Petition for Writ of Certiorari — Samuel Gonzales, Petitioner v. ConocoPhillips Company, et al.

Supreme Court briefNov 6, 2020

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NO. _____

In the Supreme Court of the United States

________________

SAMUEL GONZALES,

Petitioner,

CONOCOPHILLIPS COMPANY; FRANK ALEXANDER; DAN MECHAM; CONOCOPHILLIPS SEVERANCE PAY PLAN,

Respondents.

________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

________________

PETITION FOR A WRIT OF CERTIORARI

_______________

Bruce A. Coane

Matt Swiger

COANE AND ASSOCIATES,

PLLC

5177 Richmond Avenue,

Suite 770

Houston, TX 77056

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, Texas 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Petitioner

November 6, 2020

QUESTIONS PRESENTED

1. Whether and to what extent district courts must

consider ERISA’s purpose “to protect *** the interests of

participants in employee benefit plans and their beneficiaries,” 29 U.S.C. § 1001(b), in exercising their discretion

to award attorney’s fees to a successful defendant under

29 U.S.C. § 1132(g)(1).

2. Whether the burden-shifting framework established

by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

for proving discrimination under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., which is “designed to assure that the plaintiff [has] his day in court despite the unavailability of direct evidence,” Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (internal quotation omitted), applies when the plaintiff can

prove discrimination by direct evidence.

(I)

STATEMENT OF RELATED PROCEEDINGS

Samuel Gonzales v. ConocoPhillips Company; Frank

Alexander; Dan Mecham; ConocoPhillips Pay Plan, Nos.

19-20285, 19-20467 (CA5) (opinion issued and judgment

entered April 3, 2020)

Samuel Gonzales v. ConocoPhillips Company; Frank

Alexander; Dan Mecham; ConocoPhillips Pay Plan, No.

4:17-CV-2374 (S.D. Tex.) (opinion issued and judgment entered April 11, 2019)

(II)

TABLE OF CONTENTS

Questions presented ............................................................ I

Statement of related proceedings..................................... II

Table of contents ............................................................... III

Table of authorities ............................................................. V

Introduction ......................................................................... 1

Opinions below ..................................................................... 5

Jurisdiction........................................................................... 5

Statutory provisions involved ............................................ 5

Statement ............................................................................. 5

Background .......................................................... 5

Factual background ........................................... 10

The decision below ............................................. 13

Reasons for granting the petition .................................... 14

The Fifth Circuit conflicts with other

circuits and this Courts’ precedent on both

Questions Presented. ........................................ 15

1. The conflict on the first Question

Presented. ..................................................... 15

2. The conflict on the second Question

Presented. ..................................................... 28

The Questions Presented are of obvious

national importance, and this is the

appropriate vehicle to address them. .............. 31

Conclusion .......................................................................... 35

(III)

Table of contents—continued:

Appendix:

Appendix A:

Opinion of the United States Court of Appeals for the

Fifth Circuit (April 3, 2020) ........................................... 1a

Appendix B:

Order of the United States Court of Appeals for the

Fifth Circuit denying petition for rehearing and rehearing en banc

(June 9, 2020) ................................................................. 15a

Appendix C:

Memorandum and order of the United States District

Court for the Southern District of Texas

(April 11, 2019) ............................................................... 65a

Appendix D:

Final judgment of the United States District Court for

the Southern District of Texas

(April 11, 2019) ............................................................... 65a

Appendix E:

Order of the United States District Court for the

Southern District of Texas

(June 26, 2019) ............................................................... 65a

Appendix F:

Relevant excerpts from the United States

Code ................................................................................ 19a

29 U.S.C. §§

1001 ....................................................................... 19a

1132 ....................................................................... 19a

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) ........................................................... 7

Anita Foundations, Inc. v. ILGWU Nat. Ret.

Fund, 902 F.2d 185 (2d Cir. 1990).................................. 21

Armistead v. Vernitron Corp.,

944 F.2d 1287 (6th Cir. 1991) .......................................... 18

Beatty v. North Central Companies, Inc.,

282 F.3d 602 (8th Cir. 2002) ............................................ 19

Bittner v. Sadoff & Rudoy Indus.,

728 F.2d 820 (7th Cir. 1984) ............................................ 20

Carpenters S. Cal. Admin. Corp. v. Russell,

726 F.2d 1410 (9th Cir. 1984 ........................................... 18

Central States, Southeast and Southwest Areas

Pension Fund v. 888 Corp.,

813 F.2d 760 (6th Cir. 1987). ........................................... 21

Christiansburg Garment Co. v. EEOC,

434 U.S. 412 (1978) ................................................. passim

Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100

F.3d 220 (1st Cir. 1996), abrogated on other

grounds by Hardt v. Reliance Standard Life

Ins. Co., 560 U.S. 242 (2010) .......................................... 18

Custer v. Pan Am. Life Ins. Co.,

12 F.3d 410 (4th Cir. 1993) .............................................. 18

Cuyamaca Meats, Inc. v. San Diego and

Imperial Counties Butchers’ and Food

Employers’ Pension Trust Fund, 827 F.2d 491

(9th Cir. 1987) .................................................................. 21

(V)

Cases—continued:

CRST Van Express, Inc. v. EEOC, 136 S. Ct.

1642 (2016). ........................................................................ 7

Dennard v. Richards Grp., Inc.,

681 F.2d 306 (5th Cir. 1982). ............................................. 9

Dorn’s Transportation, Inc. v. Teamsters

Pension Trust Fund,

799 F.2d 45 (3d Cir. 1986) ............................................... 21

Eaves v. Penn,

587 F.2d 453 (10th Cir. 1978) ............................................ 8

Eddy v. Colonial Life Ins. Co. of Am.,

59 F.3d 201 (D.C. Cir. 1995) ..................................... 16, 18

Ellison v. Shenago Inc. Pension Bd.,

956 F.2d 1268 (3d Cir. 1992) ........................................... 20

Firestone Tire & Rubber Co. v. Neusser,

810 F.2d 550 (6th Cir. 1987) ...................................... 19, 24

Florence Nightingale Nursing Serv., Inc. v.

Blue Cross/Blue Shield,

41 F.3d 1476 (11th Cir. 1995) .......................................... 18

Fortino v. Quasar Co.,

950 F.2d 389 (7th Cir. 1991) ............................................ 29

Gastronomical Workers Union Local 610 &

Metro. Hotel Ass’n Pension Fund v. Dorado

Beach Hotel Corp., 617 F.3d 54 (1st Cir. 2010) ............ 22

Gray v. New England Tel. & Tel. Co.,

792 F.2d 251 (1st Cir. 1986) ........................................ 8, 19

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) ................................................. passim

VII

Cases—continued:

Honolulu Joint Apprenticeship & Training

Comm. of United Ass’n Local Union No. 675

v. Foster, 332 F.3d 1234 (9th Cir. 2003) ........................... 9

Hughes v. Rowe,

449 U.S. 5 (1980) (per curiam) ......................................... 7

International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977) ......................... 28, 31

Iron Workers Local No. 272 v. Bowen,

624 F.2d 1255 (5th Cir. 1980) ................................ 9, 18, 20

Leigh v. Engle,

727 F.2d 113 (7th Cir. 1984). ............................................. 8

LifeCare Mgmt. Servs. LLC v. Ins. Mgmt.

Admin. Inc.,

703 F.3d 835 (5th Cir. 2013) .............................................. 9

Loomis v. Exelon Corp.,

658 F.3d 667 (7th Cir. 2011) ............................................ 23

Marquardt v. North American Car Corp.,

652 F.2d 715 (7th Cir. 1981) ...........................16, 17, 18, 19

Martin v. Arkansas Blue Cross & Blue Shield,

299 F.3d 966 (8th Cir. 2002) .................................. 2, 16, 18

Mass. Mut. Life Ins. Co. v. Russell,

473 U.S. 134 (1985) ......................................................... 25

McPherson v. Employees’ Pension Plan of Am.

Re–Ins. Co., 33 F.3d 253 (3d Cir. 1994) ......................... 18

Meredith v. Navistar Int’l Transp. Corp.,

935 F.2d 124 (7th Cir. 1991) .......................................... 7, 9

Nachwalter v. Christie,

805 F.2d 956 (11th Cir. 1986) ................................ 8, 16, 20

VIII

Cases—continued:

Nat’l Sec. Sys, Inc. v. Iola,

700 F.3d 65 (3d Cir. 2012) ............................................... 23

Newman v. Piggie Park Enters., Inc.,

390 U.S. 400 (1968) ................................................. passim

North Cypress Med. Ctr. Operating Co., Ltd. v.

Aetna Life Ins. Co.,

898 F.3d 461 (5th Cir. 2018) ............................................ 14

Northcross v. Bd. of Educ.,

412 U.S. 427 (1973) ........................................................... 7

O’Callaghan v. SPX Corp.,

442 Fed. App’x. 180 (6th Cir. 2011) ............................... 22

Operating Eng’rs Pension Trust v. Gilliam,

737 F.2d 1501 (9th Cir. 1984) ............................................ 3

Paddack v. Morris,

783 F.2d 844 (9th Cir. 1986) ............................................ 24

Pennsylvania v. Delaware Valley Citizens’

Council, 478 U.S. 546 (1986)............................................ 7

Quesinberry v. Life Ins. Co. of N. Am.,

987 F.2d 1017 (4th Cir. 1993) .......................................... 16

Rootberg v. Central States, Southeast and

Southwest Areas Pension Fund,

856 F.2d 796 (7th Cir. 1988) ............................................ 21

Salovaara v. Eckert,

222 F.3d 19 (2d Cir. 2000). ................................ 2, 8, 19, 24

Schexnayder v. Hartford Life & Acc. Ins. Co.,

600 F.3d 465 (5th Cir. 2010) ............................................ 33

Simonia v. Glendale Nissan/Infiniti Disability

Plan, 608 F.3d 1118 (9th Cir. 2010) ............................... 22

Cases—continued:

Smith v. CMTA-IAM Pension Tr.,

746 F.2d 587 (9th Cir. 1984) ............................................ 18

Tingey v. Pixley-Richards W., Inc.,

958 F.2d 908 (9th Cir. 1992) ............................................ 18

Tomasko v. Weinstock,

255 Fed. App’x 676 (3d Cir. 2007) .................................. 24

Toussaint v. JJ Weiser, Inc.,

648 F.3d 108 (2d Cir. 2011) ....................................... 19, 23

Trans World Airlines, Inc. v. Thurston,

469 U.S. 111 (1985) ........................................................... I

Treasurer, Trustees of Drury Indust., Inc.

Health Care Plan & Trust v. Goding,

692 F.3d 888 (8th Cir. 2012) ............................................ 22

United Bhd. of Carpenters & Joiners of Am. v.

