Opposition Brief — Morrison v. Mobil Oil Corp.

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JAN 18 1994

IN THE OFEICE OF THE CiéRx |

Suprene Court of the United States

OCTOBER TERM, 1993

>

JOHN A. MORRISON, et al.,

Petitioners,

-—-V -—

MOBIL OIL CORPORATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

JOHN G. KOELTL MICHAEL E. TIGAR

MARY ANN DOYLE (Counsel of Record)

DEBEVOISE & PLIMPTON 727 East 26th Street

875 Third Avenue Austin, Texas 78705

New York, New York 10022 (512) 471-6319

(212) 909-6000

HAROLD A. HADDON

HADDON, MORGAN & FOREMAN, P.C.

150 East 10th Avenue

Denver, Colorado 80203

(303) 831-7364

Counsel for Respondent Mobil Oil Corporation

Dated: January 18, 1994

m, BEST AVAILABLE COPY ; same?

TABLE OF CONTENTS

Page

DAs GC AUTEREU MD ccc ccs oceeens ii

COUNTERSTATEMENT OF THE CASE ....... 2

A. Pactnal Background ... ccc cc ccccvces 3

i ae dd wee ke en we aeeeesee 5 4

1. Mitchell v. Mobil Oil Corp. ........... ~

2. Christopher v. Mobil Oil Corp. ......... 5

a, EI a Saw ae eu i aes 0% 5

REASONS FOR DENYING THE WRIT ........ 6

I. The Tenth and Fifth Circuits Correctly

Decided the ADEA Statute of Limitations

Issues Applying Well-Established Law

to the Undisputed Facts ................ 6

Il. The Tenth and Fifth Circuits Correctly

Found No Reason To Depart From

Established Statute of Limitations

REGS eae ed le 6 oN oe bo a bo ae’ 8

a a ee ee 11

SUPPLEMENTAL APPENDICES

1. Christopher v. Mobil Oil Corp..,

950 F.2d 1209 (Sth Cir.), cert. denied,

ofa Bee fae SA-1

2. Listing Pursuant to Sup. Ct. R. 29.1 ..... SA-23

li

TABLE OF AUTHORITIES

Cases

American Fire & Casualty Co. v. Finn, 341

Wav OIE? «aks Oe eee

Baldwin County Welcome Center v. Brown, 466

Ray WEP CODED +. 0-008 9 4 0 ee

Blumberg v. HCA Management Co., Inc., 848

F.2d 642 (Sth Cir. 1988), cert. denied,

We U.S. ee (ED cba eee

Cada v. Baxter Healthcare Corp., 920 F.2d

446 (7th Cir. 1990), cert. denied, 111 S.

et eee re ar

Chardon v. Fernandez, 454 U.S.6 (1981) .....

Christopher v. Mobil Oil Corp., 950 F.2d

1209 (Sth Cir.), cert. denied, 113 S. Ct.

| rarer aner era: ere. RG gee Ee ee

Delaware State College v. Ricks, 449 U.S.

oh ig, MERE E ee EST eS ee fe

EEOC v. Shell Oil Co., 466 U.S. 54 (1984) ....

Gore v. Pee Dee Farm Credit Corp., | F.3d

1233 (4th Cir. 1993) (Table) .............

Hazen Paper Co. v. Biggins, 113 §. Ct. 1701

CUPUEE. 6 4-09 2 eee Peele ee

Heideman v. PFL, Inc., 904 F.2d 1262 (8th

Cir. 1990), cert. denied, 498 U.S. 1026

| rr far ry ee A

Page

10

passim

10

iii

Page

Holmberg v. Armbrecht, 327 U.S. 392 (1946) .. . 10

Irwin v. Veterans Admin., 498 U.S. 89 ( 1990) ... 7

Liberty Mutual Insurance Co. v. Wetzel, 424

i elias twee cece.

Mitchell v. Mobil Oil Corp., 896 F.2d 463

(10th Cir.), cert. denied, 498 U.S. 898

ES era

Raymond v. Mobil Oil Corp., 983 F.2d 1528

(10th Cir.), cert. denied, 114 S. Ct. 81

ee ct ce.

United States v. Kubrick, 444 U.S. 111

ee

Statutes and Rules

26 U.S.C. § 401(ay(4) ..................

29 U.S.C. § 25S(a) ...... Se eae

ee

#9 USC. §GIGOMI) .. wee ee

Pee. RM. Civ. P. 54) 2... cee

SS ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

No. 93-1082

JOHN A. MORRISON, et al.,

Petitioners,

Vv.

MOBIL OIL CORPORATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Mobil Oil Corp. ("Mobil") respectfully requests

that this Court deny the petition for a writ of certiorari seeking

review of the decision by the Court of Appeals for the Tenth

Circuit in this case.’

The decision below rests on a summary judgment record with

no material factual disputes. The court Of appeals applied well-

established principles to a routine Statute of limitations case in

which petitioners — though they concededly were notified of the

employment action at issue — allowed the filing and limitations

periods of the Age Discrimination in Employment Act ("ADEA")

' A list of Mobil’s parent and non-wholly-owned subsidiaries,

required by Sup. Ct. R. 29.1, is found in the Supplemental Appendix

("SA") to this opposition at SA-23.

2

to run on their claims. Petitioners waited four and one-half years

to sue, and filed their charges with the Equal Employment

Opportunity Commission ("EEOC") only after that tardy suit was

filed.

The Tenth Circuit’s unanimous decision accords with ADEA,

and with the decisions of this Court and every circuit that has

considered analogous claims. The Tenth Circuit's ruling is also

consistent with the principles set forth in four prior court of appeals

decisions stemming from litigation brought by petitioners’ same

lawyers in factually identical cases.” The decision below raises no

substantial federal issue, and there is no reason for review by this

Court.

COUNTERSTATEMENT OF THE CASE

The petitioners’ tendentious and argumentative Statement of the

Case [at 2-11] contains a litany of charges against Mobil that are

inaccurate, misleading, without record support and differ

significantly from the material facts and relevant holdings set out in

the opinion below and previous Tenth and Fifth Circuit decisions

dealing with the same Mobil Retirement Plan amendments at issue

here. The charges are, however, completely irrelevant to the issue

decided below. The key undisputed material fact that petitioners

cannot evade is that they knew the essential elements of their

ADEA discharge claims in 1984 and did not file those claims with

the EEOC or bring them to court until four and one-half years after

Mobil definitively announced the employment decision that is the

basis of petitioners’ claims.’

> The Court below expressly “adopt{ed] the reasoning of the Fifth

Circuit” in Christopher v. Mobil Oil Corp., 950 F.2d 1209 (Sth Cir.),

cert. denied, 113 S. Ct. 68 (1992) in holding petitioners’ claims time-

barred. [Petitioners’ Appendix ("A") A-Sa.] The Christopher opinion is

found at SA-1.

> Under the statutory provisions then in effect, petitioners were

required (a) to bring EEOC charges within 300 days (29 U.S.C. §

(continued...)

A. Factual Background.

Mobil’s Retirement Plan (the "Plan”) pays retired employees a

specified pension benefit based on years of service, salary history

and life expectancy. The normal form of benefit under the Plan

was, at all relevant times, a lifetime monthly annuity. [SA-2.] In

1977, Mobil added an option that allowed employees to receive the

! actuarial equivalent of their annuities in a single lump-sum

payment, reduced to present value by a 5% interest rate. To

protect the integrity of plan assets and the economic security of

retirees, the lump sum option was limited to those employees who

had either an accrued pension benefit or a net worth (excluding

their pension benefit) of at least $250,000. [Id.}

In 1984, Mobil raised the eligibility level to $450,000 and

raised the interest rate prospectively to 9'4% to account for

inflation and soaring interest rates. On July 2, 1984, Mobil

announced these changes, which would apply to retirements after

January 1, 1985. Any retirement-eligible employee therefore had

the option of (a) retiring within this six-month "window" period

and taking the lump sum under the old rules, or (b) continuing to

work and retiring later under the amended Plan. [SA-2-3.]

Petitioners all retired on or before January |, 1985 and concededly

received a check for the full amount of their lump-sum benefits.‘

3(...continued)

626(d)(2)); and (b) to file a lawsuit within three years (29 U.S.C. §§ 626

(e)(1), 255(a)) after the alleged discrimination occurred. Although

petitioners do not inform this Court of the EEOC charge-filing

requirement, their failure to comply with that provision is itself a

sufficient ground for dismissal of their ADEA claims as time-barred.

[SA-S, 10-11.]

* Petitioners’ description of Mobil’s actions in amending the Plan

and obtaining Internal Revenue Service ("IRS") approval of the

amendments [at 2-8] is misleading and at odds with the previous rulings of

the Tenth and Fifth Circuits. See Raymond v. Mobil Oil Corp. , 983 F.2d

1528, 1529-30 (10th Cir.), cert. denied, 114 S. Ct. 81 (1993);

Christopher at SA-2-3. As those opinions underscore, Mobil sought a

(continued...)

staat atiennnenenneellll

Se eae

B. Related Cases.

1. Mitchell v. Mobil Oil Corp.

Like petitioners, Porter Mitchell retired from Mobil during the

six-month window period that ended on January 1, 1985, and

elected to receive his retirement benefits in a lump sum. Mitchell

filed a timely EEOC charge in 1985 and a timely complaint in 1986

claiming violations of ADEA and ERISA. [SA-7.] On appeal, the

Tenth Circuit reversed a judgment and jury verdict in favor of

Mitchell and held that "Mobil did not violate the ADEA,” because

Mobil had legitimate business reasons for amending the Plan, and

Mitchell had presented no evidence that these were a pretext for

age discrimination. Mitchell v. Mobil Oil Corp., 896 F.2d 463,

471-73 (10th Cir. 1990). The Court also held that Mitchell lacked

standing to sue under ERISA. /d. at 474. This Court denied

certiorari. 498 U.S. 898 (1990).

On December 30, 1988, less than three weeks after the

Mitchell verdict, but before it was reversed by the Tenth Circuit,

Mitchell’s lawyers brought this class action, Raymond v. Mobil Oil

Corp., Civ. Action No. 88-Z-2112 (D.C. Colo.),*° without even

attempting to exhaust EEOC remedies. EEOC charges were not

filed until a month after the lawsuit was filed.

4(...continued)

determination from the IRS that the Plan, as amended, continued to meet

the Internal Revenue Code’s requirements for favorable tax treatment. 26

U.S.C. § 401(a)(4). As a result of meetings with the IRS, Mobil

submitted to the IRS an additional provision that let Mobil in its sole

discretion, waive the $450,000 eligibility threshold in individual cases for

valid cause shown, under the claim and appeal procedures of the Plan.

On November 23, 1984, the IRS issued a favorable determination letter

approving Mobil’s amendments. [SA-3.]

