Deferred Compensation Plans reads in its entirety: If you participate in the 1980 or 1985 Alco Standard Corporation Deferred Compensation Plans, your benefit(s) will become fully vested. Benefits in the 1991 Plan will become 65% vested if you elected the five year option and 32.5% vested if you elected the ten year option. Under the 1991 Plan, you must continue to pay life insurance premiums to age 65. Your benefit(s) under all of the Plans will be paid to you monthly at age 65. If you participate in any of these programs, see your personalized statement for the monthly benefit payable at age 65 under all of these programs. 23 1 interpretive problems. On its face, the disclaimer is 2 comprehensive--it applies to all benefit plans affected by 3 the ERP, it discounts the ERP brochure s descriptions of 4 those plans as only summaries, and it refers employees to 5 the plan documents and insurance contracts. 6 general disclaimer is followed by a specific reservation of 7 the right to modify the medical and dental plans, which may 8 have suggested to employees that benefit plans other than 9 medical and dental plans were not subject to a similar But this 10 reservation of rights. 11 a specific reservation of rights may have suggested that the 12 Plan s provisions for amendment or termination were 13 superseded by the ERP. 14 As to the 1991 Plan, the absence of On balance we reject this interpretation. The rules of 15 contract construction require us to adopt an interpretation 16 which gives meaning to every provision of the contract. 17 this case, the contract consists of the ERP and its 18 constituent benefits plans, which must be read together, 19 giving effect to all terms. 20 Contracts § 202(2) (2008) ( all writings that are part of 21 the same transaction are interpreted together ); Adams v. 22 Suozzi, 433 F.3d 220, 228 (2d Cir. 2005). 23 language in a contract will prevail over general language In See Restatement (Second) of 24 Although specific 1 where there is an inconsistency between two provisions, see 2 ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 3 485 F.3d 85, 102 (2d Cir. 2007) (citing Muzak Corp. v. Hotel 4 Taft Corp., 1 N.Y.2d 42, 46 (N.Y. 1956)), there is no 5 inconsistency between the ERP s general disclaimer addressed 6 to all constituent benefits plans, and its more specific one 7 dealing with medical and dental plans . 8 disclaimer does not on its face modify or limit the effect 9 of the general disclaimer, and each disclaimer may be fully The specific 10 enforced without compromising the other. We thus conclude 11 there is no factual predicate for application of the 12 principle that where a specific contract provision conflicts 13 with a more general provision, the specific provision 14 controls[,] . . . [s]ince there is no inconsistency. 15 v. Kurnit, 737 F.2d 229, 237-38 (2d Cir. 1984); see also 16 India.Com, Inc. v. Dalal, 412 F.3d 315, 321 (2d Cir. 2005) 17 (holding that specific provision in contract did not 18 supersede general language where doing so would nullify 19 express intent of latter); cf. United States v. Mohammed, 27 20 F.3d 815, 820-21 (2d Cir. 1994) (holding inapplicable the 21 rule of statutory construction giving specific language 22 precedence over more general language where there is no 23 conflict of language ). Croce Striving, as we do, to give meaning 25 1 to every part of the parties agreement, we see no basis in 2 the specific disclaimer for curtailing the general 3 disclaimer s affirmation of the continuing validity of all 4 other benefit plan documents. 5 Yet the wording of the ERP makes this a close question. 6 It would have been advisable for the ERP s general 7 disclaimer to reference the right of termination of the 1991 8 Plan, especially in view of the specific reservation of the 9 right to modify the medical and dental plans. A specific 10 reservation of rights is especially prudent when the 11 exercise of a right of termination will dramatically revise 12 financial outcomes for plan participants, in this case by 13 replacing an annuity and life insurance benefit with a lump 14 sum payment. 15 In Paneccasio s case, however, he adduced no facts 16 raising a genuine issue of material fact as to a promise of 17 benefits notwithstanding termination. 18 constitutes a guarantee of benefits at age 65, and 19 Paneccasio has presented no evidence of any promises or 20 misrepresentations outside the ERP. 21 a promise, there can be no detrimental reliance. 22 Aramony, 191 F.3d at 151. Nothing in the ERP In the absence of such See To the extent Paneccasio relied 26 1 on his own misreading of the ERP to retire earlier than he 2 would have otherwise, his reliance was unreasonable and does 3 not support estoppel. 4 Paneccasio s ERISA claim was properly dismissed on summary 5 judgment. See id. at 152-153. On this record, 6 B. 7 ADEA 8 Paneccasio alleges that, based on his age, Alco and 9 Unisource wrongfully induced him to take early retirement in 10 1994 to his financial detriment.4 11 charge raising this claim in July 2001, seven years after 12 his retirement. 