Derek Kramer v. American Electric Power Executive Severance Plan

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0030p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEREK KRAMER,
Plaintiff-Appellant,
v.
AMERICAN ELECTRIC POWER EXECUTIVE
SEVERANCE PLAN; AMERICAN ELECTRIC POWER
SERVICE CORPORATION,
Defendants-Appellees.
┐
│
│
│
│
│
│
│
│
│
┘
No. 24-3174
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 2:21-cv-05501—Sarah Daggett Morrison, Chief District Judge.
Argued: October 31, 2024
Decided and Filed: February 10, 2025
Before: COLE, MATHIS, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Tony C. Merry, LAW OFFICES OF TONY C. MERRY, LLC, Worthington, Ohio,
for Appellant. Jason T. Gerken, PORTER, WRIGHT, MORRIS & ARTHUR, LLP, Columbus,
Ohio, for Appellees. ON BRIEF: Tony C. Merry, LAW OFFICES OF TONY C. MERRY,
LLC, Worthington, Ohio, for Appellant. Jason T. Gerken, PORTER, WRIGHT, MORRIS &
ARTHUR, LLP, Columbus, Ohio, for Appellees. Christopher J. Rillo, BAKER BOTTS L.L.P.,
San Francisco, California, for Amicus Curiae.
_________________
OPINION
_________________
MATHIS, Circuit Judge. This case looks like a standard claim under the Employee
Retirement Income Security Act (“ERISA”) to recover benefits. But Derek Kramer wants to
>

-- 1 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 2
change the rules for these claims. Kramer believes he has a right to “full discovery,” including
documents subject to the attorney-client privilege, rather than an adjudication based on the
administrative record. Kramer also thinks he has a constitutional right to a jury trial for his
ERISA claim. And he seeks to apply a different standard to adjudicate his claim than the one we
instructed district courts to use more than two decades ago. We reject Kramer’s request to
change the rules.
On the merits, Kramer has not shown that the district court erred in finding that the
decision denying Kramer benefits was not arbitrary and capricious. We thus affirm.
I.
In 2018, Kramer joined American Electric Power Service Corporation (“AEP”) as the
vice president and chief digital officer of AEP Charge, the company’s new “innovation hub.” R.
21–1, PageID 139. Almost a year after hiring him, AEP offered Kramer the option to participate
in the AEP Executive Severance Plan (the “Plan”). He accepted. The Plan provides eligible
employees a severance payment based on their base salary and performance “due to an
Involuntary Termination or a Good Reason Resignation.” Id. at 155.
In 2020, the company terminated Kramer’s employment. Two events led to that decision.
First, during an annual audit, AEP’s audit services department found that Kramer’s
executive assistant charged personal expenses to her company credit card in violation of
corporate policy. Audit department representatives called Kramer to discuss the charges.
Kramer followed up the same day to confirm that he spoke with his assistant and warned her
about charging personal expenses to her company credit card. In the same audit the next year,
the audit services department again flagged Kramer’s assistant because she had the third highest
charges on a company credit card, including excessive business expenditures and prohibited
personal charges, all of which Kramer had approved. AEP suspended Kramer while
investigating the charges.
The second event leading to Kramer’s termination involved his company-issued cell
phone. Per company policy and as part of the investigation of the credit-card charges,

