Sharmista DESAI, Plaintiff-Appellant, v. CONTINENTAL PLASTIC CONTAINERS COMPANY, INC. BASIC NONCONTRIBUTORY HOURLY PENSION PLAN, Defendant-Appellee, 136 F. App'x 26

MEMORANDUM Plaintiff-Appellant Sharmista Desai (“Desai”) filed a complaint alleging that Defendant Continental Plastic Containers, Inc. Basic Non-Contributory Hourly Pension Plan (“the Plan”) denied her application for pension benefits in violation of ERISA, 29 U.S.C. § 1053(b)(2)(A) (2000). The district court granted the Plan’s cross-motion for

summary judgment, and Desai appealed. We review the district court’s decision on cross-motions for

summary judgment de novo. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). The parties agree that because the Plan expressly grants the administrator discretion to interpret its terms, we review the

interpretation for abuse of discretion. Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 (9th Cir.1993). At the time of Desai’s termination in 1983, Continental’s Complex Manager for Human Resources, J.S. Koczeniak, informed Desai in writing that she would be eligible for retirement benefits under the Plan. When she eventually retired in 1999 and sought to collect her pension, the Plan claimed that Koczeniak’s

interpretation of the Plan was in error and that she was not eligible for benefits. The letter from Koczeniak was a contemporaneous

interpretation of the Plan. By reversing its

interpretation and attempting to deny Desai the promised benefits, the Plan plainly abused its discretion. Cf. Bergt v. Retirement Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1145 (9th Cir.2002) (“‘Accuracy is not a lot to ask’.... [T]he law should provide as strong an incentive as possible for employers to write the [Summary Plan Documents] so that they are consistent with the ERISA plan master documents, a relatively simple task.”) (quoting Hansen v. Continental Ins. Co., 940 F.2d 971, 982 (5th Cir.1991)). Accordingly, the order granting

summary judgment in favor of the Plan is reversed and this case is remanded to the district court for entry of judgment in favor of Desai. REVERSED AND REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.