Endicott Enterprises, Inc.,

806 F.2d 918 (9th Cir. 1986) ............................................ 19

Weston-Smith v. Cooley Dickinson Hosp., Inc.,

282 F.3d 60 (lst Cir. 2002) ............................................... 29

Williams v. Metro. Life Ins. Co.,

609 F.3d 622 (4th Cir. 2010) ............................................ 22

Statutes:

28 U.S.C. § 2412(d)(1)(A)). ................................................ 20

Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq....................................................................................... I

29 U.S.C. §

1983 .................................................................................... 7

2000a-3(b)). ........................................................................ 6

Statutes—continued:

42 U.S.C. § 2000e–5(b) ..................................................... 6

Clean Air Act, § 304(d), 84 Stat. 1706, 42 U.S.C.

§ 7604(d) ............................................................................ 7

Emergency School Aid Act of 1972, 20 U.S.C. §

1617 .................................................................................... 7

Employee Retirement Income Security Act of

1974 (ERISA), 29 U.S.C. §

1001(b) ..................................................................... passim

1105(a)(3) ......................................................................... 31

1132(g)(1) ................................................................. passim

1451(a)(1). ........................................................................ 21

Multiemployer Pension Plan Amendments Act

(MPPAA), 29 U.S.C. §§

1381-1483 ......................................................................... 21

1001-1461 ......................................................................... 21

In the Supreme Court of the United States

No.

SAMUEL GONZALES,

Petitioner,

CONOCOPHILLIPS COMPANY; FRANK ALEXANDER;

DAN MECHAM; CONOCOPHILLIPS

SEVERANCE PAY PLAN.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Samuel Gonzales respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit in this case.

INTRODUCTION

This petition concerns a critically important issue of

statutory interpretation regarding Section 502(g)(1) of the

Employee Retirement Income Security Act of 1974

(ERISA), 29 U.S.C. § 1132(g)(1): how to square this provisions allowance for attorney’s fees to “either party” with

ERISA’s textual commitment “to protect *** the interests

(1)

of participants in employee benefit plans and their beneficiaries.” 29 U.S.C. § 1001(b).

These dueling textual imperatives have created a “conundrum” for lower courts, Martin v. Arkansas Blue

Cross & Blue Shield, 299 F.3d 966, 969 (8th Cir. 2002), because Section 502(g)(1) might make fees available to either

side, but is silent on whether this means fees are available

on equal terms to each side. And allowing defendants to

obtain fee awards as plaintiffs enjoy would threaten to

“chill[]” ERISA “suits brought in good faith”—the very

mechanism by which Congress sought to protect participants and beneficiaries. Salovaara v. Eckert, 222 F.3d 19,

28 (2d Cir. 2000). After all, potential ERISA claimants contemplating suit must consider the likelihood that even if

they win, their recovery might be cannibalized by attorney’s fees. If they lose, they might have to bear the other

side’s fees too. This could dissuade even the most worthy

ERISA claimants, because, as this Court has recognized,

“the course of litigation is rarely predictable,” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978), and

courts have an acknowledged tendency to employ “post

hoc reasoning” in assessing attorney’s fees, “by concluding that, because a plaintiff did not ultimately prevail, his

action must have been unreasonable or without foundation,” id. at 421-422. Without a realistic opportunity to obtain fees, and avoid being saddled with the other side’s

fees, a lawsuit might seem too much a gamble. And that

would mean the very benefits ERISA sought to provide to

participants and beneficiaries would be lost for “all but the

most airtight claims.” Id. at 421.

Balancing ERISA’s dealing textual concerns is therefore a core concern of lower courts, and the subject of a

longstanding, multi-faced, deeply entrenched and

(2)

acknowledged circuit split. Most circuits require that district courts take ERISA’s remedial purpose into account

in employing five universally employed factors, transforming them into an asymmetric standard that cuts different ways based on whether the fee claimant is the plaintiff or defendant, and does so in a manner that “very frequently suggests that attorney fees should not be charged

against ERISA plaintiffs”—not without some evidence

that the claims were insubstantial or brought for improper

reasons. Operating Eng’rs Pension Trust v. Gilliam, 737

F.2d 1501, 1506 (9th Cir. 1984). The Fifth Circuit, by contrast, employs a claimant-blind standard. The Fifth Circuit may have traditionally employed the same “five factors” as other courts, but it refuses to force—or even permit—district courts to account for ERISA’s remedial purpose in employing them, and thus allows fee awards to defendants that might chill other deserving plaintiffs from

bringing suit.

This conflict has only deepened after this Court’s decision in Hardt v. Reliance Standard Life Ins. Co., 560

U.S. 242 (2010), which made fees available to any party

that has achieved “some degree of success on the merits,”

id. at 245, thereby casting doubt on the five factors’ future.

The vast majority of circuits have held that Hardt did not

disturb circuits’ use of the five factors. Yet the Fifth Circuit, virtually alone, takes Hardt as making the factors

completely voluntary for lower courts, making success—

and success alone—the lone legal principle guiding district courts’ discretion in awarding fees. The upshot is that

district courts in the Fifth Circuit are free to give attorney’s fees to any successful defendant, on any terms, even

in a close case brought in the utmost good faith. And that

means prospective ERISA plaintiffs are subject to a

chilling penalty on exercise of their statutory ERISA

rights that is imposed nowhere else. The conflict between

the Fifth Circuit and others cannot be allowed to persist.

And this is the case to resolve the conflict. This is was

a close case in which the district court found no evidence

of bad faith or improper motive—because no such evidence exists. It awarded fees to Respondents solely because Gonzales lost. In any other circuit, that award would

have been vacated. Accordingly, the only reason Gonzales

is forced to pay over $180,000 in fees is that his claims

arose in the Fifth Circuit. This case therefore puts the rub

to the distinction between the standards employed in the

Fifth Circuit and virtually everywhere else. Plenary review should be granted on this question.

This question is joined with another on Gonzalez’s Title

VII claim that also deserves this Court’s attention. The

lower court breaks with decades of Supreme Court precedent, and decisions of other circuits, that restricts this

Court’s burden-shifting format from McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) to cases involving only

circumstantial evidence of discrimination. But Gonzales

has direct evidence of discrimination: a ConocoPhillips

policy that explicitly targeted expatriate American ConocoPhillips employees working abroad for termination on

the basis of their national origin. It is unfair and improper

to mechanically apply McDonnell Douglas where such direct evidence exists—thereby giving a defendant a chance

to explain-away obvious discrimination as if it could be

something else. Plenary review is appropriate for this

question as well.

The petition should be granted.

OPINIONS BELOW

The Fifth Circuit’s opinion (App., infra, 1a-7a) is reproduced at 806 Fed. App’x 289. Its order denying rehearing (id. 8a-9a) is unpublished. The relevant district court’

orders and opinions (id. 10a-17a) are unpublished.

JURISDICTION

The Fifth Circuit issued its opinion and judgment on

April 3, 2020 (App., infra, 1a-7a), and denied a timely en

banc petition on June 9, 2020 (App., infra, 8a). This Court

has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The provisions of the United States Code at issue in

this case are reproduced in the appendix. (App., infra, 19a)

STATEMENT

A. Background

1. Congress enacted ERISA “to protect *** the interests of participants in employee benefit plans and their

beneficiaries *** by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee

benefit plans, and by providing for appropriate remedies,

sanctions, and ready access to the Federal courts” when

those standards are violated. 29 U.S.C. § 1001(b). One of

the “remedies” ERISA provides is awards of attorney’s

fees in suits brought by plan participants or beneficiaries

under Section 502. 29 U.S.C. § 1132(a)(1)(B). Fee awards

are governed by Section 502(g)(1), which states:

In any action under this subchapter *** by a participant, beneficiary, or fiduciary, the court in its

discretion may allow a reasonable attorney’s fee

and costs of action to either party.

29 U.S.C. § 1132(g)(1).

2. In Hardt, this Court determined a party need only

achieve “some degree of success on the merits to recover

fees. 560 U.S. at 244. But while Section 502(g)(1) gives district courts discretion to award fees to either successful

plaintiffs or successful defendants, it is silent on whether

both can obtain fees on equal terms.

This Court has held that similarly worded statutes

conveying district courts “discretion” to award fees imposed no such equal-terms mandate, but rather imposed

asymmetric standards where necessary to protect Congress’s “policy” objectives embodied in the fee-award statute. Indeed, Newman v. Piggie Park Enters., Inc., 390

U.S. 400, 401, 402 (1968), the Court imposed an automatic

presumption that plaintiffs recover fees unless “special

circumstances would render such an award unjust” in interpreting Section 204(b) of Title II of the Civil Rights Act

of 1964, 42 U.S.C. § 2000a-3(b), another statute that gives

district courts “discretion” to award fees. But in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 414 (1978),

the Court interpreted the same language in Title VII giving district courts “discretion” to “allow the prevailing

party” a reasonable fee, 42 U.S.C. § 2000e–5(b), to impose

the opposite presumption for prevailing defendants, requiring that they should be denied fees, unless the district

court finds “that the plaintiff ’s action was frivolous, unreasonable, or without foundation.” 434 U.S. at 421.

The Court deemed the Piggie Park plaintiff-side presumption necessary to incentivize the civil rights plaintiff,

who sues “not for himself alone but also as a private attorney general” vindicating congressional priority of “the

highest priority.” 390 U.S. at 402. And it deemed the opposite Christiansburg Garment presumption necessary to

avoid “substantially add[ing] to the risks inherent in most

litigation” and “undercut[ing] the efforts of Congress to

promote the vigorous enforcement of ” the rights Congress creates.” 434 U.S. at 422. And the Court has maintained that asymmetric standard ever sense. CRST Van

Express, Inc. v. EEOC, 136 S. Ct. 1642, 1467 (2016).

The Court has extended this asymmetric approach to

other statutes based on their “similarity of language” and

“common raison d’etre.” Northcross v. Bd. of Educ., 412

U.S. 427, 428 (1973) (applying the Piggie Park plaintiffside presumption to Section 718 of the Emergency School

Aid Act of 1972, 20 U.S.C. § 1617, which provides that “the

court, in its discretion,” may award fees to the prevailing

party); Albemarle Paper Co. v. Moody, 422 U.S. 405, 415

(1975) (holding the same for Title VII); Hughes v. Rowe,

449 U.S. 5, 7, 14 (1980) (per curiam) (adopting the Christiansburg Garment defendant-side presumption to suits

under 42 U.S.C. § 1983); Pennsylvania v. Delaware Valley

Citizens’ Council, 478 U.S. 546, 560 (1986) (doing the same

for defendant awards under Section 304(d) of the Clean

Air Act, 84 Stat. 1706, 42 U.S.C. § 7604(d), which similarly

provides that the district court “may” award fees to “either party”).

3. The Court has never addressed whether ERISA

Section 502(g)(1) is subject to such an asymmetric standard. But a clear circuit majority holds that such an approach is required to protect ERISA’s “remedial purpose:

to protect beneficiaries of pension plans,” e.g., Meredith v.

Navistar Int’l Transp. Corp., 935 F.2d 124, 129 (7th Cir.