-- 2 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 3
AEP’s region security coordinator, Kerrie Campbell, went to Kramer’s home to retrieve his
phone. Kramer hesitated to turn over the phone and asked if he could first make a call.
Campbell agreed and waited on the porch while Kramer went inside. When he returned,
Campbell asked for the phone and the PIN to unlock it, but Kramer hesitated again out of
concern that AEP would be able to “see what [he had] on the phone,” which he claimed he also
used as a personal device. Id. at 202. After Campbell explained that the investigation might
require looking at the phone, Kramer provided the PIN, and Campbell repeated the numbers out
loud for confirmation. As she returned to her vehicle, Campbell discovered that the PIN Kramer
provided was incomplete. She returned to the house and requested the PIN again, this time
confirming that the phone unlocked. Following company procedure, she put the phone on
airplane mode before leaving Kramer’s home.
Campbell delivered the phone to AEP’s security manager, Michael Knorps, who
connected it to forensic software to transfer the data. During the extraction process, Knorps
observed the device spontaneously “reboot[] and beg[i]n wiping itself clean.” Id. at 182.
Although he had significant information-technology and law-enforcement experience, Knorps
had never seen this happen at AEP and suspected that Kramer had remotely wiped the phone.
AEP contacted Kramer for an explanation, and he responded that he removed his personal Apple
ID and iCloud account but did not intend to wipe the device. Based on further research, testing,
and internal consulting, Knorps confirmed his suspicion that Kramer intentionally wiped the
phone.
On October 2, 2020, AEP terminated Kramer. Kramer’s direct supervisor informed him
that the termination was based on Kramer’s failure to tighten oversight of his assistant’s
expenses. The next month, Kramer submitted a formal claim for severance under the Plan.
In a January 19, 2021 letter, AEP’s chief human resources officer Julius Cox denied
Kramer’s benefits claim, finding that the company terminated his employment “for Cause.” Id.
at 146. Under the Plan, a participant terminated for cause is ineligible to receive benefits.
The letter identified two bases for Cox’s determination. First, Cox concluded that
Kramer’s violations of company policies on “proper expense account behavior” qualified as

-- 3 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 4
“Cause” under § 2.5(v) of the Plan. Id. That section states that “Cause” includes “a material
violation of any of the rules of conduct of behavior of any AEP System Company . . . following
notice and a reasonable opportunity to cure[.]” Id. at 156–57. Second, Cox found that Kramer
wiping his company cell phone while it was subject to investigation constituted cause under
§ 2.5(ii). That provision identifies “Cause” as “commission of an act of willful misconduct,
fraud, embezzlement or dishonesty . . . in connection with the Employee’s duties to any AEP
System Company[.]” Id.
Kramer appealed the initial claim determination to the Plan’s appeal committee. The
committee agreed with Cox’s findings and denied Kramer’s appeal. In its letter issuing the
decision, the committee identified specific evidence in the administrative record supporting each
of Cox’s findings.
Kramer brought an ERISA action against AEP and the Plan. He asserted claims for a
denial of benefits under 29 U.S.C. § 1132(a)(1)(B), and for interference under 29 U.S.C. § 1140.
Kramer included a jury demand with his complaint. AEP and the Plan moved to strike Kramer’s
jury demand, and the district court granted the motion.
Kramer moved to conduct discovery beyond the administrative record (i.e., the record of
proceedings before Cox and the appeal committee). Acknowledging that our precedent limits
discovery in ERISA denial-of-benefits actions to procedural claims, Kramer argued that the
Supreme Court had implicitly abrogated that precedent, and that regardless, the district court
should allow discovery into his procedural allegations. The magistrate judge granted discovery
into the alleged “conflict of interest or bias” in the administrative process but otherwise denied
additional discovery. R. 24, PageID 309. Kramer did not object to the magistrate judge’s order.
Although AEP and the Plan produced some documents in response to Kramer’s discovery
requests, it withheld nearly 300 documents based on the attorney-client privilege. Kramer
moved to compel production, arguing that the fiduciary exception to the attorney-client privilege
applied because of ERISA’s fiduciary requirements. AEP and the Plan maintained that the Plan
was not subject to fiduciary requirements because it was a “top hat” plan, as defined by ERISA.