* During the pendency of this appeal in the Tenth Circuit, Mr.

Raymond withdrew as a named plaintiff and class representative. This

class action is now captioned Morrison v. Mobil Oil Corp.

5

2. Christopher v. Mobil Oil Corp.

Similarly, in the wake of the Mitchell verdict but before its

reversal, another group of retirees filed EEOC charges (which the

EEOC ruled untimely), and sued Mobil alleging ADEA, ERISA

and state law violations. Christopher v. Mobil Oil Corp., Civ. No.

B-89-0653-CA (E.D. Tex.). The Texas district court granted

Mobil’s motion for summary judgment on all claims. The Fifth

Circuit affirmed the dismissal of the ADEA discharge claims.

"[E]ven accepting . . . [the Christopher plaintiffs’) charges of

nondisclosure . . . [no] genuine issue of material fact exists as to

when the statute of limitations on the ADEA claims commenced."

[SA-11.] In July, 1984, Mobil retirees clearly knew enough to

bring their ADEA discharge claims to court and to invoke the

Congressionally-mandated EEOC administrative process. [SA-10-

11.) The Court also held the doctrines of equitable tolling and

estoppel inapplicable because the Christopher plaintiffs were "not

deceive(d] . . . as to the facts of the alleged discrimination." [SA-

11.)

C. Proceedings Below.

After the Fifth Circuit's decision in Christopher, the plaintiffs

amended their complaint and Mobil moved for summary judgment

on their ERISA and ADEA claims.°

In the decision for which review is now sought, the Tenth

Circuit held petitioners’ ADEA discharge claims time-barred. [A-

Sa.] The Court expressly adopted the reasoning of the Fifth Circuit

in Christopher, rejected petitioners’ argument that their ADEA

“fraudulent discharge” claims in this case were any different from

the "constructive discharge” claims ruled time-barred in

* On the ERISA claims, the Tenth Circuit held, as it had in

Mitchell, that the plaintiffs had no standing to sue. Raymond v. Mobil Oil

Corp., 983 F.2d at 1536. The court found that the plaintiffs’ allegations

of fraud “made no legal or conceptual difference” to discharge claims

under ERISA. Id. This Court denied certiorari. 114 S. Ct. 81 (1993).

6

Christopher, and held that plaintiffs’ theorizing and tergiversation

were simply “artful pleading,” and an “exercise in semantics.” [A-

4a-Sa.] The panel heard oral argument on September 27, 1993,

and promptly issued its written opinion on October 6, 1993.

REASONS FOR DENYING THE WRIT

I.

The Tenth and Fifth Circuits Correctly Decided the

ADEA Statute of Limitations Issues Applying Well-

Established Law to the Undisputed Facts.

Two unanimous courts of appeals reviewed virtually identical

evidentiary records, considered the same allegations of fraud and

the same arguments made by the same lawyers, applied well-

established principles of accrual, equitable tolling and estoppel to

indistinguishable ADEA discharge claims and found petitioners’

claims time-barred.

1. This Court has long taught that, in employment

discrimination cases, the EEOC filing and limitations periods begin

to run at the time the adverse employment decision “was made and

communicated" to employees. Delaware State College v. Ricks,

449 U.S. 250, 258 (1980). Given the specific facts of this case,

the Fifth and Tenth Circuits held these periods commenced on July

2, 1984, when Mobil announced the Plan amendments and the six

month window period to all Mobil employees. The “unfavorable

choice to which [the announcement] put ‘window’ employees and

its particular impact on employees over fifty-five were both

apparent on the face of the plan amendment.” [SA-7.] From that

date on petitioners knew of their alleged injury under the statute

(discharge because of their age), and its cause (Mobil’s Plan

amendments).’ Under all relevant authority, as petitioners

” Despite petitioners’ claims to the contrary, the court below

reviewed significant evidence of petitioners’ awareness of alleged

discrimination in 1984. In contemporaneous retirement notices, letters,

(continued...)

7

themselves admit, the statute of limitations on their constructive

discharge claims began to run at that time.

2. Petitioners mention, but do not analyze, the law of

equitable tolling. Their contentions in this respect, however, were

specifically addressed and decided against them by the Tenth and

Fifth Circuits. Those courts found, even crediting petitioners’

baseless allegations of misconduct for summary judgment purposes,

that Mobil “did not deceive [plaintiffs] as to the facts of the alleged

discrimination,” and what was known to them in July 1984 was

sufficient "to put [them] on notice of possible age discrimination

. and to require them to assert their rights." [SA-11.]. See,

e.g., Heideman v. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir. 1990),

cert. denied, 498 U.S. 1026 (1991) (where plaintiff knows facts to

support ADEA discharge cause of action, attempts to conceal are

irrelevant for limitations purposes); Gore v. Pee Dee Farm Service,

| F.3d 1233 (4th Cir. 1993), affirming, Civ. A.3:90-825-17, 1992

WL 373129, (D.S.C. 1992) (same): Blumberg v. HCA Management

Co., Inc., 848 F.2d 642, 645 (Sth Cir. 1988), cert. denied, 488

U.S. 1007 (1989) (same). These decisions are required by the

instruction from this Court that equitable tolling doctrines are to be

narrowly construed. See, e.g., Irwin v. Veterans Admin., 498 U.S.

89, 96 (1990) (equitable relief is extended “only sparingly;" limited

to "where the claimant has actively pursued his judicial remedies by

filing a defective pleading during the Statutory period, or where the

complainant has been induced or tricked by his adversary’s

misconduct into allowing the filing deadline to pass"); Baldwin

County Welcome Center y. Brown, 466 U.S. 147, 151 ( 1984)

(“One who fails to act diligently cannot invoke equitable principles

to excuse that lack of diligence” or toll running of the statute. ).

7(...continued)

and interviews, petitioners openly stated their belief that they had been

discriminated against. In their depositions, many petitioners

acknowledged under oath that they had believed in 1984 that the

employment action at issue was age discriminatory. Porter Mitchell

clearly stated that belief when he went to the EEOC in 1985 andto court

in 1986. See also SA-7.

8

3. In employment discrimination cases, there are special

reasons for requiring an employee to act with diligence: the EEOC

and state agencies that fulfill the same function cannot investigate

and mediate if they are not consulted until years after the event.

Additionally, “[t]he statute of limitations is short in age

discrimination cases . . . because delay in the bringing of suit runs

up the employer’s potential liability; every day is one more day of

backpay entitlements." Cada v. Baxter Healthcare Corp., 920 F.2d

446, 453 (7th Cir. 1990), cert. denied, 111 S. Ct. 2916 (1991).

This is amply illustrated here where petitioners did not even file an

EEOC charge until after they had filed their lawsuit. By that time,

they claimed damages of millions of dollars. The requirement of

diligence is not onerous. The employee’s charge is not the

equivalent of a judicial complaint and does not need to be detailed

to invoke the EEOC’s jurisdiction. See id. at 452; EEOC v. Shell

Oil Co., 466 U.S. 54, 68 (1984).

Il.

The Tenth and Fifth Circuits Correctly Found

No Reason To Depart From Established

Statute of Limitations Principles.

In the face of these settled limitations principles and the

unchallenged evidence of what they knew about their ADEA

discharge claims, petitioners do not even try to argue that they

could not have brought EEOC charges or claims against Mobil until

December 1988. Instead, to avoid the inevitable conclusion that

they waited too long, they contend that they can split their ADEA

cause of action for limitations purposes and maintain two separate

ADEA causes of action for a single discharge, one for "constructive

discharge” based on the allegedly unfavorable choice to which they

were put, and one for "fraudulent discharge” based on allegations

of concealment. As the Tenth Circuit held, petitioners’ argument is

merely an "exercise in semantics." [A-4a.]

1. Petitioners cite no case that recognizes their allegedly

different cause of action for "fraudulent discharge,” finds fraud to

be an essential element of an ADEA discharge claim, or supports

their contention that they can deliberately forego ADEA

Sb PL IR Oe AO

9

constructive discharge claims and, after the EEOC filing and

limitations periods have run, bring other claims challenging the

same discharges under the same Statute, simply by adding

allegations of nondisclosure.* This theory was rejected by the

Tenth and the Fifth Circuits because it has no basis in the ADEA

Statute that creates a cause of action for discharge, 29 U.S.C.

§ 623(a)(1), nor in the limitations period provided by Congress for

filing an EEOC charge and a lawsuit.

2. As the Tenth and the Fifth Circuits both held, petitioners’

“fraudulent discharge” is no different from their “constructive

discharge” (which petitioners admit is time-barred).° Both of these

alleged causes of action: (1) seek recovery from the same entity,

Mobil; (2) invoke the same legal rights, those prohibiting discharge

because of a person’s age; (3) are based on the same conduct,

Mobil’s 1984 Retirement Plan changes and the alleged

nondisclosures related to those amendments; and (4) seek redress

for the same injury, allegedly involuntary retirement. Thus, the

nature and source of the duty, the Operative facts, and the injury

suffered are identical, regardless of whether petitioners characterize

their claim as actual discharge, constructive discharge, “fraudulent”

discharge or any other kind of discharge.

* In other contexts, this Court has explicitly rejected the notion that

separate causes of action can be created by merely alleging additional facts

or theories concerning the same injury. See Liberty Mutual Ins. Co. y.

Wezel, 424 U.S. 737, 743 n.4 (1976) (Fed. R. Civ. P. 54(b): "a

complaint asserting only one legal right, even if seeking multiple remedies

for the alleged violation of that right, states a single claim for relief);

American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14 (1951) (removal:

“where there is a single wrong to plaintiff, for which relief is sought,

arising from an interlocked series of transactions, there is no separate and

independent claim or cause of action”).

9

Contrary to their assertion [at 10, 13), petitioners’ "fraudulent

discharge” claim was fully litigated — and dismissed — in Christopher.

The Christopher complaint, the Fifth Circuit briefs and rehearing petition

(all part of the record below), as well as the Christopher opinion itself,

amply support the Tenth Circuit’s determination that the claims in this

case are “virtually identical” to those in Christopher. [A-4a.]

10

3. Petitioners also argue that this Court should review the

decision of the Tenth Circuit because a conflict exists between the

application of Ricks in this case and the “federal discovery rule."

{at 11-12]. Petitioners are simply wrong here as well:

First, they misstate this Court’s rulings in Ricks and Chardon

v. Fernandez, 454 U.S. 6 (1981), by asserting that the limitations

period begins to run when the “discriminatory decision [was]

made,” [at 11] omitting the critical element of communication to

the employee. Indeed, “[t]he [federal] discovery rule is implicit in

the holding of Ricks," because the Ricks rule incorporates the

notion of communication of the injury to the employee. Cada, 920

F.2d at 450. This accords with this Court’s traditional statute of

limitations teaching that a prospective plaintiff need only be “in

possession of the critical facts that he has been hurt and who has

inflicted the injury. ... There are others who can tell him if he

has been wronged, and he need only ask." United States v.

