William POLLETT, Plaintiff-Appellant, v. RINKER MATERIALS CORPORATION, Defendant-Appellee, 477 F.3d 376

Baldock, J., delivered the opinion of the court, in which SILER, J., joined. CLAY, J., (pp. 378-83), delivered a separate dissenting opinion. BALDOCK, Circuit Judge. The issue in this appeal is whether an employee, while suspended without pay, was “actively at work” and thus qualified to receive short-term disability benefits under his employer’s ERISA plan. The plan administrator said no. The district court also said no and dismissed the action on undisputed facts. We exercise jurisdiction under 28 U.S.C. § 1291.

Because the ERISA plan does not provide the administrator discretionary authority to construe its terms, we review the prior construction of the plan de novo. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Applying this standard, we affirm. On Wednesday January 29, 2003, Defendant Rinker Materials Corporation suspended Plaintiff William Pollett for three days without pay while Rinker investigated an incident involving a broken conveyor belt and Pollett’s alleged failure to properly respond.

A year prior, Rinker had suspended Pollett for negligently operating a forklift. On Friday January 31, 2003, Pollett’s physician declared Pollett unable to work due to numerous physical ailments. That same day, Pollett notified Rinker he was unable to work and provided Rinker with his physician’s written assessment. Following his three day suspension, Pollett reported for work on Monday February 3, 2003. Pollett’s supervisor did not allow him to return to work. Instead, the supervisor informed Pollett that Rinker was terminating his employment due to violations of company policy regarding plant safety.

Pollett subsequently applied for short term disability benefits under Rinker’s ERISA plan. To qualify for short term disability benefits under the plan, an employee must be “actively at work” when he notifies his employer of a disability. Under the plan, “[a]n employer will be considered actively at work if he was actually at work on the day immediately preceding: ... an excused leave of absence.... ” Pollett’s argument is simple: A suspension without pay equates with an excused leave of absence.

According to Pollett, his suspension thus qualifies him as an active employee because he was at work the day before Rink-er suspended him. While novel, Pollett’s argument is unpersuasive. Certainly a suspension and excused leave create an absence from work. But to equate a suspension without pay with an excused leave defies common sense. A suspension without pay constitutes a unilateral penalty which an employer imposes upon an employee. In contrast, an excused leave is more akin to a bilateral understanding during which an employer grants an employee permission to be absent from work.

During an excused leave the employee suffers no monetary or other penalty and all employment privileges remain intact. An excused absence connotes a lack of punishment while a suspension implies the exact opposite. Merriam-Webster’s online dictionary defines “suspend” as “to debar temporarily especially from a privilege.” http://www.m-w.com/dictionary/suspend. The same dictionary defines “excuse” as “to grant exemption or release.” http://www.m-w.com/ dictionary/excuse.

The plain meaning of the phrase “suspended without pay” denotes Rinker barred Pollett from employment and all its attendant privileges during the period of his suspension. “In interpreting a plan, the administrator must adhere to the plain meaning of its language as it would be construed by an ordinary person.” Morgan v. SKF USA Inc., 385 F.3d 989, 992 (6th Cir. 2004). We have little difficulty concluding that an ordinary person would not view Pollett’s suspension without pay as an excused leave of absence under the facts of this case. We see no need to belabor the obvious.

The judgment of the district court is— AFFIRMED. . By agreement of the parties, judicial review of this matter is limited to the administrative record below. . Rinker maintains a self-funded ERISA short-term disability plan that provides up to 70% of an employee’s basic weekly earnings on the fifteenth day of continuous disability, for a maximum of 12 weeks. . A suspension with pay would present a more difficult case in that an employee under such circumstance would incur no monetary penalty due to his absence from work. Cf. Smith v.

Severn, 129 F.3d 419, 423 (7th Cir., 1997) (suggesting a suspension from school was akin to an excused absence where the student, although prevented from in-class participation, was permitted to make-up missed work). We need not decide whether a suspension with pay would require a result different than we reach today. .While we in no way intend to imply that Pollett does not suffer serious physical ailments, the question of his disability is simply not before us. Nonetheless, under Pollett’s

interpretation of the plan, a culpable employee, suspended without pay during an investigation into serious misbehavior and armed with the knowledge his return to work was unlikely, could seek to muster a disability of some sort in order to create an entitlement to benefits. This, of course, would be unacceptable.