20-4081 Soto v. Disney Severance Pay Plan, et al.

1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ______________ 6 7 August Term, 2020 8 9 (Argued: June 22, 2021 Decided: February 16, 2022) 10 11 Docket No. 20-4081 12 ______________ 13 14 NANCY J. SOTO, 15 16 Plaintiff–Appellant, 17 18 –v.– 19 20 DISNEY SEVERANCE PAY PLAN, INVESTMENT AND ADMINISTRATIVE 21 COMMITTEE OF THE WALT DISNEY COMPANY SPONSORED QUALIFIED BENEFIT 22 PLANS AND KEY EMPLOYEES DEFERRED COMPENSATION AND RETIREMENT 23 PLAN, THE WALT DISNEY COMPANY, 24 25 Defendants–Appellees. * 26 27 ______________ 28 29 B e f o r e: 30 31 CARNEY, SULLIVAN, and BIANCO, Circuit Judges. 32 33 ______________ 34

* The Clerk of Court is directed to amend the caption to conform to the above. 1 Plaintiff-Appellant Nancy J. Soto, a former employee of The Walt Disney

2 Company (“Disney”), alleges that Disney improperly denied her severance benefits

3 upon her termination for physical illness that rendered her unable to work. She brings

4 claims against Defendants-Appellees Disney, the Disney Severance Pay Plan, and the

5 Plan Administrator, under Section 502(a)(1)(B) & (a)(3) of the Employee Retirement

6 Income Security Act of 1974 (“ERISA”),

(a)(1)(B) & (a)(3), alleging that

7 the Plan Administrator improperly determined that she did not experience a qualifying

8 “Layoff” as required for severance benefits. We conclude that, because the operative

9 Amended Complaint does not plausibly allege that the interpretation of “Layoff” and

10 resulting denial of severance benefits to Soto were arbitrary and capricious, the District

11 Court (Nathan, J.) did not err in dismissing Soto’s claims.

12 AFFIRMED. 13 14 Judge Sullivan dissents in a separate opinion. ______________ 15 16 DAVID S. PREMINGER, Keller Rohrback L.L.P., New York, NY, 17 for Plaintiff-Appellant. 18 19 SHAILEE DIWANJI SHARMA (Andrew A. Ruffino, Robert S. 20 Newman, on the brief), Covington & Burling LLP, New 21 York, NY & Washington, D.C., for Defendants- 22 Appellees. ______________

23 CARNEY, Circuit Judge:

24 Plaintiff-Appellant Nancy J. Soto is a former employee of The Walt Disney

25 Company (“Disney”). After a stroke and other serious medical issues left her unable to

26 work, Disney terminated her employment. Although Disney paid Soto disability

27 benefits, it did not pay her severance benefits under the Disney Severance Pay Plan (the

28 “Plan”). The Plan Administrator—the Investment and Administrative Committee of

2 1 The Walt Disney Company Sponsored Qualified Benefit Plans and Key Employees

2 Deferred Compensation and Retirement Plan (the “Committee”)—determined that Soto

3 was ineligible for severance because she had not experienced a qualifying “Layoff” as

4 defined in the Plan. Soto subsequently brought claims against Defendants-Appellees

5 Disney, the Plan, and the Plan Administrator under Section 502(a)(1)(B) & (a)(3) of the

6 Employee Retirement Income Security Act of 1974 (“ERISA”),

(a)(1)(B)

7 & (a)(3). She alleges that the Plan Administrator improperly denied her severance by

8 deciding that, as defined by the Plan, a “Layoff” excluded a termination based on

9 disability. We conclude that the Amended Complaint does not plausibly plead that this

10 interpretation of “Layoff” and the resulting denial of severance benefits to Soto were

11 arbitrary and capricious. The District Court therefore did not err in dismissing the

12 claims. We accordingly affirm its judgment.

13 BACKGROUND

14 I. ERISA § 502(a)(1)(B) & (a)(3)

15 Section 502 of ERISA authorizes “participant[s]” in an employee benefit plan to

16 bring a civil action (i) “to recover benefits due to [them] under the terms of [their] plan,”

17 see ERISA § 502(a)(1)(B),

(a)(1)(B), and (ii) “to obtain other appropriate

18 equitable relief . . . to redress . . . violations or . . . enforce any provisions of” ERISA or

19 “the terms of the plan,” see ERISA § 502(a)(3),

(a)(3). A qualifying “plan”

20 subject to ERISA is any “employee welfare benefit plan or an employee pension benefit

21 plan.” 29 U.S.C § 1002(3). There is no dispute that ERISA governs the Plan.

3 1 II. Soto’s Complaint 1

2 In 2019, Soto brought suit against Disney, the Plan, and the Plan Administrator

3 after her claim for severance benefits was denied. 2 The operative Amended Complaint

4 (the “Complaint”) asserted two sets of claims relevant on appeal: first, that Soto was

5 due a severance payment of $44,277 under the Plan, see ERISA § 502(a)(1)(B), 29 U.S.C.

6 § 1132(a)(1)(B) (Counts I and II); and second, that the Plan language should be reformed

7 to conform with certain requirements of ERISA, see ERISA § 502(a)(3),

1132(a)(3) (Count V). On appeal, Soto does not challenge the dismissal of the other

9 counts of the Complaint.