Kubrick, 444 U.S. 111, 122 (1979). The Tenth and the Fifth

Circuits correctly found these “critical facts" to be in the possession

of Mobil employees by July 2, 1984.

Second, there is no need to depart from Ricks in this case.’°

Contrary to petitioners’ assertion [at 11], this is “an ordinary

employment discrimination case." Every constructive discharge

case includes elements of nondisclosure and could be argued as a

“fraudulent” discharge. The essence of the claim is that the em-

ployee was forced out for a pretextual reason. If the mere

allegation that an employer had not made full disclosure to an

employee were enough to avoid the statute of limitations, the statute

‘© Petitioners’ citations to other rulings of this Court are plainly

inapposite. In Holmberg v. Armbrecht, 327 U.S. 392 (1946), the alleged

fraud prevented plaintiffs from knowing the identity of a defendant.

Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993), holds that a plaintiff

has no disparate treatment cause of action under ADEA when the factor

motivating the employer is something other than age. It says nothing

about when an ADEA discharge cause of action accrues or whether a

cause of action exists for "fraudulent discharge.”

Ve Ln aR tea IT > Nar a mires

1]

would never run, or it would be tolled in every employment

discrimination case. Blumberg, 848 F.2d at 645.

Third, it is clear from the record that petitioners filed this class

action lawsuit in December 1988, not because they had then

“discovered” elements essential to their ADEA discharge cause of

action, but because they had heard about Porter Mitchell’s verdict,

before it was reversed by the Tenth Circuit and before their

coworkers’ identical claims were dismissed as untimely by the Fifth

Circuit.

CONCLUSION

As the Tenth and the Fifth Circuits have held, as a matter of

established law and undisputed fact, by the time petitioners filed

their EEOC charges in 1989 and this case in 1988, their ADEA

discharge claims were time-barred.

The petition for a writ of certiorari should therefore be denied.

Respectfully submitted,

John G. Koeltl Michael E. Tigar

Mary Ann Doyle (Counsel of Record)

DEBEVOISE & PLIMPTON 727 East 26th Street

875 Third Avenue Austin, Texas 78705

New York, N.Y. 10022 (512) 471-6319

(212) 909-6000

Harold A. Haddon

HADDON, MORGAN & FOREMAN, P.C.

150 East 10th Avenue

Denver, Colorado 80203

(303) 831-7364

Counsel for Respondent

Mobil Oil Corporation

January 18, 1994

SUPPLEMENTAL

APPENDICES

SA-1

Opinion of the United States Court of Appeals

for the Fifth Circuit, January 24, 1992

UNITED STATES COURT OF APPEALS

FIFTH Circurr

No. 90-4562

Jan. 24, 1992

GERALD W. CHRISTOPHER, Charles L. Prunty, and

Billy G. Turner,

Plaintiffs-Appellants,

—_—V—

MosiL OIL CORPORATION, Retirement Plan of

Mobil Oil Corporation and Rex Adams,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DisTRICT Court

FOR THE EASTERN DISTRICT OF TEXAS

Before:

HENLEY,” KING, AND GARWOOD,

Circuit Judges.

GARWOOD, Circuit Judge:

Appellants brought claims under the Age Discrimination in

Employment Act (ADEA) and the Employee Retirement Income

Security Act (ERISA), as well aS various common-law claims

including fraud, civil conspiracy, and breach of the employment

contract, against their former employer Mobil Oil Corporation,

based on Mobil’s 1984 amendment of its employee benefit plan and

Circuit Judge of the Eighth Circuit, sitting by designation.

SA-2

alleged failure to disclose to appellants all of the options available

under the amended plan. The district court granted Mobil’s motion

for summary judgment on the ADEA claims on the grounds that the

claims were time-barred and that as a matter of law appellants were

not constructively discharged in violation of ADEA. The district

court also granted Mobil’s request for judgment on the pleadings on

appellants’ state law claims on the ground that they were preempted

by ERISA, and dismissed the ERISA claims on the ground that

because appellants were not participants seeking to recover benefits

from a retirement plan, the court lacked jurisdiction over their

ERISA claims. We affirm in part and reverse and remand in part.

Facts and Proceedings Below

The following facts are drawn from the parties’ submissions of

undisputed facts in connection with Mobil’s motions for summary

judgment, judgment on the pleadings, and dismissal.

Mobil provides retirement benefits for its employees through a

defined benefit plan, under which employees receive a pension

based on years of service, salary history, and life expectancy.

Until 1977, the standard method of receiving these pensions was in

the form of an annuity. In that year, however, Mobil added a lump

sum option, enabling certain employees to receive the actuarial

equivalent of their annuity, discounted at five percent, in one

payment following retirement. To be eligible for the lump sum

option, an employee had to have either an accrued lump sum

pension benefit, or a net worth independent of the pension, equal to

at least $250,000. Also, the employee was required to be at least

fifty-five years old.

On July 2, 1984, Mobil announced changes to the lump sum

option of the retirement plan, including (1) an increase in the

discount rate from 5% to 9.5%, to operate prospectively, i.e., to be

applied to all earnings after January 31, 1985; (2) an increase in the

eligibility threshold from $250,000 to $450,000; and (3) a linking

of the new threshold to the Consumer Price Index. These changes,

which were announced as subject to Internal Revenue Service (IRS)

approval, would apply to all employees retiring after January 31,

1985; thus, employees otherwise eligible to retire had a six-month

window in which they could retire subject to the lower threshold

SA-3

and lower discount rate. The choice was a Significant one for

employees who met the $250,000 threshold but who were uncertain

ever to meet the indexed $450,000 threshold because, with market

interest rates well above 5%, the lump sum pensions were worth

40% more than the annuities. Appellants, Gerald Christopher,

Charles Prunty, and Billy Turner, were among the approximately

1,100 Mobil employees who elected to take early retirement during

the 6-month window. All three submitted their retirement notices

between August and October 1984, and retired as of January 1,

1985.

On July 16, 1984, Mobil sought a determination from the IRS

that the plan as amended continued to meet the Internal Revenue

Code’s requirements for favorable tax treatment, including the

requirement that pension plans not “discriminate in favor of highly

compensated employees." 26 U.S.C. § 401(a)(4). In meetings in

late September 1984, the IRS reviewing agent expressed concern

that the amended plan could result in benefits favoring highly

compensated employees, and indicated that he might need to seek

technical advice from Washington. In response, Mobil adopted

another plan amendment allowing Mobil, in its sole discretion, to

waive the eligibility threshold in individual cases for valid cause

shown. After insertion of this provision, the IRS issued to Mobil a

favorable determination letter on November 23, 1984, noting that

continued qualification of the plan would depend upon its effect in

operation.

Mobil announced the IRS approval to its employees on

December 21, 1984, but did not notify its employees of the waiver

provision until well after expiration of the six-month window —

October 1985. Because of a 1985 IRS revenue ruling and

subsequent pronouncements, Mobil eventually entirely deleted the

lump sum eligibility threshold in 1986.

Appellants filed age discrimination charges against Mobil with

the Equal Employment Opportunity Commission (EEOC) on March

1, 1989. They alleged that Mobil’s conduct in amending the plan

and concealing the waiver provision was a concerted scheme to

reduce its work force. By purporting to increase the lump sum

threshold and concealing its awareness that applicable tax law

precluded that action, appellants charged, Mobil induced hundreds

of older employees into retirement without the need to pay them an

SA-4

early retirement bonus. The EEOC dismissed the charges as

untimely filed. Appellants then commenced this suit on July 7,

1989. They alleged that Mobil’s conduct constituted age

discrimination in violation of ADEA, 29 U.S.C. §§ 621 et seq., as

well as common-law fraud, civil conspiracy, unlawful interference

with contract rights, breach of the employment contract,

negligence, and gross negligence. In the event that appellants’ state

law claims were held to be preempted by ERISA, the complaint

alleged in brief and conclusory fashion that Mobil’s conduct

violated ERISA, apparently ERISA § 510, 29 U.S.C. § 1140,

prohibiting interference with an employee’s attainment of a right

under ERISA. For all claims, appellants sought the wages and

employment benefits they would have received had they continued

working until normal retirement age. On the ADEA claims,

appellants also requested reinstatement.

Mobil moved for summary judgment on the ADEA and state

law claims. The district court granted the motion, finding that the

ADEA and state law claims were time-barred, that appellants had

not been constructively discharged in violation of the ADEA, and

that appellants’ claims of discrimination arose from changes in

fringe benefits available under a bona fide retirement plan, not from

discrimination in nonfringe aspects of employment, and thus were

not within the purview of the ADEA according to ADEA § 4(f)(2),

29 U.S.C. § 623(f)(2). Simultaneously, Mobil moved for judgment

on the pleadings under Federal Rule of Civil Procedure 12(c) on

the state law claims on the ground that they were preempted by

ERISA, and dismissal under Federal Rules of Civil Procedure

12(b)(1) & (6) of the contingent ERISA claim on the ground that

appellants were not "participants" seeking to recover benefits under

ERISA § 502, 29 U.S.C. § 1132, depriving the court of

jurisdiction. The district court granted this motion as well.

ee eee ae ee ee

SA-5

Discussion

I. ADEA Claims

We first examine the district court’s grant of summary

judgment on the ADEA claims on the ground that they were

time-barred. In reviewing a grant of summary judgment, all

legitimate factual inferences presented by the record are drawn in

favor of the party opposing the motion. Bozé v. Branstetter, 912

F.2d 801, 804 (Sth Cir.1990) (per curiam). We can uphold the

summary judgment only if our review demonstrates that no genuine

issue of material fact remains and that the moving party is entitled

to judgment as a matter of law. /d.

It is not disputed that the applicable statutes of limitations

require an employee to file an age discrimination charge with the

EEOC within 300 days after the alleged unlawful practice occurred,

29 U.S.C. § 626(d)(2), and to file a lawsuit within 3 years after the

alleged unlawful practice occurred, 29 U.S.C. §§ 255(a), 626(e).

Appellants argue, however, that a genuine issue of material fact

exists as to when their awareness of the facts constituting the

alleged age discrimination was sufficient to commence the running

of the limitations period. See Pruet Production Co. y. Ayles, 784

F.2d 1275, 1279 (Sth Cir. 1986) ("[T}he statute does not begin to

run until the facts which would support a cause of action are

apparent or should be apparent to a person with reasonably prudent

regard for his rights." (quoting Reeb v. Economic Opportunity

Atlanta, Inc., 516 F.2d 924, 930 (Sth Cir.1975))). Specifically,

they argue that Mobil’s negotiation of a revised plan in October

1984 only came to light in 1988 when counsel for another former

employee, Porter Mitchell (Mitchell), suing Mobil in federal district

court in Colorado, discovered the correspondence between Mobil

and the IRS. It was only when this fact became publicly known at

the trial of Mitchell v. Mobil Oil Corp. in December 1988,!'