-- 4 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 5
The magistrate judge agreed with AEP and the Plan and denied Kramer’s motion to compel. The
district court overruled Kramer’s objections to the magistrate judge’s order.
AEP and the Plan then moved for summary judgment. The district court construed the
motion as a motion for judgment on the administrative record. Applying an arbitrary-and-
capricious standard of review, the district court found that both Cox and the committee offered a
reasonable, evidence-based explanation for their conclusion that AEP terminated Kramer’s
employment for cause. Accordingly, the district court granted judgment in AEP and the Plan’s
favor. Kramer appeals only the district court’s adjudication of his denial-of-benefits claim.
II.
On appeal, Kramer argues that the district court erred by: (1) limiting the scope of
discovery for his ERISA denial-of-benefits claim; (2) striking Kramer’s jury-trial demand; and
(3) granting judgment to AEP and the Plan. We address each argument in turn.
A.
Kramer makes two discovery-related challenges. First, he argues that the district court
erred in denying his motion to compel AEP and the Plan to produce certain documents that AEP
and the Plan were subject to the attorney-client privilege. Second, he argues that he was entitled
to “full discovery” on his ERISA denial-of-benefits claim.
We review the district court’s discovery rulings “for an abuse of discretion.” Louzon v.
Ford Motor Co., 718 F.3d 556, 560 (6th Cir. 2013) (quotation omitted). “A district court abuses
its discretion when it applies the incorrect legal standard, misapplies the correct legal standard, or
relies upon clearly erroneous findings of fact.” State Farm Mut. Auto. Ins. Co. v. Angelo,
95 F.4th 419, 429 (6th Cir. 2024) (quotation omitted).
1.
Kramer’s first discovery challenge turns on whether he established an exception to AEP
and the Plan’s assertion of the attorney-client privilege to withhold production of certain
documents. Kramer purports to rely on the fiduciary exception to the privilege.

-- 5 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 6
In the context of common-law trusts, the fiduciary exception prohibits “a trustee who
obtains legal advice related to” executing his fiduciary obligations “from asserting the attorney-
client privilege against beneficiaries of the trust.” United States v. Jicarilla Apache Nation, 564
U.S. 162, 167 (2011). In other words, the fiduciary exception “requires that when an attorney
gives advice to a client acting as a fiduciary for third-party beneficiaries, that attorney owes the
beneficiaries a duty of full disclosure.” Moss v. Unum Life Ins. Co., 495 F. App’x 583, 595 (6th
Cir. 2012) (citing Becher v. Long Island Lighting Co. (In re Long Island Lighting Co.), 129 F.3d
268, 272 (2d Cir. 1997)).
Trust law informs our “effort to interpret ERISA’s fiduciary duties.” Varity Corp. v.
Howe, 516 U.S. 489, 497 (1996). Thus, in the ERISA context, a plan fiduciary “must make
available to the beneficiary, upon request, any communications with an attorney that are intended
to assist in the administration of the plan.” Moss, 495 F. App’x at 595 (quoting Bland v. Fiatallis
N. Am., Inc., 401 F.3d 779, 787 (7th Cir. 2005)).
The fiduciary exception to the attorney-client privilege does not apply to the Plan if the
Plan is an executive deferred-compensation plan, commonly referred to as a top-hat plan.
Congress exempts top-hat plans from ERISA’s fiduciary requirements. 29 U.S.C. § 1101(a)(1);
Simpson v. Mead Corp., 187 F. App’x 481, 484 (6th Cir. 2006). ERISA defines a top-hat plan as
an employee benefit plan that is “[1] unfunded and [2] is maintained by an employer primarily
for the purpose of providing deferred compensation [3] for a select group of management or
highly compensated employees.” 29 U.S.C. § 1051(2). The parties do not dispute that the Plan
is unfunded and that the Plan is for certain highly compensated employees. But does AEP
maintain the Plan to provide deferred compensation? The answer to this question turns on the
meaning of “deferred compensation.”
ERISA does not define deferred compensation. When a statute does not define a term,
“we give the term its ordinary meaning,” Enriquez-Perdomo v. Newman, 54 F.4th 855, 863 (6th
Cir. 2022) (internal quotation marks omitted), using “the traditional tools of statutory
construction,” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 403 (2024). Normally,
“dictionaries are a good place to start” in determining a term’s ordinary meaning. United States
v. Hill, 963 F.3d 528, 532 (6th Cir. 2020) (quotation omitted). Black’s Law Dictionary (12th ed.