10 The Complaint alleges that Soto was a longtime employee of Disney. In 2016 and

11 2017, she experienced a severe stroke and other medical problems, which left her

12 disabled and unable to work. In January 2018, Disney formally terminated Soto’s

13 employment. Although Disney paid Soto sick pay, short-term illness benefits, and long-

14 term disability benefits, it did not pay her severance benefits under the Plan. In June

15 2018, Soto applied for Plan benefits. Soto’s application was denied because she was

16 deemed not to have experienced a qualifying “Layoff” as required for Plan eligibility.

1On appeal from a grant of a motion to dismiss, we draw the factual narrative from the Amended Complaint, materials incorporated by reference into the complaint, and matters of which judicial notice may be taken, including relevant statutes and regulations. See Goel v. Bunge, Ltd.,

(2d Cir. 2016).

2Although the Complaint includes unidentified members of the Committee as defendants, these John Does are not parties to this appeal. For convenience, we refer to Defendants- Appellees as “Defendants.”

4 1 A. The Plan Terms

2 The Plan is incorporated by reference into the Complaint. It “provides severance

3 benefits” to “Eligible Employees” of the Plan “Sponsor,” Disney. App’x at 26, 38. To

4 qualify for these benefits, individuals must satisfy three conditions: they must (1) be an

5 “Eligible Employee,” (2) be notified in writing that they are a Plan “Participant,” and

6 (3) have experienced a “Layoff.” Id. at 29.

7 The Plan defines “Layoff” as:

8 The involuntary termination of employment of an Eligible Employee 9 from the Company, except for reasons of poor performance or 10 misconduct as determined by the Company [Disney] in its sole and 11 absolute discretion. Notwithstanding the foregoing, in no event will an 12 involuntary termination of employment be considered a Layoff if such 13 involuntary termination does not qualify as a “separation of service” 14 within the meaning of Section 409A of the Code and Treasury Regulation 15 1.409A-1(h).

16 Id. at 28.

17 The Plan confers discretion on the Plan Administrator to interpret and apply

18 Plan terms. Section 8(b) of the Plan (“Plan Interpretation and Benefit Determination”)

19 explains:

20 The Plan is administered and operated by the Plan Administrator, who 21 has complete authority, in its sole and absolute discretion, to construe 22 the terms of the Plan (and any related underlying documents or polices), 23 to interpret applicable law, to make findings of fact and to determine the 24 eligibility for, and amount of, benefits due under the Plan to 25 Participants[.]

26 Id. at 36. Other sections of the Plan set out standards for how the Plan Administrator

27 should exercise its discretion in construing Plan terms. For instance, Section 4(g)

28 (“Integration With Other Payments”) states that:

29 benefits under this Plan are not intended to duplicate such benefits as 30 workers’ compensation[,] wage replacement benefits, disability benefits, 31 pay-in-lieu-of-notice, severance pay, or similar benefits under other

5 1 benefit plans . . . . Should such other benefits . . . be payable, benefits 2 payable to a Participant under this Plan will be offset . . . . [T]he Plan 3 Administrator, in its sole discretion, will determine how to apply this 4 provision and may override other provisions of this Plan in doing so.

5 Id. at 32.

6 Section 7(h)(iv) (“General 409A Compliance”) explains that severance benefits

7 paid under the Plan are not intended to be taxable deferred compensation to the

8 employee pursuant to Section 409A of the Internal Revenue Code. See 26 U.S.C

9 § 409A(a)(1) (treating as taxable certain “deferred” compensation under employer

10 benefit plans). To that end, the Plan Administrator is directed to interpret Plan terms in

11 conformance with Section 409A and its exemptions from taxation:

12 [I]t is intended that the Plan comply with the provisions of section 409A 13 of the Code, and the Plan shall be construed and applied by the Plan 14 Administrator in a manner consistent with this intent. Any provision 15 that would cause any amount payable under the Plan to be includible in 16 the gross income of a[n] Employee under section 409A(a)(1) of the Code 17 shall have no force or effect.

18 App’x at 35; see, e.g.,

.409A-1(b)(9)(iii) (Section 409A regulation providing

19 that, where a “separation pay [i.e., severance] plan . . . provides for separation pay only

20 upon an involuntary separation from service,” payments under that plan are not taxable

21 “defer[red] compensation” under Section 409A (emphasis added)).

22 Reflecting the principle that the Plan should conform with Section 409A, the

23 definition of “Layoff” expressly incorporates a Section 409A regulation defining

24 “separation from service”: “[I]n no event will an involuntary termination of

25 employment be considered a Layoff if such involuntary termination does not qualify as

26 a ‘separation of service’” under 26 C.F.R § 1.409A-1(h). App’x at 28. “Separation from

27 service” in turn is defined under that regulation as a “termination of employment” in

28 which “the employer and employee reasonably anticipate[] that no further services

29 would be performed.”

.409A-1(h)(1)(i)-(ii). A related Section 409A

6 1 regulation,

.409A-1(n)(1), defines an “involuntary separation from service”

2 as a “separation from service [i.e., a termination of employment] due to the

3 independent exercise of the unilateral authority of the” employer “where the

4 [employee] was willing and able to continue performing services.”

(emphasis

5 added).

6 B. Denial of Soto’s Claim for Severance

7 Soto’s claim for severance benefits was denied in two letters incorporated by

8 reference into the Complaint. In the first letter, dated August 13, 2018, the Plan

9 Administrator determined that Soto had not met two of the three eligibility

10 requirements under the Plan: she had neither experienced a qualifying “Layoff” nor

11 received notice that she was a Plan “Participant” because she did not satisfy the

12 “Layoff” requirement. See App’x at 79. The Plan Administrator explained that Soto’s

13 termination based on an “inability to return to work on account of her disabling illness”

14 fell outside the Plan definition of “Layoff.”