The alleged fraud was not part of Mitchell's claims against

Mobil. He argued, rather, that the plan amendment itself constituted a

constructive discharge and was a willful violation of the ADEA. He also

(continued...)

SA-6

appellants argue, that they had any reason to know of Mobil’s

concealment of the waiver option. Appellants’ EEOC filing in

March 1989 and their commencement of this suit in July 1989

would both have been timely if the statute of limitations had

commenced running in December 1988.

Evaluating the appellants’ claim that the statute of limitations

did not commence until December 1988 requires an analysis of the

nature of their ADEA claim. The ADEA forbids an employer to

“discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age." 29

U.S.C. § 623(a)(1). A “discharge” within the meaning of this

section may be constructive if a reasonable person in the

employee’s position would have felt compelled to resign under the

circumstances. Bodnar v. Synpol, Inc., 843 F.2d 190, 192 (Sth

Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248

(1988). An attractive early retirement offer, however, is not a

constructive discharge merely because it creates a strong incentive

to retire; an early retirement option can constitute a constructive

discharge only if the employee shows that it sufficiently alters the

Status quo that each choice facing the employee makes him worse

off. Mitchell v. Mobil Oil Corp., 896 F.2d 463, 467 (10th Cir.),

cert. denied, US. ___, 111 §.Ct. 252, 112 L.Ed.2d 210

(1990); Bodnar, 843 F.2d at 193.

11(...continued)

argued that Mobil had breached its fiduciary duties under ERISA § 404,

29 U.S.C. § 1104, and had violated ERISA's anti-cutback provision,

ERISA § 204(g), 29 U.S.C. § 1054(g), by retroactively limiting his night

to the lump sum option, an accrued benefit. The jury found in favor of

Mitchell on his ADEA claim and awarded him damages for back pay,

front pay, and lost benefits. The district court held in favor of Mitchell

on the ERISA claims as well, awarding him compensatory and liquidated

damages. On appeal, the Tenth Circuit reversed, holding that Mitchell

had failed to prove that Mobil's proffered justification for the plan

amendment was a mere pretext for discrimination, and that Mitchell was

not a participant with standing to assert ERISA claims. Mitchell v. Mobil

Oil Corp., 896 F.2d 463, 471-74 (10th Cir.), cert. denied, _ US.

___, 111 S.Ct. 252, 112 L.Ed.2d 210 (1990).

|

SA-7

The gist of appellants’ prima facie ADEA claim is as follows.

The adoption of the 1984 plan amendment presented appellants with

a choice between unfavorable options; they faced the choice of

retiring within the six-month window or staying on at Mobil but

possibly forgoing eligibility for the lump sum payout. Either could

be regarded as less favorable than staying on at Mobil until normal

retirement age with the assurance of eligibility for the lump sum

payout, which was the “status quo” when the amendment was

adopted. The asserted discriminatory character of the amendment

to the plan arises from the fact that only employees over the age of

fifty-five were put to that choice. Employees under fifty-five did

not presently qualify for retirement, so although the plan

amendment may have defeated an expectation for them, they were

not confronted with the possibility of losing a benefit for which

they were then qualified. See Mitchell, 896 F.2d at 496.

This much of the ADEA theory was evident in July 1984 upon

the initial announcement of the plan. The unfavorable choice to

which it put "window" employees and its particular impact on

employees over fifty-five were both apparent on the face of the plan

amendment. Indeed, the theory outlined above was precisely

Mitchell’s claim against Mobil, accepted by the Tenth Circuit.

Mitchell filed a complaint with the EEOC on April 25, 1985, with

no knowledge of Mobil’s alleged concealment of the waiver

provision. Moreover, another employee, Frederic J. Raymond

(Raymond), filed a similar charge with the Ohio Civil Rights

Commission and the EEOC on May 10, 1985. Therefore, unless

appellants can show that Mobil’s alleged concealment adds a

material element to their ADEA claim, the statute of limitations

should have commenced running in July 1984.

Appellants have offered no theory under which the alleged

nondisclosure is a necessary element. They refer us to the Fourth

Circuit case of Stone v. University of Maryland Medical System

Corp., 855 F.2d 167 (4th Cir. 1988), for their argument that

“where, as here, the employee surrenders his job as a proximate

result of fraud and deceit by the employer, the voluntariness of the

retirement or resignation is fundamentally vitiated.” Stone is one of

a series of cases where resignations have been held to be

involuntary based on an employer’s misrepresentations about or

nondisclosure of an employee’s rights. Others include Covington v.

SA-8

Department of Health and Human Services, 750 F.2d 937

(Fed.Cir.1984), and Scharf v. Department of the Air Force, 710

F.2d 1572 (Fed.Cir. 1983).

We do not believe that these cases avail appellants, however.

As appellants’ phrasing of their argument reflects, the effect of a

showing of fraud in these cases is to render an otherwise voluntary

choice involuntary. Stone and related cases involve disputes in

which public employees were entitled to certain procedural

protections if they were to be terminated involuntarily; they were

required to show that their retirement was involuntary to invoke the

jurisdiction of the Merit Systems Protection Board or to establish a

“deprivation” under the due process clause. Here, by contrast,

appellants allege a constructive discharge arising from the choice to

which they were put by the plan amendment. To further argue that

the actual election made was involuntary because it was based on

incomplete information would be superfluous; involuntariness is

implicit in appellants’ argument that they were coerced into early

retirement by the threatened removal of the lump sum option.

Assuming, arguendo only, that appellants’ allegations of

nondisclosure would serve to estop Mobil from raising in defense

the claim that appellants’ retirement was voluntary, nevertheless the

asserted nondisclosure does not form a material part of appellants’

constructive discharge theory that would prevent the statute of

limitations from commencing.

Appellants’ arguments that this Court should apply equitable

tolling or equitable estoppel fail for similar reasons. These

doctrines provide for tolling of the statute of limitations when a

plaintiff's unawareness of his ability to bring a claim — either

unawareness of the facts necessary to support a discrimination

charge or unawareness of his legal rights — is due to defendant’s

misconduct. See Rhodes v. Guiberson Oil Tools Division, 927 F.2d

876, 878-79 (Sth Cir.), cert. denied, US. _, 112 S.Ct.

198, 116 L.Ed.2d 158 (1991); Kale v. Combined Insurance Ce.,

861 F.2d 746, 752 (ist Cir.1988). Here, the knowledge allegedly

concealed from the employees was that they had a third option — to

continue their employment and apply for a waiver from the higher

lump sum requirement. Therefore, the facts as known to the

employees in 1984 actually gave them a better ADEA claim than

they would have had with full knowledge. Whatever

———— aaa

SA-9

nondisclosures Mobil is guilty of would not have lulled appellants

into postponing assertion of their rights; if anything, it would have

made them more likely to assert that they were constructively

discharged.

Finally, appellants argue that although they knew in 1984 of

the plan amendment and retirement window, they were misled into

believing that they had no cause of action by Mobil’s plausible

justifications for its amendment of the plan, i.e., that the threshold

was changed to adjust for intervening inflation and that the discount

rate was raised to align Mobil’s practice with that of its competitors

and to more realistically reflect current interest rates. In other

words, appellants contend that although the discriminatory effect of

the amendment was apparent in 1984, it was only upon learning of

the concealment of the waiver option that they had reason to believe

the plan amendment was actuated by age bias and that the alleged

concerted scheme to reduce the work force began to take shape.

We find this argument unpersuasive as well. First, we fail to

see how the deception alleged by appellants calls into question

Mobil’s proffered justifications for the plan amendment. The

evidence does not create a genuine dispute as to the factual

accuracy Of Mobil’s proffered justifications. Even if appellants’

allegations are true respecting Mobil’s having deceived its

employees about the validity under applicable tax law of the plan

amendment and about the waiver provision, there is no evidence

showing that Mobil’s announced reasons for the plan amendment

were deceptive. This is an issue on which appellants would have

had the burden at trial, and they were hence required to meet

Mobil’s summary judgment motion with summary judgment

evidence that would sustain a jury finding in their favor on the

issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986): Blumberg v. HCA Management Co.,

Inc., 848 F.2d 642, 644 (Sth Cir.1988), cert. denied, 488 U.S.

1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989).

In any event, a showing of deception as to motive supports

equitable estoppel only if it conceals the very fact of discrimination;

equitable estoppel is not warranted where an employee is aware of

all of the facts constituting discriminatory treatment but lacks direct

knowledge of the employer’s subjective discriminatory purpose.

Thus, where an employee was told that he was being discharged

SA-10

because industry economic downturn required reduction of the work

force, and was told that he would be considered for re-hiring, we

applied equitable estoppel to hold that limitations on his ADEA

claim did not commence until he learned that he had been replaced

by a younger employee. Rhodes, 927 F.2d at 880-82; see also

Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (Sth

Cir.1981) (en banc) (employer's misrepresentation that employee

would be reinstated induced foreseeable forbearance in filing

ADEA claim); Meyer v. Riegel Products Corp., 720 F.2d 303, 307

(3d Cir.1983) (employer’s explanation to employee that he was

dismissed as part of a reorganization furnished grounds for

equitable tolling in an ADEA suit until discharged employee

learned that a younger replacement had been hired), cert.

dismissed, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984).

By contrast, where an employee knew that he was discharged and

replaced by a younger employee, his allegation that the company

concealed from him the true reason for his discharge and that it was

not until subsequent hirings that the "pattern of age discrimination"

became evidence was held insufficient to support equitable estoppel.

Pruet Production Co., 784 F.2d at 1279-80; accord Chapman v.

Homco, Inc., 886 F.2d 756, 758 (Sth Cir.1989), cert. denied, 494

U.S. 1067, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990); Blumberg,

848 F.2d at 645."° The showing required for a prima facie

employment discrimination claim is minimal, see Pruet Production

Co., 784 F.2d at 1279, and when "facts that would support a cause

of action are or should be apparent,” the statute commences even if

the employee is not aware of ail the evidence that he will ultimately

rely upon at trial. Blumberg, 848 F.2d at 645 (emphasis added).

The showing required at the stage of filing charges with the EEOC

is even more lenient, because the purpose of the filing is only to

initiate an EEOC investigation. Pruet Production Co., 784 F.2d at

1279.

'2 This view is consistent with this Circuit's rule in Title VII cases

that the limitations period starts running when the plaintiff knows of the

discriminatory act, not when the plaintiff perceives a discriminatory

motive behind the act. See Merrill v. Southern Methodist University, 806

F.2d 600, 605 (Sth Cir. 1986).