-- 6 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 7
2024) defines “deferred compensation” to mean (1) “[p]ayment for work performed, to be paid
in the future or when some future event occurs”; or (2) “[a]n employee’s earnings that are taxed
when received or distributed rather than when earned, such as contributions to a qualified
pension or profit-sharing plan.” And the Third Circuit has said that “[a] deferred compensation
plan ‘is an agreement by the employer to pay compensation to employees at a future date. The
main purpose of the plan is to defer the payment of taxes.’” Accardi v. IT Litig. Tr. (In re IT
Grp., Inc.), 448 F.3d 661, 664 (3d Cir. 2006) (quoting David J. Cartano, Taxation of
Compensation & Benefits § 20.01, at 709 (2004)). Indeed, several of our sister circuits have held
that severance payments are a form of deferred compensation under ERISA’s top-hat provision.
Duggan v. Hobbs, 99 F.3d 307, 311–13 (9th Cir. 1996); Pane v. RCA Corp., 868 F.2d 631, 637
(3d Cir. 1989); Am. Int’l Grp., Inc. v. Guterman, 496 F. App’x 149, 150–51 (2d Cir. 2012)
(order). Thus, the Plan is a top-hat plan if AEP maintained it to pay compensation to
participants, like Kramer, in the future.
The plain language of the Plan shows that AEP maintained it to provide deferred
compensation. The Plan’s benefits include a severance payment equal to the participant’s annual
base salary and maximum incentive bonus, immediate vesting of a portion of the participant’s
restricted stock units, and a prorated share of “performance unit” awards. R. 21–1, Page ID 164.
Under the Plan’s terms, AEP must pay those benefits—“to which a Participant is entitled” (i.e.,
as of the Plan’s effective date)—according to a payment schedule. Id. at 165–66. The payment
schedule provides that AEP shall pay 50% of the total amount as of the first regular payroll date
that coincides with or immediately follows the day six months after the termination, and the
remaining balance in 13 equal bi-weekly installments on the later regular payroll dates. A Plan
participant can receive benefits only after he has resigned or been terminated, and at least one
year will pass between the time they acquire the right to compensation and when the final
installment becomes payable. Phrased differently, the Plan entitles participants to compensation
that is or may be payable in a later year.
Kramer resists the conclusion that AEP maintained the Plan to provide deferred
compensation. Relying on Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon,
541 U.S. 1 (2004), Kramer argues that we should look to Section 409A of the Internal Revenue

-- 7 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 8
Code and related Treasury regulations to construe “deferred compensation.” We should do so,
he contends, because “Congress’ objective” in enacting ERISA “was to harmonize ERISA with
longstanding tax provisions.” See Raymond B. Yates, 541 U.S. at 13.
The provisions that Kramer relies on do not help his cause. First, Section 409A does not
define deferred compensation. Instead, that statute, as its title suggests, governs when an
employee is taxed for deferred compensation under nonqualified deferred-compensation plans.
26 U.S.C. § 409A(a). Second, the Treasury regulation that Kramer cites provides that “a
nonqualified deferred compensation plan meets the requirements of section 409A(a)(4)(B) only
if . . . the election to defer such compensation is made and becomes irrevocable not later than the
latest date permitted in this paragraph.” 26 C.F.R. § 1.409A-2(a)(1). The statutory provision
mentioned in the regulation describes requirements for when the initial deferral election must be
made. See 26 U.S.C § 409A(a)(4)(B). But again, it does not define what a deferred-
compensation plan is in the first place. If anything, the relevant provision for defining “deferred
compensation” might be Treasury Regulation § 1.404(b)-1T, which provides that a plan “defers
the receipt of compensation” if an employee receives compensation “more than a brief period of
time after the end of the employer’s taxable year in which the services creating the right to such
compensation or benefits are performed.” 26 C.F.R. § 1.404(b)–1T; see Duggan, 99 F.3d at
311–12 (citing the same). The plain terms of this provision suggest that the Plan defers
compensation.
Kramer also argues that the Plan falls under an exception to deferred compensation in the
Treasury regulations for some “separation pay plan[s].” See 26 C.F.R. § 1.409A-1(b)(9)(iii).
But regardless of whether the Plan would qualify as a “separation pay plan,” those regulations
apply only to § 409A of the Internal Revenue Code, not to ERISA’s top-hat provision. Although
the definitions in the Code and corresponding regulations may be useful for interpreting some
ERISA provisions, see Raymond B. Yates, 541 U.S. at 13–14, that does not mean ERISA
incorporates the entire legislative and regulatory scheme of the Internal Revenue Code. And
even though the Plan provides that its terms are “intended to comply with the requirements of
[§] 409A and its related regulations and guidance,” R. 21–1, PageID 155, that language simply