It further explained that, while these

15 circumstances qualified Soto to receive sick pay, short-term illness benefits, and long-

16 term disability benefits, they did not qualify her to receive severance benefits under the

17 Plan terms.

18 In the second letter, dated November 21, 2018, a Subcommittee of the Plan

19 Administrator upheld the denial of severance benefits. The Subcommittee agreed with

20 the Plan Administrator’s reasoning in the prior letter that Soto had not experienced a

21 qualifying “Layoff” or received notice that she was a Plan “Participant.” As the second

22 letter explained, because “Ms. Soto’s employment with the Company ended on account

23 of her inability to return to work following a disabling illness,” such “circumstances did

24 not constitute a ‘Layoff’ for purposes of Plan eligibility.”

. Nor did Soto “meet

25 the separate requirement for Plan eligibility in that she was never informed in writing

26 by the Company that the circumstances of her separation of employment qualified her

7 1 for Plan benefits.”

2 C. Soto’s Theory of the Case

3 The Complaint pleads both claims for damages and equitable relief. Soto first

4 alleges that she is entitled to severance benefits of approximately $44,277, arguing that

5 the Plan Administrator erred in concluding that she did not meet the “Layoff” or notice

6 eligibility requirements (Counts I and II). App’x at 48, 50; see also

(Am. Compl.

7 ¶ 45). With respect to the “Layoff” requirement, the Complaint alleges that “Plaintiff’s

8 Termination was a ‘Layoff’ within the Plan’s unambiguous definition of that term.

9 Alternatively, if the term Layoff is found to be ambiguous, Defendants’ interpretation of

10 the term Layoff is arbitrary and capricious.”

(Am. Compl. ¶ 23); see also

,

11 53 (Am. Compl. ¶¶ 34, 41). With respect to the notice requirement, the Complaint

12 pleads that, because Soto did not receive notice solely on the ground that she had not

13 experienced a “Layoff,” “Disney must notify her of her entitlement to benefits” under a

14 correct interpretation of that term.

(Am. Compl. ¶ 26). In the alternative, Soto

15 seeks equitable relief (Count V) to “reform” the Plan “to comply with ERISA[’s]”

16 requirements that a plan contain certain information and be written in a manner for the

17 average participant to understand, as well as with “Plaintiff’s reasonable understanding

18 of [the Plan] terms.”

(Am. Compl. ¶ 57). The Complaint alleges that “as

19 reformed[,] Plaintiff should be granted benefits” under the Plan.

(Am. Compl. ¶ 57).

20 III. Procedural History

21 Soto filed this action in May 2019. After Defendants moved to dismiss the

22 original complaint, but before that motion was adjudicated, Soto amended her

23 complaint. Defendants moved again to dismiss. As the parties were briefing that second

24 motion, Soto filed the operative Complaint, which the District Court deemed the subject

25 of the pending motion to dismiss.

8 1 On November 9, 2020, the District Court granted Defendants’ motion to dismiss.

2 See Soto v. Disney Severance Pay Plan, No. 19 Civ. 4048,

(S.D.N.Y. Nov.

3 9, 2020). 3 The District Court held that “Plaintiff has pled herself out of court” because

4 the Complaint “admits” that Soto did not receive notice of her eligibility under the Plan

5 as required for severance benefits.

. Because the absence of such notice was

6 sufficient for dismissal, the District Court did not reach the separate issue of whether

7 Soto had plausibly alleged that the Plan Administrator erred in concluding she did not

8 experience a qualifying “Layoff.”

. Soto timely appealed.

9 DISCUSSION

10 We review de novo the grant of a motion to dismiss under Federal Rule of Civil

11 Procedure 12(b)(6). Testa v. Becker,

(2d Cir. 2018). Although we

12 “accept[] all factual allegations in the complaint as true and draw[] all reasonable

13 inferences in the plaintiff’s favor,”

we must dismiss a claim if a plaintiff “plead[s]

14 himself out of court by alleging facts which show that he has no claim,” Official Comm. of

15 Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP (Color Tile),

,

16 167 (2d Cir. 2003). “We may affirm on any ground the record supports, and are not

17 limited to the reasons expressed by the district court.” Laurent v. PricewaterhouseCoopers

18 LLP,

, 273 n.1 (2d Cir. 2015).

19 I. Soto’s Claims for Benefits (Counts I and II)

20 We affirm the dismissal of Soto’s claims for severance benefits under ERISA

21 § 502(a)(1)(B),

(a)(1)(B), but for a different reason than relied on by the

3Unless otherwise noted, in quotations from case law, this Opinion omits all alterations, brackets, citations, emphases, and internal quotation marks.

9 1 District Court. 4 We conclude that the Complaint does not plausibly allege that the Plan

2 Administrator was arbitrary and capricious in denying Soto severance benefits on the

3 ground that she did not experience a qualifying “Layoff.” To the contrary, the

4 Complaint pleads facts evincing that the Plan Administrator’s determination was

5 reasonable and must be upheld. See Color Tile,

(requiring dismissal

6 where plaintiff “alleg[es] facts . . . show[ing] that he has no claim”).