——ES—_auaraaayE

oe be et ane lS ot _

ce DA te A ey BOE BPA A wah

SA-11

Applying those principles here, we conclude that whatever

concealment Mobil may have been guilty of did not deceive

appellants as to the facts of the alleged discrimination. Rather,

appellants were able to evaluate the propriety of their alleged

constructive discharge for ADEA purposes immediately. Just as in

individual discharge cases the prima facie showing is only that the

employee has been discharged and replaced by a younger worker,

leaving exploration of an employer’s motives for the EEOC

investigation or pretrial discovery, here the appellants’ prima facie

case for constructive discharge was that older employees alone were

put to the unfavorable choice of early retirement or loss of the

lump sum option. This fact, apparent in July 1984, was sufficient

to put appellants on notice of possible age discrimination (as it did

other Mobil employees) and to require them to assert their rights.

For these reasons, even accepting for purposes of our review

of the summary judgment appellants’ charges of nondisclosure, we

do not believe that a genuine issue of material fact exists as to when

the statute of limitations on the ADEA claims commenced.

Concluding that the district court’s grant of summary judgment is

Supported on that ground, we do not reach the district court’s

further holding that as a matter of law appellants were not

constructively discharged in violation of the ADEA.

I. ERISA Preemption of State Law Claims

We next address the district court’s grant of judgment on the

pleadings on appellants’ state law claims. Appellants charged that

Mobil’s actions in amending the plan and withholding information

about the waiver provision fraudulently induced them to surrender

their jobs, were taken pursuant to a plan to reduce Mobil’s work

force, and breached the duty of good faith and fair dealing owed to

appellants by Mobil under their employment contracts. This

conduct, appellants alleged, gave rise to claims for fraud, civil

conspiracy, breach of the employment contract, unlawful

interference with contract rights, negligence, and gross negligence.

The district court held these claims were preempted because they

“relate to Mobil’s Retirement Plan, which is governed by ERISA,

and directly overlap with provisions of ERISA.”

SA-12

We turn to the first ground relied upon by the district court,

namely that appellants’ claims “relate to" an ERISA-governed

retirement plan.

ERISA’s provisions "supersede any and all State laws insofar

as they may now or hereafter relate to any employee benefit plan."

ERISA § 514(a), 29 U.S.C. § 1144(a). The Supreme Court has

consistently emphasized the expansiveness of the “relate to"

standard and its purpose of establishing the regulation of pension

plans as an exclusively federal concern. See, e.g., Ingersoll-Rand

Co. v. McClendon, __US. __., 111 S.Ct. 478, 482, 112

L.Ed.2d 474 (1990); FMC Corp. v. Holliday, US. __, II

S.Ct. 403, 407, 112 L.Ed.2d 356 (1990); Pilot Life Insurance Co.

v. Dedeaux, 481 U.S. 41, 107 §.Ct. 1549, 1552-53, 95 L.Ed.2d 39

(1987); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct.

2890, 2899-2901, 77 L.Ed.2d 490 (1983). The words "relate to"

are to be given their "broad common-sense meaning," Metropolitan

Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct.

2380, 2389, 85 L.Ed.2d 728 (1985), and a state law will be

pre-empted "if it has a connection with or reference to such a

plan." Shaw, 103 S.Ct. at 2900. This Circuit has held that the

fact that a claim sought damages measured by pension benefits

sufficed as the requisite "connection" to an employee benefit plan

for preemption purposes. Cefalu v. B.F. Goodrich Co., 871 F.2d

1290, 1294 (Sth Cir.1989). But see Memorial Hospital System vy.

Northbrook Life insurance Co., 904 F.2d 236, 247 (Sth Cir. 1990);

Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 120-21 (4th

Cir. 1989).

The complaints here focus on Mobil’s amendment of an

ERISA-governed employee benefit plan and Mobil’s disclosure to

its employees of the terms of the plan. In addition to calculating

their damages by computing lost benefits under the plan, a court

adjudicating appellants’ claims of a fraudulent scheme to reduce the

work force would have to examine, at a minimum, the operation of

the plan prior to the amendment, the language of the plan

amendments, and Mobil’s communication to its employees about

the terms of the plan amendments. Given the breadth of the section

514(a) test, we find that these connections are adequate to warrant

preemption.

SE Ll a Ne te tN ee Ne Pi i a ee a rr

SA-13

This conclusion is buttressed by decisions of this and other

courts addressing claims of fraudulently induced retirement and

wrongful termination, which are the crux of appellants’ state law

claims here. In the closely analogous case of Lee v. E.1. DuPont

de Nemours and Co., 894 F.2d 755 (Sth Cir.1990), the plaintiffs

alleged that they had retired in reliance on their employer’s

representations that the company was not preparing to adopt an

early retirement incentive plan, and they sued their former

employer for fraud and negligent misrepresentation in that respect.

We held that the claims were preempted under section 514(a). /d.

at 758; see also Cefalu, 871 F.2d at 1295 (breach-of-contract claim

for oral misrepresentation that retirement options offered equivalent

benefits was preempted); Degan v. Ford Motor Co., 869 F.2d 889,

895 (Sth Cir.1989) (claim for breach of an oral agreement to pay

early retirement benefits was preempted). In a case almost identical

to the present one, the Third Circuit held that where employees

alleged that an employer's notification of proposed plan

amendments misrepresented to them that they would lose a

retirement benefit if they did not retire in a window period before

the amendments became applicable, their claims were preempted.

Berger v. Edgewater Steel Co., 911 F.2d 911, 923 (3d Cir.1990),

cert. denied, __—~U.S. __, 111 S.Ct. 1310, 113 L.Ed.2d 244

(1991).

In addition, the Supreme Court recently spoke decisively to the

question whether a tort claim premised on wrongful discharge to

prevent vesting of pension benefits could survive independently of

ERISA. In Ingersoll-Rand Co. v. McClendon, a, oo

111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990), the Court found that

the claim “related to" an ERISA-covered plan under section 514(a).

Appellants here seek to distinguish their “wrongful discharge by

fraud" claim from the tort claim at issue in McClendon. They

argue that whereas the existence of a pension plan is a necessary

element of the cause of action considered in McClendon (discharge

to prevent vesting of pension benefits), here the pension plan was

merely the subject of Mobil’s fraud. The fraud claim itself, they

argue, is conceptually identical to a fraud claim concerning any

other subject matter, and ERISA cannot generally preempt state

laws prohibiting employers from fraudulently inducing employees

to give up their jobs. Appellants rely on Mackey v. Lanier

SA-14

Collections Agency and Service, 486 U.S. 825, 108 S.Ct. 2182,

100 L.Ed.2d 836 (1988), in which the Court noted that lawsuits

based on “run-of-the-mill state-law claims such as unpaid rent,

failure to pay creditors, or even torts committed by an ERISA

plan" are not preempted merely because the suits are brought

against an ERISA plan. /d. 108 S.Ct. at 2187.

We do not find this argument persuasive. We have previously

noted that preempted state law includes any state law cause of

action as it relates to an employee benefit plan, even if it arises

under a general law which in and of itself has no connection to

employee benefit plans. Cefalu, 871 F.2d at 1292 n.5. Although

there would undoubtedly be cases of fraudulently induced

retirement that were not preempted, the specific conduct here, as in

Lee, Cefalu, and Degan, relates directly to the operation of an

ERISA plan. Superimposing state law fraud standards on the

elaborate ERISA provisions governing the content and timing of

notice of plan provisions and amendments, see ERISA §§ 102,

104(b)(1), 29 U.S.C. §§ 1022, 1024(b), would undercut the goal of

uniform national regulation in the manner that section 514(a) seeks

to prevent. See Memorial Hospital System, 904 F.2d at 245

(observing that preemption is proper where the state law claims

address areas of exclusive federal concern, and where they directly

affect the relationship among the traditional ERISA entities). In

our view, this makes the conduct at issue here a far cry from the

"run-of-the-mill" claims alluded to in Mackey.”

For the same reason, appellants’ reliance on Hartle v. Packard

Electric, 877 F.2d 354 (Sth Cir.1989) (per curiam) is misplaced.

In Hartle, a discharged employee brought suit for wrongful

termination and civil conspiracy to unlawfully terminate his

'' Appellants also cite Greenblatt v. Budd Co., 666 F.Supp. 735

(E.D.Pa. 1987), which does provide more direct support for their argument

than the fact that the subject of the alleged fraud is pension benefits is

incidental and does not warrant preemption. See id. at 742. However,

we agree with the Seventh Circuit that Greenblatt is not consistent with

our Circuit's holding in Cefalu. See Lister v. Stark, 890 F.2d 941, 945

n.10 (7th Cir.1989), cert. denied, _-:;U.S. __, 111 S.Ct. 579, 112

L.Ed.2d 584 (1990). Therefore, we, like the Seventh Circuit, decline to

follow Greenblatt. See id. at 945.

Berean

SA-15

employment. Because the general rule in Mississippi was

employment at will, he argued that his participation in an employee

benefit plan had removed his employment from employment-at-will

Status and had effectively given him a tenured position. However,

because the employer’s complained-of conduct did not pertain to

the operation of an ERISA plan, we observed that Hartle’s claim

did “not in any manner implicate the federal regulation of employee

benefit plans” and held that preemption was not proper. /d. at 356.

Here, the employer's conduct does relate to the pension plan, and

federal regulation of retirement plans is implicated to a much

greater degree.

Finally, appellants argue that even if their state law claims are

preempted to the extent that the damages sought are deemed to be

“benefits,” the preemption would not bar the claims in their

entirety, and that the claims for lost wages, exemplary damages,

and the like, would survive as state law claims. They rely on

several cases finding partial preemption only. One is Krause vy.

Dresser Industries, Inc., 910 F.2d 674 (10th Cir.1990), in which a

terminated employee filed claims under the ADEA and for breach

of an implied contract for tenured job security. The district court

entered summary judgment for the defendant on the

breach-of-contract claim insofar as it sought lost pension, health

insurance, or life insurance benefits, on the grounds of ERISA

preemption. The Tenth Circuit upheld a verdict for the plaintiff on

the claim for lost salary, however, Stating, "We are at a loss to see

how a breach of contract claim solely for lost salary is at all related

to an employee benefit plan,” and holding that there was no

preemption of that claim. Jd. at 680 (citing Hartle, supra).

Likewise, in Sorosky v. Burroughs Corp., 826 F.2d 794 (9th

Cir.1987), the Ninth Circuit held that an employee’s claim of

breach of contract and wrongful discharge in part relied on theories

independent of the benefit plan and thus was not entirely

preempted. /d. at 800. Finally, appellants cite Clark v. Coats &

Clark, Inc., 865 F.2d 1237, 1245 (llth Cir.1989), for the

Proposition that the same set of operative facts can give rise to both

preempted and unpreempted causes of action.