1991)—although few go so far as to impose the out-andout presumptions of Piggie Park and Christiansburg Garment. Instead, a majority imposes an asymmetric standard on the factors employed by “virtually every court of

appeals” to channel district courts’ discretion in awarding

fees under Section 502(g)(1). Gray v. New England Tel. &

Tel. Co., 792 F.2d 251, 258 (1st Cir. 1986). Those factors,

originally developed by the Tenth Circuit in Eaves v.

Penn, 587 F.2d 453, 465 (10th Cir. 1978), generally include

the following:

(1) the degree of the offending parties’ culpability

or bad faith;

(2) the degree of the ability of the offending parties to personally satisfy an award of attorneys

fees;

(3) whether or not an award of attorneys fees

against the offending parties would deter other

persons acting under similar circumstances;

(4) the amount of benefit conferred on members

of the pension plan as a whole; and

(5) the relative merits of the parties’ position.

Ibid.

4. Under the asymmetric standard the majority imposes on these factors, successful plaintiffs “are more

likely to be awarded attorneys’ fees” than prevailing defendants, Nachwalter v. Christie, 805 F.2d 956, 962 (11th

Cir. 1986), and “an award of attorneys’ fees against an

ERISA plaintiff will rarely be justified.” Leigh v. Engle,

727 F.2d 113, 140 n.39 (7th Cir. 1984). The majority deems

this dual standard essential to “prevent the chilling of

suits brought in good faith,” Salovaara, 222 F.2d at 28, and

to preserve the critical role that “private actions by beneficiaries seeking in good faith to secure their rights under

employee benefit plans” has in preserving Congress’s remedial purpose in ERISA. Meredith, 935 F.2d at 128–129.

The majority deems this asymmetric approach the best

way of respecting both “the remedial purpose of ERISA

on behalf of beneficiaries and participants,” stated in the

text, and “the clear statutory language that makes fees

available to “‘either party.’” Honolulu Joint Apprenticeship & Training Comm. of United Ass’n Local Union No.

675 v. Foster, 332 F.3d 1234, 1240 (9th Cir. 2003) (quoting

29 U.S.C. § 1132(g)(1)).

5. Yet the Fifth Circuit stands virtually alone in refusing to give effect to ERISA’s textually stated purpose of

protecting ERISA plan participants and beneficiaries. It

does not require district courts to consider ERISA’s “remedial” purpose in deciding whether to award fees, even

though the Fifth Circuit was the first to recognize the importance of that remedial purpose. Dennard v. Richards

Grp., Inc., 681 F.2d 306, 319 (5th Cir. 1982). And the Fifth

Circuit refuses to employ either the “Piggie Park” plaintiff-favoring presumption to ERISA, or the “Christiansburg Garment bifurcation between prevailing plaintiffs

and defendants.” Iron Workers Local No. 272 v.

Bowen, 624 F.2d 1255, 1266 & n. 24 (5th Cir. 1980). Furthermore, while the Fifth Circuit has adopted the “fivefactor” approach to fee awards, it has refused to instruct

lower courts to consider ERISA’s remedial approach in

applying those factors. Ibid. And after Hardt, it made district courts’ compliance with the five factors entirely optional, concluding that they do not “need to consider”

them. LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Admin.

Inc., 703 F.3d 835, 846 (5th Cir. 2013). That discards any

asymmetry that might be found in the factors themselves.

Accordingly, in the Fifth Circuit, a district court can award

fees to a successful defendant without deciding whether

the plaintiff has engaged in “bad faith” or “culpable” conduct, or raised insubstantial claims—-the most critical of

the five factors. And it does not matter whether such an

award risks deterring future ERISA plaintiffs. As this

case amply illustrates, all that matters is whether the defendant has succeeded on the merits.

B. Factual background

Samuel Gonzales is a petroleum engineer who worked

for several years on international assignment for ConocoPhillips in Australia. (App., infra, 2a) He was terminated from that position in 2016, after 9 years with the

company, and denied severance benefits under the company’s severance pay plan. (Id. 3a) Gonzales traced the

circumstances of his termination to a policy that the company initiated in 2015, through which it sought to “nationalize” its workforce—“replac[ing] expat[]” employees

working on projects outside their home countries “with

nationals” from the countries where projects were located

to avoid the “additional expenses” of supporting those expatriate employees. (ROA.19-20285.1280-1281, 1432)

Gonzales sued Respondents, claiming that denial of his

severance benefits violated ERISA sections 502(a)(1)(B),

502(c), and 503. (App., infra, 2a) He also brought claims

under Title VII and § 1981, claiming that ConocoPhillips’

“nationalization” policy constitutes improper nationalorigin discrimination. (Ibid.)

Respondents sought summary judgment on both Gonzales’s ERISA and Title VII claims. They claimed that

Gonzales’s termination had no connection to ConocoPhillips’ “nationalization” policy. Instead, they contended it resulted from time Gonzales spent in immigration detention,

after his previous work visa had expired, and he was issued a “bridging” visa while his renewal application was

processed. (Id. 2a.) But that “bridging” visa was cancelled

after criminal charges were filed against him and he was

detained. (Id. 2a-3a) ConocoPhillips maintained this detention left Gonzales “absen[t] without leave” and unable

“to perform his job duties.” (Id. 3a) And ConocoPhillips

maintained that the charge meant Gonzales had failed to

“remain eligible” to obtain a new permanent work visa.

(Id. 3a) That was so even though maintaining a visa was

never listed as one of Gonzales’s job requirements, and

even after that charge was dropped under Section 25 “of

the Criminal Procedure Act” of Western Australia, which

is a dismissal for lack of evidence. (ROA.19-20285.1286)

But Gonzales provided evidence that ConocoPhillips’

proffered reasons for his termination were contrived. For

instance, he fatally undermined ConocoPhillips’ narrative

that his termination was traceable to his detention and

criminal charge, rather than ConocoPhillips’ “nationalization” policy, with evidence showing that months before the

criminal charge was filed in February of 2016, ConocoPhillips had already planned to “nationalize” his role pursuant

to the policy, “repatriate” him to the U.S., and likely “terminate[]” him. (ROA.19-20285.1280-1281, 1285) The

charge and detention simply provided cover for the discriminatory decision ConocoPhillips had already made—a

convenient way to avoid scrutiny of its “nationalization”

policy and deny Gonzales severance benefits the company

otherwise thought it would have to provide.

Gonzales also put the lie to ConocoPhillips’ claim that

the dropped charge rendered him ineligible for a renewal

visa. While Australian immigration law provides that

those convicted of certain crimes become categorically

ineligible for Gonzales’s form of work visa, charges

dropped for lack of evidence have no bearing in the eligibility determination. (ROA.19-20467.479) To the extent

anything in Gonzales’s past might have threatened his

chances of getting a visa, it did not render him ineligible,

but would instead be assessed according to softer criteria,

to determine whether that history indicated he was a person who was “not of good character,” or likely to engage in

future “criminal conduct.” (ROA.19-20467.479-480) Indeed, while Australian immigration officials eventually informed Gonzales that his visa was likely to be denied, they

gave no indication that it was because of the dropped

charge, his detention, or his character. (ROA.1920285.1287 [R.E.12]) They instead indicated it was because—and only because—ConocoPhillips had withdrawn

its sponsorship of Gonzales’s visa when it decided to terminate him. (Ibid.)

Furthermore, Gonzales demonstrated the charge that

he had been “absent without leave” during his detention

was both inconsistent and incorrect. Gonzales presented

evidence that the company allowed him to use vacation

days until April 1, 2016, and thereafter placed him on “unpaid leave” for the remainder of his detention. (ROA.1920285.1299 [R.E.13], 19-20285.1431 [R.E.22]) Accordingly,

to the extent Gonzales had any difficulty “perform[ing] his

job duties” during his detention, ConocoPhillips had excused that difficulty, only to claim later that it had not.

Gonzales contended that these inaccuracies and position-shifts in ConocoPhillips’ reasons for his termination

provided sufficient evidence to survive summary judgment on his Title VII claim, and to suggest that his termination was not for “good cause” so as to justify the denial

of his severance benefits, thereby violating ERISA. Yet

the district court granted ConocoPhillips’ motion for summary judgment on both claims (App., infra 10a-11a) and

found “good cause” to award ConocoPhillips $186,000 in

attorney’s fees. (Id. 17a)

C. The decision below

1. A panel of this court affirmed. With regard to Gonzales’s Title VII claim, the panel “appl[ied] the burdenshifting framework set forth in McDonnell Douglas” and

held that “even assuming arguendo that Gonzales has established a prima facie case of discrimination, he has failed

to demonstrate that ConocoPhillips’ reason for terminating his employment was pretextual” as necessary to satisfy that framework. (App., infra, 5a-6a) It accepted uncritically ConocoPhillips’ contention that it had terminated Gonzales because he was absent “without leave” after his vacation time ran out (id. at 6a), claiming this rendered him “unable to perform his job duties,” and likewise

parroted ConocoPhillips’ contention that Gonzales “failed

to maintain eligibility” for his work visa—never mentioning the evidence undermining each of those contentions.

The panel therefore affirmed the dismissal of Gonzales’s

Title VII claim.

The panel then used those same basic contested facts

about Gonzales’s Title VII claim as the basis to affirm dismissal of his ERISA claims. The panel held that deferential review of the plan administrators’ decision to deny

Gonzales’s severance was appropriate because ConocoPhillips’ severance pay plan “delegates discretionary

authority to the plan administrator” and it held that plan

administrator’s decision to deny Gonzales severance benefits was supported by “substantial evidence.” (App., infra

4aa) The panel determined that “the Plan administrator

correctly found that Gonzales did not satisfy all of the

Plan’s “Qualifying Circumstances” necessary for severance benefits “because he did not suffer a layoff,” but “was

terminated for cause.” (Id. 4a-5a) This despite the fact

that the Plan administrator admitted he did not actually

make any independent determination that Gonzales was

terminated for cause, but simply relied on a notation in

ConocoPhillips’ personnel records. (ROA.19-20467.572,

¶10) Finally, the panel affirmed the award of attorney’s

fees in ConocoPhillips’s favor, concluding that the grant of

summary judgment for ConocoPhillips showed “‘some degree of success on the merits’”—which was all circuit law

after Hardt required for an award of attorney’s fees.

(App., infra 7a, quoting North Cypress Med. Ctr. Operating Co., Ltd. v. Aetna Life Ins. Co., 898 F.3d 461, 485 (5th

Cir. 2018)).

2. Stanley sought panel rehearing and en banc review,

pointing out the inconsistency between the Fifth Circuit’s

lax standards for reviewing attorney’s fee awards and the

standards in other circuits, as well as the error in the the

panel’s application of the McDonald Douglass burdenshifting framework to a case involving direct evidence of

employment discrimination. But the court denied review.

(App., infra, 9a)

REASONS FOR GRANTING THE PETITION

The traditional criteria of certworthiness are all present here. There are acknowledged, wide-spread, and fully

developed spits on both Questions Presented. Those questions are right now leading to different results in similar

cases across jurisdictional lines. And this case is a compelling one for resolving both questions.

