United States Court of Appeals Fifth Circuit F I L E D March 5, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-41151 Summary Calendar

SANDRA MARLOWE,

Plaintiff-Appellant,

versus

SBC PENSION PLAN,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:02-CV-111 --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Sandra Marlowe appeals the district court’s order granting

the motion for summary judgment filed by the SBC Pension Plan

(“Plan”), the plan administrator for her former employer, SBC

Communications, Inc. (“SBC”), in Marlowe’s action under the

Employee Retirement Income Security Act (“ERISA”),

et seq. Marlowe contends that the Plan erred in denying her

enhanced pension benefits under the SBC Enhanced Pension and

Retirement Program (“EPR Program”), when it determined that,

under the EPR Program’s language, she had been “assigned full

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 03-41151 -2-

time to projects” for wireless-affiliated companies as of

September 7, 2000. She argues that the record establishes that

she continued to perform non-wireless payroll work for SBC

following that date.

The standard of review following the district court’s order

granting summary judgment is de novo. Whittaker v. BellSouth

Telecommunications, Inc.,

(5th Cir. 2000);

see Celotex Corp. v. Catrett,

(1986). A denial

of ERISA benefits by a plan administrator that is vested with the

authority to make a final and conclusive determination of claims

is reviewed for abuse of discretion. Firestone Tire & Rubber Co.

v. Bruch,

(1989); Meditrust Financial Servs.

Corp. v. Sterling Chem., Inc.,

(5th Cir. 1999).

The EPR Program granted SBC’s Benefit Plan Committee (“BPC”)

“full and exclusive authority and discretion to grant and deny

claims for benefits” under the Program, “including the power to

interpret the EPR Program and determine the eligibility of any

individual to receive benefits pursuant to the EPR Program.” The

EPR Program excluded from eligibility employees who, as of

September 7, 2000, had been “assigned full time to projects” for

wireless entities affiliated with SBC, and such status was to be

“determined by such Eligible Employee’s Participating Company.”

In denying Marlowe EPR Program benefits, the BPC determined that

Marlowe had been “assigned full time to projects” for wireless

entities as of September 7, 2000, because Marlowe’s Participating

Company had determined that she was “Wireless-dedicated” as of

that time, regardless of the fact that Marlowe was still No. 03-41151 -3-

performing some non-wireless payroll work after that time.

Contrary to Marlowe’s contention, the phrase “assigned full time

to projects” was not “unambiguous” within the context of the EPR

Program, and a de novo standard is not applicable. The abuse-of-

discretion standard applies. We have reviewed the record and

briefs submitted by the parties and conclude that the BPC did not

abuse its discretion in determining that Marlowe had been

“assigned full time to projects” for non-wireless entities as of

September 7, 2000. The record reflects that in May 2000 Marlowe,

along with approximately 1500 other SBC employees, was placed on

a list of employees who were being designated as “work[ing]

solely on behalf of the wireless entities that are currently

being paid by a non-wireless entity.” It is not disputed that

these employees were effectively being deemed essential to an SBC

joint venture that would ultimately result in the formation of

Cingular Wireless. A review of the EPR Program reflects and

other evidence in the record shows that, in the context of these

events, the BPC’s interpretation of the phrase “assigned full

time” was “legally correct” and was not an “abuse of discretion.”

See MacLachlan v. ExxonMobil Corp.,

(5th Cir.

2003); Gosselink v. American Tel. & Tel., Inc.,

(5th Cir. 2001).

The judgment of the district court is AFFIRMED.