We conclude that this type of partial preemption is

inappropriate in the present case, however. Unlike Krause, this

case is not one where the main nexus to an employee benefit plan is

SA-16

only the calculation of damages. Once stripped of its link to the

pension plan provided by the measure of damages, the Krause

plaintiff's claim survived as a suit for lost salary based upon breach

of an implied contract of continued employment. Here, by

contrast, the basis of the claims themselves is the operation of the

pension plan; if appellants’ claims were stripped of their link to the

pension plans, they would cease to exist. The Sorosky and Clark

courts employed a similar analysis which would support complete

preemption in the present case. In Sorosky, the court held that

Sorosky’s claim that Burroughs agreed to provide him with monthly

retirement benefits and then sought to prevent him from acquiring

those benefits was preempted; it was only breach-of-contract or

wrongful discharge theories “that have no relationship to the benefit

plan" that survived as independent state law claims. Sorosky, 826

F.2d at 800. The Clark court confronted an employee's claim that

his termination, in addition to being effected for the purpose of

interfering with his attainment of pension benefits in violation of

ERISA § 510, 29 U.S.C. § 1140, was carried out in a malicious

manner that inflicted severe emotional distress upon him. The

court held that the tort claim, though it “allude[d] to conduct which

was proximate (or even concurrent) in time to the alleged ERISA

violation,” was “wholly remote in content"; the employee had “not

alleged any conduct on the part of Coats & Clark which relates to

the processing of any ERISA covered benefit or claim.” Clark,

865 F.2d at 1243. However, Clark carefully distinguished the

employee's claim there from a claim that a refusal to pay pension

benefits was itself so outrageous as to amount to intentional

infliction of emotional distress, which the court had found to be

preempted in Howard v. Parisian, Inc., 807 F.2d 1560 (11th

Cir. 1987).

Because the underlying conduct at issue here cannot be

divorced from its connection to the employee benefit plan, we

uphold the district court's judgment that the state law claims are

preempted in their entirety.

SA-17

Ill. ERISA Standing

ERISA grants standing to a “participant” to bring a civil action

to enforce his rights under the terms of a plan or to enforce the

provisions of ERISA. ERISA § 502, 29 U.S.C. § 1132. The

district court granted Mobil’s motion to dismiss appellants’ ERISA

claims on the ground that appellants were not “participants” within

the meaning of that section and therefore were not empowered to

sue. See Nugent v. Jesuit High School of New Orleans, 625 F.2d

1285, 1286 & n.3 (Sth Cir.1980).

ERISA defines the term “participant” to include "any employee

or former employee ... who is or may become eligible to receive a

benefit of any type from an employee benefit plan." ERISA § 3(7),

29 U.S.C. § 1002(7). The Supreme Court recently addressed the

meaning of the "former employee” component of that definition. In

Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct.

948, 103 L.Ed.2d 80 (1989), the Court observed that the definition

referred to “former employees who ‘have ... a reasonable

expectation of returning to covered employment’ or who have ‘a

colorable claim’ to vested benefits.” Jd. 109 S.Ct. at 958 (quoting

Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.) (per curiam), cert.

denied, 479 U.S. 916, 107 S.Ct. 318, 93 L.Ed.2d 291 (1986)).

The Court also construed the “may become eligible” language of

section 3(7) to mean that "a claimant must have a colorable claim

that (1) he or she will prevail in a suit for benefits, or that (2)

eligibility requirements will be fulfilled in the future.” Id.

Mobil argues that appellants do not have standing because they

have neither a colorable claim for vested benefits nor a reasonable

expectation of returning to covered employment. In Mitchell's suit

against Mobil, the Tenth Circuit denied ERISA Standing to the

plaintiffs on the ground here urged by Mobil. Mitchell v. Mobil Oil

Corp., 896 F.2d 463, 474 (10th Cir.), cert. denied, _—sU SS.

—___, 11 S.Ct. 252, 112 L.Ed.2d 210 (1990).

The first part of this conclusion finds Support in the decisions

of this Circuit. We have held that where, as here, retired

employees received in a lump sum benefits that were concededly all

to which they were entitled under a plan as it existed at their

retirement, their claim is for damages, not vested benefits. Yancy

v. American Petrofina, Inc., 768 F.2d 707, 708-09 (Sth Cir. 1985)

SA-18

(per curiam); Joseph v. New Orleans Electrical Pension &

Retirement Plan, 754 F.2d 628, 630 (Sth Cir.), cert. denied, 474

U.S. 1006, 106 S.Ct. 526, 88 L.Ed.2d 458 (1985); accord Kuntz,

785 F.2d at 1411. In Yancy, the employer announced its intention

to modify the interest rate factor used to calculate lump sum

retirement benefits, but gave employees approximately three months

in which to retire under the older, more generous discount rate.

We denied standing to an employee who took early retirement

during the three months, received his lump sum payment, then sued

alleging that the amendment of the plan violated fiduciary duties

imposed by ERISA. We held that, lacking a claim for vested

benefits, he could not be deemed a plan “participant.” Yancy, 768

F.2d at 709.

For the second part of its conclusion—that the plaintiff lacked

a reasonable expectation of returning to covered employment — the

Mitchell court relied on the fact that the plaintiff had not sought

reinstatement. Mitchell, 896 F.2d at 474; see also Berger v.

Edgewater Steel Co., 911 F.2d 911, 922 (3d Cir.1990), cert.

denied, US. _, 111 S.Ct. 1310, 113 L.Ed.2d 244 (1991);

Kuntz, 785 F.2d at 1411. In the present case, the only request for

reinstatement in appellants’ original complaint is in the ADEA

claim, which we have held to be barred by the statute of

limitations. See section I, supra. However, this request does

indicate that appellants do desire court-ordered reinstatement.

We are not convinced that Firestone can be read to redyce the

Standing question to a straightforward formula applicable in all

cases. This seems particularly so in cases involving allegations of

discharge. ERISA § 510, 29 U.S.C. § 1140, makes it unlawful for

an employer to “discharge, fine, suspend, expel, discipline, or

discriminate against a participant" for exercising a right provided

by ERISA or “for the purpose of interfering with the attainment” of

a right provided by ERISA. The Supreme Court's recent

McClendon decision held that this provision would foreclose the

development of any state law cause of action for wrongful

termination to prevent vesting of pension benefits. /ngersoll-Rand

Co. v. McClendon, ___—>U.S. ___,, 111 S.Ct. 478, 485, 112

L.Ed.2d 474 (1990). The implication of the Court's holding that

the discharged employee must look solely to ERISA for his remedy

is that he would have standing to do so. Nevertheless, it is not

EE

SA-19

readily apparent that he would have standing under the construction

of Firestone urged by Mobil; he would be a former employee

lacking both a claim for vested benefits and (unless he requested

reinstatement) a reasonable expectation of returning to covered

employment. It would be unusual if in that situation his ability to

assert a claim at all turned on whether or not his requested relief

included reinstatement; it would seem more logical to say that but

for the employer's conduct alleged to be in violation of ERISA, the

employee would be a current employee with a reasonable

expectation of receiving benefits, and the employer should not be

able through its own malfeasance to defeat the employee’s standing.

Cf. Amalgamated Clothing and Textile Workers y. Murdock, 861

F.2d 1406, 1418 (9th Cir.1988) ("It would be ironic if the very

acts of benefit payment and plan termination that allegedly resulted

in a fiduciary personally obtaining ill-gotten profits should also

serve to deny plan beneficiaries Standing ... to redress the

fiduciaries’ alleged breach of the duty of loyalty.")."*

Therefore, recognizing that we are anchored at one end by

Yancy, we also believe that Yancy does not extend so far as to

encompass situations such as the one at issue in McClendon. The

question then becomes where on that axis the present case falls. A

few pertinent distinctions between the twa cases bear emphasis.

Yancy’s position as a retired employee who had received lump sum

benefits was largely of his own making. He was informed of the

plan amendment and of the efiects of each option open to him.

Our holding in the case amounts to a decision that he could not

both accept the offered inducement for early retirement and then

later complain of the choice to which he had been put; if he felt

that he was entitled to continue to work and then retire at the time

14,

We do not mean to imply that an employee's entitlement to

certain remedies might not turn on whether or not he was willing to return

to work. If, for example, he claimed entitlement to the fully vested

pension as damages, it might be perfectly reasonable to require that he

return to work at least for the additional length of time required for the

pension to vest. However, a wrongful discharge might give rise to other

damages as well, fot which reinstatement would not seem to be a logical

prerequisite.

SA-20

of his choice with a lump sum calculated at the old rate, he was

obligated to act consistently with his desired relief by remaining a

covered employee and challenging the plan amendment. The

violation he alleged — an amendment of the retirement plan that

amounted to a breach of fiduciary duty under ERISA § 409, 29

U.S.C. § 1109 — was not one that in and of itself divested

aggrieved parties of their status as covered employees able to sue.

McClendon, on the other hand, had no such choice. A discharge to

prevent vesting of benefits in violation of section 510 by definition

must be challenged by someone other than a current employee or

someone with a claim to vested benefits. Thus, the standing

question and the merits of an employee's claim are unavoidably

intertwined to some degree; whether a plaintiff has standing to

assert ERISA rights may depend upon whether he can establish a

discharge or some other conduct in violation of ERISA, but for

which he would have standing. See Amalgamated Clothing, 861

F.2d at 1410.

The Third Circuit alluded to this problem in its recent Berger

decision. There, Edgewater Steel amended its retirement plan to

eliminate two benefits: a lump sum payment in place of the first

three months of pension benefits, and a supplemental payment

given as an early retirement benefit to employees whose retirement

was in the mutual interests of the company and the retiree and was

approved by the company. Upon announcement of thest changes,

Berger and the other plaintiffs chose to retire before the

amendments became effective. They each received the three-month

lump sum provided automatically to all retirees, but none were

approved for the supplemental payment. Among the plaintiffs’

allegations were a charge that the elimination of the three-month

lump sum amounted to the elimination of an accrued benefit in

violation of ERISA § 204(g), 29 U.S.C. § 1054(g), and a charge

—that the amendment constituted an intentional interference with their

right to both benefits, in violation of ERISA § 510, 29 U.S.C. §

1140. The court, citing Kuntz and Yancy, held that the plaintiffs

did not have standing to assert their section 204(g) claim because

they had retired and accepted the benefits in a lump sum, and had

not asked for reinstatement. Berger, 911 F.2d at 921-22.