The case is of obvious national importance, embracing

the standards applied in every circuit. The erroneous

rules applied below will not only have serious adverse consequences for all ERISA plan participants and beneficiaries who might face an attorney’s fee award, but will also

adversely affect employees who faces the most serious, obvious, and invidious forms of workplace discrimination.

And the standards employed by the Fifth Circuit on these

questions cannot be justified under any rational conception of Title VII or ERISA law.

A. The Fifth Circuit conflicts with other circuits

and this Courts’ precedent on both Questions

Presented.

Review is warranted because the Fifth Circuit’s resolution of both Questions Presented conflicts with other circuits and this Court’s precedent.

The conflict on the first Question Presented.

There are acknowledged, widespread, and entrenched

conflicts encompassing all but one of the circuits on the

first Question Presented. Those conflicts have only deepened in the wake of this Court’s decision in Hardt. And the

Fifth Circuit’s position within those splits are unsupportable.

a. Even before the Court’s opinion in Hardt, the circuits were divided over whether fee awards for successful

plaintiffs and successful defendants must be judged by different standards to protect ERISA’s essential remedial

purpose. A majority holds that it must. For some in this

camp, including the Fourth, Eighth, Eleventh, and D.C.

Circuits, this asymmetric standard manifests as a proplaintiff gloss on all aspects of fee awards, including

consideration of the traditional five factors courts employ

in determining such awards. Quesinberry v. Life Ins. Co.

of N. Am., 987 F.2d 1017, 1030 (4th Cir. 1993) (holding that

district court should “consider the remedial purposes of

ERISA in making its determination regarding attorneys’

fees”); Eddy v. Colonial Life Ins. Co. of Am., 59 F.3d 201,

207 (D.C. Cir. 1995) (holding that ERISA’s “statutory purpose” must be a “constant guide,” “inform[ing] and channel[ing] the application and evaluation of the [five] factors”); Martin, 299 F.3d at 971 (holding that the factors

should not be “mechanically applied” to avoid undermining “‘both the substantive purpose of ERISA and the discretion vested in the courts to carry out that purpose.’”) (quoting Eddy, 59 F.3d at 207); Nachwalter v.

Christie, 805 F.2d 956, 962 (11th Cir. 1986) (holding that

district courts, in “applying” the factors, “should bear in

mind ERISA’s essential remedial purpose: to protect beneficiaries of pension plans”).

b. Other circuits have sought to protect ERISA’s “remedial purpose” through a more explicitly asymmetric

standard following the Seventh Circuit’s decision in Marquardt v. North American Car Corp., 652 F.2d 715 (7th Cir.

1981). Marquardt deemed such asymmetry to be required

by Christiansburg Garment. Marquardt emphasized that

the course of ERISA litigation is no more “‘predictable’”

than that under the Title II claims at issue in Christiansburg Garment. 652 F.2d at 720 n.6 (quoting 434 U.S. at

421). Marquardt also emphasized that ERISA claimants,

like their “civil rights actions” cousins, often act as “‘private attorney’s general’ in vindicating national policy,” so

it found Christiansburg Garment’s “reasons” for its “policy discouraging assessing attorneys” fees against plaintiffs” to be “applicable to ERISA cases.” Ibid.

Yet Marquardt determined this public interest factor

“is not as strongly applicable in ERISA actions” as it is in

civil rights cases, so the court did not go so far as to adopt

Christiansburg Garment’s presumption against defendant awards. Ibid. Instead, it outlined certain “consideration[s]” that district courts must apply to the traditional

“five-factor” test that cause it to toggle in different directions for successful plaintiffs than successful defendants.

Id. at 720. First, Marquardt required courts to analyze the

“culpability” of a losing beneficiary under the first factor

differently from that of a losing employer: The latter has

necessarily “violated ERISA,” while the former may “only

[be] in error or unable to prove his case.” Ibid. Second, an

employer “often will be in a position to pay its own fees

while the employee will be hard pressed to pay both his

own and the employer’s fees”—especially if he is suing for

benefits. Ibid. So Marquardt held the “ability to pay” factor will “rarely” counsel in favor of defendant awards. Id.

at 721. It likewise directed that consideration of the “deterrence” factor also “generally will not justify” defendant

awards, because defendants facing the prospect of paying

attorney’s fees to successful plaintiffs will have “added incentive to comply with ERISA.” Ibid. But for a plaintiff

beneficiary or participant, merely “bear[ing] his own attorneys’ fees and costs” will be sufficient deterrent against

filing “a frivolous or baseless suit.” Ibid.

Marquardt also emphasized that the fourth and fifth

factors point in different directions depending upon the

fee claimant. See id. at 721. A successful ERISA suit will

generally benefit “all participants in an ERISA plan” and

beneficiaries will “have added incentive” to convey those

benefits “if their attorneys’ fees will be paid by defendants.” Id. at 721. But employers seldom need a similar

incentive to defend ERISA suits. See id. at 721. And in

evaluating the relative merits of the parties’ positions,

Marquardt emphasized that courts should be careful neither to penalize ERISA claimants for seeking to enforce

employer obligations under ERISA nor to encourage employers to be indifferent to their obligations. Ibid.

c. Different circuits have approached Marquardt’s

asymmetric standard in different ways. The Ninth Circuit

for example, has directed district courts to give “careful

consideration,” Tingey v. Pixley-Richards W., Inc., 958

F.2d 908, 909 (9th Cir. 1992) to “the considerations expressed in Marquardt” in deciding whether to award fees

to successful defendants, Carpenters S. Cal. Admin. Corp.

v. Russell, 726 F.2d 1410, 1416-1417 (9th Cir. 1984). But it

departed from Marquardt in adopting the Piggie Park

presumption for successful plaintiffs. Smith v. CMTAIAM Pension Tr., 746 F.2d 587, 589 (9th Cir. 1984).

Every circuit outside the Ninth has rejected this plaintiffs’-side presumption, and many have noted the conflict

on the issue. Cottrill v. Sparrow, Johnson & Ursillo, Inc.,

100 F.3d 220, 225–226 (1st Cir. 1996) (noting the conflict), abrogated on other grounds by Hardt, supra; Gray,

792 F.2d at 258 (noting the conflict); McPherson v. Employees’ Pension Plan of Am. Re–Ins. Co., 33 F.3d 253, 254

(3d Cir. 1994); Custer v. Pan Am. Life Ins. Co., 12 F.3d 410,

422 (4th Cir. 1993); Armistead v. Vernitron Corp., 944 F.2d

1287, 1302 (6th Cir. 1991); Iron Workers Local No. 272 v.

Bowen, 624 F.2d 1255, 1265–1266 (5th Cir. 1980); Martin,

299 F.3d at 970; Florence Nightingale Nursing Serv., Inc.

v. Blue Cross/Blue Shield, 41 F.3d 1476, 1485–1486 (11th

Cir. 1995); Eddy, 59 F.3d at 206-207.

But several circuits, including the First, Second,

Fourth, and Sixth have joined the Ninth in expressly

requiring district courts to apply Marquardt’s considerations before awarding fees to successful defendants. Gray,

792 F.3d at 258 (citing Marquardt and noting that the proplaintiff “bias” in the standard did not “thwart the legislative injunctive that attorney’s fees may be awarded to ‘either’ party”); Salovaara, 222 F.3d at 28-29 (noting that

courts should have “latitude” to “consider which party is

requesting gees” and must apply the Marquardt criteria

accordingly); Firestone Tire & Rubber Co. v. Neusser, 810

F.2d 550, 557 (6th Cir. 1987) (internal quotation omitted)

(following Marquardt’s logic that certain factors, such as

whether the suit benefited other plan participants or

whether an award will “deter” bad conduct, militate

against a defendant award because they are “more relevant to the question of whether attorney’s fees should be

awarded to ERISA plaintiffs than to ERISA defendants”).

Courts in this camp have also specifically emphasized

the first and third of the traditional factors—the culpability or “good faith” of the plaintiff in commencing the litigation and “relative merits” of her claims—in preserving

ERISA’s remedial purpose. Beatty v. North Central Companies, Inc., 282 F.3d 602, 605-606 (8th Cir. 2002); see also

Toussaint v. JJ Weiser, Inc., 648 F.3d 108, 111 (2d Cir.

2011) (holding that the inquiry requires a “focus on the

first *** factor: whether plaintiffs brought the complaint

in good faith”); United Bhd. of Carpenters & Joiners of

Am. v. Endicott Enterprises, Inc., 806 F.2d 918, 923 (9th

Cir. 1986) (finding it an abuse of discretion to award fees

to a successful defendant absent plaintiff bad faith).

After Marquardt, the Seventh Circuit came around to

an even stronger version of this position, holding that

plaintiff ’s culpability, good faith, and the merits of her

position are the only important factors. At first, the court

did so by adopting a standard outside of the five favors:

one taken from the Equal Access to Justice Act, which permits fee awards only when the plaintiff ’s position was not

“‘substantially justified.’” Bittner v. Sadoff & Rudoy Indus., 728 F.2d 820, 830 (7th Cir. 1984) (quoting 28 U.S.C. §

2412(d)(1)(A)). And after flirting with applying both the

Bittner-based EAJA approach and the Marquardt-based

five-factors approach, the Seventh Circuit eventually decided that “whichever approach is used, the bottom-line

question is the same: was the losing party’s position substantially justified and taken in good faith, or was that

party simply out to harass its opponent?” Meredith, 935

F.2d at 128. And this “bottom-line question” must be answered with ERISA’s “remedial” purpose in mind. Id. at

129.

That brings a grand total of eight circuits in the asymmetrical standards camp for fee awards under Section

502(g)(1): the First, Second, Fourth, Sixth, Seventh,

Eighth, Ninth, Eleventh, and D.C.

d. By contrast, only the Third Circuit supports the

Fifth’s side in refusing to impose an explicitly asymmetrical approach in fee awards. Ellison v. Shenago Inc. Pension Bd., 956 F.2d 1268, 1275 (3d Cir. 1992) (citing the Fifth

Circuit’s decision in Bowen, 625 F.2d 1265). And that support is highly qualified, because the Third Circuit has held

that the “five factors” alone have sufficient asymmetry to

“adequately address ERISA’s policy concerns of remediation and deterrence.” 956 F.2d at 1275. The only remaining

circuit—the Tenth—has not squarely addressed the

issue.1 This extensive conflict alone justifies this Court’s

intervention.

e. But this conflict has only deepened after Hardt

brought the future of the five factors into question. Hardt

held that the traditional “five factors” had no place in determining whether the district court’s discretion to award

fees was triggered, 560 U.S. at 254-255, finding them to

have “no obvious relation to § 1132(g)(1)’s text or to our

fee-shifting jurisprudence.” Id. at 255. And the Court in

dicta indicated that the factors “are not required for channeling a court’s discretion” once that discretion is triggered. Ibid. Yet the Court expressly left open whether the

factors might play a role “once a claimant has satisfied”

A similar division exists with regard to the amendments to

ERISA’s fee-shifting provision, 29 U.S.C. §§ 1001-1461, that were

made by the Multiemployer Pension Plan Amendments Act (MPPAA),

29 U.S.C. §§ 1381-1483—which allows employers in certain multi-employer plans to sue the plan to recover benefits due their employees.

