NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 13 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL WHITE, No. 18-55891

Plaintiff-Appellant, D.C. No. 2:17-cv-03476-ODW-JC v.

THE SENIOR LEADERS SEVERANCE

PAY PLAN OF DANAHER MEMORANDUM*

CORPORATION and DANAHER

CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding

Submitted December 10, 2019** Pasadena, California

Before: O’SCANNLAIN, PAEZ, and OWENS, Circuit Judges.

Michael White appeals the district court’s order granting summary

judgment to The Senior Leaders Severance Pay Plan of Danaher Corporation and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). its Affiliated Companies (the Plan) and Danaher Corporation (Danaher). White

brought this action under the Employment Retirement Income Security Act

(ERISA) for wrongful denial of severance benefits in violation of 29 U.S.C.

§ 1132(a)(1)(B). As the parties are familiar with the facts, we do not recount them

here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

1. The district court correctly applied an abuse of discretion standard

tempered by a low level of skepticism associated with Danaher’s structural conflict

of interest. Because the Plan unambiguously grants Danaher the discretion “to

determine eligibility for benefits [and] to construe the terms of the plan,” this court

reviews Danaher’s decision for abuse of discretion. Firestone Tire & Rubber Co.

v. Bruch, 489 U.S. 101, 115 (1989). However, the abuse of discretion standard is

modified to account for Danaher’s structural conflict of interest as the Plan’s

sponsor and administrator. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955,

959 (9th Cir. 2006) (en banc). The significance of the conflict of interest depends

on the circumstances of the case. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108

1 Danaher and the Plan filed an unopposed motion to strike a letter included in White’s further excerpts of record (FER). Because the letter is outside the district court record, the letter’s inclusion in the FER violates Fed. R. App. P. 10(a) (providing that the record on appeal includes “original papers and exhibits filed in the district court”). Therefore, the court grants the motion to strike. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (“Papers not filed with the district court or admitted into evidence by that court are not part of the clerk’s record and cannot be part of the record on appeal.”).

2 (2008).

White contends the involvement of Danaher’s in-house counsel warrants

reviewing Danaher’s decision with greater skepticism but provides no evidentiary

support for doing so. Contrary to White’s contentions, there is also no evidence

Danaher acted with malice or self-dealing. See Abatie, 458 F.3d at 968. Rather,

the record shows Danaher adequately investigated White’s claim and gave

consistent reasons for denial. See id. Therefore, the district court properly

reviewed Danaher’s decision for abuse of discretion tempered by a low level of

skepticism. See id. at 959.

2. The district court also properly concluded Danaher’s decision to deny

White’s claim for severance benefits was reasonable and not an abuse of

discretion. In applying an abuse of discretion standard, “the plan administrator’s

interpretation of the plan ‘will not be disturbed if reasonable.’” Conkright v.

Frommert, 559 U.S. 506, 521 (2010) (citation omitted). Danaher’s decision to

deny benefits was reasonable, as it is supported by the Plan and evidence in the

administrative record. Danaher’s reasons for terminating White fall within the

Plan’s definition of cause, and the Plan provides that employees terminated for

cause are ineligible for benefits. White argues his evidence disproves the bases for

his termination, but Danaher considered and reasonably rejected White’s evidence

in his administrative appeal. Furthermore, at all stages of Danaher’s review,

3 Danaher thoroughly explained its reasoning and made reasonable factual findings.

Cf. Day v. AT & T Disability Income Plan, 698 F.3d 1091, 1096 (9th Cir. 2012).

Thus, there is no reason to disturb Danaher’s decision. See Conkright, 559 U.S. at

521.

3. Finally, the district court did not abuse its discretion in concluding

that White was not deprived of a full and fair review of his claim by not having

reasonable access to certain documents. See 29 C.F.R. § 2560.503-1(h)(2)(iii),

(m)(8). Danaher provided White with Bernasky’s summary, various emails, the

Plan, the Contingent Workforce Policy (CWP), Procedure 20, an information

bulletin, and the two contracts that White oversaw. The “critical pieces” of

information, as Danaher explains, were the CWP’s terms, White’s knowledge of

those terms, and White’s failure to comply for a nearly two-year period. In short,

even without the missing documents, White was given sufficient information for a

“meaningful dialogue” between himself and Danaher and was thus not deprived of

a full and fair review of his claim. See Salomaa v. Honda Long Term Disability

Plan, 642 F.3d 666, 680 (9th Cir. 2011).

AFFIRMED.

4