WHEELER v. WESTMORELAND RETIREMENT PLAN, 1999 U.S. App. LEXIS 11851(4th Cir. June 8, 1999) (unpublished)-Before ERVIN, Circuit Judge, VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation, and FABER, United States District Judge for the Southern District of West Virginia, sitting by designation.
From 1968 to August 1977 Plaintiff was a participant in the union plan. In August 1977 Plaintiff transferred to a salary position and became a participant in the Defendant Plan. Prior to ERISA's effective date the Defendant Plan gave person's who transferred from the union plan credit for their year's of service with the union plan. The Defendant Plan gave four employees credit for their pre-ERISA service with the union plan. The Defendant Plan said this was a mistake but did not correct it since the four employees were receiving benefits. Some of Plaintiff's benefit statements from the defendant plan gave plaintiff credit for the pre-ERISA years of service with the union plan. The 1984 plan stated that a person transferring from the union plan to the Defendant Plan, after the effective date of ERISA, December 1, 1976, would not receive credit for the union years of service.
In 1992, when plaintiff was terminated, Plaintiff applied for a pension benefit based on 24 years of service. (9 union years and 1 salary years. Based on the 1984 plan, the plan committee denied benefits. The committed also determine that the erroneous benefit statements and the alleged statements of a Westmoreland employee did not create an informal plan.
District Court granted summary judgment to Defendant Plan. The District Court did not agree with Plaintiff's arguments there was an informal plan. The Fourth Circuit has noted that "an informal plan may exist independent of, and in addition to, a formal plan as long as the informal plan meets all of the elements outlined in Donovan." Elmore v. Cone Mills Corp., 23 F.3d 855, 861 (4th Cir. 1994). In Donovan v. Dillingham, the Eleventh Circuit ruled that an informal plan could exist "if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits." 688 F.2d 1367, 1373 (11th Cir. 1982).
District Court held there was no informal plan since plaintiff did not have evidence of the fourth element.
Fourth Circuit affirmed the District Court's granting of summary judgment. "In Elmore, when this court found that an informal plan could exist under Donovan, we cited Henglein v. Informal Plan for Plant Shutdown Benefits for Salaried Employees, 974 F.2d 391, 400 (3d Cir. 1992), for the proposition that an informal plan could exist alongside a formal plan in the absence of an integration clause. See Elmore, 23 F.3d at 861. In this case, the formal plan contains such a clause which excludes the possibility of an informal plan. Wheeler's contention that there was an informal plan is without merit."