-- 8 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 9
expresses an intent to comply with the tax law. It does not establish (nor could it) that courts
must read every Internal Revenue Code provision and Treasury regulation into ERISA.
Finally, Kramer argues we should avoid a broad interpretation of deferred compensation
because it produces an absurd result—namely, that the term would mean something different
under Title I of ERISA than it would under the Internal Revenue Code. But it is not absurd for
the same term to have different meanings in different statutes. See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 237–38 (2012) (explaining that the
absurdity doctrine applies only if no reasonable person could intend the outcome and the error
was obviously technical or ministerial).
Because the Plan qualifies as a top-hat plan, the fiduciary exception to the attorney-client
privilege does not apply. As a result, the district court did not abuse its discretion in denying
Kramer’s motion to compel AEP and the Plan to produce privileged documents.
2.
Kramer has waived appellate review of his argument about his request for “full
discovery.” Kramer sought discovery beyond what was contained in the administrative record.
The magistrate judge granted Kramer’s request in part. Specifically, the magistrate judge
allowed Kramer to obtain discovery into his allegations of bias and prejudice in the
administrative process. Kramer did not object to the magistrate judge’s order.
Because Kramer did not object to the magistrate judge’s order, he may not challenge it on
appeal. “A party may not assign as error a defect in the [magistrate judge’s] order not timely
objected to.” Fed. R. Civ. P. 72(a). Although we may excuse Kramer’s default in the interest of
justice, see Superior Prod. P’ship v. Gordon Auto Body Parts Co., 784 F.3d 311, 321 (6th Cir.
2015), Kramer has shown no injustice.
B.
Next, Kramer claims that he was entitled to a jury trial on his ERISA denial-of-benefits
claim. He brought that claim under 29 U.S.C. § 1132(a)(1)(B). That provision allows “a
participant or beneficiary” to bring a civil action “to recover benefits due to him under the terms

-- 9 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 10
of his plan.” He asserts that the district court erred in striking his jury demand because the
Seventh Amendment entitles him to a jury trial.
The Seventh Amendment preserves the right to a jury trial “[i]n Suits at common law,
where the value in controversy shall exceed twenty dollars[.]” U.S. Const. amend. VII. This
jury-trial right applies only to “suits in which legal rights were to be ascertained and
determined”; it does not extend to equitable claims seeking equitable remedies. Granfinanciera,
S.A. v. Nordberg, 492 U.S. 33, 41 (1989) (quotation omitted). To determine whether the jury-
trial right applies to a statutory cause of action, “we compare the statutory action to 18th-century
actions brought in the courts of England prior to the merger of the courts of law and equity.”
Tull v. United States, 481 U.S. 412, 417 (1987). And then “we examine the remedy sought and
determine whether it is legal or equitable in nature.” Id. at 417–18.
We have held that ERISA claims for denial-of-benefits claims are equitable in nature.
Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 616 (6th Cir. 1998); Bair v. Gen. Motors
Corp., 895 F.2d 1094, 1096–97 (6th Cir. 1990). Thus, Kramer was not entitled to a jury trial on
his ERISA claim.
Kramer’s arguments to the contrary are unpersuasive. First, he argues that, because
ERISA explicitly limits recovery to “equitable relief” in its other causes of action for plan
participants but not in § 1132(a)(1)(B), this subpart must provide for legal relief. See 29 U.S.C.
§ 1132(a)(1)–(3). We have already rejected this argument. See Bair, 895 F.2d at 1096–97. And
we are not alone in reaching this conclusion. See Crews v. Cent. States, Se. & Sw. Areas Pension
Fund, 788 F.2d 332, 338 (6th Cir. 1986) (collecting cases).
Second, Kramer tries to read our prior holdings about the jury-trial right in ERISA denial-
of-benefits cases as dicta. But in those cases, we consciously considered whether
§ 1132(a)(1)(B) claims are triable by a jury and concluded that they are not. See Wright v.
Spaulding, 939 F.3d 695, 697 (6th Cir. 2019); see, e.g., Bair, 895 F.2d at 1096–97. These are
therefore holdings, and they are dispositive here.
Finally, Kramer argues that intervening Supreme Court precedent—namely, CIGNA
Corporation v. Amara, 563 U.S. 421 (2011), and Montanile v. Board of Trustees of National