29 U.S.C. § 1451(a)(1). “[W]ith the exception of the Third Circuit, the

five-factor test originally adopted for fee requests under section

1132(g)(1) has been applied universally in situations where employers

have requested fees under the MPPAA.” Anita Foundations, Inc. v.

ILGWU Nat. Ret. Fund, 902 F.2d 185, 188 (2d Cir. 1990) (citing Rootberg v. Central States, Southeast and Southwest Areas Pension Fund,

856 F.2d 796, 798 (7th Cir. 1988); Cuyamaca Meats, Inc. v. San Diego

and Imperial Counties Butchers’ and Food Employers’ Pension

Trust Fund, 827 F.2d 491, 500 (9th Cir. 1987); Central States, Southeast and Southwest Areas Pension Fund v. 888 Corp., 813 F.2d 760,

767 (6th Cir. 1987). And they do so with Marquardt’s considerations

in mind. Anita, 902 F.32d at 189. But the Third Circuit employs a “frivolous litigation standard” under which a prevailing employer will receive attorney’s fees “only if the underlying claim against it was frivolous, unreasonable, or without foundation.” Dorn’s Transportation,

Inc. v. Teamsters Pension Trust Fund, 799 F.2d 45, 46 (3d Cir. 1986).

the success requirement,” and “thus becomes eligible for

a fees award under § 1132(g)(1).” Id. at 255 n.8.

A majority of courts have concluded that Hardt left the

five factors unchanged, requiring that they be applied despite Hardt’s dicta. O’Callaghan v. SPX Corp., 442 Fed.

App’x. 180, 186 (6th Cir. 2011) (holding that “Hardt does

not change the district court’s five-factor analysis,” but

simply “relaxes the threshold for eligibility for attorney’s

fees”); Gastronomical Workers Union Local 610 & Metro.

Hotel Ass’n Pension Fund v. Dorado Beach Hotel Corp.,

617 F.3d 54, 66 (1st Cir. 2010) (“[T]he Justices did not necessarily prohibit consideration of the five factors”); Williams v. Metro. Life Ins. Co., 609 F.3d 622, 635 (4th Cir.

2010) (“[O]nce a court in this Circuit determines that a litigant in an ERISA case has achieved some degree of success on the merits, the court should continue to apply the

general guidelines that we identified *** when exercising

its discretion to award attorneys’ fees to an eligible

party.”) (internal quotation omitted); Simonia v. Glendale

Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1120-1121

(9th Cir. 2010) (holding that “after determining a litigant

has achieved some degree of success on the merits, district

courts must still consider the [] factors before exercising

their discretion to award fees under § 1132(g)(1)”); Treasurer, Trustees of Drury Indust., Inc. Health Care Plan &

Trust v. Goding, 692 F.3d 888, 898-899 (8th Cir. 2012)

(same). As the factors survive in those jurisdictions, the

asymmetric approach applied to those factors in these jurisdictions survives as well.

Indeed, even the Third Circuit, the only court to lend

even qualified support to the Fifth Circuit’s position, continues to require consideration of the traditional factors.

Nat’l Sec. Sys, Inc. v. Iola, 700 F.3d 65, 103-104 (3d Cir.

2012) (“Once satisfied that a party has met that threshold

standard [of “some degree of success on the merits”], the

[district] court must consider the [five] policy factors in

determining whether to award fees and costs.”)

Yet even among the minority of circuits like the Fifth

that have followed Hardt’s dicta and made the factors optional, most continue to retain an emphasis on ERISA’s

“remedial” purpose and continue requiring an asymmetrical approach to fee awards. The Second Circuit has held

that Hardt “does not disturb” the circuit’s “‘favorable

slant toward ERISA plaintiffs’” and requires courts to

continue “focus[ing] on the first [] factor: whether plaintiffs brought the complaint in good faith.” Toussaint, 648

F.3d at 111 (quoting Salovaara, 222 F.3d at 19). The Seventh Circuit has similarly held that while Hardt may have

modified the part of the circuit’s “bottom-line” approach

focusing on whether the plaintiff ’s position was brought in

“bad faith,” it left in place the emphasis on whether the

plaintiff ’s claims were “substantially justified,” as required under Bittner’s EAJA-based approach. Loomis v.

Exelon Corp., 658 F.3d 667, 675 (7th Cir. 2011).

No circuit has come over to the Fifth Circuit’s idea of

a neutral, voluntary standard. Even the Third Circuit employs an asymmetric standard, if only because of the proplaintiff nature of the factors themselves. Accordingly,

Hardt may have added dimensions to the split—dimensions that have now persisted for more than a decade—

but it has not made the split go away.

f. There is no question that split is real and consequential. Any standard that requires district courts to explicitly

consider ERISA’s remedial purpose in making fee awards

cannot be squared with a standard that prohibits such consideration of remedial purpose. A standard that explicitly

instructs district courts to pass on special considerations

that make make fee awards more likely for succeeding

plaintiffs than succeeding defendants, and vacates district

court awards that fail to consider those special considerations, see Paddack v. Morris, 783 F.2d 844, 846 (9th Cir.

1986), cannot be squared with one that refuses to require

district courts to employ those special considerations. Any

standard that prohibits fee awards to successful plaintiffs

absent plaintiff culpability, bad faith, or an “insubstantial”

position, e.g., Salovarra, 222 F.3d at 28-29, cannot be

squared with one that allows fees to defendants simply for

succeeding. Any standard that requires reversal for a district court’s refusal to consider the traditional factors, Tomasko v. Weinstock, 255 Fed. App’x 676, 680-681 (3d Cir.

2007) or if the district court abuses its discretion in applying them, Firestone Tire & Rubber Co. v. Neusser, 810

F.2d 550, 557 (6th Cir. 1987), cannot be squared with one

making those factors entirely voluntary, especially when

that saps any purpose-furthering benefit stemming from

the five factors themselves. And finally, any standard that

suggests fee awards should “rarely” be granted to successful defendants, and under which such awards are regularly overturned, cannot be squared with a standard under which such awards are routine. ERISA plaintiffs in

the Fifth Circuits are therefore subject to attorney fee

awards that are not tolerated anywhere else.

The split is also fully developed and entrenched. Every

circuit save one has weighed in. The issue has arisen in

hundreds of cases over the past decades. The view in most

circuits has remained unchanged. And the Fifth Circuit is

unlikely to come over to the majority, especially given that

petitioner sought rehearing on this very question, but the

court nonetheless denied review. Nothing will be gained

from further percolation. This is as complete and well-developed as any split gets, especially on a question as naturally fact-specific as employment of a multi-factor test.

g. The Court should use this case to address this conflict, because the Fifth Circuit’s position within that split

is plainly incorrect. Text, history, and precedent all require district courts to employ an asymmetric standard

for awards of attorney’s fees between successful defendants and successful plaintiffs under ERISA Section

502(g)(1), because ERISA is not a neutral statute. It protects the “interests of participants and *** beneficiaries,”

not plans. 29 U.S.C. § 1001(b). And the right to attorney’s

fees ERISA provides may be available to all litigants, but

is a “remedy” that is specifically for the benefit of “plan

participants” and “beneficiaries”—to protect their “ready

access to the Federal courts.” Ibid. Congress provided

that remedy to address “possible concern that attorney’s

fees might present a barrier to maintenance of suits for

small claims, thereby risking underenforcement of beneficiaries statutory rights.” Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147 (1985).

It was precisely to avoid this chilling of statutory

rights, and “undercut[ing] the efforts of Congress to promote the vigorous enforcement of ” congressional objectives, that this Court has interpreted other statutes to impose asymmetrical standards. Christiansburg Garment,

434 U.S. at 422. Christiansburg Garment and Piggie Park

thus confirm that Congress requires awards of attorney’s

fees to be aligned with Congress’s statutory goals—it may

be necessary, but not sufficient, simply to succeed.

And just as the similarity in language and purposes between Title II and Title VII and other statutes led the

Court in Piggie Park and Christiansburg Garment to

expand the asymmetric approach to other statutes, the

similarity in language and purposes between ERISA and

these other statutes should dictate a similar asymmetric

approach. This line of cases also forms an integral part of

the “historic fee-shifting principles and intuitive notions of

fairness’ that have long guided this Court’s interpretation

of fee-shifting statutes.” Hardt, 560 U.S. at 255 (internal

quotation omitted). And following them is all the more logical because Congress obviously had in mind, and intended

to endorse, the asymmetric standards established in Piggie Park, supra, decided in 1968, when it wrote ERISA in

1974, Pub. L. No. 93-406 (Sept. 2, 1974), 88 Stat. 829, even

though Christiansburg Garment did not extend those

asymmetric principles to defendant-side awards until

1978. Accordingly, that history should guide the Court to

apply an asymmetric approach here.

Finally, the necessity for that asymmetric standard ultimately does not depend upon whether Hardt made the

traditional five factors voluntary or not. Doing away with

the five factors might do away with Marquardt’s specific

considerations tied to those factors. But it does not change

the reasoning in the majority of circuits reasoning that all

aspects of fee awards under Section 502(g)(1) should be

employed with ERISA’s remedial purpose in mind. Nor

does it change those courts’ refusal to award fees to prevailing defendants absent bad faith, culpable conduct, or

frivolous claims.

In any event, regardless of which among the several

asymmetrical standards that have developed in the decade

since Hardt is the correct one, the result that should absolutely not happen is what the Fifth Circuit allows, and

the district court dutifully provided: an automatic, unreasoned assessment of fees against a plaintiff merely

because he ultimately proved unsuccessful. That imposes

an undue punishment on a plaintiff merely for exercising

the right to “ready access to the Federal Courts” ERISA

meant to provide. 29 U.S.C. § 1001(b). And it poses an unacceptable risk of chilling the very behavior ERISA

sought to foster. That approach cannot be squared with

Congress’s purposes in enacting ERISA.

None of this is to say employers have no legitimate interest in deterring frivolous litigation, or legitimate fear

of being overwhelmed with the expense in defending

against it. That is exactly why ERISA makes fee awards

available to either party, and it is exactly why, even under

the asymmetric standards employed in the majority of

courts, fees are available to successful defendants when

the district court finds that the plaintiff had an improper

motive in bringing it, or the merits of his suit prove insubstantial. Accordingly, the majority approach balances the

appropriate concerns of both plaintiffs and defendants.

The Fifth Circuit approach, by contrast, overturns them,

both over-compensating defendants and over-deterring

plaintiffs. Its approach makes every ERISA claim subject

to a stiff monetary penalty simply because it fails under

one of the many creative procedural obstacles that employers are often able to raise against an ERISA beneficiary’s claim. That would deter many meritorious claims—

allowing employers to retain benefits they do not deserve—and encourage employer obstructionism, knowing

that simply by advancing litigation, and incurring more

fees, they would make it more likely that the plaintiff

would have to drop out for fear of incurring heavy penalties. Plenary review is necessary to ensure that this erroneous approach is overturned.