13 file a charge with the EEOC within 300 days of the allegedly 14 unlawful employment practice. 15 (2); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325-28 16 (2d Cir. 1999) (filing deadline of 180 days is extended to 17 300 days where the alleged discrimination occurs in a state 18 with its own anti-discrimination laws and enforcement 19 agency, regardless of whether the charge is initially filed 20 with the state). Paneccasio filed an EEOC Under the ADEA, Paneccasio was required to See 29 U.S.C. § 626(d)(1)- Paneccasio argues that the period between 4 Paneccasio does not argue that the termination of the 1991 Plan, effective December 31, 2000, was motivated by age bias. 27 1 his March 31, 1994 retirement and the December 31, 2000 2 termination of the 1991 Plan should be tolled because the 3 defendants fraudulently concealed his ADEA claim from him. 4 Although ADEA time periods ordinarily start running 5 upon the employer s commission of a discriminatory act, we 6 have recognized that equitable tolling might be applied if, 7 inter alia, the employee was actively misled by his 8 employer or he was prevented in some extraordinary way 9 from exercising his rights. Miller v. Int l Tel. & Tel. 10 Corp., 755 F.2d 20, 24 (2d Cir. 1985); see Zerilli-Edelglass 11 v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 12 2003) ( [E]quitable tolling is only appropriate in rare and 13 exceptional circumstances, in which a party is prevented in 14 some extraordinary way from exercising his rights. 15 (internal quotation marks, citations and alterations 16 omitted)). 17 have acted with reasonable diligence during the time period 18 she seeks to have tolled. 19 Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 20 2002). 21 exercising his ADEA rights by his employers active 22 misrepresentation of the inducements to early retirement. [T]o merit equitable relief, a plaintiff must Chapman v. ChoiceCare Long Paneccasio argues that he was prevented from 28 1 The misrepresentation claim stands on no better footing 2 than the allegations offered to support Paneccasio s ERISA 3 estoppel claim (that the ERP guaranteed payment of the 1991 4 Plan benefits when Paneccasio turned 65, and that 5 termination of the 1991 Plan would not be effective as to 6 him). 7 conclude that the ERP brochure s representations about the 8 1991 Plan do not constitute fraudulent inducement justifying 9 equitable tolling. Consistent with our ruling on the ERISA claim, we Read fairly, as a whole, the ERP did not 10 call into question the continuing validity of the 1991 Plan 11 documents, which included the termination provision. 12 termination provision explained that, if the employer 13 exercises its discretion to terminate the Plan, participants 14 would receive lump sum pay-outs, and not the monthly benefit 15 and continued life insurance. 16 when he enrolled in the 1991 Plan, he read and understood 17 the 1991 Plan s termination provision. 18 misrepresentation or ambiguity in the 1991 Plan, or the 19 ERP s discussion of the 1991 Plan, that prevented him from 20 timely exercising his rights under the ADEA, if any, with 21 respect to the offer of early retirement. 22 The Paneccasio testified that He has identified no There is no record evidence that defendants anticipated 29 1 early termination of the 1991 Plan, or euchred Paneccasio 2 into early retirement while they were planning to terminate 3 the Plan before he could begin collecting benefits. 4 Paneccasio testified that he had no information suggesting 5 that defendants knew in 1994 that the 1991 Plan would be 6 terminated in 2000. 7 defendants began discussing termination of the Plan in 1999 8 or 2000, and decided to terminate the Plan in 2000. 9 Paneccasio has thus failed to adduce evidence that he was The undisputed evidence is that 10 kept in ignorance by misleading conduct of defendants at the 11 time the ERP was offered, or since. 12 F.3d at 79-81 (upholding denial of equitable tolling where 13 plaintiff was in possession of all relevant documents and 14 failed to act diligently). 15 untimely, his ADEA claim is barred. Zerilli-Edelglass, 333 Because his EEOC charge was 16 C. 17 18 Preemption Paneccasio seeks to revive his state law claims, 19 arguing that they are not preempted by ERISA because the 20 1991 Plan is a top hat plan exempt from certain ERISA 21 requirements. 22 previously, top hat plans are not exempt from ERISA s The argument has no merit. 30 As noted 1 administration and enforcement provisions. 2 1132-1145. 3 by which ERISA supersede[s] any and all State laws insofar 4 as they may now or hereafter relate to any employee benefit 5 plan covered by ERISA. 6 exceptions not relevant here). 7 basis for holding that, of the various administration and 8 enforcement provisions, the preemption provision alone is 9 inapplicable to top hat plans. 10 See 29 U.S.C. §§ Among these provisions is the preemption rule, 29 U.S.C. § 1144(a) (with The wording provides no The preemption provisions of ERISA are deliberately 11 expansive, and designed to establish pension plan 12 regulation as exclusively a federal concern. 