
    AMERICAN INTERNATIONAL GROUP, INC. AMENDED AND RESTATED EXECUTIVE SEVERANCE PLAN, Plaintiff-Cross-Defendant-Counter-Defendant-Appellee, v. Steven GUTERMAN, Defendant-Cross-Claimant-Counter-Claimant-Appellant.
    No. 11-4222-CV.
    United States Court of Appeals, Second Circuit.
    Sept. 19, 2012.
    
      Paul W. Molliea (Wayne N. Outten, on the brief), Outten & Golden LLP, Chicago, IL, for Appellant.
    Patrick W. Shea (Marc E. Bernstein, on the brief), Paul Hastings LLP, New York, NY, for appellee.
    PRESENT: GUIDO CALABRESI and SUSAN L. CARNEY, Circuit Judges
    
    
      
       The third judge originally assigned to the panel was unable to hear the case because of a health issue. The two remaining members of the panel, who are in agreement, have decided the case. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998).
    
   SUMMARY ORDER

Steven Guterman, a former executive at American International Group, Inc. (“AIG”), appeals from the District Court’s award of summary judgment to the AIG Amended and Restated Executive Severance Plan (the “Plan”) in this ERISA benefits case. We assume the parties’ familiarity with the facts and the record of prior proceedings.

From 2001 to 2009, Guterman served as a Senior Managing Director and the Head of Global Business Development for a division of AIG known as AIG Investments, and, concurrently, as a Vice President of AIG, the parent organization. In September 2009, as part of a major reorganization, AIG offered Guterman the job of Global Head of Retail Sales in place of his previous position. The newly-offered position carried less responsibility than Guter-man had enjoyed in his prior roles and promised reduced (but still substantial) compensation. Guterman did not accept the new position by the deadline set by AIG, and then left AIG’s employ. Whether his employment ended pursuant to a termination (as Guterman contends) or a resignation (as AIG contends) determines Guterman’s entitlement to severance benefits under the Plan.

The Plan is a so-called “top hat” plan, meaning primarily that it establishes the terms on which the company will make certain deferred compensation payments (here, severance payments) to highly-compensated executives. See generally Demery v. Extebank Deferred Comp. Plan (B), 216 F.3d 283, 286-87 (2d Cir.2000). Such plans are exempt from many of ERISA’s provisions, and administrators of such plans are not subject to ERISA’s fiduciary responsibility obligations. Id. The Plan at issue here assigns the role of administrator to the Compensation and Management Resources Committee (the “Plan Administrator”) of AIG’s board of directors. It expressly grants the Plan Administrator authority to interpret the Plan “in its sole discretion.” Plan § VILA (Ex. 5.A to Bernstein Decl., at 9).

After the events leading up to Guter-man’s departure, the Administrator determined that Guterman had resigned, and, accordingly, denied Guterman severance benefits under the Plan. Guterman sued. On summary judgment, the district court upheld the Administrator’s determination, which it examined under an “arbitrary and capricious” standard of review.

In an ERISA benefits appeal, we review the district court’s grant of summary judgment de novo, and apply the same legal standards as are required of the district court on its review of a plan administrator’s determinations. Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir.2009). When an ERISA plan explicitly vests its administrator with discretion to interpret the plan, federal courts may ordinarily overturn the administrator’s benefits determination only upon a finding that the determination is arbitrary and capricious. Id.; see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Guterman maintains, however, that with respect to top hat plans — particularly those administered by entities within the corporate structure, which in some respect operate under an inherent conflict of interest — we should apply a less deferential standard of review, even when the plan expressly vests the administrator with discretion to interpret its terms. This is a matter of some debate in the circuit courts of appeal. Compare Goldstein v. Johnson & Johnson, 251 F.3d 433, 441-44 (3d Cir.2001) (holding Firestone Tire analysis inapplicable to top hat plans), with Comrie v. IPSCO, Inc., 636 F.3d 839, 842 (7th Cir.2011) (applying Firestone Tire and rejecting Goldstein’s analysis). We have not previously addressed this question head-on. See Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 108-09 (2d Cir.2008) (applying arbitrary and capricious review to administrator’s determination to terminate top hat plan without examining whether a different standard of review might apply). We do not reach this question here, however, because, even making a de novo determination on the administrative record, we reach the same conclusion as did the Administrator.

The record provides ample grounds for concluding that Guterman’s departure from AIG constituted a resignation for purposes of the Plan. As a part of the reorganization, AIG was willing to continue Guterman’s employment. It offered Guterman a substantial position, albeit one with less responsibility and lower compensation. Guterman had sufficient opportunity to accept the newly-offered position. He failed to do so by the deadline reasonably established by AIG, and which had already been extended once on Guterman’s request. Moreover, the Plan expressly precludes departing employees from asserting constructive discharge in support of a severance benefits claim. It also provides that only those employees with the rank of Senior Vice President — which Gu-terman did not have — maintain eligibility for severance benefits when resigning for “Good Reason” (a term defined by the Plan to include “[a] diminution in the Eligible Employee’s duties or responsibilities” or a “material reduction” in base salary or bonus opportunity). Plan §§ IV, IV.K (Ex. 5.A to Bernstein Deck, at 2, 8). Applying these Plan terms to the undisputed facts, we too conclude that Guterman “resigned,” making him ineligible for a Plan severance payment. He could have remained at AIG in a lesser role, yet he failed to accept the offered position by an established deadline. Guterman’s argument that he had been inadequately informed of the specifics of the new job is beside the point: the job he was offered had a title and compensation terms, and was his to accept or reject. By his actions, he rejected it.

For the foregoing reasons, the judgment of the district court is AFFIRMED.  