The conflict on the second Question Presented.

Certiorari should also be granted on the second Question Presented because the decision below conflicts with

the decisions of other circuits and this Court in subjecting

Gonzales’s Title VII claim to the “burden-shifting framework set forth in McDonnell Douglas.” (App., infra, 5a)

That framework requires the plaintiff in an employment

discrimination case to “establish a prima facie case of employment discrimination,” then the “burden of production

shifts” to the employer to offer a “legitimate nondiscriminatory explanation” for the adverse employment action, at

which point the plaintiff can show the proffered explanation “is merely a pretext for the discrimination.” (Ibid.; see

also McDonnell Douglas, 411 U.S. at 802, 804-05)

This burden-shifting framework is designed “to assure

that the plaintiff [has] his day in court despite the unavailability of direct evidence.” Trans World Airlines, 469 U.S.

at 121 (internal quotation omitted). And its entire logic is

tied to circumstances where discrimination is proven by

circumstantial evidence: If the plaintiff is permitted to go

forward merely by “offering evidence adequate to create

an inference that an employment decision was based on a

discriminatory criterion,” International Brotherhood of

Teamsters v. United States, 431 U.S. 324, 358 (1977) (emphasis added), then it is only fair that the defendant be afforded an opportunity to offer evidence to defeat those inferences before a Title VII claim is proven.

But there is no similar need to allow the defendant to

reset the stage when it has offered up direct evidence of

its discriminatory motive—the defendant has told the

world it is discriminating. Accordingly, for more than

three decades it has been settled that “the McDonnell

Douglas test is inapplicable where the plaintiff presents

direct evidence of discrimination.” Trans World Airlines,

469 U.S. at 121. That remains settled law virtually everywhere outside the Fifth Circuit. See, e.g., Weston-Smith v.

Cooley Dickinson Hosp., Inc., 282 F.3d 60, 64 (lst Cir.

2002) (describing McDonnell Douglas as a “circumstantial evidence model”).

The Fifth Circuit therefore broke with other courts in

applying McDonnell Douglas to Gonzales’s claims, because Gonzales has presented direct evidence that he has

suffered employment discrimination—from ConocoPhillips’ own admitted “nationalization” policy. A policy that

subjects Gonzales to differential treatment simply because he is American—to the point that he was removed

from a job he already had in order to give it to a nonAmerican—is evidence of discrimination in plain sight,

constituting direct evidence of cognizable national-origin

discrimination. See, e.g., Fortino v. Quasar Co., 950 F.2d

389, 392 (7th Cir. 1991) (stating that Title VII protects

Americans from discrimination in favor of foreign workers).

But application of the McDonnell Douglass burdenshifting scheme to Gonzalez’s claims perversely allowed

ConocoPhillips to try and explain-away discrimination in

plain sight, “disproving” the inference of discrimination by

the policy to make it appear non-discriminatory. ConocoPhillips’ insists that its policy of “nationalizing” roles in

other countries does not necessarily require taking the

role away from an American and giving it to someone of

another nationality; it simply meant putting a person in

the position who was on “local” payroll. (Appellees’ Br. 54,

citing ROA.19-20467.1263-1264) By that logic, anyone

could serve in a “nationalized” role in Australia—

including an American—if they agreed not to accept the

extra benefits that come with an expatriate assignment.

That policy might not be non-discriminatory. But it is

not the policy ConocoPhillips described to the Texas

Workforce Commission: There it explained that its “nationalization” policy involved “reducing the numbers of

employees working outside their home country”—having

Americans work in America, and Australians work in Australia, and replacing those working outside their home

country. (ROA.19-20285.1432 [R.E.22]) Before the TWC,

ConocoPhillips asserted that this version of its policy was

nondiscriminatory because it claimed it “did not consider

the nationality of the employee selected for repatriation”—so anyone in Australia who is not Australian will be

sent home, whether they are American, French, or Mexican. (Ibid.) But calling a policy favoring Australians nondiscriminatory simply because excludes everyone who is

not Australian is like saying that a “White’s Only” lunch

counter is not discriminatory because it excludes everyone

who is not white. Accordingly, there is a material fact issue

about what ConocoPhillips’ “nationalization” policy actually is—the unvarnished version it presented to the TWC,

or the version it came up with only during litigation. If it

is the latter, it is plainly discriminatory. And none of ConocoPhillips dissembling about the nature of the policy

should be able to change the fact that the policy itself is

direct—not circumstantial—evidence of discrimination.

Accordingly, the panel’s decision to apply McDonnell

Douglas to Gonzales’s claims challenging that policy is directly at odds with binding Supreme Court authority and

creates inter-circuit conflicts. This decision also imposes

extra burdens to proving a discrimination claim, and gives

defendants unwarranted chances to avoid liability, in cases

where the defendant is so blatant as to state its discriminatory intent outright. Plenary review is also necessary to

undo this serious error.

B. The Questions Presented are of obvious

national importance, and this is the

appropriate vehicle to address them.

1. Finally, certiorari is also warranted because the

Questions Presented raise recurring questions of national

significance. This is especially true of the first Question

presented, which encompasses all but one of the regional

circuits, and involves splits that have persisted nearly as

long as ERISA has existed. Hardt has done nothing to dispel these festering conflicts. Indeed, they have only deepened in the decade since Hardt has decided.

And these festering conflicts are bad for labor law writ

large. They raise a critical risk of subjecting deserving

plan participants and beneficiaries subject to fee awards

under Section 502(g)(1), as well as the employers governed by the MPPAA whose fee awards are governed by

the same standards. And this risk of overdeterrence can

be especially hard when the plaintiff is a trustee, forcing

them to choose between satisfying “fiduciary duties” requiring them to bring suit and potentially incurring a risk

of incurring substantial attorney’s fees that other beneficiaries would ultimately have to bear. Bowen, 624 F.2d at

1266 (citing 29 U.S.C. § 1105(a)(3)).

2. This case is an excellent vehicle to overturn the Fifth

Circuit’s erroneous precedent and resolve the festering

conflicts in federal benefits law. The major reason the split

has persisted for decades has been the lack of a plaintiff

with Gonzales’s courage willing to challenge it and risk

adding to an appellate-affirmed assessment of fees with

still more fees. And his case presents the perfect set of

facts to challenge the Fifth Circuit’s erroneous standard

because it highlights the difference between fee awards in

the Fifth Circuit and everywhere else. Had the district

court given any serious consideration of the five factors,

or ERISA’s remedial purpose, it would never have

awarded fees to ConocoPhillips. The district court did not

find that Gonzalez had any culpable or bad faith motive.

Nor did it find his ERISA claims were frivolous. And such

findings could not be supported on this record.

There is absolutely no evidence of bad faith on Gonzales’s part. Indeed, in suggesting otherwise, the worst behavior Respondents could come up with is the fact that

Gonzales had the temerity to believe his lawyers when

they told him that they mailed a letter giving ConocoPhillips notice of claim, simply because ConocoPhillips claims

it never received that letter. (See Appellees’ Br. 24) But it

is not bad faith for Gonzales to believe what his lawyers

told him.

Moreover, Gonzales’s ERISA claims are far more than

insubstantial or frivolous: they are meritorious under applicable circuit precedent. As to Gonzales’s Section 502(a),

claim, the panel held ConocoPhillips’ severance pay plan

“delegate[ed] discretionary authority to the plan administrator” (App., infra, 4a)—as ConocoPhillips urged it to do

(Appellees’ Br. 35). And the panel held that the plan administrator’s decision was “supported by substantial evidence” because the panel thought the administrator independently “found that Gonzales” did not “suffer a layoff,”

but was instead “terminated for cause.” (App., infra, 5a)

But the plan administrator admitted he did not do that.

All he did was look in ConocoPhillips’ personnel system

for a notation ConocoPhillips had made that Gonzales had

been fired for cause. (ROA.19-20467.572, ¶10) This meant

that the plan administrator did not decide Gonzales was

terminated for cause, he decided only that his employer

thought Gonzales was. And under circuit precedent, such

reliance on conclusory assertions in company documents

is an abuse of discretion requiring that the decision be

overturned. Napoli v. Johnson & Johnson, Inc., 624 Fed.

App’x 861, 864 (5th Cir. 2015) (plan administrator abused

his discretion in relying solely on an employer-generated

letter relaying unsubstantiated allegations that an employee had violated employment policies).

The Plan administrator’s abuse of discretion is made

worse by his manifest conflict of interest in this case.

ConocoPhillips self-funded the plan and staffed it with

ConocoPhillips employees (ROA.19-20285.2039, 2088,

2096), meaning that every benefits decision affects the

company’s bottom line, and the company “potentially benefits from every denied claim.” Schexnayder v. Hartford

Life & Acc. Ins. Co., 600 F.3d 465, 470 (5th Cir. 2010) (internal quotation omitted). Under circuit precedent, that

creates “a structural conflict of interest”—one that takes

on additional significance “where the circumstances suggest a higher likelihood that [the conflict] affected the benefits decision,” such as where the plan administrator “arbitrarily refuse[s] to consider and credit reliable evidence”

in denying benefits. Id. 469-71.

That is exactly what happened here. While the plan administrator claimed to have reviewed the entire administrative record in considering Gonzales’s claim for severance benefits, he admitted the sole piece of information he

actually relied upon in determining that Gonzales had

been terminated for cause was a notation in Gonzales’s

personnel file. Had the administrator considered the

entire record, he would have been forced to consider information demonstrating that the decision was instead traceable to ConocoPhillips’ nationalization policy, not Gonzales’s detention or the charge. (ROA.19-20467.570-571, 607609) And that means the administrator’s decision was not

supported by substantial evidence. And the district court

erred in granting summary judgment. A meritorious

claim is one that absolutely cannot support an award of

fees to the other side. And that is yet another reason review should be granted in this case.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Bruce A. Coane

Matt Swiger

COANE AND ASSOCIATES,

PLLC

5177 Richmond Avenue,

Suite 770

Houston, TX 77056

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, Texas 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Petitioner

November 6, 2020

APPENDIX

INDEX

Appendix A:

Opinion of the United States Court of Appeals for the

Fifth Circuit (April 3, 2020) ............................................ 1a

Appendix B:

Order of the United States Court of Appeals for the

Fifth Circuit denying petition for rehearing and

rehearing en banc

(June 9, 2020) ................................................................. 15a

Appendix C:

Memorandum and order of the United States District

Court for the Southern District of Texas

(April 11, 2019) ............................................................... 65a

Appendix D:

Final judgment of the United States District Court for

the Southern District of Texas

(April 11, 2019) ............................................................... 65a

Appendix E:

Order of the United States District Court for the

Southern District of Texas

(June 26, 2019) ............................................................... 65a

Appendix F:

Relevant excerpts from the United States

Code ................................................................................ 19a

29 U.S.C. §§

1001 .......................................................................... 19a

1132 .......................................................................... 19a

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

————

[Filed April 3, 2020]

No. 19-20285

Consolidated with 19-20467

————

SAMUEL GONZALES,

Plaintiff-Appellant,

CONOCOPHILLIPS COMPANY; FRANK ALEXANDER;

DAN MECHAM; CONOCOPHILLIPS

SEVERANCE PAY PLAN,

Defendants-Appellees.