7 A. The Complaint Pleads the Conditions Triggering Arbitrary and 8 Capricious Review of the Plan Administrator’s Decisions

9 We begin by explaining why Soto’s claims are subject to an arbitrary and

10 capricious standard. It has long been established under ERISA that, “where (as in this

11 case) the relevant plan vests its administrator with discretionary authority over benefits

12 decisions . . . the administrator’s decisions may be overturned only if they are arbitrary

13 and capricious.” Roganti v. Metro. Life Ins. Co.,

(2d Cir. 2015). Thus,

14 arbitrary and capricious review is proper for decisions involving the exercise of the

15 administrator’s discretion, as when it interprets ambiguous plan terms. But when an

16 administrator is interpreting unambiguous plan terms, we generally apply a de novo

17 standard of review because “unambiguous language leaves no room for the exercise of

18 discretion.” O’Neil v. Ret. Plan for Salaried Emps. of RKO Gen., Inc.,

, 59 (2d Cir.

19 1994).

20

4As discussed, the District Court dismissed Soto’s claims because the Complaint concedes that Soto did not receive notice of eligibility. See Soto,

, at *3. But Soto’s theory is that Defendants improperly withheld notice under an incorrect view that she did not experience a “Layoff.” At bottom, Soto’s claims turn on the propriety of the Plan Administrator’s interpretation of “Layoff.” Accordingly, we must decide whether the Complaint plausibly alleges that this interpretation, and the consequent denial of severance benefits to Soto, were improper.

10 1 The Complaint and materials that it incorporates by reference show that the Plan

2 Administrator is vested with the discretion to determine whether an employee

3 experienced a qualifying “Layoff” and is eligible for severance benefits. Section 8(b) of

4 the Plan contains the unequivocal language conferring this discretion: the Plan is

5 “administered and operated by the Plan Administrator, who has complete authority, in its

6 sole and absolute discretion, to construe the terms of the Plan . . . , to interpret applicable

7 law, to make findings of fact and to determine the eligibility for, and amount of,

8 benefits due under the Plan[.]” App’x at 36 (emphasis added); see, e.g., Roganti,

at 205 n.2 (finding sufficient for conferral of discretion plan language that authorizes

10 administrator to “determine[] in its discretion that the applicant is entitled to” benefits).

11 We further conclude that the term “Layoff” is ambiguous, thereby requiring the

12 Plan Administrator to use its discretion to determine whether the term applies in Soto’s

13 circumstances. “Whether [plan] language is ambiguous is a question of law” for the

14 court, turning on whether the language is reasonably “capable of more than one

15 meaning” within the “context of the entire” plan. Fay v. Oxford Health Plan,

,

16 104 (2d Cir. 2002).

17 The Plan defines “Layoff” as “[t]he involuntary termination of employment . . .

18 except for reasons of poor performance or misconduct as determined by the Company

19 [Disney] in its sole and absolute discretion,” subject to a substantive limitation: that,

20 “[n]otwithstanding the foregoing” general definition, the phrase “involuntary

21 termination of employment” may in no event “be considered a Layoff if such

22 involuntary termination does not qualify as a ‘separation of service’ within the meaning

23 of Section 409A of the Code and Treasury Regulation 1.409A-1(h).” See App’x at 28; 26

.409A-1(h)(1)(i)-(ii) (defining “termination of employment” as the

25 circumstance when “the employer and employee reasonably anticipated that no further

11 1 services would be performed”). Consistency with this regulation is therefore a

2 necessary condition for identifying a qualifying “Layoff.”

3 It is not, however, a sufficient condition because the Plan further leaves the

4 phrase “involuntary termination of employment” undefined. We find this phrase

5 ambiguous as to whether it embraces a termination based on disability. On the one

6 hand, an “involuntary termination” may be interpreted broadly to mean any

7 circumstance in which an employee does not affirmatively choose to leave work but is

8 forced to do so by external circumstances, such as physical disability. See, e.g.,

9 Involuntary, Oxford English Dictionary Online,

10 https://www.oed.com/viewdictionaryentry/Entry/99193 (defining “involuntary” as “not

11 done . . . by choice”). But on the other hand, the phrase may reasonably be interpreted

12 more narrowly to refer to circumstances in which an employee would otherwise

13 continue working but for the termination forced upon her by the employer. Such a

14 termination is “involuntary” because it is opposed to the employee’s choice to continue

15 working. Implicit in the employee having such a choice is that she is able to continue

16 working. This second interpretation is narrower than the first because the obstruction to

17 the employee’s choice is not any external circumstance, but a circumstance mainly

18 within the employer’s own control and discretion.

19 Considering an “involuntary termination” in the “context of the entire” Plan

20 reinforces this ambiguity. See Fay,

(“Language is ambiguous when it is

21 capable of more than one meaning when viewed objectively by a reasonably intelligent

22 person who has examined the context of the entire agreement.”). Section 7(h)(iv) of the

23 Plan instructs that the Plan “shall be construed and applied by the Plan Administrator

24 in a manner consistent with” “the provisions of section 409A of the [Internal Revenue]

25 Code.” App’x at 35. A regulation promulgated under Section 409A,

.409A-

26 1(n)(1), defines an “involuntary” “termination of employment” as one arising from “the

12 1 independent exercise of the unilateral authority of the [employer] to terminate the

2 [employee’s] services, . . . where the [employee] was willing and able to continue

3 performing services.” 5

(emphasis added). So, notwithstanding the broad meaning

4 that an “involuntary termination of employment” might bear, this regulation—with

5 which the Plan requires the Plan Administrator to comply in construing Plan terms, see

6 App’x at 35—supports the narrower interpretation that the phrase excludes a

7 termination based on disability.