13 Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46 (1987) (quoting 14 Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 15 (1981)). 16 only relevant state laws, or portions thereof, that survive 17 this pre-emption provision are those relating to plans that 18 are themselves exempted from ERISA s scope. 19 U.S. at 523 n.20. 20 covered by ERISA, which necessarily includes top hat plans. 21 The purpose of ERISA preemption is to ensure that all 22 Pilot Life In Alessi, the Supreme Court observed that [t]he Alessi, 451 Preemption thus applies to every plan covered benefit plans will be governed by unified federal 31 1 law, thus simplifying life for employers administering plans 2 in several states, because [a] patchwork scheme of 3 regulation would introduce considerable inefficiencies in 4 benefit program operation. 5 Coyne, 482 U.S. 1, 11 (1987). 6 on benefit plans if faced with the expense and difficulty of 7 satisfying varied and conflicting requirements of state 8 laws. 9 n.25 (1983). Fort Halifax Packing Co. v. Employers might well cut back See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 105 We see no reason to create an exception for 10 top hat plans, and subject them to the impracticalities and 11 counter-incentives of state-level interference in their 12 administration. 13 agree, dismissing state law claims that involve top hat 14 plans. 15 242-43 (1st Cir. 2002) (affirming dismissal based on 16 preemption of state law breach of contract claim for top hat 17 benefits); Reliable Home Health Care, Inc. v. Union Cent. 18 Ins. Co., 295 F.3d 505, 516 (5th Cir. 2002) (affirming 19 dismissal based on preemption of state law fraud claims 20 because [t]he underlying conduct alleged by [plaintiff] 21 cannot be severed from its connection to the [top hat] 22 Plan ); see also Starr v. MGM Mirage, No. 2:06-cv-00616, Other circuits that have reached this issue See Cogan v. Phoenix Life Ins. Co., 310 F.3d 238, 32 1 2006 WL 3290299, at *3 (D. Nev. Nov. 7, 2006) (dismissing as 2 preempted plaintiff s state law claims for breach of 3 fiduciary duty, fraud, oppression and malice relating to a 4 top hat plan); cf. Garratt v. Knowles, 245 F.3d 941, 944-45, 5 949 (7th Cir. 2001) (holding that state law complaint 6 seeking benefits under top hat plan was properly removed to 7 federal court because all state law claims were preempted). 8 Accordingly, we hold that ERISA preempts state law claims 9 that relate to top hat plans. 10 Preemption in this case depends on whether Paneccasio s 11 state law claims relate to the 1991 Plan. 12 to an employee benefit plan, in the normal sense of the 13 phrase, if it has a connection with or reference to such a 14 plan. 15 claims, ERISA preempts those that provide an alternative 16 cause of action to employees to collect benefits protected 17 by ERISA, refer specifically to ERISA plans and apply solely 18 to them, or interfere with the calculation of benefits owed 19 to an employee. 20 142, 146 (2d Cir. 1989). 21 ERISA preempts those that seek to rectify a wrongful denial 22 of benefits promised under ERISA-regulated plans, and do not Shaw, 463 U.S. at 96-97. A law relates As to state statutory Aetna Life Ins. Co. v. Borges, 869 F.2d As to state common law claims, 33 1 attempt to remedy any violation of a legal duty independent 2 of ERISA. 3 (2004); see Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 4 145 (1990) (ERISA preempts claims that purport[] to provide 5 a remedy for the violation of a right expressly granted by 6 [ERISA] ). 7 Aetna Health Inc. v. Davilla, 542 U.S. 200, 214 Paneccasio s state law claims sound in breach of 8 contract, breach of the covenant of good faith and fair 9 dealing, violation of the Connecticut Unfair Trade Practices 10 Act, reckless misrepresentation, negligent 11 misrepresentation, and tortious interference with contract. 12 Each claim is premised on the termination of the 1991 Plan 13 and resulting denial of benefits under that Plan; each makes 14 explicit reference to the Plan; and each would require 15 reference to the Plan in the calculation of any recovery. 16 Consequently, each of Paneccasio s state law claims relates 17 to a covered plan and is preempted by ERISA. 18 v. Transp. Commc n Int l Union, 173 F.3d 94, 101 (2d Cir. 19 1999) (applying preemption to contract claim that 20 challenges the [union s] effort to modify [a medical 21 benefits] plan ); Kolasinski v. Cigna Healthplan of CT, 22 Inc., 163 F.3d 148, 149 (2d Cir. 1998) (per curiam) 34 Accord Devlin 1 (applying preemption to breach of contract and unfair trade 2 practices claims arising out of failure to pay medical 3 benefits); Smith v. Dunham-Bush, Inc., 959 F.2d 6, 10 (2d 4 Cir. 1992) (applying preemption to breach of contract and 5 negligent misrepresentation claims because the oral 6 representation underlying this suit deals expressly and 7 exclusively with the appellant s [pension] benefits ). 8 9 10 For the foregoing reasons, the judgment of the district court is affirmed. 35

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