————

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CV-2374

————

Before DAVIS, JONES, and ENGELHARDT, Circuit

Judges.

PER CURIAM:*

Plaintiff-Appellant Samuel Gonzales brought suit

against Defendants-Appellees ConocoPhillips, its Severance Pay Plan, and two Plan administrators. In his

Pursuant to 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R. 47.5.4.

complaint, Gonzales asserted claims against Defendants

for employment discrimination on the basis of national

origin under Title VII and § 1981, as well as claims for

wrongful denial of severance benefits, failure to timely

provide plan documents, and breach of fiduciary duty

under ERISA Sections 502(a)(1)(B), 502(c), and 503. The

district court granted summary judgment in favor of

Defendants on all claims and dismissed Gonzales’ suit in

its entirety. The court awarded Defendants $186,000 in

attorneys’ fees. Gonzales appeals the court’s final

judgment and award of attorneys’ fees. We AFFIRM.

Samuel Gonzales was first employed by Conoco Phillips

in 2002 as a petroleum engineer. In 2011, Gonzales

accepted an international assignment as a senior drilling

engineer based in Australia. To be eligible to work in

Australia, Gonzales was required to obtain a temporary

work visa (457 visa), which includes certain character and

fitness requirements. Gonzales applied for and

successfully obtained a 457 visa permitting him to work in

Australia from January 2012 to January 2016.1

While in Australia, Gonzales was convicted of several

criminal offenses, including a July 2014 conviction for

aggravated assault against his wife for which he was

sentenced to one year probation. On January 7, 2016,

Gonzales disclosed these convictions to the Australian

Department of Immigration (the Department) in his

application to renew his 457 visa, and Gonzales obtained a

bridging visa while his 457 visa application was being

reviewed and processed. On March 1, 2016, the

Department cancelled Gonzales’ bridging visa on

character grounds, and Gonzales was detained in an

immigration detention facility. After learning that

Gonzales’ 457 visa was set to expire on January 11, 2016.

Gonzales would not be available to work for the

foreseeable future, ConocoPhillips put Gonzales on a paid

leave of absence. Gonzales remained on paid leave until

April 1, 2016, when he had exhausted all of his paid time

off. On June 24, 2016, Gonzales was released from the

immigration detention facility and returned to the United

States. On June 27, 2016, ConocoPhillips terminated

Gonzales for cause, citing his absence from work without

leave, his inability to perform his job duties, and his failure

to maintain eligibility for his 457 visa in Australia.

Thereafter, Gonzales filed suit. ConocoPhillips moved for

summary judgment. Following a lengthy discovery

process, the district court granted summary judgment in

favor of ConocoPhillips and awarded ConocoPhillips

attorneys’ fees.

II.

We review de novo a district court’s grant of summary

judgment, “applying the same legal standards that

controlled the district court’s decision.” Nichols v.

Reliance Standard Life Ins. Co., 924 F.3d 802, 808 (5th

Cir. 2019) (quoting White v. Life Ins. Co. of N. Am., 892

F.3d 762, 767 (5th Cir. 2018)). Summary judgment is

appropriate when the movant is entitled to judgment as a

matter of law, and there is no genuine dispute of material

fact. FED. R. CIV. P. 56(a). “An issue of material fact is

genuine if a reasonable jury could return a verdict for the

nonmovant.” Jackson v. Cal-Western Packaging Corp.,

602 F.3d 374, 377 (5th Cir. 2010). We “draw all reasonable

inferences in favor of the nonmoving party, and avoid

credibility determinations and weighing of the evidence.”

Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 474

(5th Cir. 2015). “However, a party cannot defeat summary

judgment with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence.” Turner v.

Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.

2007) (internal quotation marks and citation omitted). The

movant is entitled to summary judgment if “the

nonmoving party has failed to make a sufficient showing

on an essential element of her case with respect to which

she has the burden of proof.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986).

ERISA Claims

Where, as here, a plan subject to ERISA delegates

discretionary authority to the plan administrator, we

review the denial of a claim for an abuse of discretion. See

Ariana M. v. Humana Health Plan of Tex., Inc., 884 F.3d

246, 247 (5th Cir. 2018) (en banc) (citing Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). A plan

administrator abuses its discretion if its decision is

arbitrary or capricious. Truitt v. Unum Life Ins. Co. of

Am., 729 F.3d 497, 508 (5th Cir. 2013). “A decision is

arbitrary and capricious only if it is made without a

rational connection between the known facts and the

decision or between the found facts and the decision.” Id.

(citation omitted). If the plan administrator’s decision is

supported by substantial evidence and is not arbitrary and

capricious, it must prevail. Nichols, 924 F.3d at 808

(citation omitted). “Substantial evidence is more than a

scintilla, less than a preponderance, and is such relevant

evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. (quoting Ellis v. Liberty Life

Assur. Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004)

(cleaned up)). Under this standard, we must uphold the

plan administrator’s decision if our review “assure[s] that

the administrator’s decision fall[s] somewhere on a

continuum of reasonableness – even if on the low end.” Id.

(quoting Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d

240, 247 (5th Cir. 2009) (citation omitted)).

Here, the Plan administrator’s decision is supported by

substantial evidence. In order to be eligible to receive

benefits under the Plan, Gonzales had to meet all

Qualifying Circumstances and could not have a

Disqualifying Circumstance. The Plan administrator

correctly found that Gonzales did not satisfy all of the

Qualifying Circumstances because he did not suffer a

layoff; in fact, Gonzales was terminated for cause, which is

a Disqualifying Circumstance. Accordingly, the Plan

administrator did not abuse his discretion in concluding

that Gonzales was not eligible to receive Plan benefits.

Furthermore, Gonzales failed to produce sufficient

evidence that the Plan administrators either breached

their fiduciary duty or failed to provide plan documents.2

The district court, therefore, did not err in granting

summary judgment on Gonzales’ ERISA claims.

Employment Discrimination

As to Gonzales’ discrimination claims, we apply the

burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Lee v.

Kansas City Southern Ry. Co., 574 F.3d 253, 259 (5th Cir.

2009). To establish a prima facie case of employment

discrimination, Gonzales must demonstrate that he (1) is a

member of a protected class, (2) was qualified for his

position, (3) was the subject of an adverse employment

Gonzales alleges the Plan administrators had a conflict of interest

and did not give him a full and fair review. To that end, he raises

several evidentiary issues, asserting that the court should have looked

at evidence outside the administrative record to determine whether

the Plan administrators wrongfully denied Gonzales benefits and

breached their fiduciary duty to him. We find Gonzales’ arguments

meritless. The district court conducted a bench trial specifically for

the purpose of determining whether the administrative record was

complete, and after hearing testimony from the Plan administrators,

as well as arguments from counsel, the district court determined the

administrative record was complete. The court’s decision to constrain

the record to the evidence that was before the Plan administrator is in

line with our precedent. See Nichols, 924 F.3d at 811–12, n.10.

action, and (4) was treated less favorably because of his

membership in that protected class than were other

similarly situated employees who were not members of the

protected class. Id.

Once Gonzales demonstrates a prima facie case, the

burden of production shifts to ConocoPhillips to offer an

alternative, nondiscriminatory explanation for the adverse

employment action. Id. If ConocoPhillips can provide a

legitimate nondiscriminatory explanation, Gonzales would

then be required to demonstrate that ConocoPhillips

explanation is merely a pretext for the discrimination. Id.

Even assuming arguendo that Gonzales has established

a prima facie case of discrimination, he has failed to

demonstrate

that

ConocoPhillips

reason

for terminating his employment was pretextual. It is

undisputed that Gonzales was absent from work without

leave beginning April 1, 2016 through June 24, 2016, when

he was released from the immigration detention facility.

Moreover, Gonzales was unable to perform his job duties

while in the immigration detention facility. And ultimately,

Gonzales failed to maintain eligibility for his 457 visa in

Australia based on his character and fitness. Accordingly,

the district court did not err in granting summary

judgment on Gonzales’ discrimination claims.

III.

Finally, we review the district court’s award of

attorneys’ fees under ERISA for an abuse of discretion.

North Cypress Med. Ctr. Operating Co., Ltd. v. Aetna Life

Ins. Co., 898 F.3d 461, 485 (5th Cir. 2018). “A claimant

must show some degree of success on the merits before a

court may award attorney’s fees. Success means the court

can fairly call the outcome of the litigation some success

on the merits without conducting a lengthy inquiry into

the question whether a particular party’s success was

substantial or occurred on a central issue.” Id. (internal

quotation marks and citations omitted).

Although the district court here did not expressly

articulate in its order for attorneys’ fees how Conoco

Phillips showed some degree of success on the merits, it is

clear that by granting ConocoPhillips’ motion for

summary judgment as to all of Gonzales’ claims, the

district court did indeed find that ConocoPhillips had

shown some success on the merits. See 1 Lincoln Fin. Co.

v. Metro Life Ins. Co., 428 F. App’x 394, 396 (5th Cir. 2011)

(concluding that the district court’s grant of summary

judgment showed the moving party had succeeded on the

merits). Given that and the costs actually incurred by

ConocoPhillips, we find that the district court did not

abuse its discretion in its award of attorneys’ fees. We

AFFIRM the court’s order and award.

APPENDIX B

[Filed: June 9, 2020]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

————

No. 19-20285

Consolidated with 19-20467

————

SAMUEL GONZALES,

Plaintiff-Appellant

CONOCOPHILLIPS COMPANY; FRANK ALEXANDER;

DAN MECHAM; CONOCOPHILLIPS

SEVERANCE PAY PLAN,

Defendants-Appellees

————

Appeals from the United States District Court

for the Southern District of Texas

————

ON PETITION FOR REHEARING AND

REHEARING EN BANC

(Opinion 4/3/20, 5 Cir.,

F.3d

)

Before DAVIS, JONES, and ENGELHARDT, Circuit

Judges. PER CURIAM:

(✓) The Petition for Rehearing is DENIED and no

member of this panel nor judge in regular active

service on the court having requested that the court

be polled on Rehearing En Banc, (FED. R. APP. P. and

5TH CIR. R. 35) the Petition for Rehearing En Banc is

also DENIED.

( ) The Petition for Rehearing is DENIED and the court

having been polled at the request of one of the

members of the court and a majority of the judges

who are in regular active service and not disqualified

not having voted in favor, (FED. R. APP. P. and 5TH

CIR. R. 35) the Petition for Rehearing En Banc is also

DENIED.