8 Further reinforcing the view that the phrase, considered in context, is ambiguous

9 is Section 4(g) of the Plan (“Integration With Other Payments”).

. In outlining

10 Plan benefits, Section 4(g) provides that “benefits under this Plan are not intended to

11 duplicate . . . disability benefits.”

This provision suggests that an “involuntary

12 termination” excludes a termination arising from disability. But Section 4(g) also

13 provides a mechanism for offsetting Plan benefits by any amounts paid for certain listed

14 benefits, including disability benefits: “[B]enefits under this Plan are not intended to

15 duplicate such benefits as workers’ compensation[,] wage replacement benefits,

16 disability benefits, pay-in-lieu-of-notice, severance pay, or similar benefits under other

17 benefit plans . . . . Should such other benefits . . . be payable, benefits payable to a

18 Participant under this Plan will be offset.”

This offset mechanism might suggest that

19 the Plan covers terminations based on disability and anticipates offsetting such benefits

20 in the event that similar disability benefits are paid out under other plans. Alternatively,

21 however, the offset mechanism might simply be a failsafe to prevent overlap between

22 Plan benefits and certain other listed benefits that are more likely to be duplicative than

5Regulation 1.409A-1(n) defines an “involuntary separation from service,” and a “separation from service” in turn is defined as a “termination of employment.”

.409A-1(h)(1)(i)-(ii) & (n)(1). Thus, Regulation 1.409A-1(n) in effect is defining an “involuntary termination of employment”—the same phrase found in the Plan definition of “Layoff.”

13 1 disability benefits, such as “severance pay . . . under other benefits plans [and]

2 severance programs.”

Indeed, Section 4(g) sets out an illustrative list of benefits,

3 including disability benefits, to identify them as benefits that the Plan is not intended to

4 duplicate. But the offset mechanism refers back to this whole list for ease, even though

5 the list may be overinclusive of the types of benefits that the offset mechanism is

6 expected to cover. Section 4(g) therefore reasonably may be read to cut either for or

7 against the Plan’s coverage of termination based on disability.

8 In light of the ambiguity of “Layoff” read as defined by the Plan and in the

9 overall context of the Plan, the Complaint evinces that the Plan Administrator must

10 exercise its discretion in construing this term, and its interpretation is subject to

11 arbitrary and capricious review. 6

6Our dissenting colleague would find the terms “Layoff” and “involuntary termination” unambiguous as used in the Plan. For the reasons set out in the text, we respectfully disagree. The incorporation of Section 409A terms, regulations, and constraints into the Plan’s directives with regard to determining qualifying “Layoffs” is not as straightforward as the Dissent conceives. These embedded references to multi-layered provisions of the Internal Revenue Code effectively remove the relevant Plan terms from the type of “plain meaning” analysis for which the Dissent advocates; they create ambiguity and commit interpretation and application of the operative Plan provisions to the discretion of the Plan Administrator. Further, although the Dissent points out hypothetical circumstances in which the Plan administrator might deny an applicant’s request for severance pay under the interpretations adopted here, we think the hypothetical is overdrawn: factual differences that would emerge in a real life scenario could well diminish the likelihood of such anomalous results, in the exercise of the Plan Administrator’s reasoned discretion. Finally, the dissent acknowledges that the Plan’s benefit offset provisions also likely mean that the ultimate result for Soto of our Court’s adopting the dissent’s “no-ambiguity” approach probably “wouldn’t amount to much” and would be a “pyrrhic victory.” Dissent at 9. To us, this recognition offers further confirmation that our reading of the Plan is consistent with the general, overall intentions of the Plan as reflected in its language and as carried out by the Plan Administrator in Soto’s case when it declined to provide her a notice of eligibility.

14 1 B. The Complaint Pleads the Reasonable Bases for the Plan Administrator’s 2 Interpretation of “Layoff” and Denial of Severance Benefits

3 For the Complaint to state a claim upon which relief may be granted, it must

4 plead that the Plan Administrator’s interpretation of “Layoff” and consequent denial of

5 severance benefits to Soto were arbitrary and capricious. See Roganti,

,

6 211, 217 (explaining that arbitrary and capricious review entails “assessing the

7 reasonableness” of an administrator’s decision in a “highly deferential” manner such

8 that a decision may be overturned only if it is “without reason, unsupported by

9 substantial evidence or erroneous as a matter of law”). Far from pleading that the Plan

10 Administrator’s determinations were without reason, the Complaint and incorporated

11 materials evince the reasoned bases for the determinations. As a result, Soto does not

12 have a viable claim.

13 The pleadings demonstrate that the Plan Administrator reasonably interpreted

14 “Layoff” to exclude a termination based on disability consistent with Section 409A of

15 the Internal Revenue Code. As discussed, Section 7(h)(iv) of the Plan (entitled “General

16 409A Compliance”) mandates that Plan terms be interpreted to “comply with the

17 provisions of [S]ection 409A of the [Internal Revenue] Code.” App’x at 35. Regulation

18 1.409A-1(n)(1), promulgated to effectuate Section 409A, in turn defines an

19 “involuntary” “termination of employment”—the same phrase in the definition of

20 “Layoff”—as excluding a termination based on disability: such a termination occurs only

21 when an employee who “was willing and able to continue performing services” is

22 terminated by the employer’s “unilateral authority.”

