# Opposition Brief — Morrison v. Mobil Oil Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1118

## Text

ce 0, ae S

i i Sal te a eit} Lain RCE GE
0. 93-1082 iw Gourt, U.S, f
eee
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.

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1037%3A3. Public record. Not legal advice.