-- 10 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 11
Elevator Industry Health Benefit Plan, 577 U.S. 136 (2016)—have implicitly abrogated these
precedents. Neither case addresses jury trials, however, and Montanile interprets a different
ERISA cause of action altogether. See 577 U.S. at 139 (discussing § 1132(a)(3)). As much as
Kramer suggests these cases imply that § 1132(a)(1)(B) contemplates legal relief, undoing our
precedent based on mere implication—and one that is not clear—would stretch Amara and
Montanile too far. See In re Smith, 806 F. App’x 462, 464 (6th Cir. 2020) (per curiam) (holding
that an intervening decision is not directly applicable if the pertinent issue “is not implicated by
the question presented in [the intervening case], its holding, or its primary legal reasoning”).
The district court did not err in striking Kramer’s jury demand.
C.
Finally, we consider the district court’s decision granting judgment to AEP and the Plan
on the merits of Kramer’s denial-of-benefits claim. District courts review an ERISA denial-of-
benefits claim de novo “unless the benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If the plan gives “the plan administrator
such discretion, then a court must review the administrator’s denial of benefits under the
arbitrary-and-capricious standard.” Shaw v. AT&T Umbrella Ben. Plan No. 1, 795 F.3d 538, 546
(6th Cir. 2015) (citation omitted).
The Plan grants its administrator discretion to make eligibility determinations and to
construe the Plan. Therefore, the district court correctly applied the arbitrary-and-capricious
standard. That “standard is extremely deferential.” McClain v. Eaton Corp. Disability Plan, 740
F.3d 1059, 1064 (6th Cir. 2014) (quotation omitted). “[W]e review de novo the district court’s
finding that the administrator’s denial was not arbitrary and capricious.” Shaw, 795 F.3d at 547
(citation omitted).
Kramer has failed to show that the denial of benefits was arbitrary and capricious. An
administrator’s decision is not arbitrary or capricious “if it is the result of a deliberate, principled
reasoning process[,] supported by substantial evidence,” Bennett v. Kemper Nat’l Servs., Inc.,
514 F.3d 547, 552 (6th Cir. 2008) (quotation omitted), and “rational in light of the plan’s

-- 11 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 12
provisions,” Miller v. Metro. Life Ins. Co., 925 F.2d 979, 984 (6th Cir. 1991) (quotation
omitted). Section 7.4(d) of the Plan provides that the administrator must give written notice that:
(i) provides the reasons for denial; (ii) references specific Plan provisions on which the
determination was based; (iii) includes a statement that the claimant is entitled to receive relevant
documents upon request; and (iv) states that the claimant has the right to bring an action under
ERISA. Both the Plan administrator’s letter denying Kramer’s initial claim and the committee’s
letter denying his appeal provided such notice. And both letters provided substantial evidence in
support of their finding that Kramer’s termination was for cause under § 2.5 of the Plan. To
show that Kramer violated company rules of conduct (§ 2.5(v)), the letters cited AEP’s principles
of business conduct, the annual audit reports revealing the expense account irregularities, and
two affidavits corroborating repeated violations after a reasonable opportunity to cure. And to
show that Kramer acted with willful dishonesty (§ 2.5(ii)), the letters relied on a report detailing
the forensic testing performed on Kramer’s company-issued phone and two affidavits attesting to
his failure to cooperate with the investigation.
That Kramer disagrees with the administrator’s findings does not make them arbitrary or
capricious. See Shields v. Reader’s Dig. Ass’n, 331 F.3d 536, 541 (6th Cir. 2003) (“When it is
possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that
outcome is not arbitrary or capricious.” (quotation omitted)).
Kramer argues that the district court erred in four ways. None is persuasive.
First, Kramer argues that we should reverse the district court’s decision because he did
not receive the discovery to which he believes he was entitled. But, as we explained above, the
district court did not err in denying Kramer’s motion to compel AEP and the Plan to produce
documents subject to the attorney-client privilege. And Kramer waived any challenge to the
denial of his motion for full discovery.
Second, Kramer claims the district court violated the party-presentation principle by
construing the dispositive motion as a motion for judgment on the administrative record, rather
than a Rule 56 motion for summary judgment. Under the party-presentation principle, courts
rely on the parties to frame the issues for decision and normally decide only the questions