.409A-1(n)(1)

23 (emphasis added). 7 Because the Plan requires compliance with Section 409A, the Plan

7Soto argues that because the definition of “Layoff” expressly references only Regulation 1.409A-1(h)(1) (defining “termination of employment”) and not Regulation 1.409A-1(n)(1) (defining “involuntary” termination of employment), we cannot consider the latter

15 1 Administrator acted reasonably in selecting an interpretation of “Layoff” consistent

2 with this section.

3 The Plan makes clear that this consistency is important to ensure that severance

4 benefits are not deemed taxable “deferred” compensation under Section 409A, 26 U.S.C

5 § 409A(a)(1). As the Plan instructs, “[a]ny provision that would cause any amount

6 payable under the Plan to be includible in the gross income of a[n] Employee under

7 section 409A(a)(1) of the Code shall have no force or effect.” App’x at 35. Thus, the Plan

8 “shall be construed and applied by the Plan Administrator in a manner consistent with

9 this intent.” Id. Significantly, Section 409A regulations exempt from taxation certain

10 benefit payments, and the applicability of such exemptions turns on whether the

11 benefits are paid upon an “involuntary separation from service [i.e., termination of

12 employment].” See, e.g.,

.409A-1(b)(4) & (d)(1) (exempting from taxation

13 benefits that are paid within a certain timeframe defined with reference to whether

14 there was an “involuntary separation from service”) 8; see also

§ 1.409A-1(b)(9)(iii)

regulation in interpreting “Layoff.” See

.409A-1(h)(1)(ii) & (n)(1). This argument is without merit. The Plan Administrator is directed to ensure that Plan terms conform with Section 409A overall, not just with Regulation 1.409A-1(h)(1) referenced in the definition of “Layoff.” See App’x at 35. Furthermore, the definition of “Layoff” requires that an “involuntary termination of employment” be interpreted at a minimum consistent with the meaning of “termination of employment” in Regulation 1.409A-1(h)(1). But the definition in no way permits the Plan Administrator to ignore other Section 409A regulations, particularly not the highly relevant interpretation of an “involuntary” termination of employment in Regulation 1.409A-1(n)(1).

8As Disney explains, the Plan is designed to conform with this “short-term deferral” exemption in

.409A-1(b)(4), applying to benefits paid within a short timeframe after the benefits vest and are no longer subject to “a substantial risk of forfeiture.” See Disney Br. at 23-24 n.7. At what point there is no longer a “substantial risk of forfeiture” depends on whether severance benefits are paid upon an “involuntary separation from service.”

.409A-1(d)(1). Consequently, proper application of the short-term deferral exemption turns on interpreting “involuntary separation from service” in a way that is consistent with Regulation 1.409A-1(n)(1).

16 1 (exempting from taxation certain severance benefits that are paid “only upon an

2 involuntary separation from service”). Such provisions highlight the necessity for the

3 Plan Administrator to interpret an “involuntary” termination of employment

4 consistently with Section 409A to ensure that Plan benefits will receive the intended tax

5 treatment under the Plan.

6 Because we conclude that the Plan Administrator had reasoned bases for its

7 interpretation of “Layoff” and consequent denial of severance benefits, Soto’s claims

8 challenging the denial of these benefits are not viable. See Roganti,

(an

9 administrator’s “decision is intended to be final—within the bounds of the highly

10 deferential arbitrary-and-capricious standard—and not merely an input with the

11 potential to assist the Court in making the ultimate determination” of eligibility). We

12 affirm the dismissal of these claims.

13 II. Reformation Claim (Count V)

14 We also affirm the dismissal of Soto’s reformation claim in Count V.

15 Section 502(a)(3) of ERISA,

(a)(3), authorizes a plan “participant,

16 beneficiary, or fiduciary . . . to obtain . . . appropriate equitable relief,” including

17 reformation of a severance benefits plan. See Laurent v. PricewaterhouseCoopers LLP, 945

, 748 (2d Cir. 2019) (Section “502(a)(3) authorizes district courts to grant

19 equitable relief—including reformation—to remedy violations of subsection I of ERISA,

20 even in the absence of mistake, fraud, or other conduct traditionally considered to be

21 inequitable.”).

22 As we found in the prior section, Soto has not plausibly alleged that she is a Plan

23 “participant” entitled to bring a claim for equitable relief.

(a)(3). This is

24 because she has not plausibly alleged that the Plan Administrator acted arbitrarily or

25 capriciously in determining that she failed to meet the eligibility requirements for Plan

26 participation. Nor has Soto claimed to be a “beneficiary” or “fiduciary” of the Plan.

17 1 Accordingly, under the plain terms of Section 1132(a)(3), Soto does not have a viable

2 claim for reformation.

3 CONCLUSION

4 We have considered Soto’s remaining arguments on appeal and find in them no

5 basis for reversal. 9 The judgment of the District Court is AFFIRMED.

9In light of Soto’s previous opportunities to amend her pleading and the bases for our decision, permitting further amendment of the Complaint would be futile. We accordingly deny Soto’s request for leave to further amend. Chunn v. Amtrak,

(2d Cir. 2019) (“Leave to amend may be denied if the proposed amendment would be futile.”).

18 RICHARD J. SULLIVAN, Circuit Judge, dissenting:

I respectfully disagree with the majority’s interpretation of the term

“Layoff” in the Plan documents. In my view, the Plan’s definition of “Layoff” is

clear and unambiguous, and includes terminations due to disability. It therefore

follows that the Plan Administrator’s decision to withhold notice stating that Soto

was a Plan Participant – a decision based solely on the Plan Administrator’s

determination that Soto’s termination was not a Layoff – was arbitrary and

capricious, and that the subsequent denial of Soto’s benefits was also arbitrary and

capricious. Accordingly, I would vacate the district court’s judgment and remand

for further proceedings.