( ) A member of the court in active service having

requested a poll on the reconsideration of this cause

en banc, and a majority of the judges in active service

and not disqualified not having voted in favor,

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ [Illegible]

UNITED STATES CIRCUIT JUDGE

10a

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[Filed: April 11, 2019]

————

Civil Action No. 4:17-CV-2374

————

SAMUEL GONZALES,

vs.

Plaintiff,

CONOCOPHILLIPS COMPANY, et al,

————

Defendants.

MEMORANDUM AND ORDER

Came on to be considered the plaintiff’s, Samuel

Gonzales, claim that the defendants, ConocoPhillips

Company, Frank Alexander, in his fiduciary capacity, Dan

Mecham in his fiduciary capacity and the Conoco Phillips

Severance Pay Plan, breached their duty under the

ConocoPhillips Severance Plan by wrongfully denying him

severance benefits in violation of the Employees

Retirement Income Security Act of 1974 (“ERISA”). The

defendants contest the plaintiff’s ERISA claim and,

further, seek summary judgment on the plaintiff’s severed

claim under Title VII of the Civil Rights Act, 42 U.S.C. §

2000e et. seq. Regarding his Civil Rights claim, the

plaintiff asserts that he suffered disparate treatment and

disparate impact, when he was denied severance benefits.

11a

After a careful review of the documents on file, the

Administrative Record, and the receipt of testimonial

evidence concerning the completeness of the administrative record the Court concludes the plaintiff’s ERISA

claim is unmeritorious and further, that the defendants’

summary judgment should be granted.

The plaintiff was first employed by ConocoPhillips in

2002 in the position of petroleum engineer. In 2011, he

accepted a reassignment as a senior drilling engineer and

was relocated to Australia. To relocate, the plaintiff

applied for and received an appropriate work visa and was

employed in Australia. The plaintiff worked in Australia

until June 27, 2016, when he was terminated for cause.

It is undisputed that the plaintiff engaged in criminal

conduct on several occasions, that the conviction for

assault resulted in a period of incarceration that impacted

his employment and that convictions reduced his chance of

getting a “work visa” so that he could continue his

presence and employment in Australia. It is also clear that

the plaintiff was fully aware that his prior conviction and,

particularly, his failure to report same to his employer and

Australian officials could negatively impact his ability to

obtain a work visa. As a result, the Australian Immigration

Department refused to issue the plaintiff a work visa and

his bridge visa was cancelled.

On June 27, 2016, ConocoPhillips terminated the

plaintiff’s employment upon his return to the United

States. He contends that in October 2016, he applied for

severance pay, however, he did not receive a refusal notice

until August 22, 2017. As a result of this alleged

misconduct by the defendants, the plaintiff seeks both

ERISA relief and damages for allege Civil Rights

violations. The Court is of the opinion that the plaintiff’s

12a

ERISA claim fails. Equally, and based on the same fact(s),

the plaintiff’s Title VII claim fails.

II.

The plaintiff contends that the defendants failed to

consider the entire record that, from the plaintiff’s

perspective, includes emails between various Conoco

Phillips’ employees and the Plan fiduciaries. The plaintiff

suggests that such conduct was conspiratorial and

designed to defeat his opportunity to receive severance

pay.

Fifth Circuit case law does not permit an ERISA

plaintiff to go beyond the administrative record when

challenging a plan administrator’s factual determinations.

The Fifth Circuit has recognized some issues, which a

reviewing court may resolve, by considering evidence

outside of the administrative record. Among those issues

are whether the plan administrator has given uniform

construction to a plan, Wildrew v. ARCO Chem. Co., 9 F.2d

632, 637 (5th Cir. 1992), and disputes over medical

terminology and practice that expert opinion may clarify,

Vega v. Nat’l Life Ins. Servs. Inc., 188 F.3d 287, 299 (5th

Cir. 1999).

Those limited exceptions do not appear to cover

inquiries into the thought processes of plan administrators. Assuming that both parties were given an

opportunity to present facts to the administrator, our

review of factual determinations is confined to the record

available to the administrator.” Meditrust Fin. Servs.

Corp. v. Sterling Chem., Inc., 168 F.3d 211, 215 (5th Cir.

1999). Borelli v. Fed. Express Corp. Long Term Disability

Plan, No. 6:04-CV-539, 2005 WL 8160870, at *1 (E.D. Tex.

July 22, 2005).

The administrative record in this case shows that the

plaintiff’s opportunity for severance pay ended on June 27,

13a

2016, when he was terminated for cause. In order to

eligibility for a severance claim, the plaintiff was required

to establish that he did not have a disqualifying event. It is

undisputed that at the time of layoffs, the plaintiff was not

an employee, that he had been terminated for cause and,

therefore, had suffered a disqualifying event.

The fiduciary of the Plan also concluded that the

plaintiff failed to establish the necessary qualifying

circumstances to receive severance and had at least one

disqualifying circumstance. The evidence also established

that the Plan Administrator did not receive the plaintiff’s

claim until August 2017, more than a year after his

employment terminated.

There is no evidence that the Plan Administrator acted

in bad faith or otherwise did any act that prejudiced the

plaintiff

either

filing

establishing

his claim. Therefore, the Court holds that the Plan

Administrator did not abuse his discretion by denying the

plaintiff’s ERISA claim. See 29 U.S.C. § 1133; see also N.

Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, No.

4:09-CV-2556, 2017 U.S. Dist. 16076, at * 14-15 (S.D. Tex.,

Feb. 6, 2017).

The evidence also fails to support the plaintiff’s claims

of disparate treatment and disparate impact based on

national origin. In this claim, the plaintiff asserts that his

work visa was not renewed based ConocoPhillips acts that

blocked his application for renewal. This claim fails on two

accounts. First, the plaintiff’s national origin claim is

brought under 42 U.S.C. § 1981. In this regard, he claims

that ConocoPhillips replaced him, an (American expatriate), with an Australian national. A national origin is not

an actionable claim. See Odubela v. Exxon Mobile Corp.,

736 F. App. X 437, 442 (5th Cir. 2018). Simply claiming that

his is an American, does not identify a cognizable group or

14a

class of persons that are “subject to intentional

discrimination”. Id.

The second basis upon which the plaintiff’s national

origin – disparate treatment/impact claim fails is

grounded in the elements of proof. In order for the

plaintiff to prevail, he must establish a prima facie case

against the defendants. In light of the statutory basis upon

which an employee may file a § 1981 suit, the sole

defendant is ConocoPhillips. It is undisputed that

ConocoPhillips was the plaintiff’s employer. With that

said, the plaintiff must prove each of the elements of his

claim in order to shift the burden of production to

ConocoPhillips. He has failed to present evidence that

contradicts ConocoPhillips’ facts or bring himself within

the protections afforded by law.

In order to establish his claim(s), the plaintiff must

establish, among other elements, that he was a member of

a protected class, that he was qualified for his position he

sought to maintain, and that the basis stated for his

termination was not factually neutral. Kim v. Hospira,

Inc., No. 17-50562, 2018 U.S. App. Lexis 879, *at 4 (5th Cir.

January 12, 2018). The plaintiff cannot establish either of

the elements. In fact, the uncontradicted evidence

establishes that the status of American expatriate, is not a

protected

class.

Moreover, the plaintiff was unqualified to maintain the position

because one of the conditions for securing and maintaining

employment in Australia was in possession of a work visa.

The Australian Immigration authorities rejected the

plaintiff’s application to renew his work visa which meant

the plaintiff could not work or even remain in Australia.

Finally, there is no evidence that ConocoPhillips “costreduction” practices, that included lay-offs to achieve or

control costs across the Company, were not applied in a

neutral fashion. More specifically, there is no evidence

15a

that the cost-reduction plan was applied against a class of

employee who were qualified to make a discrimination

claim. See McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). In conclusion, the direct evidence rebuts all

presumptions that circumstantial evidence might raise in

behalf of the plaintiff. Kim, 2018 U.S. App. LEXUS 874,

at * 4 (the evidence does not establish who the employees

were who were laid off, nor that any were Americans.)

After a careful analysis of the pleadings, evidence and

arguments, the Court concludes that the plaintiff’s Civil

Rights suit should also be dismissed. It is Ordered that the

defendants’ motion for summary judgment is Granted and

the plaintiff’s suit is Dismissed in its entirety with

prejudice.

It is so Ordered.

SIGNED on this 11th day of April, 2019.

/s/ Kenneth M. Hoyt

Kenneth M. Hoyt

United States District Judge

16a

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[Filed: April 11, 2019]

————

Civil Action No. 4:17-CV-02374

————

SAMUEL GONZALES,

vs.

Plaintiff,

CONOCOPHILLIPS COMPANY, et al,

————

Defendants.

FINAL JUDGMENT

Pursuant to the Memorandum and Order entered in this

case, the plaintiff, Samuel Gonzales, shall take nothing by

his suit.

This is a Final Judgment.

SIGNED on this 11th day of April, 2019.

/s/ Kenneth M. Hoyt

Kenneth M. Hoyt

United States District Judge

17a

APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[Filed: June 26, 2019]

————

Civil Action No. 4:17-CV-2374

————

SAMUEL GONZALES,

vs.

Plaintiff,

CONOCOPHILLIPS COMPANY, et al,

————

Defendants.

ORDER

The Court, having considered the defendants’ motion

for attorneys’ fees and costs, all responses, objections and

replies, thereto, and the arguments of counsel, if any, is of

the opinion that good cause exists for granting the motion

in part.

The Court determines that the plaintiff’s ability to pay

an attorneys’ fee is limited to his earned income and

bonus(es), if any, resulting in an annual income in the

range of $250,000. The Court is of the opinion that the fees

and costs sought are reasonable. In light

of this fact, the Court determines that an award equal to

30% of the requested attorneys’ fees sought is reasonable.

It is ORDERED that the defendants’ motion for attorneys’ fees is GRANTED in the amount of $186,000,

costs of court plus and post-judgment interest at the rate

of 1.98% until paid.

18a

It is so ORDERED.

SIGNED on this 26th day of June, 2019.

/s/ Kenneth M. Hoyt

Kenneth M. Hoyt

United States District Judge

19a

APPENDIX F

29 U.S.C. § 1001

(b) Protection

interstate

commerce

and

beneficiaries by requiring disclosure and reporting,

setting standards of conduct, etc., for fiduciaries

It is hereby declared to be the policy of this chapter to

protect interstate commerce and the interests of

participants in employee benefit plans and their

beneficiaries, by requiring the disclosure and reporting to

participants and beneficiaries of financial and other

information with respect thereto, by establishing

standards of conduct, responsibility, and obligation for

fiduciaries of employee benefit plans, and by providing for

appropriate remedies, sanctions, and ready access to the

Federal courts.

* * *

29 U.S.C. § 1132

(g) Attorney’s fees and costs; awards in actions

involving delinquent contributions

(1) In any action under this subchapter (other than an

action described in paragraph (2)) by a participant,

beneficiary, or fiduciary, the court in its discretion may

allow a reasonable attorney's fee and costs of action to

either party.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.