However, the court noted the contingency of this conclusion on the

denial of the plaintiffs’ section 510 claim. Jd. at 922. It stated:

SA-21

"Of course, we recognize that if the Employees were constructively

discharged as they do claim, they would not necessarily have to

return to work in order to have standing to claim a make whole

remedy." Jd."°

On the record before us, we cannot say where on the spectrum

between Yancy and McClendon this case falls. Because appellants

pleaded their ERISA claims only as contingent on preemption of

their state law claims, and because the district court did not rule on

the merits of the ERISA claims, appellants have not fleshed out

their ERISA claims and theories, or even identified with precision

which sections of ERISA they claim were violated. However, their

allegations do at least suggest an assertion that they were

constructively discharged in violation of section 510 and that but

for Mobil’s nondisclosure they would be covered employees with

standing to challenge the plan amendment. They allege deceptive

conduct by Mobil that might be found to vitiate the voluntariness of

their decision to retire and that might distinguish the present case

'S A Third Circuit decision in a pre-Firestone case provides an even

more direct illustration of the contingency of standing on the nature of the

ERISA violation alleged. In Saporito v. Combustion Engineering Inc.,

843 F.2d 666 (3d Cir.1988), vacated, 489 U.S. 1049, 109 S.Ct. 1306,

103 L.Ed.2d 576 (1989), the plaintiffs claimed that they had been induced

to retire under one retirement plan while the employer concealed the

development of a second plan with more favorable terms. The court held

that they did not have standing as participants in the first plan to sue for

breach of fiduciary duties because they had retired and received all of the

benefits to which they were entitled in a lump sum. /d. at 671. However.

the court did hold that they had standing as participants in the second plan

to argue that they had been tricked into retiring in violation of section 510,

because they alleged that “but for the selective divulgence of information,

they would have been members of [the second plan], and, for the purposes

of standing to bring an action under ERISA, should be considered as

such.” Id. at 672; see also id. at 672 n.7 (distinguishing Stanton v. Gulf

Oil Corp. , 792 F.2d 432 (4th Cir. 1986), in which the plaintiff urged “but

for” participant standing, but his claim was rejected because the events

precluding standing were under his control). Saporito was vacated and

remanded by the Supreme Court for further consideration in light of

Firestone, 489 U.S. 1049, 109 S.Ct. 1306, 103 L.Ed.2d 576 (1989).

SA-22

from both Yancy and Mitchell. Appellants also sought reinstatement

in their ADEA action, and did not affirmatively indicate that

reinstatement was not sought under their ERISA claims. For these

reasons, we cannot now foreclose the possibility that they could

prove facts that would create standing for them, and we believe that

the trial court’s dismissal on the pleadings of the ERISA claims was

premature. Of course, appellants can, and doubtless should, be

required to plead their ERISA claims with greater specificity.

We emphasize that we have not determined that appellants will

be able to establish a violation of section 510, only that they should

be allowed to attempt to do so. We reverse the trial court’s

dismissal of appellants’ ERISA claims and remand for further

proceedings consistent with this opinion.

Conclusion

For the reasons stated above, we affirm the district court’s

grant of summary judgment to Mobil on the ADEA claims and its

grant of judgment on the pleadings for Mobil on all of appellants’

state law claims. However, we reverse and remand the district

court’s dismissal of appellants’ ERISA claims.

AFFIRMED In Part; REVERSED And REMANDED In Part.

SA-23

Listing Pursuant to Sup. Ct. R. 29.1 of Mobil Oil

Corporation’s Parent and of All Non-Wholly-Owned

Subsidiaries of Which Mobil Oil Corporation Owns

at Least 5% (as of January 8, 1994)

MOBIL CORPORATION (PARENT)

ABRORAY PTY. LIMITED

ABU DHABI PETROLEUM COMPANY LIMITED

ACE POLYMER CO., LTD.

ADRIA WIEN PIPELINE GESMBH

AIMCO (ALPHA) SHIPPING COMPANY

AIMCO (OMEGA) SHIPPING COMPANY LTD.

AIRCRAFT FUEL SUPPLY B.V.

AIRTANKDIENST KOELN

AK CHEMIE GMBH & CO. KG

AKAUMA ASPHALT INDUSTRIES, LTD.

ALEXANDROUPOLIS PETROLEUM

INSTALLATION S.A.

AMMENN GMBH

ANDREWS OIL PTY. LIMITED

ANKARA GAZ SATIS A.S.

ARABIAN CHEMICAL TERMINALS

ARABIAN INTERNATIONAL MARITIME COMPANY

ARABIAN INTERNATIONAL MARITIME COMPANY

LIMITED

ARABIAN TRADING CO. S.A.

ARAL AKTIENGESELLSCHAFT

ATAS ANADOLU TASFIYEHANESI A.S.

ATLAS SAHARA S.A.

AUTOBAHN-BETRIEBE GESELLSCHAFT MBH

AVIATION FUEL SERVICES LIMITED

AYGAZ AS.

BALGEE OIL PTY. LIMITED

BANGKOK AVIATION FUEL SERVICES LIMITED

BAYERISCHE ERDGASLEITUNG GMBH

BAYERISCHE MINERAL-INDUSTRIE A.G.

BEER GMBH

BEER GMBH & CO. MINERALOEL-VERTRIEBS-KG

BIN SULAIMAN MOBIL TOWERS

SA-24

BRICKWOOD HOLDINGS PTY. LTD

CANADIAN SUPERIOR OIL (AUST.) PTY. LTD.

CANNER’S STEAM COMPANY, INC.

CANYON REEF CARRIERS, INC.

CAS (COMBINED AUTOMATION SYSTEM) B.V.

CENTRAL AFRICAN PETROLEUM REFINERIES

(PRIVATE) LIMITED

CERCERA S.A.

CHANGI AIRPORT FUEL HYDRANT INSTALLATION

PTE. LTD.

CHUBU TORESEN K.K.

COLLINS PIPELINE COMPANY

COLONIAL PIPELINE COMPANY

COMMODORE MARITIME COMPANY S.A.

COMPAGNIE AFRICAINE DE TRANSPORT CAMEROUN

(CAT.CN)

COMPAGNIE D’ENTREPOSAGE COMMUNAUTAIRE

COMPAGNIE DES PETROLES PRIMAGAZ

COMPAGNIE GENERALE DE LUBRIFICATION

COMPAGNIE RHEMANE DE RAFFINAGE--CRR

COMPAGNIE SENEGALAISE DES LUBRIFIANTS

COMPANIA DE LUBRICANTES DE CHILE LIMITADA

(COPEC MOBIL LTDA.)

CONSORTIUM RAYMOND DUEZ

COOK INLET PIPE LINE COMPANY

COREDIS

CYPRUS PETROLEUM REFINERY LIMITED

DEPOT PETROLIER DU GRESIVAUDAN

DEPOTS DE PETROLE COTIERS

DEPOTS PETROLIERS DE LA CORSE (DPLC)

DEUTSCHE PENTOSIN-WERKE GMBH

DEUTSCHE TRANSALPINE OELLEITUNG GMBH

DIXIE PIPELINE COMPANY

DUPONT & DEWULF N.V.

E.M.A. LUBRICANTS COMPANY LIMITED

EAST TEXAS SALT WATER DISPOSAL COMPANY

ENTREPOT PETROLIER DE MULHOUSE

ENTREPOT PETROLIER DE NANCY

ENTREPRISE JEAN LEFEBVRE

SA-25

ERDGAS-VERKAUFS-GESELLSCHAFT MBH

ERDOEL-RAFFINERIE NEUSTADT GMBH & CO. OHG

ERDOL-LAGERGESELLSCHAFT MBH

ESTACIONES DE SERVICIO ML, S.A.

ETABLISSEMENTS JOSEPH WALLACH

ETABLISSEMENTS ROHRMANN DUFOSSE

EURO‘LUB

EVANS PETROLEUM (GIPPSLAND) PTY LTD

FAIRWIND MARITIME COMPANY S.A.

FELIX OIL COMPANY

FIBIL S.A.

FILTROS DE COSTA RICA, S.A.

FRUEHMESSER GMBH

FRUEHMESSER MINERALOLHANDELS GMBH

& CO. KG

FUSO OPERATIONS KABUSHIKI KAISHA

GATWICK REFUELLING SERVICES LIMITED

GAZAL-GAZ ALETLERI A.S.

GEOMINES-CAEN

GEOVEXIN

GHANA BUNKERING SERVICES LIMITED

HEIZOL-HANDELSGESELLSCHAFT MBH

HELLAS GAS STORAGE CO. S.A.

HIBERNIA MANAGEMENT AND DEVELOPMENT

COMPANY LIMITED

HOKKAI SANSHI CO., LTD.

HYDRANTEN-BETRIEBS-GESELLSCHAFT

FLUGHAFEN/FRANKFURT

iNDUSTRIA INTERAMERICANA DE FILTROS LTDA.

“INTERFIL"

INTOPLANE SERVICES COMPANY LIMITED

IRANIAN OIL PARTICIPANTS LTD.

IRANIAN OIL SERVICES (HOLDINGS) LTD.

IRANIAN OIL SERVICES LIMITED

IRAQ PETROLEUM COMPANY LIMITED

IRAQ PETROLEUM PENSIONS LIMITED

ITALOIL S.R.L.

JAPAN AIRPORT FUELING SERVICE COMPANY,

LTD.

SA-26

K.K. SANKYO PLASTICS

K.K. TORESEN

KABUSHIKI KAISHA SERUBISU

KANSAI PETRO-TERMINAL CO., LTD.

KANTO KYGNUS SEKIYU HAMBAI K.K.

KARL STORZ GMBH & CO. KG

KAWASAKI KYGNUS SEKIYU HAMBAI K.K.

KEIYO SEA-BERTH COMPANY, LTD.

KEMCOR AUSTRALIA PTY. LTD.

KEMCOR ELASTOMERS LTD.

KEMCOR OLEFINS LTD.

KEMCOR PLASTICS PTY. LTD.

KLAUS KOEHN GMBH

KLAUS KOEHN GMBH & CO. MINERALOEL KG

KURT AMMENN GMBH & CO. KG

KYGNUS EKKA GAS KABUSHIKI KAISHA

KYGNUS KOSAN KABUSHIKI KAISHA

KYGNUS MARKETING SERVICE K.K.

KYGNUS SEKIYU KABUSHIKI KAISHA

KYGNUS SEKIYU SEISEI KABUSHIKI KAISHA

KYGNUS SHOJI K.K.

KYOKUTO SEKIYU KOGYO KABUSHIKI KAISHA

LA CENTRAFRICAINE DES PETROLES

LILAC SEKIYU K.K.

LIPET-LIKIT PETROL GAZI VE YAKIT TICARET A.:S.

LUBLEND LIMITED

LUBRICANTES DEL SUR, S.A.

MARCEAUX & CIE

MATCO TANKERS (U.K.) LIMITED

MID STATE PETROLEUM PTY. LIMITED

MINERALOEL-HANDELS-GESELLSCHAFT MBH

MINERALOELWERK WEDEL GMBH & CO. OHG

MOBIL CATALYSTS CORPORATION OF JAPAN

MOBIL COORDINATION CENTER N.V.