The basic facts and procedural history of this case are not in dispute. Soto

is a former employee of the Walt Disney Company. In 2016 and 2017, she suffered

significant medical problems, including a severe stroke, that left her disabled and

unable to work. Disney placed Soto on “leave of absence status” on December 8,

2016, and Soto received sick pay and short-term illness benefits from December 10,

2016 to March 18, 2017. In March 2017, Soto qualified for and began to receive

long-term disability benefits under a separate Disney plan because she was no

longer able to perform her job function. In January 2018, Disney terminated Soto’s employment because of “her inability to return to work on account of her disabling

illness.” App’x at 45 (internal quotation marks omitted).

In June 2018, Soto applied for severance benefits under the Plan. Soto’s

claim was denied because the Plan Administrator determined that the termination

of her employment did not constitute a Layoff within the meaning of the Plan.

Soto appealed that denial, which was upheld on the grounds that the termination

of Soto’s employment did not constitute a Layoff and, separately, that Soto was

not eligible under the Plan because she was never informed in writing by the Plan

Administrator that her separation of employment qualified her for Plan benefits.

To be eligible for severance benefits under the Plan, an employee must (i) be

an Eligible Employee, as defined by the Plan; (ii) be specifically informed in

writing that she is a Plan Participant; and (iii) have experienced a Layoff as that

term is defined in the Plan. The parties agree that Soto is an Eligible Employee

and that only the Layoff requirement and the notice requirement are at issue in

this case.

Layoff is defined in Section 2(l) of the Plan as:

The involuntary termination of employment of an Eligible Employee from the Company, except for reasons of poor performance or misconduct as determined by the Company in its sole and absolute discretion.

2 Notwithstanding the foregoing, in no event will an involuntary termination of employment be considered a Layoff if such involuntary termination does not qualify as a “separation of service” within the meaning of Section 409A of the Code and Treasury Regulation Section 1.409A-1(h).

App’x 28 (emphasis added). In other words, a Layoff under the Plan is any

involuntary termination except for cause.

The Plan’s definition of Layoff is remarkably capacious, and even Disney

concedes that a termination due to disability does not constitute a termination due

to poor performance or misconduct. See Oral Argument at 21:30–21:55. Disney

instead insists – as the Plan Administrator did when denying Soto benefits in 2018

– that “[a] layoff occurs under the Plan when there is a separation from the

Company in the context of situations similar to a job elimination, reduction in

force[,] or geographic relocation of the place of employment.” App’x at 79; Disney

Br. at 21. To state the obvious, this interpretation of Layoff is completely atextual

and injects limitations – pertaining to job eliminations, reductions in force, and

geographic relocation – that are nowhere found in the language of the Plan itself.

Perhaps not surprisingly, the majority makes no attempt to defend this

interpretation of Layoff, even though it is the one that the Administrator actually

relied on in denying Soto benefits under the Plan.

3 But while the majority distances itself from the interpretation advanced by

Disney, it nevertheless holds that the seemingly clear definition of Layoff provided

by the Plan’s lexicon is in fact murky. In particular, the majority seizes on the

phrase “involuntary termination” and suggests that this phrase could mean either

(i) “any circumstance in which an employee does not affirmatively choose to leave

work but is forced to by external circumstance, such as physical disability” or (ii)

“circumstances in which an employee would otherwise continue working but for

the termination forced upon her by the employer.” Maj. Op. at 12. This strained

reading – which defies both logic and common sense – ultimately fares no better

than Disney’s wholesale rewriting of the term. As the Plan language makes clear,

a Layoff is an act, not a circumstance. It therefore makes perfect sense that the

Plan recognizes the difference between a voluntary termination, in which an

employee chooses (or at least agrees) to end her employment, and an involuntary

one, in which the employer acts unilaterally. The former category does not entitle

one to severance benefits, and the latter category does, “except for reasons of poor

performance or misconduct as determined by the Company.”

Soto clearly didn’t choose to end her employment with Disney; she was

terminated by the Company on short notice and without her consent. And since

4 even Disney concedes that she was not fired for poor performance or misconduct,

it is hard to fathom how her termination does not fall under the Plan’s

straightforward definition of Layoff.

To be sure, the Plan makes clear that an involuntary termination of

employment will not be considered a Layoff “if such involuntary termination does

not qualify as a ‘separation of service’ within the meaning of Section 409A of the

Code and Treasury Regulation Section 1.409A-1(h).” But nothing in either of those

provisions suggests that Disney’s firing of Soto was anything other than a

“separation of service.” To the contrary, the regulation cited in the Plan provides

that “[a]n employee separates from service with the employer if the employee dies,

retires, or otherwise has a termination of employment with the employer.”

.409A-1(h)(1)(i). And while it is true that an employee who “is on

military leave, sick leave, or other bona fide leave of absence” will not be deemed

to have separated from service,

it cannot be seriously argued that Soto was on

leave – and therefore not separated from service at Disney – after her employment

was terminated in January 2018.

The majority attempts to bypass the plain language of the Plan – and the

statutory and regulatory provisions cited therein – by stitching together language

5 from several other regulations promulgated pursuant to Section 409A to define

“involuntary termination of employment” as “the independent exercise of the

unilateral authority of the [employer] to terminate the [employee’s] services, . . .

where the [employee] was willing and able to continue performing services.” Maj.