-- 12 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 13
presented. United States v. Sineneng-Smith, 590 U.S. 371, 375–76 (2020). But the party-
presentation principle is “supple, not ironclad,” id. at 376, and courts sometimes can
recharacterize motions to avoid an “inappropriately stringent application of formal labeling
requirements,” id. at 375 (quoting Castro v. United States, 540 U.S. 375, 381 (2003)).
This is one of those circumstances. In Wilkins, we rejected applying Rule 56 in ERISA
denial-of-benefits actions because the summary-judgment standard is “designed to screen out
cases not needing a full factual hearing,” so “apply[ing] Rule 56 after a full factual hearing has
already occurred before an ERISA administrator [would be] pointless.” 150 F.3d at 619. The
district court understood this and properly used the arbitrary-and-capricious standard rather than
the Rule 56 standard. And consistent with Wilkins, the parties did not present, and the district
court did not consider, any evidence beyond the administrative record. See id. Only the title—
not the substance—of the dispositive motion indicated that AEP and the Plan moved for
summary judgment under Rule 56. Thus, the district court’s decision to construe AEP and the
Plan’s motion as a motion for judgment on the administrative record did not violate the party-
presentation principle.
Third, Kramer argues that the district court should not have followed the procedures
governing the review of denial-of-benefits claims that we adopted in Wilkins because, according
to Kramer, the Supreme Court implicitly abrogated Wilkins in United States v. Tsarnaev, 595
U.S. 302 (2022).
In Tsarnaev, the Supreme Court considered whether the First Circuit’s rules could cabin
the discretion that district courts are entitled to when conducting jury selection under Supreme
Court precedent. 595 U.S. at 312–13. The Court opined that lower courts cannot issue
“supervisory” rules that conflict with a constitutional provision, federal statute, federal rule of
procedure, or Supreme Court standards. Id. at 315–16. And it held that the First Circuit erred by
“supplant[ing] the district court’s broad discretion to manage voir dire by prescribing specific
lines of questioning, and thereby circumvent[ing] a well-established standard of review.” Id. at
317.

-- 13 of 14 --

No. 24-3174 Kramer v. Am. Electric Power Exec. Severance Plan Page 14
Tsarnaev did not supplant Wilkins. We are bound by Wilkins unless “the Supreme Court
issues an intervening decision that is directly on point” or that “provides directly applicable legal
reasoning” or “on-point dictum.” United States v. Fields, 53 F.4th 1027, 1046–47 (6th Cir.
2022) (internal quotation marks omitted). Tsarnaev is not directly on point because it did not
address ERISA. Moreover, in adopting procedures district courts must follow in adjudicating
ERISA actions, Wilkins followed the reasoning from Perry v. Simplicity Engineering, 900 F.2d
963 (6th Cir. 1990). See 150 F.3d at 617–19. Perry, in turn, followed the relevant Supreme
Court standard from Firestone. 900 F.2d at 965–66. Thus, any supervisory rules created in
Wilkins were meant to comport with Supreme Court standards, which is in line with Tsarnaev.
To the extent that Tsarnaev and Firestone are “in tension,” as one of our colleagues has
intimated, Tranbarger v. Lincoln Life & Annuity Co. of N.Y., 68 F.4th 311, 322–23 (6th Cir.
2023) (Nalbandian, J., concurring), the Supreme Court, not this court, must resolve that tension.
We must follow existing precedent.
Fourth, Kramer argues that he created a genuine dispute of fact that should have
precluded summary judgment under Rule 56. Because Rule 56 does not apply to the
adjudication of ERISA denial-of-benefits claims, this argument is meritless.
III.
For these reasons, we AFFIRM the district court’s judgment.

-- 14 of 14 --