MOBIL DE COLOMBIA S.A.

MOBIL KOREA LUBE OIL, INC.

MOBIL MARKETING BARBADOS COMPANY LIMITED

MOBIL MOTOR REST S.A.

MOBIL OIL - AFOR KERESKEDELMI KFT.

SA-27

MOBIL OIL BARBADOS LIMITED

MOBIL OIL DE MEXICO, S.A. DE C.V.

MOBIL OIL DJIBOUTI

MOBIL OIL FRANCAISE

MOBIL OIL GABON

MOBIL OIL GHANA LIMITED

MOBIL OIL MAROC

MOBIL OIL NIGERIA PUBLIC LIMITED COMPANY

MOBIL OIL RWANDA BURUNDI

MOBIL OIL TAIWAN LTD.

MOBIL PRODUCING CAMEROON INC.

MOBIL RETAIL COMPUTER SERVICES KABUSHIKI

KAISHA

MOBILGAZ MOBIL PETROL GAZLARI A:S.

MOGESTE-GESTAO DE POSTOS DE

ABASTECIMENTO LDA.

MOTEL REST S.A.

MT. MARROW BLUE METAL QUARRIES PTY.

LIMITED

MULTI TANK CARD B.V.

N.V. ROTTERDAM-RIJIN PIJPLEIDING MAATSCHAPPIJ

N.V. SOCONY-STANDARD-VACUUM OIL COMPANY

(PETROLEUM MAATSCHAPPI)

NAKAJIMA KOSAN KABUSHIKI KAISHA

NEAR EAST DEVELOPMENT CORPORATION

NEW ZEALAND SYNTHETIC FUELS (HOUSING)

CORPORATION LIMITED

NEW ZEALAND SYNTHETIC FUELS CORPORATION

LIMITED

NICHIEI INDUSTRY CO., LTD.

NICHIMO OIL (BERMUDA) CO., LTD.

NIPPON UNICAR COMPANY, LIMITED

NORDDEUTSCHE ERDGAS-AUFBEREITUNGS

~GESELLSCHAFT MBH

NORVAC PTY. LIMITED

OCTAGON PTY. LTD.

OLDENBURGISCHE ERDOEL GESELLSCHAFT MBH

OSAKA KYGNUS K.K.

OVENS & MURRAY PETROLEUM PTY. LTD.

SA-28

P.T. ARUN NATURAL GAS LIQUEFACTION

COMPANY

P.T. STANVAC INDONESIA

PALOMA PIPE LINE COMPANY

PARS INVESTMENT CORPORATION (PRIVATE

COMPANY)

PAUL HARLING MINERALOEL GMBH & CO. KG

PERKAL PTY. LIMITED

PETROCAB

PETROCAM PTY. LIMITED

PETROGAS PROCESSING LTD.

PETROLEUM SERVICES (MIDDLE EAST) LIMITED

PETROMIN LUBRICATING OIL COMPANY

PETROMIN LUBRICATING OIL REFINING COMPANY

PETROMIN-MOBIL YANBU REFINERY

COMPANY LTD.

PETROFUIMICOS MOBIL INTERNACIONAL DEL

ECUADOR, C.A.

PLASTICS AND CHEMICALS LABORATORY,

N.V./S.A.

PLEGADIZOS PARA LA INDUSTRIA, S.A.

PRESNALL PTY. LIMITED

PROGAS LIMITED

PROVIDANGE

P6-GROEP B.V.

R. SHERWOOD LIMITED

RAINBOW PIPE LINE COMPANY LTD.

RED SEA PLASTIC FACTORY COMPANY LIMITED

REGULUS HOLDING (SINGAPORE) PTE. LTD.

REITBERGER MINERALOELE GMBH & CO. KG

RHODES PETROLEUM INSTALLATION S.A.

ROHOL-AUFSUCHUNGS GESELLSCHAFT MBH

RUHRGAS AKTIENGESELLSCHAFT

RUNDEL MINERALOELVERTRIEB GMBH

S.C. BRUSSELS AIRFUELS SERVICES C.V.

SABA-SOCIEDADE ABASTECEDORA DE

AERONAVES LDA.

SARL ETABLISSEMENTS MICHEL FAURE

SAUDI MARITIME COMPANY LTD.

SA-29

SAUDI YANBU PETROCHEMICAL CO.

SAWYER PETROLEUM PTY. LTD

SCHUBERT KOMMANDITGESELLSCHAFT

SEGHER DE MEXICO, S.A. DE C.V.

SIERRA LEONE PETROLEUM REFINING

COMPANY LIMITED

SIGEL INCORPORATED

SOCIETA’ ITALIANA PER L’OLEODOTTO

TRANSALPINO - SIOT S.P.A.

SOCIETE "LES FILS DE FERRERO"

SOCIETE AFRICAINE DE RAFFINAGE (S.A.R.)

SOCIETE ANONYME DE GESTION DES STOCKS

DE SECURITE

SOCIETE BELGE DE TRANSPORT PAR PIPELINE S.A.

SOCIETE CAMEROUNAISE DE DEPOTS PETROLIERS

(S.C.D.P.)

SOCIETE D’ENTREPOSAGE DE GABES

SOCIETE D’ENTREPOSAGE DE SAN PEDRO

SOCIETE D’ENTREPOSAGE PETROLIER AU BURUNDI

(SEP BURUNDI)

SOCIETE DE CONSTRUCTION & DE GESTION CB.12

SOCIETE DE GESTION DE DEPOTS

D’HYDROCARBURES

SOCIETE DE GESTION DES STOCKS PETROLIERS

DE COTE D'IVOIRE (GESTOCI)

SOCIETE DE MANUTENTION CARBURANTS

AVIATION DE TAHITI (SOMCAT)

SOCIETE DE MANUTENTION DE CARBURANTS

AVIATION (S.M.C.A.)

SOCIETE DE MANUTENTION DE CARBURANTS

AVIATION DAKAR-OFF

SOCIETE GABONAISE D’ENTREPOSAGE DE

PRODUITS PETROLIERS

SOCIETE GABONAISE DE RAFFINAGE

SOCIETE IVOIRIENNE DE FABRICATION DE

LUBRIFIANTS (S.1.F.A.L.)

SOCIETE IVOIRIENNE DE RAFFINAGE

SOCIETE MALIENNE D’ENTREPOSAGE (S.M.E.)

SOCIETE MAURITANIENNE D’ENTREPOSAGE DE

SA-30

PRODUITS PETROLIERS

SOCIETE NATIONALE DE RAFFINAGE

SOCIETE PIZO DE FORMULATION DE LUBRIFIANTS

SOCIETE STATION-SERVICE LUNES

SOCIETE TAHITIENNE DE DEPOTS PETROLIERS

SOCIETE TAHITIENNE DES OLEODUCS (STDO)

SOCIETE TCHADIENNE D’ENTREPOSAGE DE

PRODUITS PETROLIERS

SOCIETE TOGOLAISE D’'ENTREPOSAGE

SOCIETE WALLISIENNE ET FUTUNIENNE

D'ENTREPOSAGE DE PRODUITS PETROLIERS

SOCIETE ZAIROISE D’'EMBALLAGE

SOUTH SASKATCHEWAN PIPE LINE COMPANY

STANSTED FUELING COMPANY LIMITED

STATFJORD TRANSPORT A.S.

STE CAMEROUNAISE EQUATORIALE DE

FABRICATION DE LUBRIFIANTS (S.C.E.F.L.)

STE DES BITUMES & CUT-BACKS DU CAMEROUN

(S.B.C.B.C.)

STRASBURGER ENTERPRISES (PROPERTIES) PTY.

LIMITED

SUN EAST COMPANY LIMITED

SUNDERLAND OIL STORAGE LIMITED

SUPERIOR DISK CORPORATION

SYDNEY METROPOLITAN PIPELINE PTY. LIMITED

T&M TERMINAL COMPANY

TANKBAU-GMBH

TANKLAGERGESELLSCHAFT KOELN-BONN

TAR TANKANLAGE RUEMLANG A.G.

TCA PLASTICS, INC.

TECKLENBURG GMBH

TECKLENBURG GMBH & CO. ENERGIEBEDARF KG

TEMA LUBE OIL COMPANY LIMITED

TGF TANKDIENST-GESELLSCHAFT FRANKFURT

THAILAND SOLVENT PRODUCTS LIMITED

THE ARABIAN ENERGY COMPANY LIMITED

THE ARABIAN PETROLEUM SUPPLY CO. (S.A.)

THE NEW ZEALAND REFINING COMPANY LIMITED

THE SAUDI CAN COMPANY LTD.

eel

SA-31

TOHPREN CO., LTD.

TOKUSHIMA SEKIYU KABUSHIKI KAISHA

TONEN CHEMICAL CORPORATION

TONEN CORPORATION

TONEN ENERGY AND MARINE (SINGAPORE)

PTE. LTD.

TONEN ENERGY INTERNATIONAL CORPORATION

TONEN FILARE CO., LTD.

TONEN FILM CO., LTD.

TONEN PROPERTIES INC.

TONEN SOGO SERVICE CO., LTD.

TONEN SYSTEM PLAZA INC.

TONEN SYSTEM SERVICE INC.

TONEN TANKER KABUSHIKI KAISHA

TONEN TAPYRUS COMPANY LIMITED

TONEN TECHNOLOGY KABUSHIKI KAISHA

TONEX COMPANY LIMITED

TOWA COMPOUNDING COMPANY, LIMITED

TOYOSHINA FILM COMPANY, LIMITED

TRANSALPINE OELLEITUNG IN OESTERREICH

GESELLSCHAFT M.B.H.

TRESKOME PTY. LIMITED

TRYICE PTY. LIMITED

TULLIA 89 S.R.L.

TWIFO OIL PALM PLANTATIONS LIMITED

UBAG UNTERFLUR-BETANKUNGSANLAGE AG

UNITED KINGDOM OIL PIPELINES LIMITED

W.A.G. PIPELINE PTY. LIMITED

WAITOMO/BRENAN PETROLEUM LIMITED W/BP

_WAKO JUSHI KABUSHIKI KAISHA

WALTON-GATWICK PIPELINE COMPANY LIMITED

WERNER WEIDEMANN MINERALOELVERTRIEB GMBH

WEST LONDON PIPELINE AND STORAGE LIMITED ane

WEST SHORE PIPE LINE COMPANY

WIRI OIL SERVICES LIMITED

WOLVERINE PIPE LINE COMPANY

WYMONDHAM OIL STORAGE CO. LIMITED

ZAIRE MOBIL OIL S.A.R.L.

ZAIRE S.E.P.