Op. at 13 (quoting

.409A-1(n)(1)). But these regulations are neither

acknowledged by nor incorporated into the Plan and therefore provide no basis

for the majority’s extra-textual new definition of Layoff.

The majority’s new definition – which would make involuntary termination

by the employer turn on the employee’s condition – is also inconsistent with the

very purpose of the Plan. By the majority’s logic, if the Company had fired Soto

five minutes before she had a stroke, she would be entitled to severance benefits;

but if her firing had taken place five minutes after she had a stroke, she would be

entitled to nothing. Again, the text of the Plan nowhere suggests, much less

compels, such an interpretation, which would incentivize the Company to jettison

employees any time they were “[un]able to continue performing services.” Maj.

Op. at 13. One might expect such a plan from the firm of Scrooge & Marley, but

not from a company that proudly, and accurately, touts its “ongoing commitment

to people with disabilities.” DISNEY GARNERS PERFECT SCORE ON DISABILITY

6 EQUALITY INDEX, https://thewaltdisneycompany.com/disney-garners-perfect-

score-on-disability-equality-index/ (last visited Dec. 3, 2021).

But if there truly were any doubt concerning whether Soto’s termination

constituted a Layoff under Section 2(l) of the Plan, it is resolved by the language

of the Plan itself, which recognizes that disability and severance benefits are not

mutually exclusive. In particular, Section 4(g) of the Plan, entitled “Integration

with Other Payments,” makes clear that severance benefits under the Plan “are not

intended to duplicate such benefits as workers’ compensation wage replacement

benefits, disability benefits, . . . or similar benefits,” and that “should such other

benefits . . . be payable, benefits payable to a Participant under this Plan will be

offset.” App’x at 32 (emphasis added). The Plan therefore contemplates situations

in which a Participant will collect both disability payments and severance

payments, and provides that the latter will be deducted from, or offset by, the

former. This provision would be unnecessary – and in fact nonsensical – if a

termination due to disability were excluded from the definition of “Layoff.”

Forced to acknowledge the plain language of Section 4(g), the majority

endeavors to brush it aside by suggesting that the list “may be overinclusive.”

Maj. Op. at 14. But fundamental principles of contract interpretation require us to

7 assume “that no part of [an agreement] is superfluous;” instead, we must favor

interpretations that are “reasonable” and give “effective meaning to all the

[agreement’s] terms” over interpretations “which leave[] a part . . . of no effect.”

Restatement (Second) of Contracts § 203(a), cmt. b (1981); see also Restatement

(First) of Contracts § 236(a) (1932); 11 Williston on Contracts § 32:5 (4th ed.). We

therefore cannot assume that Section 4(g)’s reference to disability benefits is mere

surplusage, and instead are compelled to adopt a reading that gives effect to that

language while harmonizing it with the rest of the Plan.

Because the Plan’s definition of Layoff clearly covers terminations due to

disability, it obviously follows that the Plan Administrator’s decision to exclude

Soto from severance benefits was arbitrary and capricious. See McCauley v. First

Unum Life Ins. Co.,

(2d Cir. 2008). And since this erroneous

decision drove the Administrator’s refusal to issue a written notice that Soto was

a Plan Participant – itself a prerequisite to receiving severance benefits, which the

8 district court relied on as an independent basis for dismissing Soto’s complaint – I

would remand to the district court to allow Soto to proceed with her claims. 1

Of course, it is likely that those claims, if permitted to proceed, wouldn’t

amount to much. After all, Section 4(g) provides that severance benefits available

under the Plan must be offset by any disability benefits previously provided to the

employee. Given that Soto was placed on leave of absence status over a year

before her termination, there is a high likelihood that she has already received

disability benefits that approach or even exceed the severance benefits she is now

seeking under the Plan. If so, the offset requirement in Section 4(g) would make

reversal a pyrrhic victory. But the issue before us is a matter of contract

interpretation, pure and simple, and based on the clear language of the Plan, the

Administrator’s denial of severance benefits was “erroneous as a matter of law”

1The district court also held that because Soto had “not argue[d] that the Court should review the Plan Administrator’s decision not to send Soto notice” or that the Plan Administrator’s decision not to send Soto notice was arbitrary and capricious, Soto had waived any such argument. Soto v. Disney Severance Pay Plan, No. 19-CV-4048 (AJN),

, at *6 (S.D.N.Y. Nov. 9, 2020). But the Layoff argument and notice arguments are so intertwined as to be inseparable. Because the Administrator’s decision to withhold notice was premised on his conclusion that Soto was ineligible for Plan benefits, I’m satisfied that Soto preserved both her Layoff and notice arguments.

9 and was therefore arbitrary and capricious. Pagan v. NYNEX Pension Plan,

(2d Cir. 1995). 2

For all these reasons, I respectfully dissent.

2 The majority affirms dismissal of Soto’s claim for reformation for the same reason it affirms dismissal of Soto’s claims for benefits – the conclusion that she was not a Plan Participant. While I disagree with that rationale, I would nevertheless affirm dismissal of Soto’s reformation claim, since her complaint is silent as to which terms of the Plan need to be reformed and which provisions of ERISA those terms violate. Cf. Laurent v. PricewaterhouseCoopers LLP,

(2d Cir. 2019) (identifying “terms violative of ERISA as independent bases that justify the equitable remedy of reformation”).

10